Columns » Ernest Dumas

The judicial marketplace in Arkansas



When the U.S. Supreme Court decided that the old maxim "money speaks" needed to be in the Constitution and, in fact, was already there hiding in the First Amendment, it took a while for the concept to root in remote Arkansas.

It took a while for big money to realize that there could be payoffs from investing in Arkansas politicians as much as there were in Texas, California or Tennessee. So this year only one entity, the Kansas partnership of the Koch brothers, has spent more money to elect a few Arkansas politicians than would be spent on a whole Arkansas election in all races only 25 years ago. Most but not all of it was spent to elect Tom Cotton to the Senate.

But, for a change, the Koch brothers and the U.S. Senate race are not the point but the effort, if not to own the judicial system, to shape prevailing legal doctrines in areas important to business. If we can lump the appellate courts and the attorney general together, most of the money for the campaigns has come from a handful of high rollers — principally two, the owner of the largest chain of eldercare facilities in the state and a dark-money PAC that has been associated with the National Rifle Association. So far it has paid off handsomely for them.

You have followed the escapades of Mike Maggio, the Faulkner County judge who was finally defrocked last week by the Arkansas Supreme Court. The state Judicial Discipline and Disability Commission and the state Ethics Commission had slapped his wrist for demeaning the judiciary with raunchy and unethical postings on a sports website under the pseudonym "Geauxjudge" and then trying to cover it up. His punishment was eight months of paid vacation and enhanced pension benefits, but the Supreme Court properly said no, he had to be fired immediately.

But the blogger who exposed Maggio had more serious stuff to report than a satyr in robes. That is where we begin.

Maggio was running for a seat on the Court of Appeals being vacated by Judge Rhonda Wood, who hoped to step up to the Supreme Court this year. Wood raised so much money last year that she got off without an opponent, but her colleague was not so lucky.

The Court of Appeals and the Supreme Court are where big personal-injury cases like nursing-home negligence go for final judgment. Twice in recent years the Supreme Court struck down parts of a tort-reform law passed by the legislature to limit judgments for people injured by commercial negligence at, say, a nursing home or a chemical company. Twelve farmers sued a German chemical company because it mingled genetically modified rice seed with conventional seed, which made the farmers' rice unsalable in many foreign markets. The jury awarded the farmers a few million dollars for their losses and $42 million in punitive damages. The company appealed, arguing that the law prohibited such judgments. The Supreme Court said we're sorry but the state Constitution specifically prohibits the legislature from passing laws limiting the redress of grievances.

So the appellate courts had to be changed.

Judge Maggio, who was headed for Judge Wood's seat on the Court of Appeals, presided this spring over a negligence suit by the family of a woman who died in one of the many nursing homes owned or affiliated with Michael Morton of Fort Smith. The jury returned a verdict of $5.2 million for gross negligence but Maggio reduced the award to $1 million. He had received $10,000 from Morton's political action committees earlier in the year and three days before he reduced the jury award his friend Gilbert Baker, the former state senator and state Republican chairman, set up six political action committees, through which Morton channeled another $18,000 or so into the judge's campaign account.

It was money down the drain when Maggio had to withdraw from the race. But Morton and others in the nursing-home and medical-supplies industry were hitting pay dirt, so to speak, elsewhere. He pumped money into the campaigns of three Conway lawyers recommended by Baker who were running for judge in Faulkner County.

Wood, the freshly minted Court of Appeals judge seeking elevation to the Supreme Court, raised $154,800 last fall and winter, about $70,000 of it from Morton and nursing-home corporations which he owned fully or in part, and that discouraged anyone from running. When Wood got no opponent, she refunded half his money.

Morton invested in both candidates for the other Supreme Court seat, but principally in Tim Cullen, who received $40,000, about a third of his campaign chest. But that investment went down the drain when a national superPAC, the Law Enforcement Alliance of America, which is thought to be affiliated with the NRA, dumped $317,280 into last-minute TV ads attacking Cullen for being soft on sex predators. Cullen lost narrowly.

Then there is the attorney general, who straddles the line between the executive and judicial branches. The AG runs the shop that hunts for people defrauding Medicaid, which, thanks to a big bed tax pushed through by Gov. Mike Huckabee in 2001, dispenses more than $800 million a year to Arkansas nursing homes. By the end of July, Morton and his businesses had kicked in $70,000 to the campaign of Leslie Rutledge, the former Mike Huckabee aide who won the Republican nomination and has a financial edge in November.

But he probably is only interested in tough law enforcement.

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