Arkansas justice recuses from suit filed against donor

Wood declined to withdraw from same case 2½ years ago

Arkansas Supreme Court Justice Rhonda Wood recused Tuesday from an appeal involving a wrongful-death lawsuit filed against one of businessman Michael Morton's nursing homes.

In November 2016, Wood had declined a request to recuse from another appeal involving class action in the same lawsuit when it came before the Supreme Court. She also filed a seven-page opinion, or explanation, of her decision then.

This time, the issue involves arbitration agreements, and Wood wrote only a one-sentence letter advising Chief Justice John Dan Kemp of her recusal. The letter gave no reason.

Wood declined comment when contacted Tuesday by the Arkansas Democrat-Gazette about the recusal. In a text message, she said, "We just do not comment on them."

Kemp asked Gov. Asa Hutchinson to appoint a special justice to fill in for Wood on this case.

Andrew Phillips filed the lawsuit in December 2014 against Robinson Nursing and Rehabilitation Center LLC in North Little Rock, Central Arkansas Nursing Centers Inc., Nursing Consultants Inc. and Morton over the death of his mother, Dorothy Phillips. She had lived in the nursing home from Aug. 19, 2013, until her death Feb. 22, 2014.

In January, a federal grand jury indicted former state Sen. Gilbert Baker, a Republican lobbyist from Conway who helped raise money for Wood's successful Supreme Court campaign in 2014. The indictment accuses Baker of conspiracy, bribery and wire-fraud in an alleged scheme involving Morton and a now-imprisoned former circuit judge, Michael Maggio.

The indictment refers to $48,000 in checks that Morton sent to Baker in July 2013 for Wood's 2014 Supreme Court campaign, though it refers to her only as Individual E. The indictment does not accuse Wood of wrongdoing.

It did prompt Wood to say at the time she had "cooperated willfully and fully with the [U.S.] Department of Justice for the five years to provide it everything I could in order to assist it to arrive at the truth behind the allegations of corruption in the Maggio campaign and Gilbert Baker's fundraising activities. ... Any attempt now or in the future to insinuate that I have done anything but act in the interest of further justice is false."

Baker awaits trial. Morton is not charged.

In May 2017, the Supreme Court upheld Fox's decision granting class-action status to the case in all but one area -- negligence. Wood was the only justice then to join in the entire opinion as written by Justice Karen Baker.

Before that ruling, Phillips' attorneys had asked Wood to recuse from that case and any others that might affect Morton or his nursing homes. The attorneys cited the contributions from Morton and his businesses to Wood's campaign.

"The appearance of any [judicial] bias must be avoided at all cost so as not to tarnish the public's confidence in our system of justice or the integrity of the judicial system," Phillips' attorneys, H. Gregory Campbell and Brian Reddick, wrote in the motion at the time.

In declining to step aside the first time, Wood wrote "that it would not be proper to recuse from this case."

"All judges have a duty to recuse when the situation warrants but we also have an equal duty to sit when the facts do not justify doing otherwise," she wrote.

"Injustice occurs when one makes the wrong decision either way. ... Injustice also would occur if litigants could manipulate the makeup of the court," she added.

Rule 2.2 of the Arkansas Code of Judicial Conduct says in part, "A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned."

Under this rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions" actually apply to the judge.

Reddick declined comment late Tuesday on Wood's recusal.

In the lawsuit involving the North Little Rock nursing home, attorneys for Morton and other defendants filed a brief in February 2018 appealing the October 2017 arbitration decision by Circuit Judge Tim Fox. His ruling denied four motions to enforce arbitration agreements and to compel people covered by the class action with arbitration agreements to submit their claims to binding arbitration.

No court has ruled on the lawsuit's allegations.

Baker has said he gave a campaign representative for Wood the $48,000 in checks from Morton in late November 2013. Morton had sent the checks to Baker by Federal Express in July 2013. Because it was too early for judicial contributions under Arkansas law, Baker said he held onto them and changed the checks' date to November.

Wood has said she did not know Baker was holding on to the checks. "Had I known, I would have told him to return any checks received," she has said.

State Desk on 05/22/2019

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