Deliberately secret
A ruling allowing a judicial deliberation privilege in Illinois libel cases could negatively affect journalists covering courts.
From the Spring 2006 issue of The News Media & The Law, page 27.
By Casey Murray
When an Illinois newspaper columnist accused the state’s highest court of playing “a little political shimmy-shammy” in a case involving lawyer discipline, the chief justice was so angry he sued for libel.
Kane County Chronicle Columnist Bill Page argued in his defense that he should be allowed to hear not just from the chief justice but from the six other justices about their deliberations in the case. When the justices refused, suddenly Illinois had a situation where a trial court — and eventually an appellate court — were faced with ruling on whether to force higher ranking judges to testify. They opted not to by applying an absolute privilege to judicial deliberations, hindering journalists.
“As it stands now and with the decisions that have been rendered in this case, it could have a chilling effect on the media’s coverage of the courts in Illinois,” said Steven Mandell, the attorney representing Page. “I think the judicial deliberation privilege will allow judges to sue for libel for media reports and columns that criticize their decision or impute bias or some sort of political motive to their decision-making process.”
The case arose in 2003 after Page criticized Chief Justice Robert Thomas for Thomas’ role in disciplining lawyer Meg Gorecki, who at the time was the state’s attorney for Kane County. In 1998, before Gorecki took that position, she had offered a county job to a friend in return for contributing to the fund of the county board chairman.
The Illinois Attorney Registration and Disciplinary Commission investigated and recommended that her law license be suspended for two months. Her case went to the Illinois Supreme Court, which eventually gave Gorecki a four-month suspension.
Page, however, wrote three columns suggesting that Thomas was “pushing very hard for very severe sanctions — including disbarment.” The suspension, Page wrote, was a compromise as a result of “a little political shimmy-shammy. In return for some high-profile Gorecki supporters endorsing Bob Spence, a judicial candidate favored by Thomas, he agreed to the four-month suspension.”
Joe Power, Thomas’ attorney, said none of the three columns was true. After the first two columns, Thomas did nothing, although the court’s press secretary called Page to tell him the columns were wrong. But after the third column accused Thomas of trading a vote for political advantage and the newspaper would not retract the column, Power said Thomas had no choice but to sue.
“If someone won’t give you a retraction regarding something that’s untrue, what are you going to do?” Power said. “Thomas did everything he could to avoid it, he looked the other way twice. But then the third time was worse than the other two.”
Page, who said he relied on confidential sources, argued in his defense that the claims made in his columns were true. By suing for libel, Thomas waived any judicial privilege, argued Page, who also subpoenaed the other six Supreme Court justices to ask them about deliberations in the Gorecki case.
“In Illinois, judges are politicians,” Mandell said. “They set up campaigns, they raise money, they run for office, they have party affiliation and they’re elected for specific terms. That raises the question, why should they receive special treatment?”
No Kane County court would take the case. Circuit Court Judge Donald O’Brien from neighboring Cook County ruled that the judicial deliberation privilege applied only to communications between the justice and the justice’s law clerks, not to communications between the justice and another’s law clerk or between law clerks.
However, since O’Brien knew it was such a divisive issue he asked for an immediate appeal so the Appellate Court of Illinois for the Second District in Elgin could address whether Illinois recognizes a judicial deliberation privilege and to what extent, and whether a privilege would apply in this case.
A unanimous three-judge appellate court ruled in favor of judicial privilege on Oct. 20, 2005. Judge Thomas Hoffman, writing for the court, found that “to protect the effectiveness of the judicial decision-making process, judges cannot be burdened with a suspicion that their deliberations and communications might be made public at a later date.”
The court ruled that the six remaining justices were protected from testifying about their conversations among themselves, to their law clerks, and to the other justices’ law clerks, because if “the confidentiality of these intra-court communications were not protected, judges and their staffs would be subject to the pressures of public opinion and might well refrain from speaking frankly during deliberations.”
Mandell said the case is “particularly disturbing” because “they not only found a judicial deliberation privilege, but they found that the privilege was absolute. In other cases where a party has raised either a judicial privilege or an executive deliberation privilege, in both instances, the courts confronted with the issue found that the privilege was a qualified one that could be overcome by a showing of need.”
Few courts have dealt with such an issue. The U.S. Court of Appeals in Miami (11th Cir.) ruled in 1986 that a qualified judicial deliberation privilege existed in a Florida case involving then-U.S. District Court Judge Alcee J. Hastings and an allegation that he conspired to take a bribe in exchange for a decision.
Hoffman used that decision to craft Illinois’ judicial deliberation privilege, and concluded that it “is narrowly tailored, applying only to intra-court communications made in the course of the judicial decision-making process and concerning the court’s official business. We believe that the narrowness of the scope of the privilege [influences] in favor of holding that it is absolute, rather than qualified.”
“If you look at it, the courts are the least-covered branch of government and they operate in the most amount of secrecy,” Mandell said. “We have C-SPAN covering [Congress], we have the executive branch open to press inquiries, but the judiciary is different. Consequently, journalists are forced by necessity to surmise and speculate how judges go about reaching their decision. I think the Thomas case is a prime example of a columnist weaving together information he has obtained from local sources to reach a conclusion about how a certain result was reached.”
Hoffman added that anything “less than the protection offered by an absolute privilege would dampen the free exchange of ideas and adversely affect the decision-making process.”
The appellate court ruling left Mandell with the only option of appealing Hoffman’s decision to the very Supreme Court justices involved in the case. The high court sent the case back to the trial court for discovery.
“I think the decision sort of sets a dangerous precedent giving the judiciary immunity from any kind of discovery whether it’s in the context of a civil suit or a criminal prosecution,” Mandell said.
“I’m not suggesting that judicial deliberations should always be open to the public,” he said. “I’m only suggesting that when a judge on a panel chooses to sue for libel because of what the media writes about the deliberative process that he necessarily needs to open up that process to scrutiny. In our research, Justice Thomas is the first judge to do this — to sue based upon what went on in deliberations.”