For the first time in the nation's history, a federal lawsuit has been filed to challenge the fairness of a personal legal action brought by a judge who controls his state's court system. The judge happens to be Illinois' highest judicial officer, and his dogged quest for vindication and recompense raises bigger questions than whether his grievance has merit.
Here's the back story: In opinion pieces he wrote for the less-than-influential, 14,000-circulation Kane County Chronicle, Bill Page, then a columnist, accused Chief Justice Robert Thomas of playing politics with a high-profile disciplinary case heard by the state Supreme Court. The jurist sued Mr. Page and the paper in state court, where he called six current and former Supreme Court justices as character witnesses.
After the trial judge preemptively declared that he, and not the jury, would decide whether Mr. Page's columns were defamatory, Chief Justice Thomas was handed a $7-million libel judgment, later reduced to $4 million, but still the largest compensatory award in a defamation case the state has seen.
When the Chronicle's owner cried foul, competing constitutional rights were bound to collide, testing the integrity of Illinois' civil justice system. In their federal complaint, the Chronicle's attorneys make a compelling civil rights argument. For ome thing, they contend that the sources for the columns in controversy were intimidated by the very presence of the other Supreme Court justices called to the stand by Chief Justice Thomas; they feared retaliation; and they refused to testify or even to be identified.
For another, the newspaper's attorneys claim that the chief justice's fellow justices invented a convenient "judicial deliberation privilege" to deny the defense the right to cross-examine them about the disciplinary case Mr. Page wrote about.
And since the Illinois Constitution grants the chief justice the authority to supervise every judge in the state, the Chronicle's lawyers insist their clients can't exercise their right to a fair appellate review of the trial court's judgment, mandatory in public-official defamation cases thanks to a U.S. Supreme Court opinion.
Worse still, the Chronicle's legal team bemoans its clients' denial of a court of last resort because five Supreme Court justices have signaled their intent to disqualify themselves if the judgment comes before them. And without a quorum, the Supreme Court can't hear the appeal.
The Chronicle's lawyers are asking the federal court to prohibit any enforcement or appeal of Chief Justice Thomas' judgment until he and all the justices who testified for him leave office. For his part, Chief Justice Thomas contends that judges don't forfeit their Seventh Amendment guarantee of a right to a civil jury trial when they don their robes.
However the federal court rules, Illinois needs a statutory or constitutional provision to permit the governor, with the Senate's consent, to appoint temporary judges to hear an appellate or Supreme Court case if a mass disqualification of judges proves necessary. The General Assembly must act now to restore confidence in the state's judicial system, lest another tragicomic opera like Thomas v. Page ever be mounted.
This month's Lane Report is adapted from a guest editorial published in Crain's Chicago Business on August 13, 2007.
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