Robert Thomas, chief justice of the Illinois Supreme Court but once a Notre Dame and Chicago Bears placekicker--a man used to cheering multitudes--has caused consternation in the courts he oversees in his pursuit of an insolent columnist.
God knows Bill Page and the Kane County Chronicle gave Thomas reason to feel offended. In 2003 Page wrote three columns attacking Thomas, the last of them in November. Thomas's attorney wrote the Chronicle asking to speak to the paper's attorney, and the Chronicle didn't respond. The following January Thomas went to court. All things considered, a better response might have been a stiff letter to the editor that began, "The Chronicle should consider itself lucky I'm not litigious." The Illinois court system might consider itself unlucky that Thomas is.
He filed a suit whose plaintiff, himself, oversees every judge who's considered it. As a consequence, this is a case much closer to procedural absurdity than resolution. At the moment the defense is asking the state supreme court both to review the case and to disqualify itself. The defense also asked the trial judge to dismiss the suit entirely.
"A ludicrous proposition," declared Cook County judge Donald O'Brien last week as he denied the motion to dismiss. Perhaps it was. But so is the position Page's lawyers find themselves in. The witnesses they want answers from are Thomas's fellow supreme court justices, who will probably cooperate as soon as hell freezes.
Page's columns claimed Thomas had played a big behind-the-scenes role in disciplining the Kane County state's attorney at the time, Meg Gorecki. In 1998, two years before she ran for office, Gorecki had left a message on an acquaintance's answering machine suggesting a quid pro quo: a county job in return for a contribution to the campaign fund of the county board chairman, Mike McCoy. "A dumb thing to do," wrote Page. The tape surfaced three weeks before the 2000 Republican primary, in which Gorecki was challenging the incumbent state's attorney. She went on to win the office, but afterward the Illinois Attorney Registration and Disciplinary Commission investigated the answering-machine episode and eventually recommended a two-month suspension of her law license. It was up to the supreme court in 2003 to decide what the penalty should be, and Page wrote that Thomas--from the next county over, Du Page, and familiar with the players--had an agenda. Thomas, "a Republican party heavyweight" allied politically with Gorecki's opponent, was "pushing hard for very severe sanctions--including disbarment," Page wrote, while the other six justices preferred lighter sentences. In the end, Gorecki lost her license for four months. Why? "Ah, yes. Politics," Page wrote in his third column. "The four-month suspension is, in effect, the result of a little political shimmy-shammy. In return for some high profile Gorecki supporters endorsing Bob Spence, a judicial candidate favored by Thomas, he agreed to the four-month suspension."
Page's three columns accused Thomas of playing politics with the Gorecki case. "He let the first article pass, which was a lie," says Thomas's attorney, Joseph Power Jr. "And even the second. But when the third came out, which said he would trade his vote for a favor, that was too much." According to Thomas's suit, Page had falsely accused him of a felony.
Power says Page "made this story up out of whole cloth, and we're going to prove it." The suit says Thomas "never tried to influence his Supreme Court colleagues" and "never discussed the Meg Gorecki case outside the umbrella of the Illinois Supreme Court while the case was still pending." The suit says Page falsely portrayed Thomas as a "vindictive, petty and biased human being."
The problems this case has stirred up were there from the beginning. No Kane County judge would touch it, so it was shifted to Cook County and wound up with O'Brien. Seeking documents and depositions, Page's lawyers subpoenaed the other supreme court justices. OK by us, says Power: "If the appellate court allowed it we'd have another six good witnesses." But it wasn't OK with these "non-party justices," who moved to quash the subpoenas. O'Brien granted their motion, Page appealed, and the appellate court gave the justices all the protection they could dream of.
Because the supreme court can overturn any ruling appellate judges make, a bystander might suppose that appellate judges aren't eager to irritate it. In the case at hand, a panel of three appellate judges unanimously came to a very unirritating conclusion. They said that no matter how useful the testimony and documents of the supreme court justices might be to Page's defense, he had no right to them--because the Illinois Supreme Court enjoys an absolute judicial deliberation privilege. This is a privilege that had never before been asserted on behalf of any court in America.
