UPDATED: State seeks judge’s recusal in abortion case, involving state Supreme Court

Update as of 9:48 a.m., Thursday, Sept. 30:

Attorney General Austin Knudsen’s motion seeking the recusal of a Yellowstone County District Court judge from a case involving three abortion restriction laws has been filed for review by the Montana Supreme Court. 

The laws, challenged by Planned Parenthood of Montana, are set to go into effect Friday, Oct. 1, unless a judge issues a requested preliminary injunction. The filing with the Supreme Court sets in motion a less-than-24-hour timeline for the case to be assessed and possibly reassigned for adjudication by another judge. Until then, Todd remains on the case.

Confusion overtook both parties in the case, as well as members of Yellowstone County District Court, after Knudsen’s office filed its motion alleging bias by Judge Gregory Todd late Wednesday afternoon, shortly before the close of business hours. The county’s clerk of district court confirmed to Montana Free Press Thursday morning that the case had been briefly and mistakenly reassigned to Judge Rod Souza around 5 p.m. Wednesday, an action the clerk later rescinded, citing the proper procedure for the Supreme Court’s review.

An email from Judge Gregory Todd Thursday morning explained that the reassignment was “[o]bviously … premature” and has since been walked back.

“[W]hen I arrived at work this morning, I read Ms. Smithgall’s email of 5:32 a.m. that I had disqualified myself,” Todd said, referring to a member of the state’s defense team. “I have not disqualified myself. I am awaiting guidance from the Supreme Court concerning the Motion to Disqualify. That is the current status of the case.”

The attorney general’s office has not commented on the procedural dust-up as of Thursday morning.

In a statement, Planned Parenthood of Montana CEO Martha Stahl said Knudsen’s Wednesday motion to disqualify the judge was “an open attack on Montanans’ constitutional right to privacy.”

“This morning, Planned Parenthood of Montana, on behalf of its patients, filed a petition for emergency relief at the Montana Supreme Court to prevent the laws from going into effect as a result of the government’s outrageous delay tactics,” Stahl said.

Published at 8:16 p.m. Wednesday, Sept. 29:

Lawyers from the office of Montana Attorney General Austin Knudsen have filed an eleventh-hour motion asking a Yellowstone County District Court judge to recuse himself for alleged bias against state attorneys in a case involving three abortion restriction laws set to go into effect on Friday, Oct. 1. 

The motion comes nearly a week after attorneys for the state and Planned Parenthood of Montana appeared in Judge Gregory Todd’s Billings courtroom for oral arguments. The plaintiffs had asked Todd to issue a preliminary injunction to block House Bills 136, 140 and 171 from taking effect while the case is litigated. Todd told the parties he would issue a ruling before Friday.

On Wednesday afternoon, state attorneys filed a motion and supporting brief asking Todd to remove himself from the case, citing a comment the judge made Thursday that the state said displayed “personal bias and prejudice” against the defendants. 

A partial transcript included in the state’s filing showed the Thursday exchange in question. Montana’s Solicitor General David Dewhirst had argued to the judge that the state Legislature has “a role to play” in setting standards for medical groups. Todd replied, “Like they’ve done in the judiciary as well. But that’s a different topic; right?” 

“I’m not sure I understand what you’re talking about,” Dewhirst replied.

“Well, that’s not in discussion here today,” Todd said.

“I would hope not,” Dewhirst said. 

State lawyers said Wednesday that Todd’s comment appeared to refer to the recent political and legal dispute between Republican legislators, represented by the state attorney general, and the Montana judiciary, instigated by several bills introduced by the Legislature earlier this year to change judicial branch processes. At the time of the legislative session, Todd was president of the Montana Judges Association, which spearheaded polling of district court judges to assess their support for or opposition to some of the bills under consideration. Partial responses to those polls prompted Republicans to issue a broad subpoena to members of the judiciary, which the state Supreme Court later ruled was invalid. 

The state’s filing said Todd’s comment last week “calls into question his ability to maintain an “open mind” to the state’s arguments” in the case brought by Planned Parenthood of Montana.

“The State did not initially seek to disqualify Judge Todd because the State believed Judge Todd could put his personal feelings aside and dispense unbiased justice in this case,” the state wrote in its Wednesday brief. “His interjection at oral argument last week proved the State wrong.”

After PPMT first filed the lawsuit in Yellowstone County challenging a handful of abortion restriction laws, the case was assigned to Judge Jessica Fehr. Three days later, she removed herself from adjudicating the issue. The case was then passed to Judge Donald Harris. A week later, the state requested that a new judge be substituted for Harris, a move that finally landed the case with Judge Todd. 

Montana law states that a party may file only one substitution motion for a judge at the district court level. If a party alleges a judge has displayed bias, the case is referred to the Montana Supreme Court, where the chief justice may “assign a district judge to hear the matter.”

State attorneys filed their motion in Yellowstone County on Wednesday afternoon. Around 5 p.m. the county stamped a recusal notice stating that Todd had stepped down from the case and that it had been reassigned to Judge Rod Souza. Roughly 15 minutes later, the county’s clerk of district court told Montana Free Press the documents instead needed to be filed with the state Supreme Court and would therefore be removed from the district court’s case file. 

The state’s filings had not been processed by the state Supreme Court by the time of publication Wednesday evening. 

In a statement, a press secretary for the attorney general’s office touted Knudsen’s decision to ask for Todd’s recusal.

“Attorney General Knudsen once again took action to hold a judge accountable for their egregious bias and once again, the judge exited the case within minutes,” said Emilee Cantrell. “Every Montanan deserves a fair and impartial judiciary.”

Contacted by email, a representative of Planned Parenthood of Montana said the organization would wait until Thursday to comment on the proceedings.

Depending on the Supreme Court’s response, a district court judge could take over the case and issue a ruling on whether to block the abortion restrictions before the Friday effective date. A preliminary injunction could also be issued after the effective date if a judge so chooses.