A small Kane County newspaper and its former columnist have accused the biggest names in the state judiciary of violating Illinois citizens' basic constitutional rights.
In the process, the state court system returns to uncharted waters.
The Shaw Suburban Media Group, which runs the Kane County Chronicle, is suing seven Illinois Supreme Court justices, three Illinois appellate court justices and the Cook County circuit court judge who presided over a defamation trial against the newspaper.
It is the latest fallout from the lawsuit Illinois Supreme Court Chief Justice Robert Thomas won against the paper and its former columnist, St. Charles resident Bill Page.
"They filed a frivolous lawsuit in federal court and they should be sanctioned for that," said Chicago attorney Joseph Power, who represents Thomas. "It is absurd."
Thomas, of Wheaton, filed a defamation lawsuit against the newspaper and Page for three columns Page wrote in 2003. The columns accused Thomas of abusing his power to gain support for a friend running for a Kane County judgeship. Page claimed Thomas would agree to reduced punishment for then-Kane County State's Attorney Meg Gorecki - who was facing ethics violations - in exchange for support of his candidate.
Last Nov. 15 a Kane County jury sided with Thomas after a nearly three-week trial.
The federal lawsuit filed Tuesday seeks to have the libel verdict and $4 million judgment, reduced by the trial judge from the $7 million the jury granted, against the paper thrown out. The lawsuit also asks for a ban to be instituted on filing a new lawsuit against the paper while Thomas and the justices remain employed in the state court system.
The lawsuit also asks for attorney fees, an unspecified amount of damages and a stay on the 9 percent daily interest accruing on the judgment while the newspaper appeals.
Essentially, the lawsuit contends the newspaper can not receive a fair appeal of the case because the appellate court judges are under the control of Thomas. Also, unlike other cases, the newspaper cannot appeal for a hearing before the Illinois Supreme Court because five of the current seven justices were witnesses in the case and must recuse themselves, leaving less than the quorum required by law to hear a 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 Washington, D.C.-based attorney Bruce Sanford. He frequently represents media interests and filed the lawsuit on behalf of the newspaper and Page.
Sanford said the judgment cannot be enforced because it violates the civil rights of the newspaper.
Power said the newspaper had an opportunity to file a request to have Cook County Judge Donald O'Brien, a former defense attorney, removed as the trial judge in the case and did not. It was originally at the newspaper's behest the Supreme Court justices recused themselves.
"You can't have it both ways," Power said.
Sanford contends neither the federal courts nor a state-appointed panel of judges can fix the constitutional problems by hearing the case. The state lacks a procedure for this type of situation, because a similar case has never arisen.
"We have filed this lawsuit with great reluctance as we hoped the state court system would be able to protect our rights. That plainly is not the case," said Thomas Shaw, president of Shaw Suburban Media Group.
The lawsuit questions Thomas' ethical right to file the lawsuit in the first place because justices are expected to put the avoidance of the appearance of judicial impropriety above their personal gain.
Power said Thomas has as much a right to protect his reputation and a trial by jury as anyone else.
Once the defamation case hit the court, the lawsuit contends the newspaper and Page's due process, equal protection and First Amendment rights were violated by allowing justices to refrain from commenting on their deliberations in the Gorecki case because of judicial privilege and having Illinois judges hear a case with their boss, Thomas, as the plaintiff.
The trial judge and subsequent appellate court judges were all selected by the Supreme Court, five of whom are involved in the case, Sanford contended in a news release.
"One cannot doubt the obvious unfairness inherent in asking the inferior judicial officers appointed to this appeal to sit in judgment over a $4 million award to their Chief Justice and to evaluate the testimony of both the Chief Justice and his fellow Justices - their judicial bosses ...," Sanford wrote.
"I have never seen anything like it before. A Chief Justice enlists his colleagues on the bench as his witnesses to help him win a huge trial verdict and then expects the newspaper to be satisfied with its right to appeal within the court system he controls."