Gordon Maag's quandary on how to handle two separate defamation lawsuits was made easier today, as Seventh Circuit Judge Patrick Kelley dismissed his state court suit--for the second time in six months.
The suit was originally filed in Madison County on Dec. 20, 2004, following Maag's defeat in the costly and contentious Illinois Supreme Court race of November 2004. In that election, Maag also became the first appellate judge in Illinois to lose retention since voters were given the authority to make the call in 1964.
"Plaintiff has again failed to allege actual malice with sufficient particularity," Kelley wrote in a Dec. 28 order. The notice was received at the Madison County Courthouse on Jan. 9.
Kelley first dismissed the state court case on June 10, 2005. Then, Maag filed a motion to reconsider and a motion to amend his complaint.
The Illinois Supreme Court assigned Kelley to the Maag suit--filed against the Coalition for Jobs, Growth and Prosperity, Ronald Gidwitz, Gregory W. Baise and the Illinois Chamber of Commerce-- after Madison County Circuit Judge George Moran recused himself.
Maag's original complaint stated that a flyer identified as, "Wheels of Justice," defamed and injured Maag's reputation during the campaign. The flyer stated, "Gordon Maag's record on crime: embarrassing-and dangerous."
"Maag's allegation that the flyer is defamatory on its face does not save his claim, given the Court's previous ruling that the flyer constitutes permissible criticism of Maag's record on the bench.
"Maag has failed to allege the flyer caused him to slip in the polls or that an identifiable voter who was otherwise inclined to vote for Maag failed to do so because of the flyer."
Kelly also wrote: "A public office holder, like a term employee, does not have a sufficient expectancy of continued employment to support a tortuous interference claim."
In the months following Kelley's first dismissal of the state court suit, Maag filed another defamation lawsuit in federal court.
On Sept. 30, 2005, Maag filed suit in federal court against the same defendants as he did in state court, but added to the list considerably.
He also named the Chicagoland Chamber of Commerce, U.S. Chamber of Commerce, Illinois Manufacturing Association, Illinois Civil Justice League, Illinois Business Roundtable and IMA Service Corp.
Maag also named 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.
"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.
Following the state court suit
On Sept. 20, 2005, 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.
In the suit, Maag claims that the defendants knew the statements made in the flyer were false.
"In addition, the statements were published with reckless disregard of the truth; and furthermore, these statements and the publication containing the statements, in its entirety, were part and parcel of a continuing course of defamatory attacks on plaintiff's reputation," the complaint states.
Maag claims that as a result of the statements in the flyer--for which he is claiming damages of $10 million--he suffered personal humiliation, mental anguish and suffering. He claims that 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.
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.
In dismissing Maag's suit in June, Kelly wrote, "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," Kelly continued
"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."
Maag's suit alleged, "The statements were published with reckless disregard of the truth; and furthermore, these statements and the publication containing the statements, in its entirety, were part and parcel of a continuing course of defamatory attacks on plaintiff's reputation."
But Kelley ruled that standard for defaming a politician is not the same as with a private citizen.
"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.
After Kelley's June dismissal, Rex Carr, Maag's attorney amended the complaint from defamatory per se to defamatory per quod.
In a defamation per se suit, the plaintiff does not have to prove that statements harmed reputation.
Classic examples of defamation per se are allegations of serious sexual impropriety; allegations of serious criminal transgression; or allegations that a person is afflicted with an offensive disease.
When a plaintiff is able to prove defamation per se, damages are presumed, but the presumption is rebuttable.
Defamation per quod is defined by comments deemed slanderous or libelous only when supplemental, generally, widely-known information is considered along with the statement in question.