Judge sues reporter for defamation. Case may set precedent for judges to sue when their rulings are defamed.

War of words -
The chief justice of Illinois’ Supreme Court says he’s been defamed. A reporter wants to keep his sources secret. Other high court justices want to keep their conversations secret. It’s a libel trial that may shape how the media and the judiciary behave.



Posted Sunday, October 22, 2006

 

A former Chicago Bears player turned chief justice of the Illinois Supreme Court will square off at trial Wednesday against a colorful former newspaper columnist with a penchant for raising people’s ire.

Even though the two men are quick to give their opinions, it is what they won’t be saying that has court watchers concerned.

The three-week defamation trial in Kane County pits a reporter’s right to use anonymous sources against a judge’s right to keep private his talks with colleagues and law clerks about pending cases.

The courtroom drama began in 2004 when Robert Thomas of Wheaton, a former Bears place-kicker and current chief justice, filed a defamation suit against Shaw Suburban Media Group and Bill Page, a St. Charles columnist who at the time worked for a Shaw newspaper, the Kane County Chronicle.

Both men say the trial is about reputation. Thomas said he wants to clear his name. Page said he wants to honor his word to sources that he would keep their names private.

But the trial has ramifications for people who don’t know Page or Thomas.

In the balance hangs what type of news you get about those who spend your tax dollars and how court verdicts are reached.

The case stems from Page columns that accuse Thomas of abusing his power to gain support for a friend running for a Kane County judge position. Page claimed that Thomas would agree to reduced punishment for Kane County State’s Attorney Meg Gorecki – who was facing ethics violations – in exchange for support of his candidate.

Illinois law does not guarantee wide-reaching protections for reporters to keep their sources private without going to jail for contempt, but judges have the discretion on how much protection they allow.

So far, the court’s pretrial rulings have tipped the scales against press confidentiality and potentially opened the door for more judges to sue over coverage they find critical of their decisions.

Cook County Judge Donald O’Brien was tapped to hear the case after Kane County judges recused themselves. In a rare maneuver, he allowed attorneys to do a pre-trial appeal to the state’s appellate court on the issue of whether Thomas and the other six Supreme Court justices, along with their law clerks, could keep their deliberations and memos private. It was Illinois’ first test of judicial privilege.

The 2nd District Appellate court unanimously ruled the judges and their clerks have an absolute right to secrecy, but that privacy is limited to intra-court communications on court business.

Thomas has agreed to waive his privilege so a lawsuit could go forward. The other justices have not. That means Thomas will testify about what he said and did. The other justices can be questioned about what Thomas said to them at certain times. They cannot be questioned about inferences they drew from Thomas’ behavior or anything that made them feel they had to act a certain way, such as delaying a court decision. Page has alleged the justices delayed their vote on Gorecki’s punishment until Thomas lined up support for a political candidate he favored.

“We’ve been unsuccessful on having the opportunity to fully cross examine,” said Steven Mandell, a Chicago attorney representing Page and his former employer.

O’Brien later ruled Page could not use reporter privilege to avoid naming his sources without risking jail time for contempt. In a last-minute compromise, Page will be allowed to keep his sources confidential but not defend their credibility. That compromise, however, doesn’t erase the precedent set by O’Brien’s earlier ruling, which means it would affect future cases.

In a worst-case scenario, media advocates fear the rulings on judicial and reporter privilege combined with a win by Thomas at trial could create an intimidating climate for journalists. It could lead to a drought of analysis of courtroom rulings and judges’ actions, they say.

Thomas’ attorney, Joseph Powers of Chicago, disagrees. He said the trial is all about defamation and that the justices are being open with the court.

“Clearly whatever Justice Thomas said is open,” Powers said. “They can question whether what Justice Thomas is saying is true.

“As far as we are concerned, if the privileges had been decided the other way, we would just have more witnesses.”

The columns

The trial hinges on three columns published in 2003 by Page when he worked at the Kane County Chronicle. Page often targeted Tri-Cities area officials for criticism or praise in his column, which ran one or two days a week. He began writing a column for the Chronicle in September 2001. Before that he worked briefly as a columnist for the Daily Herald’s Tri-Cities edition.

Page, a vocal supporter of Gorecki, alleged in the columns that Thomas was angered by Gorecki’s defeat of the Republican pick for the state’s attorney’s office in the 2000 primary. That anger reared its head, Page alleged, when Gorecki was brought up before state officials for discipline on ethics violations charges.

The violations stemmed from allegations that in 1998, before her election, Gorecki had left a phone voice mail message on a friend’s answering machine. The message hinted that a campaign contribution to an elected official could earn her husband a county job. Gorecki claimed she made up the job story to get the friend of a friend off her back.

When Gorecki’s ethics violation charges appeared before the court, Thomas had just recently been elected to the Illinois Supreme Court, which has the final say on attorney punishments.

