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Cabin Window: The appointment or election of judges

Posted: August 17, 2014 - 9:49pm

Some of the smartest people in the state are admitting, without shame, that there’s a good chance we’ll never know for sure if the thousands in nursing home money sent to Mike Maggio’s star-crossed court of appeals campaign had anything to do with the judge’s now-famous reduction of the jury award in the Martha Bull case.

  But everybody, including Gilbert Baker, Mike Morton, Maggio himself and all us Whos down here in Whoville know exactly what it looked like when Maggio’s campaign got $10,000 from Mike Morton’s nursing home empire a few days before he reduced the jury’s $5,200,000 award for the agonizing death of Martha Bull in a Morton-owned nursing home to $1,000,000 — it looked like the political sausage was being made.

  Viewed in isolation, Maggio’s decision to reduce the jury’s award to a “mere” $1,000,000 is defensible. Like every good toolbox, the law has its hammers. One of them is a judge’s authority to throttle back a jury’s award for negligent death. No judge ever got any applause for saying so in a campaign speech, but the life of an old woman in a nursing home is, in the cold calculus of the law, worth less than that of, say, a young mother with a promising career who’s leaving kids to grow up without her support and guidance. There are factors to consider, and what is and is not a reasonable award for wrongful death comes down to a crunching of hard numbers.

  But Maggio’s decision reduce the jury award can’t be viewed in isolation thanks either to unlawful political back-scratching or the plain tough luck of Murphy’s law. Mike Morton and his nursing home money forever poisoned the waters of the Martha Bull case and it poisoned the roots of Maggio’s star-crossed Court of Appeals race — and all this before his “geauxjudge” antics brought the low-hanging fruits of Maggio’s hubris so near the ground that a blogger scooped them up.

  The story of Mike Maggio and the nursing home money is a textbook-worthy lesson on how politics and money will forever poison the waters of law and justice.

  Little Rock Attorney Jack Waggoner’s recent motion to recuse any state Supreme Court justice running for re-election from ruling on Wright v. State, Arkansas’ same-sex marriage case, exposes the root problem of politics co-mingling with law through judicial elections.

  Waggoner’s motion is unusually short, as submission to the Supreme Court legislation go, but in its four pages it ties the four corners of the issue into a Gordian knot:

  1.     “Judges shall not permit others to convey the impression that any other person or organization is in a position to influence the judge.” Ark. Code Jud. Conduct 2.4.

2.     The state Legislature, led by Sen. Jason Rapert, has passed a resolution (that does nothing but attempt to threaten and intimidate) declaring Judge Piazza’s ruling that same-sex couples may marry “an abuse of his judicial authority” and promising to “explore legislative remedies to prevent the Arkansas Constitution and the will of the people … from being negated by judicial activism.” Everybody knows the “legislative remedy” being explored is impeachment.

3.     Judges are publicly elected in Arkansas, and the ones that want to survive become political animals during their rutting season, which comes every sixth or eighth spring.

4.     The clear message from a faction within the legislature is, “Uphold Piazza’s ruling and we’ll do everything we can do knock you off your bench,” and so this conveys the impression that the legislature “is in a position to influence the judge.”

 

That dog just don’t hunt.   Just as money poisoned the waters for Maggio, what’s fast becoming shorthand as “Little Rock-styled politics” threatens to poison the waters for the state Supreme Court and every other courtroom in the state. The idea that judges, by law, don’t know where their campaign money comes from is one of the last of the great political knee-slappers, and no judge has ever said it with a straight face anywhere except on the floor of an Ethics Commission hearing. It’s equally laughable that judges don’t know “who their friends are” come re-election time, and you can bet they know who’s making threats on the floor of the legislature.

  “The actions of the Legislative Council and its members are unfortunate, as they create an appearance that outside influences could have an impact on those sitting justices who expect to seek election to the Court in the future,” Waggoner wrote in his motion, also pointing out that it doesn’t really matter if there is any actual influence; the operative language in the law is “an appearance of impropriety,” not actual impropriety.

  In recent comments on Waggoner’s motion to recuse Supreme Court justices who would be deciding the politically-charged issue of same-sex marriage in their re-election year rut, state Attorney General Dustin McDaniel — who isn’t running for re-election — said that “political fundraising, political consultants, outside campaign money are all things that should have no place in the courtroom,” and that “all parties should believe that justice is the only thing in the mind of a jurist.”

  Of course McDaniel is no stranger to politics, and he knows that a system of appointing judges will always run the risk of transferring those politics “to the governor’s office, or to whatever commission winds up appointing judges.”

That’s true as well. It's always going to be political, and with public elections at least most of what's happening happens out in the open. This is one of a few good arguments for our system of electing judges. Another is that a judge who has to hit the campaign trail and argue for their continued existence on the bench tends to remember that they work for the people.

Yes, there is value in judicial elections, but what wisdom can there be in gumming up the already tiny wheels of justice with big-money PACs, big-bore campaign consultancy firms, and asking our judges to stow their robes away every few years and contort themselves into the fantastical shapes of modern American political candidates?

 Maybe judicial appointments would, as McDaniel and any other right-thinking Arkansan should fear, just shift the political sausage-making from the campaign trail to the proverbial smoky back room. But maybe not. It’s debatable, and should be debated. What isn’t debatable is that Arkansas has a duty to its citizens to store the poisoned waters of politics and money well away from our courtrooms.

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malice_aforethought
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malice_aforethought 08/19/14 - 03:59 pm
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Tennessee

Someone may correct me, but I believe in Tennessee they have some kind of hybrid system whereby judges are appointed (or certain judges are appointed), and then the judges have to run for re-election against themselves at the end of their term, i.e., the judges are appointed but the public gets to vote on whether the judges should be retained. Maybe Arkansas should look to a similar system (although perhaps it would combine the worst of both systems).

Regarding the Martha Bull case, I pulled up this case on the court connect website back when the Maggio scandal first went down to see what had actually happened. One thing I don't think I have ever seen reported is that Maggio didn't unilaterally reduce the jury award from $5.2 million to $1 million. As I recall, the court file shows that nursing home folks had made some argument that the jury had made a mistake when they awarded $5.2 million because it was too high based on the evidence presented in the case and based on the fact that punitive damages were not recoverable in this case. Maggio agreed and gave the plaintiffs the option of either accepting a reduction of the award to $1 million, or having a new trial on the damages. While it still doesn’t change the fact that Maggio had to go and the whole thing stank to high heaven, I thought it was a nuance that should have been pointed out. Apparently the family agreed that the $5.2 million award was a fluke and didn’t want to take another chance at it so they took their $1 million and went to the house.

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