Lawyers in a nursing home class action have not given up their effort to force Supreme Court Justice Rhonda Wood
not to participate in the case.
Earlier this month,
Wood denied a motion by attorneys Brian Reddick
and Greg Campbell
not to participate in a case against Robinson Nursing Home and Rehabilitation Center
that alleges harm to residents because of understaffing. She said the heavy contributions made to her campaign for Supreme Court by Michael Morton,
owner of the home, weren't sufficient to merit her recusal.
Her opinion was her own, not a decision of the entire court.
The attorneys have now filed a motion
asking the entire court to provide a "neutral review" of Wood's refusal to get off the case. They say facts contradict her opinion, but they said they also wanted to exhaust all possibilities in state court, a signal of a potential future federal action in the matter. They again renew their argument that Wood was at the "epicenter" of a scandal over campaign money funneled from Morton through Gilbert Baker
to both Wood and then-Judge Michael Maggio
, who's been convicted of taking a bribe to reduce a $5.2 million jury verdict against a Morton nursing home. No one else has been charged in the bribery case. In addition to taking money from Morton, Wood is a former close friend of Maggio and credited Gilbert Baker at her investiture for his help in her election.
Wood staying on the case presents an appearance of impropriety, the lawyers argue. But they also said the "evidence establishes actual bias."
The evidence includes testimony taken in depositions in a lawsuit against Morton and Baker over the jury verdict reduction. In it, Baker said he'd talked to Wood about the verdict and she said it was too large. The motion notes that Baker solicited money from Wood before the time at which contributions could be legally made to judicial candidates and the checks were written early. Wood has said she didn't receive them until they were legal. The money was funneled through multiple PACs. The lawyers estimate that $40,000 went from Morton to Wood and that 45 percent of all her money came from the nursing home industry.
The motion notes that Wood hired Linda Leigh Flanagin
as a campaign consultant for $10,000 at a time she was working for Gilbert Baker as well. Flanagin participated in meetings with Morton and Baker about campaign contributions at a time she was working for Wood. They wrote:
It is telling that even Appellant Michael Morton testified that the appearance of these transactions is "absolutely horrible." This party admission alone supports a finding that there is an appearance of impropriety and that the public might reasonably question Justice Wood's impartiality.
Wood contended there was no "communication of bias," but the lawyers argue that she had done precisely that in commenting to Baker on the jury verdict. They note, too, that she was then a member of the Arkansas Court of Appeals, which potentially could have heard an appeal of the case.
The lawyers dispute Wood's contention that she couldn't know her contributors, because of ethical rules. She signed the campaign form disclosing the individual contributions and attested to truthfulness of information on the report. They also dismissed her effort to diminish Morton's contribution by saying she'd returned $20,000. This happened only after the deadline for filing passed and she had no opponent.
The motion concludes:
The Opinion correctly states that "[i]njustice would occur if litigants could manipulate the makeup of the court." "Litigants" include Michael Morton and his nursing homes and based on the conversation between Justice Wood and Gilber Baker after the Bull Verdict discussed above and the public facts presented herein that contradict the merits of the Opinion, actual bias exists and the public might reasonably question Justice Wood's impartiality.
The original recusal motion went to the court. Their deliberations are secret, but the court clearly left it to Wood to make the call on her own.
The Arkansas Bar Association
has been pressing a reform initiative that would allow the court to force a justice off a case for cause. There's some sentiment in favor of that on the current court, but a majority apparently opposed adopting the rule.