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Judge Gregory Todd retires, remains concerned about separation of powers – Daily Montanan

['Ashley Nerbovig', 'More From Author', '- January']

Date: 2022-01-16 00:00:00

Testimony during the last Legislative session frightened Yellowstone County District Court Judge Gregory Todd, who retired in December after 21 years on the bench.

“I’m concerned about the number of legislators that have joined the attacks on the judiciary without fully appreciating our systems of checks and balances,” Todd said a couple of weeks before his exit.

When 71-year-old Todd left the bench, he was the longest seated judge in Montana’s busiest judicial district. Todd signed the death warrant of the last man Montana executed – and the state hasn’t executed someone in 15 years.

In what turned out to be his last year, the judge landed at the center of a tumultuous power-struggle in state government. The Montana State Legislature’s Republican leadership tried to investigate and discipline the judiciary, an effort the Montana Supreme Court later called an overreach. But as part of its inquiry, the Legislature scrutinized Todd’s work as head of the judges’ association.

A lot of attorneys used to aspire to be a district court judge, said Jeanne Walker, a Yellowstone County justice of the peace and one of Todd’s former law clerks. Now, she said she thinks the high caseloads deter more people than the title attracts.

In 2001, Republican Gov. Marc Racicot appointed Todd over 12 other applicants. Gov. Greg Gianforte selected Todd’s successor from a pool of four. The public should be grateful that good people like Senior Deputy Yellowstone County Attorney Brett Linneweber still want the job, Todd said.

“It becomes a thankless position in many regards,” Todd said. “And when you have attacks from the Legislature, it makes it that much more difficult.”

In Todd’s final month, the Legislature’s initiative continued as Montana Attorney General Austin Knudsen, with Gianforte’s support, asked the U.S. Supreme Court to review the state court’s ruling on the Legislature’s investigative authority.

Meanwhile, Todd prepared to transfer his docket to Linneweber. Even as he neared retirement, Todd often arrived early to the courthouse and left late, Walker said.

Ask more questions

In January 2021, Todd started a new six-year term as the Montana Legislature reconvened and its effort to reshape the judiciary unfolded.

The political pendulum swings back and forth, said Todd, who served as president of the Montana Judges Association during the session; sometimes legislative action favors you, sometimes it doesn’t. But he said what happened in the last session wasn’t normal politics, and the extreme nature of proposed bills strained relations between Montana’s judicial and legislative branches.

“The whole idea of separation of power was either being ignored or purposely thrown out the window,” Todd said.

Appearing by video, Todd lobbied against bills such as making judicial elections partisan, changing who sat on the Judicial Standards Commission, and the controversial Senate Bill 140, which proposed disbanding the Judicial Nomination Commission in favor of allowing governors to make direct judicial appointments to vacant seats.

As far back as 2013, Montana’s GOP discussed a plan to create a Montana Supreme Court that would uphold conservative legislation without finding a “constitutional block,” according to emails leaked to the Great Fall Tribune.

“It’s one thing to disagree with a judge’s ruling,” Todd said. “It’s another thing to try to replace them with a judge who has to take a loyalty oath to those in power.”

After SB140 became law, the controversies that orbited it intensified. The Republican-led Legislature formed the Joint Special Select Committee on Judicial Accountability and Transparency to investigate judicial bias — including Todd’s role as head of the state judges’ association. While the committee expressed concern over what it found in its investigation, Montana Supreme Court Chief Justice Mike McGrath said the report’s foundation was based on faulty legal logic.

The Legislature allocated $285,000 to continue its investigation but has not met in about eight months, according to the Montana State Legislature’s website.

A few months after the session, the Montana Supreme Court ruled 6-1 in favor of the legality of SB140.

The United States was founded on a revolution, Todd said, and he thinks some people want another one. But he said the wisdom of checks and balances built into the system is there to keep one faction of the government from overreaching.

While he said he was concerned about the number of legislators who attacked the judicial system, he is also worried about the citizens who permit those attacks.

“I hope the general public will ask more questions and think about the type of government that they really want,” Todd said.

With Todd’s retirement, the role of Montana Judges Association president went to 7th Judicial District Court Judge Olivia Rieger, who presides over cases in Dawson, Wibaux and Prairie counties. Even though he will no longer lead the association, Todd said he plans to stay in touch with former judicial colleagues, legislators and the public if legislators continue to attack the judiciary in the next session.

“I’m trying to bring some perspective to any discussions about attempts to radically change the judicial system,” Todd said.

A final dust up

Within weeks of Todd’s retirement announcement, he made headlines statewide when the Montana Attorney General’s Office accused him of bias against the state.

The allegation came as Todd weighed whether to pause implementation of three abortion laws until a related lawsuit was decided. While awaiting Todd’s decision, Solicitor General David Dewhirst filed a motion to remove the judge, pointing to a comment Todd made after the judge said lawmakers were legislating new medical standards.

Dewhirst said Todd was correct.

Then Todd said, “Like they’ve done in the judiciary as well. But that’s a different topic, right?”

This remark displayed a lack of impartiality by Todd, Dewhirst said.

When an accusation of bias is lodged against judges, they are supposed to contact the Montana Supreme Court, which Todd did. He said rather than let it “become a political football,” a new judge was assigned.

Some judges are quiet on the bench, and some enjoy verbal sparring, Todd said.

“I was never passive on that front,” Todd said. “I enjoyed asking questions and pushing the logic of people on both sides of an issue.”

Flipping off a judge

In his couple of decades on the bench, Todd heard a minimum of 26,000 cases, an average of more than 1,200 a year. He was well liked and respected by the attorneys who argued in front of him, his fellow judges and the people who worked for him.

