Supreme Court Justice Robert Brown
and Judge David Stewart
on the perils of electing judge
s. Special interest money and conflict of interest come with elections, as recent events show.
Ernie's column, which includes a tribute to Blue Hog Report's exposure of injudicious activities, follows:
By ERNEST DUMAS
We owe a debt to Matt Campbell for exposing the ethical breaches of public officials like Lt. Gov. Mark Darr and Judge Mike Maggio but even more for alerting us to a graver danger, corruption of the judiciary.
Could someone give him the Alexander Hamilton Award? It was Hamilton who argued that an independent judiciary was essential to the constitutional system because only courts free from the duress of government, private interests and public passions could guarantee people’s rights.
Campbell is the blogger who exposed Judge’s Maggio’s slurs against women, blacks, gays and the poor on a sports website under the pseudonym “Geauxjudge” and then revealed confidential adoption information from the Faulkner County courthouse where he toiled, all in violation of the Code of Judicial Conduct.
Maggio, a Republican who was running for a seat on the state Court of Appeals with wide support from his party and business interests, promptly pulled out of the race when the state Judicial Discipline and Disability Commission opened an investigation of his conduct.
But Campbell went further. He revealed that after a jury in Maggio’s court awarded $5.2 million in damages to the family of a woman who died from neglect in a home owned by the state’s largest chain of nursing homes and after the owner asked Maggio to throw the verdict out or reduce it, six political action committees formed by a Republican supporter of Judge Maggio got big contributions from the nursing home owner, which were then directed to Maggio’s campaign treasury. Maggio promptly reduced the judgment against the man’s nursing home by $4.2 million.
Even Michael Morton, the Fort Smith owner of the nursing home (he has an interest in about 70 of them), admitted there was a terrible appearance but that he had done nothing illegal. Maggio’s campaign asked for the money and he gave it.
Soliciting or even accepting money from a litigant in your court is about as clear and serious violation of judicial ethics as there can be, grounds for removal from office, but the commission will have to get all the facts. Maggio may say he is shocked that big bucks from Morton wound up in his campaign account.
Candidates for judge are prohibited from raising money and are instead to have friends do it for them, and then the candidates must avoid learning where their money came from, so as not to feel obliged to anyone who might be interested in a case before you. Knowing how foolish it is to expect candidates not to find out who is supporting them, the authors of the code were a little vague about it. Judicial candidates “should, as much as possible, not be aware” of their contributors, the canon says.
But this is not merely about one rogue judge. Tides of money from corporate interests are flowing into judicial campaigns, liberated by the U.S. Supreme Court’s Citizens United decision in 2010, which removed all practical restraints on corporations, associations and individuals funneling unlimited money into elections—those of legislative and executive candidates as well as judicial.
Justice Robert L. Brown, who retired last year, warned in a scholarly article that the Arkansas judiciary was about to be corrupted by the wash of money into judicial campaigns from groups with an ax to grind, which had happened in Texas and California and he figured was coming to Arkansas.
Sure enough, the Republican Party’s Johnny Rhoda of Clinton announced plans last year for political action committee that would be sort of independent of the party to raise money to elect right-thinking judges.
You may remember “Dr.” Johnny Rhoda from 2010, when Tim Griffin announced that the esteemed scholar Dr. Rhoda was running his congressional race in a northern county. Rhoda got a mail-order doctorate from “Belford University.” A neighbor also sent a short letter and a check for $549 and got a framed PhD in animal reproduction from the same “university” for his experienced bulldog, Dr. Max Sniffingwell.
That caused Judge David Stewart, recently retired as head of the Judicial Discipline and Disability Commission, to write an article warning of the horror that was coming, when special interests through gifts or campaign checks bought judges who would take the bench to carry out political agendas. Mike Maggio is the first case study.
Nursing homes have always had an interest in electing judges and legislators, and open checkbooks. The money is raining on judicial candidates of Mazzio’s persuasion. Two other former Faulkner County judges who are unopposed for the Supreme Court this year, Justice Karen Baker and Judge Rhonda Wood, are big beneficiaries of Morton, the nursing home industry and allied groups, along with another candidate for judge in Faulkner County, Doralee Chandler.
Wood didn’t draw an opponent for a rare open Supreme Court seat because no one wanted to take on the money she would have. When she was asked about the money Wood didn’t feign ignorance of who was giving it. She had percentages. She knew exactly how much, though she fudged on the details.
Even before Maggio’s cave, it was no secret what the industry and allied groups like the chamber of commerce wanted: curbs on jury awards for negligence, cruelty and malpractice. Legislative gifts always paid off.
In 2001, the legislature and Gov. Mike Huckabee obeyed the industry and levied a huge daily tax on nursing home beds, a charade that produced hundreds of millions of federal Medicaid dollars to nursing homes, improving care but also lining the pockets of the owners. Then the legislature passed the long-sought law restricting jury verdicts. The Arkansas Constitution flatly says the legislature can never do that, and the Supreme Court said twice that it couldn’t find a way around that prohibition and uphold the act.
Now we may see what a group of “right-thinking judges” can do about that constitution.
Ernie Dumas writes this week about the accurate predictions of people such as former