State ethics panel to decide whether Maggio case is a go

Judge accused of donor-law breaches

Mike Maggio
Mike Maggio

CONWAY -- The Arkansas Ethics Commission will hold a closed hearing today on whether to proceed with its investigation of whether Circuit Judge Michael Maggio accepted campaign contributions in violation of state law.

"Judge Maggio looks forward to participating in this preliminary hearing and having an opportunity to address the Commission members through his counsel," his attorney, Lauren Hamilton, said Thursday.

"At this time, we are not able to discuss further except to say that Judge Maggio has been cooperating with requests from the Commission staff and appreciates their time and service," Hamilton added in an email interview.

Maggio, 53, is under investigation by that panel, the FBI and the Arkansas Judicial Discipline and Disability Commission because of the contributions to his appeals-court campaign from seven of eight political action committees that were financed almost entirely by nursing-home owner Michael Morton of Fort Smith.

Morton gave thousands of dollars to the PACs in checks donated July 8, three days before Maggio cut a Faulkner County jury's $5.1 million judgment against one of Morton's 32 nursing homes to $1 million. The ruling was in a negligence lawsuit filed by two daughters of Martha Bull, who died in 2008 in the Greenbrier Rehabilitation and Nursing Center.

Morton has said that it was his understanding the PACs were for Maggio's since-halted campaign and that the campaign wanted the money given through the PACs, rather than directly. Morton said he did nothing illegal.

In a June 10 letter to attorney Thomas Buchanan, who represents Morton's daughters, Graham Sloan, director of the Arkansas Ethics Commission, advised Buchanan of his right to attend the hearing in Little Rock today.

Sloan added that the commission "will be called upon to decide whether or not probable cause exists for finding that the Respondent [Maggio] violated [state law] by accepting campaign contributions in excess of [$2,000] ... per election from any person, and/or ... by accepting a campaign contribution from a prohibited political action committee."

Sloan cited Arkansas Code Annotated 7-6-203(a) and 7-6-203(e).

Arkansas Code Annotated 7-6-215 defines an "approved" PAC as one that registers with the secretary of state's office within 15 days "after accepting contributions during a calendar year that exceed ... [$500] in the aggregate."

Seven of the PACs, all created by Little Rock lawyer Chris Stewart, didn't register with that office until July 31, and another one didn't register until Aug. 6. Each got more than $500 in contributions.

Sloan said Thursday that cases can come before the commission's board three times, with the probable-causing hearing being the second hearing. Board members hold a closed hearing and vote on whether to dismiss the case or to proceed. If they proceed, a settlement can sometimes be reached.

If the board votes to dismiss the case, it votes again in public that same day. If it decides not to dismiss the case, there is no public vote and Sloan said he also would have no public comment in such an event.

Sloan was speaking about commission procedures in general and did not discuss the Maggio case or even confirm that the matter will come before the board today.

Couple now married

Maggio and Dawn Rivers, his longtime girlfriend, have married, raising questions about spousal privilege if the FBI investigation goes to trial. Luke Pruett, who was listed as the "chairperson/treasurer" on Maggio's campaign-finance reports, said recently he wasn't the treasurer in practice. Rather, Rivers was the treasurer, Pruett said.

It is unclear when the couple were married or when they first began living together. There is no record of their marriage in the Faulkner County clerk's office, and the location of their wedding was unavailable. In February 2012, the couple bought a house in Greenbrier together, but as single people, according to the warranty deed filed with the Faulkner County circuit clerk's office.

Word started spreading about the marriage within the past month. Rivers didn't add "Maggio" to her name on her Facebook page until well after questions about the contributions became public in March. On June 2, a woman wrote on Judge Maggio's Facebook page, "Did someone get married? Congratulations my friend!" There's no response.

Hamilton, asked when Maggio and Rivers got married, replied, "Judge Maggio's personal life is not open for public discussion."

Asked if she believes Maggio's wife would be prevented from testifying against him in a criminal case if one arose, Hamilton said, "I am not going to speculate about hypothetical future proceedings."

Marital privilege

Hamilton also said that neither she nor Maggio has received "official notice of an investigation" by federal authorities. She added, "Judge Maggio is prepared to fully cooperate with the U.S. [Attorney's] or the FBI in order to address any questions that they may have."

Maggio did not return a phone or email message seeking comment Thursday.

Michael Flannery, a distinguished professor of law at the University of Arkansas at Little Rock's Bowen School of Law, said Thursday that, in Arkansas courts and in federal courts in Arkansas, a spouse cannot be forced to testify against their husband or wife.

Under the "marital privilege" principle, Flannery said, the communication must have occurred during a marriage and have been confidential between the two spouses. Under this principle, the spouse who is a defendant can prevent the other spouse from testifying even if that testimony would have been voluntary, Flannery said. There are a few exceptions, though most or all of those don't appear to apply in the Maggio matter.

Under the separate "testimonial privilege" principle, relevant communication between spouses must not have been private or confidential, Flannery explained. In these cases, "The witness spouse can neither be called nor prevented from testifying. It's totally up to the witness," he said.

Maggio's caseload

In March, the Arkansas Supreme Court stripped Maggio of all of his court cases until further notice.

On Tuesday night, the Faulkner County Quorum Court voted to ask the high court to appoint a temporary judge to fill in for Maggio until he either returns to the bench or his term expires at year's end.

The quorum court's goal is to reduce the workload on Circuit Judge Charles E. Clawson Jr. and his staff. Clawson has taken on Maggio's cases in the 20th Judicial Circuit, which includes Faulkner, Van Buren and Searcy counties.

Clawson said Thursday that he's "grateful" and appreciates the resolution that is still being drafted to send to the high court. He stressed, though, that "the administrative Office of the Courts and the Supreme Court ... have bent over backwards to help us deal with the issues."

While a special judge has been appointed in a few cases, Clawson explained that his office has to spend time coordinating and making such requests. The extra work has put "a strain" on his staff, Clawson said.

"We're all working together," he said. "It would just be nice if there were one judge who was responsible" for all of Maggio's cases.

Justice of the Peace Frank Shaw proposed the resolution.

"The criminal justice system is suffering substantially because" of Maggio's absence, said Shaw, a lawyer.

"While Judge Maggio is entitled to due process and all of his rights ... the fact is [that] Judge Clawson is handling all of Judge Maggio's entire docket in addition to his" own, Shaw said.

A section on 06/20/2014

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