Newspaper, Columnist Sue State Supreme Court Chief Justice in Federal Court

Novel Media Suit Alleges Illinois Supreme Court Libel Ruling Violates Civil Rights

A small Chicago-area newspaper and a former columnist have filed a federal civil rights lawsuit against the Chief Justice of the Illinois Supreme Court, arguing that his position and influence in the state court system has denied them a fair chance to appeal a $4 million libel judgment.

According to a press release from the plaintiffs’ lawyers, the suit was brought June 12, 2007 in the U.S. District Court for the Northern District of Illinois in Chicago under 42 U.S.C. section 1983, which allows citizens to sue government officials for violations of their civil rights. The suit names Illinois Supreme Court Chief Justice Robert Thomas along with the six other state Supreme Court justices, three appellate judges and a trial judge who presided over the case.

Thomas sued the Kane County (Ill.) Chronicle and then-columnist Bill Page for libel per se and false light invasion of privacy in March 2004. In a series of columns in 2003, Page wrote that, according to confidential sources, Thomas had been lenient in a disciplinary action against a state’s attorney in return for political favors. Thomas argued that the statements put him in a false light before the public, injured his reputation as an officer of the court and did harm to his chances to be appointed to higher courts or hired at a prestigious law firm.

In the November 2006 trial, Thomas produced state Supreme Court justices and appeals court judges as witnesses on his behalf. None of Page’s confidential sources were called to testify in support of the allegedly defamatory statements. The jury awarded Thomas $7 million in damages, but that figure was dropped to $4 million on appeal. (See “Illinois State Supreme Court Justice Awarded $7 Million Libel Judgment Against Newspaper” in the Winter 2007 issue of the Silha Bulletin for more details.)

The federal case is Shaw Suburban Media Group Inc., et al. v. Chief Justice Robert R. Thomas, et al., No. 07 C 3289, (N. Dist. Ill., 2007). Shaw Suburban Media Group Inc. owns the 14,000 circulation Chronicle. The other judges named in the suit are Supreme Court Justices Charles E. Freeman, Thomas R. Fitzgerald, Thomas L. Kilbride, Rita B. Garman, Lloyd A. Karmeier, and Anne M. Burke. Three First District appellate justices, designated to hear the case when the Second District recused itself, are named: Thomas E. Hoffman, Sheila M. O’Brien, and Robert Cahill, along with Donald O’Brien, the trial judge.

Plaintiffs Shaw Inc. and Page, according to their complaint, are asking the federal district court to “permanently enjoin the judiciary of Illinois from taking any further action in the state defamation case (including consideration of the appeal or enforcement of the judgment) until Chief Justice Thomas and all the non-party justices are no longer serving as Illinois state court judges.” The complaint also asks the court to throw out the libel verdict and its $4 million award of damages, and to stay the 9 percent daily interest that is accruing on the award while the newspaper appeals.

The underlying suit is one of several cases in recent years that have gained national attention because they involve judges suing media organizations. In 2006 and 2007, high court judges in separate cases in Massachusetts and Pennsylvania were both handed libel awards in the millions of dollars. (See “Judges Sue Newspapers for Libel” in the Winter 2007 issue of the Silha Bulletin for more on these stories). A June 26, 2007 article in The New York Times cited a Media Law Resource Center survey showing that libel suits filed by judicial officers represented fewer than 1 percent of all such suits in 1998. In 2005, according to the survey, they represented 6 percent. The New York Times said these data demonstrate a “real enough” trend in judges suing the media who cover their courts.

Despite the apparent trend, the argument put forward by the plaintiffs Shaw Inc. and Page is unusual, according to some commentators and the attorney representing them.

Stephen Gillers, a law professor and expert in legal ethics at New York University, told the Chicago Tribune that he had never heard of a case in which a plaintiff tried to avoid the appellate process by suing the appeal system.

“One way of looking at it is to say that this is a desperation move on the part of the newspaper and Mr. Page,” Gillers said. “But another way is they have no alternative for protecting what they allege is ... fundamental constitutional rights that are being violated every day the case remains in court.”

In the 50-page complaint filed with the court, Bruce W. Sanford, a media law attorney from Washington, D.C. who is representing the plaintiffs, underlined the unique significance of the case.

“In a broader sense, the complaint is precedent-setting because this suit is the first in the nation to challenge the fairness of a personal lawsuit brought by a judge controlling a state court system,” wrote Sanford.

Joseph A. Power Jr., a personal injury attorney who represented Chief Justice Thomas, called the suit “frivolous” and an “abuse of process” in an article appearing in the Chicago Tribune on June 13.

“I don’t think the losing of a case constitutes a violation of one’s civil rights,” Power said.

Power said the state’s attorney general’s office will be defending the judges in the federal suit.

The suit asks the court to rule that the case may only be retried once Thomas is a private citizen. According to the Chicago Tribune, Thomas’ court term expires in 2010, but he could seek retention for another 10-year term. Supreme Court justices in Illinois are elected from their judicial districts. The other justices named in the suit have served on the court a shorter time and could still be in place beyond 2020.

U.S. District Judge Blanche M. Manning of the Northern District of Illinois was assigned the federal case, but according to the Chicago Tribune, Manning recused herself on June 15.

Manning said that she had served on the state appeals court with three of the judges named in the suit.

“Given the complainant’s allegations of judicial collusion, it is possible that these prior relationships could cause a reasonable person to question the court’s impartiality,” wrote Manning in the June 15 order.

Sanford praised the judge’s decision, according to the Chicago Tribune, saying the case is about public confidence in a fair system.

“She got the message,” he said.

– Patrick File, Silha Fellow and Bulletin Editor

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This page contains a single entry by cla published on October 21, 2009 2:20 PM.

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