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
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
TO DISQUALIFY TREATED AS MOTION TO RECUSE; DENIED BY JUSTICE
WOOD INDIVIDUALLY HEREIN.
K. WOOD, Associate Justice.
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 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
The motion is denied.
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.
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). Appellees allege that Michael Morton and
his businesses contributed $40, 000 of the campaign's
total contributions of $134, 700. 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.
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 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.
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
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 .
The comment provides a list of factors to consider in whether
there is an appearance of impropriety under the Rule in
regards to campaign contributions:
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].
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 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.
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 ...