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Attorney General Austin Knudsen won’t be facing a contempt order from court in a wrongful discharge lawsuit.
A former Montana Highway Patrol chief who is suing Knudsen and the state argued that the attorney general should be found in contempt for allowing the Department of Justice to disseminate confidential personnel information — an allegation the DOJ denied.
A district court judge denied the motion to set a contempt hearing last month. Lawyers for the state called the motion “unorthodox” and “a red herring.”
In the lawsuit, former Highway Patrol Col. Steve Lavin alleged he was wrongfully terminated after he launched a management review and workplace climate survey.
As part of that lawsuit, lawyers for Lavin alleged the DOJ shared private information about Lavin with political consultant Jake Eaton and The Political Company, and Eaton more widely released it in an email to clients.
The Political Company provided fundraising consulting to Knudsen, a Republican re-elected as attorney general in November.
In the email, Eaton criticized Lavin as “an inept leader” albeit “super nice guy.”
The court filing from Lavin’s lawyers didn’t specify which part of the email it considered private personnel information.
Eaton is not party to the lawsuit, but he earlier told the Daily Montana the criticisms in his email came from social media and gossip circles, not the DOJ.
In its response to the motion, Brown Law Firm lawyers representing Knudsen argued the state shouldn’t have to argue for Eaton, a third party, who acted as a private individual “with no official judicial or ministerial duties.”
Regardless, they also said Eaton’s explanation to the Daily Montanan that his sources did not include the DOJ make the contempt motion moot.
Plus, they said, the timing didn’t add up for such a motion.
They said the lawsuit was still “in its infancy,” their deadline to answer hadn’t even passed before the contempt motion came up, and it could “only be classified as a poorly masked attempt to force defendants to appear prior to their statutorily prescribed deadline.”
The lawyers argued that when contempt isn’t committed in open court or within the purview of the presiding judge, an affidavit outlining the facts constituting contempt needs to be presented, and one was not. So they said the judge should deny the motion.
In the order last month, Lewis and Clark County District Court Judge Michael McMahon agreed with the state’s argument about the need for an affidavit outlining “a statement of the facts.”
The order denied the plaintiff’s request that the court set a hearing “to allow defendants to answer why they should not be held indirect civil contempt.”
The order said the contempt motion was not supported by an affidavit, required when contempt is alleged outside the view of the court. It also said the Montana Supreme Court had found procedures must be followed in such cases.
In a phone call, lawyer Ben Reed, representing Lavin, said the team’s interest in raising concerns about the email was to ensure the dispute remained focused on the allegations of wrongful termination — and stayed between the parties in the case without interference from outsiders.
“We simply wanted to bring these issues to the attention of the court and make it clear that the case is about what’s in front of the court, and not about what’s not (in front of the court), and to try and keep third parties from joining into the chorus,” Reed said.
Reed, of the Delli Bovi, Martin and Reed firm, also said the plaintiffs will carry on with the lawsuit.
“We’re confident that we can move on in good order and according to the rule of law,” Reed said.
Spokespeople from the DOJ did not respond to requests for comment. In response to the allegations in the lawsuit, the DOJ earlier said Lavin agreed to retire after the Highway Patrol “lost confidence” in him.
In their court filing about the motion for contempt, they said the lawsuit is only about employment.
“Defendants view this as an employment matter — one where the plaintiff signed a release as part of a negotiated severance agreement, which is a complete defense to plaintiff’s claims in this matter,” said the lawyers for Knudsen. “Plaintiff is merely trying to distract from that fact with a red herring motion.”