In his columns, Page alleged Thomas was first seeking disbarment or a one-year law license suspension for Gorecki. He later agreed to the final four-month suspension. Page said that turnaround was in return for high-profile people supporting his friend Robert Spence for a circuit judge post in the 16th Judicial Circuit, which covers Kane, Kendall and DeKalb counties.

When questioned in pre-trial discovery about the allegations in Page’s columns, Thomas contends in court affidavits he did not discuss the Gorecki case until the Illinois Attorney Registration and Disciplinary Commission first presented it to the Supreme Court. That was four days after Page’s first critical column.

Thomas also denied having ever suggested more than a six-month suspension for Gorecki.

“… I never argued, pressured, demanded or pushed other court members with regard to sanctioning Meg Gorecki …” Thomas said in the affidavit.

Page contends he got the information from numerous sources, all of whom he promised anonymity.

What’s at risk

On its most basic level, the trial is about whether reporters can write critically about public figures while keeping their sources confidential. While confidentiality is not guaranteed by law, courts have the ability to grant it in the form of reporter privilege. Without the ability to use anonymous sources, stories like the Watergate Hotel break-in and subsequent cover-up would not be told, some media experts say.

“Who else do (confidential sources) have to talk to but us,” Page said. “The one thing I have learned over the years of writing columns is the fear that penetrates the workforce, especially the public sector.”

Several scholars and legal experts declined to comment on the case, most citing a lack of information. One of those declining to be named questioned the ramifications of being involved with the trial.

Others, though, said the trial’s outcome could still pose concerns for different reasons.

“If Thomas were to win, that is not only a chilling effect, it is putting the First Amendment in the freezer,” said Steven Helle, an attorney and University of Illinois journalism professor. “I hope it doesn’t disintegrate into the Pennsylvania system where it became a pastime for officials to sue the press.”

Still, Helle said he can’t envision anyone supporting an erosion of judicial privilege.Former Kane County Judge Gene Nottolini, who now serves as the county’s ethics adviser, said the public has much at stake if the judiciary’s rights are lessened.

Allowing judges to tap into each other’s knowledge on cases or bounce ideas off them creates a pool of decades of experience from which to draw sentence lengths and courtroom verdicts. That serves the public better than relying on one person’s experiences, Nottolini said. Likewise, any move to limit the privilege for judge’s law clerks, who do much of the case research, would cause a dramatic slowdown of the court process as judges would be forced to spend less time on the bench and more time on looking up relevant cases, he said.

Odd case

While it’s not unusual for public officials to sue the news media for defamation, this case has some unique twists that have the potential to set precedent, at least in Illinois.

“It is fascinating in a legal sense, but it is also fascinating in a journalism sense,” said Allen May, a professor who heads the broadcast studio at Northern Illinois University in DeKalb. “I see here some interestingly novel issues.”

Academic and legal officials somewhat familiar with the case can’t readily point to a prior instance when a judge sued over what was alleged to have been said during judicial deliberations on a pending case.

Typically libel suits involving judges deal with criticism of the verdict itself or the judge’s actions off the bench.

Mandell said absolute privilege is rarely given to the executive branch or the judiciary. He said he believes this is one of only two times when absolute judicial privilege has been recognized by courts in the U.S. Those instances occurred in the Nixon era. At that same time, the Supreme Court said even the president’s privilege is not absolute and shot down President Nixon’s attempts at using executive privilege to keep Oval Office audio tapes from court proceedings involving Nixon.

Judicial privilege involving judges – and not simply attorneys – rarely becomes an issue in lawsuits. In most cases it is viewed as a qualified privilege, meaning its use is limited and a showing of greater public need can supersede it.

Illinois’ 2nd District Appellate court, however, unanimously deemed the right to secrecy is absolute, though narrowly tailored to intra-court communications on court business.

“The overriding public good requires that judges be able to confer with each other and their staffs freely and frankly without fear that their communications might be publicly disclosed,” wrote Judge Thomas Hoffman in the October 2005 appellate opinion. “Anything less than the protection afforded by an absolute privilege would dampen the free exchange of ideas and adversely affect the decision-making process.”

But media advocates claim that leaves the judiciary, some of whom are elected, without checks and balances.

“I think it is a bad thing for the media because there are times those (discussions) can become part of the news,” said Don Craven, an attorney with the Illinois Press Association. “It is our job to cover folks who are powerful.”

The trial comes at a time when public trust in the media is at a low point and, nationally, First Amendment rights are under fire.

“There was a time that reporter privilege seemed to be on the rise, and now it is in retreat,” Helle said. “Even in Illinois where statutorily there is privilege. It seems that courts are interpreting privilege more narrowly and looking at exceptions.”

So far, judges’ rulings in the Thomas lawsuit have left reporter protections out in the cold.

Last week, Judge O’Brien ruled to remove the reporter’s privilege that Page was using as a defense against identifying his sources. Thomas argued he had exhausted all other means of getting information and can’t prove his assertion that Page knew his columns were false without knowing who the sources were.