With Todd’s retirement, the county will lose a good judge, Yellowstone County Attorney Scott Twito said. With Todd’s years of judicial experience Twito’s office tended to prosecute some of its most serious cases in front of the judge. On a personal level, Twito said he’d miss Todd’s sense of humor.

Twito said he remembered a day when he’d arrived late to work. He’d just gotten into the parking lot and he was trying to get his stuff together. He knew he was in for a horrible day, he said.

The weather was nice and a lot of people in the courthouse had opened their windows. As Twito was running toward the building, he heard someone yell down, “‘the boss, waddling in late as usual,’ or something like that,” Twito said.

Thinking it was one of his attorneys, Twito flipped them off. As he ran inside, he heard a booming laugh. Twito swore as he realized it was Judge Todd.

When the county attorney went to apologize, Todd laughed, Twito said. Todd told Twito he fully expected that kind of response.

When Todd was first appointed, Yellowstone County District Court Judge Michael Moses was president of the local bar association, and Moses gave a congratulatory speech at Todd’s swearing-in ceremony. Moses said he called Todd the perfect candidate: Todd was one of the few judges who had experience in about every single area of the law.

The Yellowstone County bench and judges across the state respected Todd and he was an important leader for them, Moses said. Todd was critically important in convincing the Legislature to fund two additional judges for Yellowstone County. The approval came in 2017, the same year Yellowstone County District Court split more than 10,400 cases among six judges; when Todd first took the bench, five judges handled about half that number of cases.

Todd is “off the charts intelligent” with an unbelievable memory, Moses said. When Moses joined the bench, he’d knock on Todd’s door when he had a question.

“And I still have plenty of questions, and I still go knock on his door,” Moses said. “We’re going to miss that experience.”

Citing the Beatles, a puppy on his chest

Managing the unmanageable amount of work, bad divorce cases and hard testimony about rape and murder alongside Todd was Judicial Assistant Marris Harris. As people recounted their stories of Todd, more than once they described him as one half of a “dynamic duo” with Harris.

“She was invaluable,” Todd said. “I’ll miss her, and I know she’ll miss me because she’s family.”

Said Harris: “I told him though, he can’t get rid of me that easily. I know where he lives.”

Harris joined Todd’s staff about a year into his time as judge. Warm and good with people, Harris helped to make Todd’s office accessible, something he always liked.

Once when Billings attorney Veronica Procter was in trial before Todd, Procter’s mom brought in her new puppy to meet Harris. Harris called for the judge to come see the dog, and Todd came out, picked up the puppy and went back into his chambers.

“He’s just sitting at his desk, in his big old chair, talking with the puppy with it on his chest,” Procter said.

In one of Todd’s more famous moments, he issued an order referencing a bunch of The Beatles’ songs. The defendant in the case had asked the judge to “Let it be” when it came time to sentence him.

Because Todd was an “old school paper guy, not a computer guy” he always dictated his orders, and Harris wrote them. When he worked on the Beatles’ order, Harris was right there with him, laughing and typing.

Off the bench

When people first meet Todd, he can have a hard outer shell, Moses said, but he’s a delightful man. Beyond what he did as a district court judge, Todd made a difference in the Billings community. Moses said Todd worked “forever” with Family Promise of Yellowstone Valley, which is a community of 26 faith-based congregations that help unsheltered families by hosting them in their homes.

“The guy has just got a giant heart,” Moses said.

Montana Supreme Court Justice Ingrid Gustafson sat on the Yellowstone County District Court with Todd for about 14 years before she joined the state supreme court. Some of her fondest memories of him had to do with his contributions to the Billings community, she said.

The two sat on the Amend Park Development Council together. In Gustafson’s experience, boards meet quarterly or once or twice a year, she said. But the Amend Park board met every week for years, and by the end, the council turned an Alfalfa pasture into a 50-acre city park with multiple soccer fields, a picnic area, a snack bar and bathrooms.

One of the best things Todd did in his career, Gustafson said, was take over the Yellowstone Family Recovery Treatment Court. She remembered attorneys said they saw a change in Todd after that.

“The challenges that people face in their lives are not as black and white as sometimes we think they are before we run a drug court,” Gustafson said. “And sometimes how we think we will change behaviors is not how we do change behaviors.”

In his retirement announcement, Todd said running the treatment court was the hardest and most rewarding part of his career. Yellowstone County District Court Judge Jessica Fehr was assigned to take over the treatment court after Todd’s retirement. She attended the court in the last few months to learn.

“It’s so clear how much he cares about everyone in his treatment court,” Fehr said.

Some of the people Todd saw in criminal court came back and thanked him for the role he played in their lives, Harris said. A man Todd sentenced on an alcohol charge came back year after year because he felt Todd saved his life. Todd would always take the time to bring him into his office and talk with him.

Giving up the gavel

A couple of years ago, Todd’s doctor diagnosed him with Parkinson’s Disease. Through medication, diet and exercise, he’s kept most of the symptoms in check. Todd was blunt about the prognosis, though.

“It’s obviously not going to get better,” he said.

Gustafson said she hoped in retirement Todd would reconnect with some of the things the job took away. He’s got two lovely daughters to spend time with and great grandkids, she said.

“The caseload in Billings is very busy, and it has just grown exponentially and it’s busy, busy, busy, busy,” Gustafson said. “I think he lost some of his sports enthusiasm and outdoor enthusiasm because work was so demanding.”

With Todd’s departure, none of the judges Gustafson started out with are still on the bench. But a lot of new judges have joined and met the challenge of Yellowstone County’s high caseload, she said.

“I see it as the beginning of a new adventure for him,” Gustafson said. “But maybe also the end of an era.”

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