The fate of a state court jury's historic $4 million libel award to Illinois' top judge may now be decided in federal court, where the Kane County Chronicle newspaper filed a countersuit alleging the underlying case is a “constitutional cancer.”

The federal suit lists Illinois Supreme Court Chief Justice Bob Thomas, his six colleagues on the court –- all of whom testified on his behalf during the libel trial -– and the trial judge among the defendants, alleging Thomas's suit against the newspaper “has compromised the independence and integrity of the Illinois judicial system from top to bottom.”

The Chronicle has appealed what is the largest award of compensatory damages to a libel plaintiff in Illinois history. But the panel to which the appeal has been assigned consists of three state judges who, according to the newspaper, are “directly supervised” by Thomas and three of the other Supreme Court justices.

Describing the appeals court as incapable of “an independent examination of the entire record,” the defense team –- which now includes high-powered First Amendment attorney Bruce W. Sanford –- has gone on a novel counterattack.

“Chief Justice Thomas's defamation judgment is repugnant to the [Constitution] and cannot be enforced,” the complaint says, and the Illinois judiciary should be “enjoined from taking any further action” in the libel case.

The thin-skinned Thomas sued the 14,000-circulation Chronicle for reporting that he traded his vote in an attorney misconduct case for a political favor. The jury awarded him $7 million for damage to his reputation, lost potential future income and emotional distress, but Circuit Court Judge Donald J. O'Brien reduced the judgment to $4 million in March.

In its countersuit, the Chronicle details a trial that was almost farcically handicapped against the defense. Among other things, Thomas's Supreme Court colleagues were allowed to testify without being cross-examined about their deliberations in the attorney misconduct case.

Before the trial, the Appellate Court, 2nd District had ruled that evidence was inadmissible under a “judicial deliberation privilege” -- a privilege, the Chronicle notes, “created specifically in this case by the Chief Justice's judicial subordinates for the six Supreme Court justices who testified for Thomas at trial.”

The three judges on the appellate panel in Thomas v. Page, 837 N.E.2d 483 (2005), are the same judges to whom the Supreme Court has assigned the appeal of the award. And, yes, Judges Thomas E. Hoffman, Sheila M. O'Brien and Robert Cahill are now defendants in the Chronicle's federal action.

“Constitutional cancer” may be going too far, but Thomas has created an unholy mess by filing a suit that he had to know would tax the independence of the state judiciary. As the Chronicle puts it,

The Chief Justice had a choice: his personal, financial interests or the constitutional interests of the Illinois citizens he would sue. He chose his own interests and cornered the Chronicle in a forum where his power and authority have made and will make a neutral hearing of the issues impossible.

By Matthew Heller
6/19/07