Let me back up. Page had accused Thomas of a "little political shimmy-shammy." (What's shimmy-shammy? I asked Power. "A little magic," he explained. "He worked his magic.") Page hadn't been able to get Thomas's suit dismissed on the grounds that a columnist gets to call a politician a shimmy-shammier. Now he'd lost the battle to ask the other justices if any shimmy-shammying went on behind the closed doors of the supreme court. Appellate judge Thomas Hoffman grandiloquently described the occasion he was rising to: "The judiciary, as a co-equal branch of government, supreme within its own assigned area of constitutional duties, is being asked to exercise its inherent authority to protect the integrity of its own decision-making process."
Privileges that allow certain individuals--such as spouses and the clergy--to withhold evidence are few in number, usually conditional (consider, for example, the battered and bruised reporter's privilege), and generally decreed by legislatures or tradition, not the bench. Hoffman's decree made the most potentially useful questions Page's lawyers could ask unaskable.
Page promptly requested a review by--who else?--the state supreme court. "In the abstract," his attorneys conceded in a petition submitted last November, "it might be bold to ask a panel of judges to reject the notion of a judicial deliberation privilege." Yet the "sanctity of judicial deliberations" must be balanced against the "public's right to every man's evidence." In this case, Page and his newspaper "are being asked to litigate against one of the more powerful political figures in the state and to do so without full access to the evidence they would use in their defense."
This evidence would be provided by the very justices they were petitioning, the same justices who'd responded to Page's subpoenas by getting them quashed. Page's lawyers proposed a way out of this preposterous situation. In addition to the petition, they filed a motion with the supreme court arguing that the court "as a whole must be disqualified from hearing the Petition or any other facet of the appeal."
If the supreme court disqualifies itself, I asked Page's lead attorney, Steven Mandell, who will hear the petition?
"A good question," he said. "There is no backup supreme court." Even so, "it's not a matter we created, and I'm not sure it's incumbent on us to make a suggestion." He went on, "Justice Thomas has the answer--which is to dismiss the case."
Or Judge O'Brien could dismiss it. On November 30 Page asked O'Brien to do just that. The logic of this motion was somewhat intricate. "If there is an absolute privilege against the disclosure of information about judicial deliberations," Page's lawyers reasoned, "there must be a countervailing privilege against defamation claims arising out of reporting and commentary based upon those deliberations." After all, journalists are the "eyes and ears of the public," and covering the courts is part of the job they have to do. Since judicial decision making is "shrouded in secrecy," journalists should be protected from lawsuits they can't defend themselves against.
Furthermore, Page's lawyers argued, unless the supreme court justices waived the judicial privilege and testified about the Gorecki deliberations, Thomas's allegations that are contingent on those deliberations should all be quashed. So his allegation that Page defamed him because "Justice Thomas never traded his vote in the Meg Gorecki case for any favor or political deal of any kind" should be quashed. His allegation that Page defamed him because he "never pushed for a one-year suspension of Meg Gorecki's license" and because he "never controlled, directed or in any way influenced the decision of the Illinois Supreme Court in the Meg Gorecki case" should be quashed. It came down to this: O'Brien should give Thomas a choice--either deliver the other justices, who would have to waive their newly decreed absolute privilege and testify anyway, or see his suit disintegrate.
O'Brien wasn't buying. At a February 1 hearing, he rejected the motion to dismiss. "What defendants have asked this court to do," he asserted, "is to declare an open season on Illinois judges. In essence, the motion says because judges have a deliberation privilege, the media is free to defame Illinois judges with impunity." Which was a "ludicrous proposition."
O'Brien said it was time--the case is now two years old--for Page's attorneys to stop making motions and get down to the grubby business of discovery--that is, of collecting evidence. "I think historically that the defendants have never really wanted to do any discovery in this case," said the judge.
Thomas's lawyer, Joseph Power, agreed. "They don't have a right to depose the supreme court or their clerks, so that's been decided. That's a done deal," he told O'Brien. "Now they can do Justice Thomas, they can do our experts, they can do the fact witnesses . . . and they could have done that a long time ago. But they wanted to delay, delay, delay."
To me Power said, "First of all, the other side can prove their case if there's any truth to what they said. If truth is a defense they should know how he came to write the articles. What did he base these articles on? The bottom line is they're stuck. What he based the articles on is a big lie. So now he's trying to harass the court through these motions."
The supreme court has yet to be heard from. We don't know yet if it will repudiate the absolute privilege the appellate court has bestowed upon it. We don't know if it will disqualify itself. These are unique issues.
Tribune headline, February 1: "Setback for lupus therapy"
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Art accompanying story in printed newspaper (not available in this archive): photo/AP Photo--Seth Perlman.