But both sides reached a compromise in which Page can keep part of the privilege, essentially refraining from naming his sources, but in return he cannot argue their reliability at trial. That could affect whether Page’s camp can prove he should have trusted that the sources could know about the deliberations or that they weren’t lying.

The justices subpoenaed in the case, on the other hand, have been allowed to invoke judicial privilege to keep secret what they want but at the same time waive the privilege to selectively talk about certain aspects of the case. For example, State Supreme Court Justice Rita Garman testified in a court deposition, “(Thomas) never made any comments about (Gorecki) that would in any way indicate to me bias.”

Mandell, Page’s attorney, said the limits on what could be asked of Thomas’ fellow justices hindered cross-examining Thomas to see whether his statements are accurate.

“It seems in the battle of privileges, the reporter’s privilege did not fare well,” Mandell said.

Now as the trial is set to begin with more than a dozen witnesses slated, the two sides are going head-to-head over who can say the least.

The cost

“It’s a smart thing to do to settle a case like this,” said Nottolini, a retired Kane County judge who specializes in mediation and serves as the county’s ethics adviser.

Mandell said the idea of settlement came up last spring at a pre-trial conference, but the two sides were far apart.

Thomas is seeking $1.5 million to $7.7 million in damages. The damage amounts correlate to estimates of how much he could have earned in his lifetime if he got various attorney or judge jobs. He contends the columns have hindered, if not eliminated, those career options.

Mandell is expected to supply witnesses to counter what he calls “speculative” potential salary claims. Thomas’ camp is contending the columns could have a negative effect on Thomas’ attempts to get a job as a private attorney at a large Chicago law firm, or an appointment to a federal court or to win a retention vote to the Illinois Supreme Court in 2010. He was elevated to the head of the Supreme Court in September 2005.

Proving loss of income is difficult, experts say, without a firm job offer in hand or something akin to a note saying the columns would be the reason for passing over Thomas. Predicting what a jury will do is nearly impossible.

“You do see cases where juries award $1,” Nottolini said. “You win by principle but you don’t get any money.”

Strategy

Libel trials are rare and even rarer still when they involve judges.

The Iowa Libel Research Project of 1985 out of Wartburg College studied 700 libel cases between 1974 and 1984. Of those, seven of 10 involved the news media, mainly print media, and 60 percent of the plaintiffs were public figures. The news media won 90 percent of the cases.

But when the media lose, the losses can be big.

In one of the most renowned cases, a Pennsylvania Supreme Court justice won a $6 million libel verdict in 1990 against the Philadelphia Inquirer for stories alleging influence peddling. The state’s supreme court refused to hear an appeal. This summer the case was scheduled for a retrial before the state’s superior court when it was dismissed after both sides settled, agreeing to pay their own court costs.

Thomas has the burden to prove Page made up the facts in his column and that Page did that on purpose to hurt Thomas, or that the comments themselves were inherently malicious. Without knowing who Page’s sources are, it’s hard to discredit them or their existence.

Page, on the other hand, could vindicate himself by proving his columns told the truth. But without the other justices having to reveal possibly damning discussions with Thomas, Page will have trouble proving that.

On some level, the case comes down to one man’s word against the other.

“You have a clash of rights and a clash of protections and a clash of privileges here. The real issues becomes which right trumps the other,” says NIU’s May. “What you are asking is how does one decide and measure the greater good.”

What the answer is, May said, he doesn’t know.

As an attorney, May can envision a host of problems with eroding protections for the judiciary. Where would the erosion stop? Who would draw the that line?

“Would you want to get to the point of where jury deliberations are videotaped?” he said.

But as a former investigative broadcast journalist in Milwaukee, May understands the need for journalists to have the freedom to criticize those in power when they feel it’s their civic duty.

Page says he went ahead with the story, after holding off for about two months, for exactly that reason. A sense of responsibility, coupled with the fact he had high-level sources and he was seeing support for Judge Spence’s candidacy that was coming from former opponents, gave him confidence the columns were accurate, he said.

“Around the courthouse it is not a good place to have your name known as a source,” Page said. “And (Thomas) was a pretty powerful member of the Supreme Court.”

If sources’ names were to come out “they would lose their jobs and their careers would be over, ” he said.

Still, Illinois law doesn’t guarantee wide-reaching reporter privilege to keep sources anonymous without ending up in jail on contempt of court charges.

For that reason, May tells students to use anonymous sources as a last resort if they are sure of the sources’ trustworthiness.

The freedom of press comes with risks and responsibility, he said.

“It is really important to be able to back things up rather than relying on the notion of confidential sources,” he said. “My standard (in investigative stories) was if push comes to shove, could you go to court with this and win this case. If not, then you look for another way to verify it.”

Thomas did not return calls for comment.

tkunz@dailyherald.com

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