Corrupt judges star in nursing home cases

Tim Mullaney
Tim Mullaney

Plaintiffs and defendants in nursing home lawsuits might not agree on much, but recent developments suggest they might want to join voices and call for an end to elected judges.

A former Arkansas state circuit judge, Michael A. Maggio, pleaded guilty last week to accepting a bribe, the Department of Justice announced. In exchange for a $24,000 campaign contribution from a nursing home owner, Maggio reduced a negligence jury verdict from $5.2 million to $1 million.

Maggio, 53, sounds like a real class act. He's also admitted to violating actress Charlize Theron's confidentiality by posting details about her adoption of a child to an online message board — two months before she announced the adoption herself. He's posted blatantly racist rants online as well.

It might be tempting to chalk Maggio up as a jerk, and think that his character flaws explain why he took the bribe in the nursing home case. But there's a systemic issue at play here. Electing judges, rather than having them appointed, opens the way for all sorts of possible corruption. In the Maggio case, the plaintiffs in the nursing home case were shortchanged. In other instances, it might be the nursing home interests that get the unfair treatment.

Let's turn our attention to West Virginia, and one of the most high-profile nursing home lawsuits ever. In 2011, a jury slapped HCR ManorCare with a $91.5 million verdict over the death of a resident at the Heartland of Charleston nursing home. That set off an intense appeals process, with the very real potential that the damages would be significantly reduced. Why? The state has a $500,000 cap on punitive damages, which accounted for the vast majority of the ManorCare award.

As the state's Supreme Court was gearing up to hear the appeal, the plaintiff's lawyer marshaled more than $35,000 in campaign contributions for the reelection of Chief Justice Robin Jean Davis, according to an ABC News investigation. The lawyer also bought a private plane from the justice's husband during that time period. That all might have been perfectly legal — but my eyebrow is certainly raised, and ManorCare is not sitting on its hands.

Ultimately, the Supreme Court reduced the award to $40 million. That's a big reduction from the original amount, but it's still a massive number and obviously not what ManorCare had been fighting for in court. And Justice Allen Loughry — a man who campaigned on a promise that he would bring a higher ethical standard to the court — said the decision was legally indefensible.

“Without question, the biases and whims of the majority are on full display in its boldly tortured analysis,” Loughry wrote in his dissent.

I know there are strong arguments both for and against electing judges, and a complicated history of both methods in this country. I'm not arguing that getting rid of elections would eliminate corruption. But it's no secret that campaigns are becoming extraordinarily expensive, thanks largely to Supreme Court rulings loosening campaign finance mechanisms. States like Florida, with “once-sleepy judicial elections,” now are seeing million dollar-plus races. If this trend holds, it seems inevitable that we'll see more bribes in the form of campaign contributions. 

In addition, the political climate has become intensely polarized along partisan lines. Isn't it perverse to put judges in the position of having to make campaign promises at all, beyond pledges to decide cases on their merits — never mind having to appeal to a rabidly left- or right-leaning electorate? Consider this recent article from the Brennan Center for Justice at New York University School of Law. One key quote:

“Campaign ads on both sides that politicize judges' rulings in criminal cases are particularly troubling,” said Alicia Bannon, Counsel at the Brennan Center. “Characterizing judges as soft or tough on crime could put pressure on judges to decide cases with an eye toward how their judgment will be portrayed in the next election cycle.”

I'm no authority in this area, but I wouldn't be surprised if real pressure for reform begins to mount on the 39 states that have judicial elections. Alternative systems, like the one long-advocated by former Supreme Court Justice Sandra Day O'Connor, might win more widespread support —including from nursing home plaintiffs and defendants who have paid the price of a corrupted judiciary.

Tim Mullaney is McKnight's Associate Editor. Follow him @TimMullaneyLTC.

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McKnight's Daily Editors' Notes features commentary on the latest in long-term care news and issues. Entries are written by Editorial Director John O'Connor, Editor James M. Berklan, Senior Editor Elizabeth Newman and Staff Writer Emily Mongan.

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