While Gordon Maag's attorney simultaneously prosecutes separate $110 million defamation lawsuits in federal and state court, defendants are angling to make them go away.
Legendary plaintiff's attorney Rex Carr, representing Maag, is pushing to keep both suits moving forward.
After losing his campaign for Illinois Supreme Court and retention to the Fifth Appellate Court in November 2004--the first judge not to be retained in that position--Maag sued his detractors in December 2004 claiming his reputation was injured and he suffered personal humiliation and mental anguish.
The suit was dismissed on June 10, but has not gone away. On Sept. 30, Maag filed a similar defamation suit in U.S. District Court for the Southern District of Illinois, casting a wider net of defendants and allegations.
Carr claims defense arguments to stay a federal case until the state matter is resolved, are irrelevant.
“Assume a group of thugs and muggers shoot an innocent victim. The victim is in critical condition and is taken to the hospital. The next day the same group of thugs burst into the hospital and shoot the victim again just to be sure they finished him off," Carr wrote in opposition to a motion to stay a federal defamation lawsuit against a litany of defendants.
"By defendants’ logic a trial to determine who is responsible for the first shooting would automatically dispose of all issues in the second shooting and the criminals could go home free and never face justice to the second attack. Never mind that the court never has before it any issue to decide concerning the second attack.
“The above description is essentially what was done to Maag in this case. Through repeated and successive lies, defendants wanted to make sure they finished off Maag.”
The crux of the state suit--filed against the Coalition for Jobs, Growth and Prosperity, its chairman Ronald Gidwitz and treasurer Gregory W. Baise, and the Illinois Chamber of Commerce--was over a campaign flier, "Wheels of Justice," which criticized his decisions.
Even though Seventh Circuit Judge Patrick Kelley dismissed the state court case on June 10, it is still active, as a recent case review revealed.
While Maag chose not to appeal Kelley’s decision, he did file a motion to reconsider and a motion to amend his complaint with exhibits.
On Sept. 20, Kelley held a telephone hearing to rule on the motions and denied Maag’s motion to reconsider. However, he did grant Maag's motion to file an amended complaint on two counts.
Maag filed an amended complaint on Sept. 27 and Kelley gave the defendants 30 days to file a response to the complaint.
After defendants filed motions to dismiss the amended complaint in October, Kelley gave Maag until Nov. 15 to file a response to the motions to dismiss, and gave defendants until Dec. 1 to file a reply memoranda in support of their motions. Kelley also set a Dec. 7 telephone hearing at 2 p.m.
Maag's subsequent $110 million defamation lawsuit names the Chicagoland Chamber of Commerce, U.S. Chamber of Commerce, Ronald Gidwitz, Gregory Baise, Illinois Coalition for Jobs, Growth and Prosperity, Illinois State Chamber of Commerce, Illinois Manufacturing Association, Illinois Civil Justice League, Illinois Business Roundtable and IMA Service Corp.
The suit also names the American Tort Reform Association, Manhattan Institute for Policy Research, Ed Murnane, Jeffrey Mays, Gerald Roper, Douglas Whitley, Murphy, Pintak, Gautier, and Hudome Agency, Alfano Communications, Mentzer Media, John Pastuovic Communications and TC Marketing as respondents in discovery.
According to Maag, the U.S. Chamber of Commerce assumed the leading role in the campaign of false and defamatory attacks, which was waged by the Chicagoland Chamber.
“It (U.S. Chamber) provided money, advice, and assistance to facilitate the publication of the false and defamatory statements made about Maag in order to present a coordinated message that Maag was unfit as judge; was unethical; lacked integrity; was unqualified in his profession; sold his office for campaign contributions; released murderers, drug dealers, and sexual predators to prey upon the general public and was devoid of basic human decency,” the complaint states.
In both suits, Maag claims that as a result of the alleged defamation he has lost large sums of money in earnings from his prior position as appellate court judge and earnings from his profession, and has lost and will continue to lose health benefits and pension benefits. For that, he is seeking $10 million.
