Maggio removed from civil lawsuit

CONWAY -- Expressing distaste with his own decision, a judge ruled Friday that judicial immunity prohibits a lawsuit against ousted Circuit Judge Michael Maggio over Maggio's handling of a negligence suit resulting from a nursing-home patient's death.

Special Judge David Laser dismissed the case against Maggio but did not take up a separate dismissal motion by the other defendants, nursing-home owner Michael Morton of Fort Smith and lobbyist Gilbert Baker of Conway. Laser will hear arguments on that motion May 19.

"Defendant Maggio sits in a different position from defendant Morton and defendant Baker," Laser said.

In November, attorney Thomas Buchanan filed a lawsuit in Faulkner County Circuit Court against Maggio, Morton and Baker on behalf of former patient Martha Bull's daughters, Rosey Perkins and Rhonda Coppak.

The lawsuit accused the men of conspiring to funnel donations to Maggio's since-halted campaign for the Arkansas Court of Appeals and said Morton gave the money to political action committees with the intent that Maggio would rule in Morton's favor in an earlier lawsuit the daughters had filed over their mother's death in 2008.

Laser, ruling in Faulkner County Circuit Court, made it clear Friday that his decision was not easy, especially since Maggio pleaded guilty in January to felony bribery.

At one point, Laser interrupted arguments by Maggio's attorney, Lauren Hamilton, to say, "This case is a strong case. You're basically asking the court to apply judicial immunity when" the judicial action "was done in furtherance of a criminal act."

"The hardest part of this judicial immunity is that there's been an outright guilty plea by your client," Laser said later. "So, there's not any question. ... It's not an allegation. ... He did that."

Hamilton cited a case in which judicial immunity was granted to a judge who already was in prison at the time.

"Nobody has to like it, but it is the law," she said.

"I don't like this situation at all," Laser said. "Sometimes we have to be satisfied that someone has been kicked off the bench ... and is probably going to lose some liberty."

Maggio is set for sentencing July 24, when he could face up to 10 years in prison, three years of supervised release and a $250,000 fine.

In September, the Arkansas Supreme Court ordered Maggio removed from the bench over an unrelated matter -- online comments he made about women, sex, bestiality, race and an adoption case that should have been confidential under the law.

For months, the FBI has been investigating contributions Morton made to eight PACs in the form of checks dated July 8, 2013. Two days later, Maggio reduced a Faulkner County jury's $5.2 million judgment against Morton's Greenbrier Nursing and Rehabilitation Center to $1 million. Seven of the eight PACs later gave money to Maggio's campaign.

While Maggio's order reducing the award may well have been the "culmination of bribery," Laser said, "I'm not here to make any new laws. I have to follow established precedent ... no matter how personally distasteful it may be."

Morton has said he mailed the PAC checks to Baker, a former state senator from Conway and a fundraiser for Maggio's campaign.

In Maggio's plea agreement, he implicated Individual A -- a nursing-home owner -- and Individual B -- a fundraiser. The agreement does not identify the two individuals by name.

None of the defendants attended Friday's hearing, though Bull's daughters sat quietly near their attorneys at the front of the courtroom.

Hamilton's primary argument was that the common-law principle of judicial immunity applies to civil lawsuits concerning judicial actions and that Maggio was within his judicial rights to reduce the judgment against Morton's nursing home. She and Laser agreed that the principle does not protect a judge from criminal prosecution.

Citing case law, Hamilton said a judge's court rulings are protected from lawsuits under this principle, even if the order was "corrupt or malicious."

Laser said the decision was one he'd rather not make. But he said the key factor was not the illegal actions that Maggio has admitted to participating in outside court. Rather, Maggio was performing a judicial function when he lowered the judgment, Laser said.

"Without question, the process of entry of that order, as tainted as it may be by the unholy alliance that's alleged," seems to be a judicial act, Laser said.

"If he had done all he's accused of doing and hadn't entered this order, we wouldn't be here, would we?" Laser asked Buchanan.

"Probably not," Buchanan replied.

Buchanan argued that Maggio wasn't entitled to judicial immunity in this case "because you have nonjudicial actions influencing the order."

Laser asked Buchanan to show him a case like this one where a court did not uphold judicial immunity and the decision was upheld.

"I don't think you're going to find a case exactly like this," Buchanan replied.

After the hearing, Perkins said she and her sister were "both disgusted."

Buchanan said he had known "there was a possibility" the judge would remove Maggio as a defendant.

"I wasn't too surprised," Buchanan said. "But at the same time, judges have to make calls like this."

A Section on 03/28/2015