2nd nursing-home suit sits on Maggio docket

CONWAY - Circuit Judge Michael Maggio began presiding over a negligence lawsuit involving a second nursing home owned by Fort Smith businessman Michael Morton just weeks after Morton financed several political action committees that later donated to Maggio’s since-halted run for an appeals-court seat.

Maggio never recused from the still-pending negligence case against Morton, Salem Place Nursing and Rehabilitation Center in Conway and others, even after reports appeared about another lawsuit he had presided over involving the 2008 death of Martha Bull, a patient at another of Morton’s 32 nursing homes.

The Arkansas Supreme Court has stripped Maggio of all cases pending further notice as he is investigated by two state agencies.

The Lonoke man who sued on behalf of his father said Friday that he believes that Maggio “should step aside” if he returns to the bench before his judicial term expires at year’s end.

Maggio should have recused already, said Gary Spencer, whose father Eddie Lee Spencer Sr., was moved to a Maumelle facility after the elder Spencer, 79, suffered multiple fractures from a fall and other problems at Salem Place, according to the lawsuit.

“It’s just disheartening. … It’s the unfairness” of the situation, Gary Spencer said of his reaction to learning about the contributions to Maggio.

Spencer said there have been no major rulings in his lawsuit yet. It has not been on the docket since Maggio lost his cases March 24, according to the state court system’s website.

In a Friday email, Maggio’s attorney, Lauren Hamilton, said, “A judge does not become aware of a particular case until such time as a ruling or hearing is requested. No contributions were received by Judge Maggio until November and December 2013.”

“These contributions were reported on January 15, 2014 in [a public report] and at no time did [Gary Spencer’s] counsel ever request a recusal from Judge Maggio,” Hamilton added. “A status hearing was held on Feb. 24, 2014 and again, no such request for recusal was made by any of the attorneys on the case.

“Generally speaking, if a litigant desires that a judge recuse … he or she should discuss this with his or her counsel and file an appropriate motion,” she wrote.

On whether Maggio would recuse if the case goes back before him, Hamilton said, “I am not going to speculate on what will happen or not happen in any particular case as such would be improper.”

Spencer said he did not know about the contributions until they were in the news recently. His attorney, Melody Piazza, was not reached for comment. Her office was closed for Good Friday.

Defense attorneys in the Salem Place case have denied in a court document that their clients’ conduct was negligent and have asked that the lawsuit be dismissed.

Morton did not return phone messages seeking comment Friday.

The Arkansas Judicial Discipline and Disability Commission confirmed in early March that it was investigating Maggio over online comments he made about a range of topics, including women, divorce, sex, race and bestiality. Spokesmen for the discipline commission and the state Ethics Commission later said those agencies also were investigating allegations related to some of Maggio’s campaign contributions.

On July 8, Maggio heard the Greenbrier nursing home’s request to lower a Faulkner County jury judgment in the Bull lawsuit. That same day, Morton’s Fort Smith office dated checks totaling $24,000 for PACs that Morton has said he understood were formed for Maggio’s campaign.

On July 11, Maggio cut the $5.2 million judgment to $1 million.

Seven of the eight Morton-financed PACs gave a total of $12,950 to Maggio’s campaign after the start of the 180-day period when judicial campaigns can legally seek and accept contributions.

The Red Arkansas PAC, which did not donate money to Maggio’s campaign before he withdrew from the race, got its only recorded contribution, $3,000, from the Salem Place home, records filed with the secretary of state’s office show.

Records show that on April 7, this PAC returned the remaining $2,023.86 to Salem Place. Those records also show that the cumulative totals this PAC had received since it was formed last year totaled $3,175. The source of the $175 was unclear.

Hamilton said in her Friday email that any implication that Maggio’s decision to reduce the Bull judgment after the July hearing was connected to the creation of a PAC was incorrect. “This is simply not true,” she wrote.

She referred to a section of the Arkansas Code of Judicial Conduct which says, in part, “To reduce potential disqualification and to avoid the appearance of impropriety, judicial candidates should, as much as possible, not be aware of those who have contributed to the campaign.”

Another section of the code says in part, “A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.”

This section also says, “The fact that a lawyer in a proceeding, or a litigant, contributed to the judge’s campaign, or publicly supported the judge in his or her election does not of itself disqualify the judge. However, the size of contributions, the degree of involvement in the campaign, the timing of the campaign and the proceeding, the issues involved in the proceeding, and other factors known to the judge may raise questions as to the judge’s impartiality. …

“A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification,” it adds.

In addition to Morton and Salem Place, defendants in Spencer’s lawsuit include Morton’s Central Arkansas Nursing Centers Inc.; Vickey Kirkemier, who is listed as administrator of Salem Place; and others.

Central Arkansas Nursing Centers gave $3,000 to the D. Bruce Hawkins 2 PAC, which gave Maggio $2,000 on Dec. 5. This PAC also got $5,000 from the Conway County Beverage Association in September. It is the only one of the PACs that has not been shut down.

According to Maggio’s final campaign-finance report, filed April 4, he has given 100 percent refunds to six of the PACs and has given a 75 percent refund to the Citizens for Information Technology PAC on its $1,450 donation. The report puts the refund at $1,085.47.