Robinson Nursing & Rehabilitation Center, LLC v. Phillips

Cite as 2016 Ark. 388

SUPREME COURT OF ARKANSAS
No. CV-16-584

Opinion Delivered: November 10, 2016
ROBINSON NURSING AND
REHABILITATION CENTER, LLC
D/B/A ROBINSON NURSING AND
REHABILITATION CENTER; CENTRAL
ARKANSAS NURSING CENTERS, INC.;
NURSING CONSULTANTS, INC.; AND
MICHAEL MORTON
APPELLANTS

V.

ANDREW PHILLIPS, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
DOROTHY PHILLIPS, AND ON
BEHALF OF THE WRONGFUL DEATH
BENEFICIARIES OF DOROTHY
PHILLIPS; AND ON BEHALF OF
THEMSELVES AND ALL OTHERS
SIMILARLY SITUATED
APPELLEES
MOTION TO DISQUALIFY
TREATED AS MOTION TO
RECUSE; DENIED BY JUSTICE
WOOD INDIVIDUALLY HEREIN.

RHONDA K. WOOD, Associate Justice

Appellees filed a motion to disqualify asking that I recuse from hearing this appeal

and “any case involving Michael Morton or his nursing homes as well as any other nursing

home case the decision of which might affect Michael Morton and/or his nursing home

businesses.” Appellees cite Rule 1.2 and 2.11 of the Arkansas Code of Judicial Conduct for

support. The court as a whole has referred the motion to me because the prayer for relief is

directed to me individually, the response that follows is mine. This is consistent with the
 Cite as 2016 Ark. 388

principle that the decision to recuse rests in the discretion of the individual judge and with

how this court has historically treated similar requests. See Villines v. Harris, 359 Ark. 47,

194 S.W.3d 177 (2004); U.S. Term Limits, Inc. v. Hill, 315 Ark. 685, 870 S.W.2d 383

(1994); Spradlin v. Arkansas Ethics Com’n, 310 Ark. 458, 837 S.W.2d 463 (1992); DePriest v.

AstraZeneca Pharm., L.P., 2009 Ark. 547, 23, 351 S.W.3d 168.1 The motion is denied.

Appellees contend that the Judge Rhonda Wood for Supreme Court Campaign

Committee’s acceptance of contributions in 2013 from Michael Morton and nursing homes

that they allege he owns and controls creates an appearance of bias or impropriety. The

exhibits attached to appellee’s motion depict that the campaign received fifteen checks in

the amount of $2,000 from a list of nursing homes. Appellees allege that Michael Morton

owns these institutions, though they fail to provide documentation in support. The

campaign’s January 13, 2014 report provides that those checks were received by the

campaign on November 22, 2013. Appellees’ exhibits show that those checks were

deposited on November 26, 2013. Appellees’ exhibits also include an April 16, 2014

Campaign Contribution and Expenditure Report that depicts five other checks in the

amount of $2,000 to the campaign from Michael Morton and other companies appellees

allege he owns. According to appellees, these exhibits show that Michael Morton and his

companies contributed a total of $40,000, or 30 percent of total contributions, to the

campaign.

1
The exception has been in cases where the request was for the entire court to
recuse. See McArty v. Judicial Discipline and Disability Comm’n, 2000 WL 236339 (Ark. 2000).

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While the appellee’ dollar amounts are accurate, they fail to depict the entire

campaign. Judicial recusal must be “made from the perspective of a reasonable observer who

is informed of all the surrounding facts and circumstances.” Microsoft Corp. v. United States, 530

U.S. 1301, 1302 (2000) (Rehnquist, C.J.) (emphasis added). 2 Appellees allege that Michael

Morton and his businesses contributed $40,000 of the campaign’s total contributions of

$134,700.3 In actuality, the campaign received $154,900 in total financial contributions.

Further, as appellees leave unmentioned, the campaign’s April 16, 2014 financial report they

attached as an exhibit reflects that the campaign returned $20,000 of contributions to

Michael Morton and the companies appellees allege he owns. Therefore, the analysis is

whether the $20,000 in contributions the campaign retained in 2014 creates an appearance

of impropriety for a case that will be before the court in 2017.

Few cases in Arkansas address whether campaign-related matters require recusal by a

judge. See Massongill v. Scott, 337 Ark. 281, 991 S.W.2d 105 (1999) (denying a challenge

that the judge should have recused when one attorney was former campaign treasurer);

Eason v. Erwin, 300 Ark. 384, 781 S.W.2d 1 (1989) (stating a judge did not necessarily have

to recuse off case of prominent local lawyer, campaign contributor, and alleged close friend

2
The Code of Judicial Conduct provides that 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.” Rule 4.4 Comment 3(A).
This is not a mandatory rule. As Rule 4.4 explains, the point of trying to avoid knowledge
is to avoid precisely the situation faced in this motion. But by including campaign
contribution specifics in the motion, the appellees have made it impossible for me to attempt
to abide by the suggested behavior.
3
Appellees for some reason used an April 16, 2014 campaign report for the total
instead of the campaign’s final report.

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but that the judge should rule objectively); Committee for Utility Trimming, Inc. v. Hamilton,

290 Ark. 283, 718 S.W.2d 933 (1986) (holding recusal not required). So the Arkansas Code

of Judicial Conduct (2015) is the best guide, and two of its rules are relevant here. First,

Rule 1.2 provides that a judge shall “avoid impropriety and the appearance of impropriety.”

Second, Rule 2.11(A) provides that a judge shall disqualify herself in any proceeding in

which the judge’s impartiality might reasonably be questioned.

