Gordon Maag's appeal turned down by Fifth

Ann Knef Nov. 2, 2006, 1:53pm

On a day when negative attacks erupted between candidates in a closely watched appellate court race, justices in the same battleground condemned "hysterical hyperbole" but did not squelch criticism of persons running for public office.

The Fifth Appellate Court upheld a lower court's dismissal of a defamation suit filed by one of its former colleagues, Gordon Maag, ruling that critical statements made in a campaign flyer were "nonactionable opinion and not fact."

Maag sued his detractors in Madison County weeks after losing a contentious race for the Illinois Supreme Court and retention to the appellate court in 2004. He claimed a flyer entitled, "In Southern Illinois the 'Wheels of Justice' have ground to a screeching halt" cost him the election and future income.

"To say the flyer cost plaintiff the election is 'far too speculative and uncertain to entertain' as special damages," Justice James A. Knecht wrote in the majority opinion issued Thursday.

"When a person runs for public office he puts his character in issue so far as it relates to his fitness and qualifications for office; therefore, his conduct and actions are fair game for comment," he wrote.

Knecht is a justice of the Fourth Appellate District. The appellate panel required the inclusion of outsiders because six of seven Fifth District judges recused themselves. Five had worked as Maag's colleagues.

The panel also included Fourth Appellate Justice Thomas Appleton and Fifth Appellate Presiding Justice Stephen Spomer. They concurred.

Maag also claimed tortuous interference.

"We agree with the trial court's assessment," Knecht wrote. "An elected office is not a property interest or a contractual right with which an officeholder has a recognizable 'reasonable expectancy' of continued employment as one might in an employment setting.

On Dec. 20, 2004, Maag filed his original suit by taking aim at the flyer's publishers, the Illinois Coalition for Jobs, Growth and Prosperity, the Illinois Chamber of Commerce, Ron Gidwitz and Greg Baise. The suit, which sought $110 million in damages, was dismissed in June 2005 by Seventh Circuit Judge Patrick Kelley who took the case from Madison County on special assignment.

Maag was allowed to refile an amended complaint.

"We understand plaintiff's outrage with the flyer," Knecht wrote. "The flyer is full of disparagement and innuendo unbefitting a campaign for judicial office. Disagreement with a judge's decisions is acceptable and criticism is to be expected. Expressing such disagreement and criticism in an inflammatory and unreasonable manner is unseemly and unproductive and has no place in what should be a reasoned debate on differing judicial philosophies."

"The hysterical hyperbole in the flyer is insulting to the judicial and electoral process," he wrote. "It devalues the intelligence of voters, and seeks to make us afraid and cast blame. The flyer is the product of a mindset that believes voter manipulation can be accomplished by resort to phrases that evoke emotion rather than thought. However, ill-informed, mean-spirited hyperbole is not necessarily defamatory per se."

Knecht also wrote, "Exaggerated rhetoric is commonplace in political campaigns. In this case, the statements were made as part of a hotly contested judicial election. Defendants suggest the flyer is full of rhetoric without substance.

"This is both a sad and telling admission. It is insulting to voters. If the purpose of the flyer is to sway the electorate, then admitting it has no substance gives insight into what the flyer's authors think of voters and the electoral process.

"This is not the robust and wide open debate one would hope for in an election."

Maag, represented by Rex Carr of East St. Louis, appealed Kelley's dismissal arguing the trial court erred in finding he failed to state a cause of action for defamation per se and in finding he failed to state a cause of action for tortuous interference with business relations.

When Kelley dismissed the suit he held that the flyer constituted permissible criticism. He held that Maag alleged no facts to support a defamation claim.

He held that Maag did not identify anyone who interpreted the flyer as an attack on his character.

He held that Maag did not identify anyone who had been inclined to vote for retention but did not vote for retention because of the flyer.

He held that Maag failed to allege that the flyer caused him to slip in the polls.

The defendants were represented by Richard J. O'Brien, Eric S. Mattson, Tracy A. Braun and Jordan S. Ginsberg of Sidley Austin in Chicago; Justin A. Reichert and Bruce Stratton of Stratton, Giganti, Stone & Kopec of Springfield and Tyrone C. Fahner, John M. Touhy, and J. Gregory Deis of Mayer, Brown, Rowe & Maw of Chicago.

Steve Korris contributed to this report.

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