Punitive or exemplary damages in the amount of $100 million are being sought because statements were false and malicious and defendants knew they were false, and intended to harm him, according to Maag
“The court can sympathize with Maag’s displeasure with the flyer, it harshly criticizes a number of his rulings in a crass and unreasonable manner," Kelley wrote in his order to dismiss. "No judge in the State of Illinois could look at the flyer and not find it appalling.
“But the issue here is not whether materials such as the flyer are appropriate in judicial campaigns, that perhaps is for others to decide.
“The issue is much more narrow, does plaintiff have a cause of action for defamation based on the contents of the flyer? The court finds he does not.
"Had Maag been a private citizen and not a candidate for political office, the flyer would constitute defamation because it imputes both an inability to perform the duties of office or employment and a lack of ability in his profession," Kelley wrote.
Kelley was assigned the case after Madison County Chief Judge Edward Ferguson encountered difficulty finding a judge to take the case.
The federal case has been assigned to U.S. District Judge David Herndon, a former Madison County Circuit judge. Herndon is a former partner of Maag's former employer, Thomas Lakin, founder of the Lakin Law Firm in Wood River.
According to the federal suit, Maag now resides in Alabama. He had been a long-time resident of Glen Carbon.
On Nov. 8, Ronald Gidwitz, a defendant in both suits, filed a motion to stay the federal court case alleging that the federal court case is substantially identical to the state court action Maag filed.
Gidwitz states in his motion that under the abstention doctrine announced in Colorado River Water Conservation District v. United States, federal courts should abstain when a stay would avoid unnecessary and duplicative parallel litigation in state and federal courts.
“Maag’s decision to file two defamation lawsuits over essentially the same dispute—the campaign against him in judicial elections in 2004—presents precisely the type of problem that the Colorado Riverdoctrine was designed to avoid,” the motion states.
One of the defendants in the federal case, the U.S. Chamber of Commerce, also filed a motion to stay the case until the state court case is completed or dismiss Maag’s complaint altogether.
The Chamber also cites the Colorado Riverdoctrine stating that it promotes “wise judicial administration.”
It also states that Maag’s complaint should be dismissed because the alleged basis of federal jurisdiction, diversity of citizenship, is lacking.
“Contrary to the allegations in the complaint, Maag is a resident of Illinois, not Alabama. In fact he made that very allegation in the original state court complaint,” the Chamber’s motion states.
The Chamber also states that Maag is a long-time Illinois resident with ongoing ties to Illinois, including being a practicing member of the Illinois bar, demonstrating that he is a citizen of Illinois.
“Second, dismissal is required under Federal Rule of Civil Procedure 12(b)(6) because the campaign materials at issue in this case contain opinions, rather than facts, and hence are not defamatory. On their face, those materials are protected speech under the First Amendment of the United States Constitution,” the Chamber writes.
The Chamber of Commerce is represented by Michael Pope, Steven Pflaum, Stephen Erf and John Richardson of McDermott Will and Emery in Chicago.
Gidwitz is represented by Kim Leffert of Chicago.
Carr fires back
Carr responded in opposition to the motion to stay by pointing out that Maag was both a sitting judge and candidate and that the court must remain mindful that there mere fact that a public official is running for office does not give anyone the right to tell outright malicious lies about the candidate and official.
Carr also argues that a stay based on the authority of Colorado River is not only unwarranted, it would contravene the doctrine and law announced in the case.
Carr also writes, “The fact of the matter is that no matter what decision the state court makes, it will have no effect on this case as it concerns one single flyer that was distributed by mail and hand delivery, while this case concerns three separate, totally different flyers and a television commercial.
Carr also points out the flyer in the state case is not even a part of the federal case except as part of a republication on the internet in combination with other flyers and television commercials.
Carr claims that to say the state and federal cases are parallel would rewrite all defamation laws and create principles unheard of in the law therefore the motions must be denied.
Judge Herndon has yet to schedule a hearing.