By Chip Babcock
Robert Thomas used to kick extra points and field goals for the Chicago Bears. Then he went to law school, became a judge, joined the Illinois Supreme Court becoming its Chief, was accused of some “shimmy-shammy” regarding a case before the court, sued the small newspaper and its writer that made the charge and last year won a $7 million jury verdict for the alleged defamation (it has since been reduced to $4 million). The case is on appeal, sort of.
Two weeks ago the newspaper and writer filed a federal Civil Rights suit against Thomas, all of the sitting justices of the Illinois Supreme Court, the judge who tried the case and the three judges who have been appointed to hear the appeal. If this Civil Rights suit had been filed by a pro se prisoner it probably would have already been well on its way to dismissal, but this case is being prosecuted by two respected law firms who undoubtedly thought long and hard before attacking the entire Illinois judiciary using such strong language as “the constitutional cancer that infects Chief Justice Thomas’s defamation lawsuit … grew” and asking for remarkable relief including a permanent injunction to prevent “the judiciary of Illinois from taking any further action in the (Thomas) defamation case.”
The Civil Rights suit alleges that Judge Thomas and his fellow justices illegally steered the case to sympathetic judges who then choked off the newspaper’s access to evidence critical to its defense by creating a heretofore unknown and unprecedented absolute “judicial deliberations privilege”. What will happen next? The federal judge could, of course, grant the newspaper’s request and enjoin the Illinois judiciary. What becomes then of the pending state court appeal? Would the judgment sit on the books without appellate review until the Illinois judiciary becomes “disinfected” in the newspaper’s eyes? The federal judge could deny the request, but in that event would the current appointed appellate judges go on and decide the appeal when they have been sued by the appellants (Newspaper and Reporter)? And if the Illinois appeals judges recuse themselves, who would appoint their successors? Typically it would be at least a quorum of the Illinois Supreme Court, but they are also defendants. Could they nevertheless act? Many states allow the executive branch to appoint disinterested judges in these circumstances but, according to the newspaper, Illinois does not. Perhaps the Illinois legislature will step in.
While the newspaper claims the Illinois judiciary is “ripe,” I predict it will soon be dealing with “ripeness” of a different sort; the type of ripeness that prevents a federal court from intruding into a state court proceeding at this stage of the litigation. It may well be that the newspaper and writer must go through the Illinois system and then, if they lose, present their constitutional claims to the United States Supreme Court by way of a direct appeal from the highest state court that can consider the matter. But maybe not. Whatever; this case will present one of the most fascinating studies in federalism in some time. Stay tuned.
— Chip Babcock is a partner at Jackson Walker. He can be reached at cbabcock@jw.com.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.
