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That impudent countersuit filed by the Kane County Chronicle and former columnist Bill Page against Chief Justice Bob Thomas and the rest of the Illinois Supreme Court just got a little sassier.
In 2004, you'll recall, Thomas sued Page and the Chronicle on the grounds that Page had defamed him in a series of columns that accused him of working a "little political shimmy-shammy" -- Page said Thomas let the Kane County state's attorney off easy in a disciplinary case before the court in return for favors done to a Thomas ally in a judicial race. Last November a Kane County jury found for Thomas and awarded him $7 million -- a sum the trial judge would later drop to $4 million.
The defense lawyers had argued all along that the state courts were hopeless because Thomas ran them -- an argument that made good newspaper copy but didn't impress the judiciary. D.C.-based First Amendment heavyweight Bruce Sanford took over the appeal and soon made even better newspaper copy by carrying the fight to the enemy: in June Page and the Chronicle sued Thomas and the entire state supreme court in federal court. They claimed that Thomas's suit had infected the state courts with a "constitutional cancer" that made justice impossible there. How could the defendants get a fair trial in a court system that the plaintiff oversaw and in which the court of last appeal consisted of Thomas's main witnesses -- the other justices?
An amended suit filed a few days ago bolsters the argument. It contends that the other justices were aware of Thomas's beef with Page virtually from the day of the first column in May of 2003 -- they were talking to Thomas about the matter and receiving written updates from the court's press secretary. In a deposition, Justice Philip Rarick, now retired, recalled Thomas telling him "that he had been defamed, and that he was considering a lawsuit." Justice Thomas Kilbride recalled telling Thomas that he thought the columns "were outrageous based on factually what I knew to be true that happened in the disciplinary matter. I know that Justice Thomas was upset about the accusations, and rightly so." Justice Charles Freeman called the columns a "mark against the entire court."
As evidence, these depositions don't do Page any favors. But the countersuit cites them anyway, to show that "from the inception of this case, the non-party justices were material witnesses with personal knowledge of disputed evidentiary facts." As material witnesses, the suit reasons, they have no business playing any judicial role in the appeal process. But they're the only state supreme court that Illinois has got -- so how can they not? The amended suit gives a for instance. On May 4 the supreme court assigned judges from Illinois' First Appellate District to the Second Appellate District to hear the appeal. Freeman signed the order. But Freeman had testified for Thomas at the trial. So had the other justices. The change of venue had been ordered by justices "with a direct and substantial interest in the case."
The solution? Stop the case in its tracks. Page and the Chronicle are asking the U.S. courts to declare Thomas's victory in the state courts "repugnant" to the U.S. constitution and unenforceable. Page and the Chronicle think it would be a good idea if the Illinois courts were ordered to take no further action in Thomas's defamation case until Thomas and the other justices have left the court.