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State claims judge in abortion lawsuit showed 'bias'

According to court documents provided by the state Attorney General's office, a different Yellowstone County judge will preside over a lawsuit filed by Planned Parenthood of Montana seeking to halt the implementation of three new abortion laws in Montana after the state asked to disqualify the original judge.

According to a notice of judge substitution filed in Yellowstone County District Court on Wednesday and signed by the deputy clerk of the court, District Court Judge Gregory Todd, who said last week he would decide on issuing an injunction on the laws before Friday, is off the case and was replaced by District Court Judge Rod Souza.

The portion of law Solicitor General Dewhirst cited in his request to replace Todd says when a party alleges bias or prejudice from the presiding judge, the matter should be referred to the state Supreme Court. However, Wednesday's filings were made to the district court and the district court deputy clerk signed the substitution document.

Dewhirst is defending the laws for the attorney general's office on behalf of the state.

Another segment of state law entitles each party in a civil action one substitution without a specific cause, which the state had already used in this case.

The notice from the district court was called a "notice of judge substitution" but also refences the filing of an "order of disqualification." It wasn't clear Wednesday if Todd, who is retiring at the end of the year, voluntarily stepped aside.

The move came after Dewhirst filed a motion seeking to disqualify Todd, citing comments the judge made during a hearing Sept. 23. Dewhirst's request references disqualification when a judge "has a personal bias or prejudice concerning a party or a party's lawyer."

"Judge Todd revealed his displeasure and disagreement with the state, the Attorney General and his clients, and other executive branch officials regarding a separate and complex political and legal dispute between Montana’s judiciary, the Legislature and the executive branch—a dispute in which Judge Todd features prominently," Dewhirst wrote.

During the Sept. 23 hearing, comments from Todd hit on the ongoing dispute between the judiciary branch and the Legislature.

After Todd said lawmakers were legislating additional medical standards, a statement Dewhirst agreed was accurate, Todd added "Like they've done in the judiciary as well. But that's a different topic, right?"

Republican lawmakers have been pursuing the judiciary since the start of the legislative session this January, eventually forming a Select Committee on Judicial Transparency and Accountability. That came after lawmakers unearthed emails showing judges weighing in on legislation that would affect the judiciary, a practice the chief justice of the state Supreme Court has defended.

As president of the Montana Judges Association, Todd had asked the state Supreme Court administrator to poll fellow judges by email on a bill changing how judicial vacancies are filled and testified against several bills this session that proposed to change the judiciary.

After Todd followed up in Thursday's hearing with a comment that issues of the judiciary were not part of the discussion, Dewhirst replied "I would hope not."

In Wednesday's filing, Dewhirst argued "This comment calls into question his ability to maintain an 'open mind' to the state’s arguments in Planned Parenthood."

In the filing, Dewhirst also said the state did not get a transcript of last week's hearing until Sept. 28 after 5 p.m., and that it filed its motion within 24 hours.

In an email late Wednesday, a spokesperson for the attorney general's office applauded the substitution document.

"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. Every Montanan deserves a fair and impartial judiciary," said spokesperson Emilee Cantrell. In April, a district court judge stepped down from a case challenging the constitutionally of the new law granting the governor the power to directly fill judicial vacancies after a filling by Republican Attorney General Austin Knudsen.

The abortion laws are set to take effect Friday if an injunction is not issued.

The laws being challenged would ban abortions after 20 weeks gestational age; require a woman be informed of the option to view an ultrasound before an abortion; and require informed consent before a drug-induced abortion and block providing the medication through the mail.

There's a fourth law included in the lawsuit filed in August, to prohibit health insurances plans sold in the federal exchange in Montana from covering abortion care, but it's not part of the preliminary injunction request.

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