Five former county attorneys, ACLU file brief against AG Knudsen
By Jordan Hansen DAILY MONTANAN
Five former county attorneys and the American Civil Liberties Union have each filed a brief in support of Gallatin County Attorney Audrey Cromwell in a state Supreme Court battle against state Attorney General Austin Knudsen regarding sharing of confidential criminal justice information.
The disagreement centers on whether federal immigration agencies’ requests for information fall under state law, what process they should use to get that information and Knudsen’s takeover of the Gallatin County Attorney’s office, using a process called “supervisory control.”
Knudsen has said U.S. Immigration and Customs Enforcement is a criminal justice agency in all situations, but Cromwell — and now the former attorneys, as well as the ACLU — has said ICE sometimes acts as a civil agency, meaning they would have to go through the same document request process as a private citizen or journalist.
“When non-criminal justice agencies—or agencies acting for civil administrative purposes—seek (confidential criminal justice information), counties have relied on the statute’s court-order mechanism to protect statutory and constitutionally protected privacy rights to ensure lawful disclosure,” the county attorney’s brief reads. “Doing so is critical to protect counties from liability for improper disclosure.”
The ACLU brief, which is separate from the brief the former county attorney’s wrote, adds the information requested could include, “criminal investigative information, criminal intelligence information, fingerprints, intelligence photographs, or criminal legal records made confidential by law.”
Cromwell had asked Knudsen for an opinion to clear up the matter, which he has the ability to do by state statute, though isn’t required to do so. The new briefs point out that if he did write an opinion, it would be reviewable by the courts.
The brief was filed on June 29, days before a large ICE raid in the Bozeman area.
“This functioning of the CJIA (Montana’s Criminal Justice Information Act) is neither novel nor obstructionist; it is how Montana’s legislature has harmonized cooperation and constitutional privacy,” the county attorney’s brief reads.
Former county attorneys included in the brief included former Lewis and Clark County Attorney Leo Gallagher, who was in office when Knudsen asked local prosecutors to drop gun charges in a case involving a Helena man threatening restaurant workers after he was asked to wear a mask during the pandemic.
Former Ravalli County Attorney George Corn is also included in the brief, as is Tom Meissner, who was the first full-time county attorney in Fergus County. Larry Epstein and Fred Van Valkenberg are in the brief supporting Cromwell too — Epstein is a former Glacier County attorney who has lobbied for Montana law enforcement and county attorneys and Van Valkenberg was Missoula County’s attorney for 16 years.
