More to Thomas verdict than victory for chief justice?

Ed Murnane Nov. 26, 2006, 8:03am

The Illinois Civil Justice League endorsed then-Appellate Judge Bob Thomas when he ran for Supreme Court Justice in the 2000 General Election. Thomas survived a difficult three-way Republican primary that included appointed Justice Louis Rathje and Circuit Court Judge Bonnie Wheaton.

While we preferred the equally experienced but more conservative Wheaton in the primary (Thomas and Wheaton both joined the bench in 1988), we had no problem supporting Thomas over class action trial lawyer and criminal defense lawyer Larry Drury of Highland Park in the General Election.

Justice Thomas' performance as a Supreme Court justice has generally been good although he has not participated in some recent major cases that have come before the Supreme Court.

He was not a part of the Court's deliberation on last year's Gridley vs. State Farm case, nor was he a part of the process in the Price vs. Philip Morris case, which overturned the $10.1 billion Madison County bench verdict against Philip Morris, one of the first of the so-called "lights cigarette" cases.

Thomas' non-participation in the Philip Morris case was believed to be the result of the fact that he was being represented by trial lawyer Joseph Power in his own (Thomas') libel case against a Kane County Chronicle report. Power was brought into the Philip Morris case late and Philip Morris attorneys, including former Illinois Governor James Thompson, argued that Power's participation in the case would require Justice Thomas to recuse himself.

Whether that was the only or primary reason for Thomas' non-participation is not known but it didn't matter since the Court overturned the Philip Morris decision 4-2.

But the discussion here is not as much about Thomas as it is about Joseph Power, and specifically about what Power said about the Kane County jury verdict last week in Thomas' libel lawsuit against Kane County Chronicle writer Bill Page. And it's about who Joe Power is and who and what he represents.

According to a post-verdict report in the Daily Herald, Power said the verdict in the Thomas case should give newspapers pause,

... but it also will cut down on false negative campaign ads by special interest groups. Power said because judges cannot defend themselves by talking about pending cases or raising money during non-election periods, it is important they have protections against libel such as ads that paint them as soft on crime.

No one will disagree that judges deserve protection from unfounded claims, whether via newspaper commentaries or political campaign ads.

But judges are not above criticism -- and should not be -- and as long as judges are elected in a partisan political process in Illinois, they and their records are going to be subject to analysis, criticism ... and even attack ads.

We don't consider Power's comments as threatening -- and political campaign conduct was not a factor in the Thomas case -- but for Power to inject that issue as a way of saying the case was more that Thomas vs. Gates should be of concern, and it is.

Joe Power is one of the most powerful (even his name fits) plaintiffs' attorneys in Illinois, and probably nationally. A former president of the Illinois Trial Lawyers Association, he is the lead partner in the law firm Power, Rogers and Smith. The firm specializes in personal injury and wrongful death claims.

It also specializes in pouring big money into political campaigns. According to the Illinois Campaign for Political Reform, the firm and its partners contributed $1.521 million to candidates in Illinois. Ninety-four percent went to Democrats.

The firm has won more than 200 verdicts of at least $1 million on behalf of clients. There have been numerous high profile cases, including the case on behalf of the Willis family against staff of former Governor George Ryan. Eventually, that case led to Ryan's conviction and his upcoming jail sentence.

If he meant his comments as a warning that free political speech and commentary will not be tolerated, there could be some real battles ahead.

Two side notes:

  • The Thomas-Power relationship does not suggest a "tilt" toward the plaintiffs' bar by Chief Justice Thomas. Thomas and Power were classmates at the University of Notre Dame, graduating together in 1974 with majors in government studies. Both received law degrees at Loyola University. However, as evidenced in the Philip Morris case, the Thomas-Power relationship COULD get in the way of Thomas' participation on critical cases coming before the Illinois Supreme Court.

  • Power was president of ITLA in 1992-93, during the creation of the Illinois Civil Justice League and the first ITLA-ICJL "debate" involved Power and this writer on April 28, 1993, in a live television program on Chicagoland TV. He has always been pleasant.)

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