Former Fifth District Appellate Judge Gordon Maag must wait for a state appeals court to decide the outcome of his $110 million defamation lawsuit --twice dismissed by a state judge-- before a similar federal lawsuit can move forward.
An order signed by U.S. District Judge David Herndon Feb. 17. puts Maag's federal complaint on hold pending the outcome of a similar state lawsuit dismissed in June and again in December by Seventh Circuit Judge Patrick Kelley.
Maag, who lost his bid for the Illinois Supreme Court and his seat on the appellate court in November 2004, originally filed suit on Dec. 20, 2004, in Madison County Circuit Court.
He claimed that a campaign flyer distributed in Madison and St. Clair counties in October, identified as, "Wheels of Justice," defamed and injured his reputation. The flyer stated, "Gordon Maag's record on crime: embarrassing-and dangerous."
Maag named the Coalition for Jobs, Growth and Prosperity, its chairman Ronald Gidwitz and treasurer Gregory W. Baise, as well as the Illinois Chamber of Commerce as defendants.
In his recent order, Herndon agreed with the U.S. Chamber of Commerce --a defendant named in the federal lawsuit filed on Sept. 30, 2005-- that it makes sense to wait for the outcome of state proceedings.
The Chamber filed a motion to stay the case until the state court case is completed or dismiss Maag's complaint altogether.
"In this instance, the Court finds that Maag's federal and state suits are parallel because, although not completely identical, they are indeed sufficiently similar," Herndon wrote.
"Maag fails to assert adequate reason within his bringing, as to why he chose not to bring claims regarding these additional materials in his state suit; why instead, he chose to later file this federal suit.
"Because Maag's claims in both suits involve Illinois law and raise the same legal issues, the Court finds that the issues of whether such content is considered defamatory and whether Defendants' actions tortuously interfered with Maag's prospective economic advantage are best left to the state court for resolution.
"The fact that Maag chose to initially file his action in state court makes it difficult to find that the state court will not adequately protect Maag's rights. Maag also chose to file the federal suit and, more importantly, he chose not to dismiss his state action once he commenced his federal suit."
"Also questionable is the fact that Maag has recently become an Alabama resident, when he has been a long-time Illinois resident-which conveniently created diversity, allowing him a basis for filing his federal suit.
"The Court will decline to comment on this particular issue for now, although Defendants' concerns are certainly legitimate."
Kelley, a circuit judge in Springfield was assigned to the state case after judges in Madison County recused themselves from the case.
In dismissing the suit on June 10, 2005, Kelley 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.
"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."
Kelley also added, "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."
On Sept. 27, 2005, Maag filed an amended complaint changing the wording 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.
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.
Three days after Maag amended his state court complaint, he filed a separate in the United States District Court for the Southern District of Illinois suing 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.
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.
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.
Maag claims the statements were made maliciously and with evil intent to injure him without just cause or excuse and the statements were published with conscious or reckless disregard of the truth.
"These statements caused or contributed a significant number of voters in the Fifth District to vote against his retention, and by reason of such vote, he was not retained in his profession as appellate judge," the complaint states.
Maag also claims he has suffered personal humiliation, mental anguish and mental suffering.
However, on Dec. 28. Kelley dismissed Maag's state suit with prejudice stating, "Plaintiff has again failed to allege actual malice with sufficient particularity,"
"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.
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."
Maag has filed an appeal and the case is currently pending before the court Maag was once a part of.
The defendants' in the federal case were asking Herndon for a stay until the outcome of the state case alleging the federal court case is substantially identical to the state court action Maag filed.
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 River doctrine 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 River doctrine stating that it promotes "wise judicial administration."
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."