Chief Judge’s Libel Action Ill Advised

In Illinois, judges are elected officials. They campaign for office, just like every other politician. Once elected, their actions are subject to political analysis and opinion, including conjecture and speculation, just like every other politician. No politician likes that, but two governing principles allow it: the First Amendment to the United States Constitution and the common law rule of tough. If you’re stepping in the ring, you better be able to take a shot to the kazoo.

In 2003, the Kane County Chronicle, a smallish newspaper with a circulation then of about 12-13,000, ran a series of opinion pieces that suggested Supreme Court Justice Robert Thomas traded his vote in an attorney disciplinary matter for political favor.

This grew out of the Anne Gorecki fiasco. Gorecki, formerly the Kane County State’s Attorney, reportedly put the arm on a job-seeker for a political contribution. She was brought before the Illinois Attorney Registration and Disciplinary Commission for her faux pas. The matter eventually worked its way to the Illinois Supreme Court, which inspired the Chronicle’s series.

Justice Thomas was unhappy about the statement of vote trading, so he sued the author and the newspaper for libel. A jury returned a verdict in favor of Justice Thomas − $1 million for personal embarrassment, mental suffering, and humiliation; $1 million for future economic loss; $5 million for damage to reputation. That’s a lot of humiliation and reputation considering the diminutive circulation of the Chronicle.

On April 11, 2007, the Chicago Daily Law Bulletin reported that a defense motion for judgment notwithstanding the verdict for future loss of income was granted. The trial court found future damages to be too speculative. The Law Bulletin also reported that a $2 million remittitur was entered on the verdict for damage to reputation because $5 million shocked the judicial conscience. (The Kane County Chronicle reported that Justice Thomas would not appeal.)

Justice Thomas certainly had the legal right to sue if he had sufficient evidence of libel, which the jury told us he did. He’s a citizen who sought redress and compensation for being wronged.

The more important question, the public issue, is whether he should have sued. Was it the right thing to do? Should a chief justice of the state supreme court use the system over which he presides as a vehicle to vindicate a charge of political wrongdoing? Should a chief justice use the courts to seek compensation for a libel by a newspaper columnist who wrote about a political situation?

Justice Thomas should have looked the other way. Our court system is weaker for this lawsuit. Our courts differentiate us from other societies in which the people do not have a true institution to redress wrongs and resolve disputes. For the courts to function and fulfill their role in a relatively free society, citizens must hold a modicum of respect for the courthouse. The people have to believe that the courthouse is open to everyone, and that what takes place inside does not depend on political power. If citizens do not accept the court as legitimate, if they view it skeptically and cynically, then the institution fails in its role as a place to resolve citizens’ disputes.

The public perception of the court as a bedrock institution is diminished when the judge in charge of the highest and most prestigious court uses the system for his personal advantage. There were no physical personal injuries, no damage to real or personal property, resulting in the kind of losses that might justify a lawsuit by the Chief Justice. The kind of damage in Justice Thomas’s case arose out of his position as a politician. That’s better left to be resolved by the court of public opinion, not the court to which the people elected him and that he now administers.

I’m not criticizing the verdict. More often than not, juries get it right when they’re given true and sufficient evidence. So let’s assume Justice Thomas had a legitimate beef. He still should have taken a pass on the lawsuit. He should have looked past the “embarrassment and humiliation” he says he suffered and treated the newspaper columns the same as any negative political criticism from a writer in a small-circulation newspaper. The public would have been better served, and our court system would have avoided the perception of erosion.

You could argue that Justice Thomas’s lawsuit has a positive effect on the public’s perception of the courts. That is, by exposing the political columns as lies, the public is assured that the office of Chief Justice is clean.

But this lawsuit didn’t accomplish that. As a matter of law, all the lawsuit did was show that the Chronicle’s articles were published with malice − that the paper and the columnist knew or should have known the statement accusing Justice Thomas of trading his vote for a political favor was untrue. There has been no groundswell of support for the verdict or of condemnation of the newspaper.

The problem is that the verdict is a product of the system over which the Chief Justice rules. It leaves the same feeling you would have if the governor won the lottery. Rather than vindicate the office, the lawsuit and the verdict give the Illinois public, already fatigued and cynical from incessant charges of political wrongdoing, something else to sneer about.

This is a lawsuit that never should have happened.

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