Justices' ruling revisits big-donor issue

Nursing homes lose to attorneys

Liability-limit  donation information.
Liability-limit donation information.

The Arkansas Supreme Court last week decided a battle between two of the biggest donor groups to the justices' own election campaigns -- lawyers and nursing-home owners.

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The opinions came as state officials consider new ethics rules governing the sensitive issue of campaign contributions and court decisions, as well as whether the state should appoint high court justices who now are elected.

Two similar petitions before the Supreme Court last week aimed to stop a proposed constitutional amendment to limit victims' awards in medical injury cases.

Among the petitioners: personal-injury lawyers who represent victims in medical cases and the Arkansas Bar Association, made up of lawyers of all specialties who traditionally have furnished a large share of judicial-campaign contributions.

Fighting the petitioners: nursing-home owners who are targets of medical lawsuits and who financed efforts to put the proposed constitutional amendment on the Nov. 8 ballot.

Over the past dozen years, nursing-home owners and their businesses have contributed at least $276,000 to the campaigns of the Supreme Court's six elected justices, contribution records analyzed by the Arkansas Democrat-Gazette show.

As a group, lawyers have donated at least $810,000 to the elected justices' campaigns over the same period, according to campaign-finance records. Those contributions made up 17 percent to 61 percent of total dollars raised in current campaigns for the Supreme Court. Personal-injury lawyers contributed more than $90,000 of the attorneys' total.

On Thursday, the lawyers came out winners in the high court's opinions in Ross v. Martin (CV-16-776) and Wilson v. Martin (CV-16-763).

Justices decided unanimously that the wording of the proposed constitutional amendment, Issue 4, was legally insufficient. Because the issue was already printed on ballots, the court barred state officials from counting the votes.

None of the six elected justices recused from the opinions.

The state's Code of Judicial Conduct requires judges to disqualify themselves from cases under certain circumstances, including when sizable campaign donations "may raise questions as to the judge's impartiality."

But those same rules require judicial candidates to avoid learning the identities of their campaign donors and the amounts they contribute.

Justices have said in past interviews that they try not to know who gives to their campaigns.

Critics of judicial election say that's an almost impossible goal, since candidates attend fundraisers and sometimes sign their own campaign-contribution reports.

The court's seventh justice, Chief Justice Howard Brill, was appointed in 2015 to fill an unexpired term and has reported no campaign contributions.

None of the justices responded to questions from the newspaper last week asking whether they considered recusing from ruling in either of the constitutional-amendment petitions. State ethics rules prohibit them from talking about individual cases.

Large campaign donations to judges always raise questions about the fairness of the courts or the appearance of fairness, at least in the minds of the general public, said David Stewart, retired executive director of the Arkansas Judicial Discipline and Disability Commission.

"That is the inherent problem in electing justices," said Stewart, a longtime proponent of judicial appointment. "If you're going to have elections, the candidates have to get their money from somewhere. And the public is aware of the issues involving campaign donations and the legal system.

"So the appearance is always bad."

'Obviously a setback'

The Arkansas Health Care Association, made up of nursing-home owners and other medical providers, expressed disappointment in the court's opinions halting the medical-liability vote: "This decision is obviously a setback, but it does not stop our efforts for fair tort reform in Arkansas."

In an emailed statement, the group's executive director, Rachel Davis, went on to say the state should "take the common-sense steps that the majority of other states have already put in place to protect our nursing homes and patients from trial attorneys taking advantage of a limitless lawsuit system."

The Arkansas Bar Association was "pleased that the Arkansas Supreme Court agreed with our analysis and did so unanimously in the opinion. The court's opinion is well reasoned and reflects what we believe to be the law in Arkansas," Bar Association President Denise Hoggard said in an email.

Hoggard added that lawyers traditionally have contributed to judicial campaigns.

"They have been called upon by campaign committees for the Supreme Court to contribute because of the bar's familiarity with both the candidates and with the job of Supreme Court Justice," Hoggard wrote.

Campaign-finance reports bear this out.