Under Arkansas law, judges have a duty to decide a case unless there is a valid reason

to disqualify. See Perroni v. State, 358 Ark. 17, 186 S.W.3d 206 (2004). Further, judges are

given a presumption of impartiality. See Searcy v. Davenport, 352 Ark. 307, 100 S.W.3d 711

(2003). There is a “presumption of honesty and integrity in those serving as adjudicators.”

Withrow v. Larkin, 421 U.S. 35, 47 (1975). As the United States Supreme Court has stated,

“[a]ll judges take an oath to uphold the Constitution and apply the law impartially, and we

trust that they will live up to this promise.” Caperton v. A.T. Massey Coal Co., 556 U.S.

868, 891 (2009) (citing Republican Party of Minn. v. White, 536 U.S. 765 (2002)). “Not every

campaign contribution by a litigant or attorney creates a probability of bias that requires a

judge’s recusal.” Id. at 884. Thus, any analysis of whether to recuse begins with the

presumption that the judge fulfill her duty and sit on the case.

The Arkansas Code of Judicial Conduct specifically addresses the next step in the

analysis when specifically considering campaign contributions in conjunction with recusal

and states the following: “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.” Rule 2.11, Comment [4]. The comment provides a list of factors to

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consider in whether there is an appearance of impropriety under the Rule in regards to

campaign contributions4:

1. the size of contributions;

2. the degree of involvement in the campaign;

3. the timing of the campaign and the proceeding;

4. the issues involved in the proceeding; and

5. other factors known to the judge.

Rule 2.11 Comment [4A].

In applying these factors to the facts supported by appellees’ exhibits and the

campaign’s reports, I conclude that I should remain on the case. See Howard W. Brill,

Campaign Contributions, Campaign Involvement, and Judicial Recusal, 64 Ark. L. Rev. 103, 111

(2011) (noting that a judge should “consider all these factors”). Under the first factor, the

accepted contributions are insufficient to warrant disqualification in an unopposed race. Cf.

Caperton, supra (reversing on a 5-4 vote a West Virginia Supreme Court’s justice’s decision

to remain on case where a party contributed $3,000,000 to support the justice’s campaign);

River Rd. Neighborhood Ass’n v. S. Texas Sports, Inc., 673 S.W.2d 952 (Tex. App. 1984)

(upholding decision not to recuse where parties contributed 21.7 % and 17.1% of total

contributions, respectively, to two appellate judges’ campaigns); Rocha v. Ahmad, 662

S.W.2d 77 (Tex. App. 1983) (upholding decision not to recuse even though the challenged

4
Appellees do list other facts unrelated to the amount of contributions and contend
that those alleged facts create an appearance of implied bias. The appearance of implied bias
in those circumstances is a separate analysis where our court has held “there must be
communication of bias.” Rockport v. State, 2010 Ark. 449, 374 S.W.3d 660. Appellees fail
to allege any communication of bias.

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justices had received thousands of dollars from an attorney in the case and that same attorney

had hosted the justices’ victory celebrations); Ivey v. Dist. Ct., 299 P.3d 354 (Nev. 2013)

(finding no disqualification where trial judge received $10,000 in campaign contributions—

14% of the total received—from a party and his attorney). Notably, in the Caperton case

where the contributions exceeded 3,000,000, it was a 5-4 decision that resulted in holding

the judge must recuse.

Under factor two, appellees do not allege that Michael Morton and the companies

he owns played any other role in the campaign. There is no allegation that Morton or any

of his companies hosted fundraisers or coordinated activities with the Committee. And in

fact they did not.

Under factor three, the timing between the campaign and the current proceeding is

a sufficient cooling-off period. The Committee received contributions between fall 2013

and early spring 2014. It unlikely this matter will be submitted to this court before the spring

of 2017. Indeed, the complaint in the current case was filed in September 2015, well after I

had taken the bench on this court. Contrast this with Caperton, where the contributions

came to a supreme-court candidate after a $50 million-dollar jury verdict had been rendered

and the case’s next stop was the exact court the candidate would be joining. 556 U.S. at

886. The Court found that “[i]t was reasonably foreseeable, when the campaign

contributions were made, that the pending case would be before the newly elected justice.”

The same cannot be said here.

Under factor four, the issue on appeal involves class certification, and the appellees

do not contend that this is an issue that should cause me to recuse. Last, under factor five,

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which involves other facts known to the judge, I note that I have recused from cases

involving significant contributions following each of my campaigns over the past eight years

until a sufficient cooling-off period passed. I am treating this case and this contributor no

differently. Additionally, while Arkansas is a small state and there are occasions for judges to

intersect with potential counsel and litigants, I assure appellees and their counsel that I do

not have a social or business relationship with Michael Morton or any of the businesses the

appellees list.

In all, considering these factors and the surrounding circumstances as well as my duty

to sit, I find 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. Injustice occurs when one makes the wrong decision either

way, which is why I certainly did not make this decision lightly. Injustice also would occur

if litigants could manipulate the makeup of the court.

More than three years will have passed from when the contributions were made until

this case is likely to be submitted to the court. I am not alone in finding that a significant

length of time from when the contributions were made heavily weighs against recusal. For

example, another judge facing a recusal motion stated that “it requires one further leap of

logic to believe that [a] contribution would, years later, create an objective appearance of

impropriety.” Dumas v. Auto Club Ins. Ass’n, 789 N.W.2d 444, 445 (Mich. 2010) (Kelly,

C.J.). I will make decisions impartially on this case and every case that comes before me.

Individual Motion to Recuse Denied.

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