Justice Courtney Goodson's campaigns in 2010 and this year received the most from attorneys, an estimated $366,518, or about 39 percent of the total raised, excluding her own funds.

The campaigns of Justice Paul Danielson, who is retiring at the end of this year, received a total of $152,717 for elections in 2004, 2006 and 2008, or about 52 percent of his total contributions, also excluding personal funds.

Justice Karen Baker's campaigns in 2010 and 2014 received the next highest total from lawyers, $136,620 over two races, or about 61 percent of all her contributions, not counting personal funds.

Amounts for the other three justices: Josephine Hart, $78,687 in 2012 (about 50 percent of her total raised); Robin Wynne, $46,475 in 2014 (about 47 percent of his total); and Rhonda Wood, $29,900 in 2014 (about 17 percent of her total).

The campaigns of Goodson and Wood have received the most from nursing homes and their owners, campaign-finance records show: $85,350, or about 9 percent of the total raised for Goodson, and $79,000, or about 45 percent of the total for Wood.

Asked if relatively large contributions from lawyers raise questions about impartiality, or the appearance of impartiality, in the court's decisions last week, the Bar Association's Hoggard responded:

"There is no evidence to support the underlying assertion in your question.

"The underlying notion of the question is that a Supreme Court decision can be influenced, or even purchased outright, by campaign contributions. This unfairly impugns the professional character of the justices.

"The Arkansas Supreme Court has a celebrated history of following the rule of law despite political pressure or popular public viewpoints."

Opposing groups

On paper, the tort-overhaul disputes before the state Supreme Court last week were waged by election committees with vague names.

The "Committee to Protect Arkansas Families" and "Fairness for Arkansans" were backed by lawyer groups.

"Health Care Access for Arkansans" was funded by the Arkansas Health Care Association and its nursing-home operators.

The constitutional amendment was important enough for both sides to collect hundreds of thousands of dollars to support their efforts, the groups' financial reports show.

The Committee to Protect Arkansas Families reported more than $830,000 in contributions by Aug. 31 from personal-injury attorneys and law firms from Fort Smith to Jonesboro.

The lawyers generally oppose capping awards in medical lawsuits to victims, who are among the clients they represent.

The largest contributors included: the Brad Hendricks Law Firm of Little Rock, $105,545; and McCutchen & Sexton of Fort Smith and Bobby McDaniel of Jonesboro, $100,000 each.

Health Care Access for Arkansans and nursing-home owners put together more $900,000 to pay for collecting signatures needed to put the amendment on the ballot, according to ballot committee filings.

Nursing-home operators Michael Morton of Fort Smith and Brandon Adams of Conway, among others, donated thousands through their businesses.

The constitutional amendment they backed would have required the Legislature to cap "non-economic damages" in medical lawsuits at no less than $250,000, as well as limit fees for attorneys who file and win those lawsuits. Uncapped, those awards can run into millions.

The Supreme Court, in blocking the amendment vote, said the term "non-economic" was not properly defined for voters.

Rules changes considered

Judges and lawmakers are looking at ethics-rule changes designed to put more distance between campaign donations and court rulings.

An Arkansas Bar Association task force in June proposed ethics-rule changes that include allowing judges to learn who their campaign contributors are. The proposals also set up new rules for disqualifying judges from cases if they or the attorneys believe campaign donations would pose even the appearance of partiality.

Those rules changes and others were submitted to the Arkansas Supreme Court in July, as proposed amendments to the Arkansas Code of Judicial Conduct, in petition CV-16-604.

No action has been taken, according to the court docket.

The Bar Association also endorsed choosing state Supreme Court justices through appointment, a change that would have to be approved by voters through a constitutional amendment.

That recommendation came after hundreds of thousands in "dark money" from unknown donors streamed into the Supreme Court elections in 2014 and 2016.

Those ads attacked candidates in three races: lawyers Tim Cullen and Clark Mason, and Goodson, who was running for chief justice. All three lost their contests, although Goodson remains on the high court.

State lawmakers are considering a constitutional amendment on judicial appointment for a 2017 vote.

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