MOUNT VERNON – Voters would have retained Democrat Gordon Maag as Fifth District appellate judge if they had not seen a flyer about his judicial record, attorney Rex Carr told a panel of appellate judges Sept. 13.
"That is not going to be difficult to prove," Carr said in oral arguments over a defamation suit Maag filed against publishers of the flyer.
Carr said Maag suffered $1 million in damages.
Carr asked the judges to reverse Seventh Circuit Judge Patrick Kelley, who dismissed the suit last December.
Kelley heard the case by special assignment in Madison County Circuit Court, where Maag filed the suit after his double defeat in the 2004 election.
Maag lost to Republican Lloyd Karmeier in a race for Illinois Supreme Court, and he fell short of a 60 percent requirement for retention as an appellate judge.
Although Carr took his case to the Fifth District Appellate Court in Mount Vernon, two thirds of the panel came from the Fourth District, in Springfield.
The occasion required outsiders because six of seven Fifth District judges recused themselves. Five had worked as Maag's colleagues.
The sixth, Stephen McGlynn, supported Karmeier's campaign and replaced Maag at the Fifth District last year.
No conflict prevented Presiding Judge Stephen Spomer from hearing arguments. He joined the Fifth District last year, after Maag departed.
Spomer took the center seat between Fourth District judges James Knecht and Thomas Appleton.
Neither Carr nor the defense knew in advance who would hear the case. Carr had moved in August to disclose the names, but the court had denied the motion.
Carr sat at counsel table with Maag.
Spomer called on Carr first. Carr rose and told the judges that if Kelley's ruling stood, anyone could tell lies about any judge.
He said the flyer called Maag unfit for office.
Spomer asked Carr if a defamation claim required proof that a defendant falsely alleged corruption or dishonesty. Carr said it did not.
He said the flyer contained egregious lies. He said it claimed Maag thought a murder with a butcher knife was not exceptionally brutal.
Carr said, "That was a lie, to say that Judge Maag did not believe this was an exceptionally brutal thing."
"They attacked his personal character," Carr said. "Only a monster would think such a thing. They accused Judge Maag of being a monster."
He said the flyer cited an aggravated battery case as a murder case and a marijuana case as a crack case.
He said the flyer attributed opinions to Maag although others wrote the opinions and Maag concurred.
Spomer asked if he distinguished between authors and concurring judges. Carr said, "Absolutely not."
Knecht said Carr suggested a distinction. Carr said, "It adds to the lie. They are saying Judge Maag did these things."
Carr said the flyer came out a week before the election and Maag had no opportunity to put out the truth.
Spomer asked how many flyers went out. Carr said he assumed hundreds of thousands went out. He said, "If it was one, it would still matter."
Spomer said the number of flyers would affect the claim of damages. Carr said he would take that issue to trial.
He said there was no innocent construction of the flyer. He rejected a defense pleading that it contained "technical inaccuracies."
He said Kelley denied leave to amend the complaint. He said, "That is an absolute error right there."
A clerk cracked a gavel and Carr said, "What does that mean?" Spomer said, "Your time is up."
Richard O'Brien of Chicago, representing the Illinois Coalition for Jobs Growth and Prosperity and the Illinois Chamber of Commerce, said no Illinois court has done what Carr wanted them to do.
He said the flyer contained no charge of criminal, fraudulent or unethical behavior. He said the First Amendment protected the flyer.
Appleton asked if truth could be twisted into a lie.
O"Brien said that in expression of opinion, "…there is no such thing as falsity."
Appleton said the defense argued in pleadings that errors occurred because a layman prepared the flyer. He said, "I would suggest it was more intentional."
If we follow you, this is perfectly okay and no one is responsible," Appleton said.
O'Brien said no one should read political expression literally.
"Go on the Internet," he said. "Look at a newspaper."
"They called LBJ a murderer."
Knecht asked if someone should have put a disclaimer on the flyer, labeling it as meaningless rhetoric without substance.
O"Brien said citizens are accustomed to rhetoric. He said, "They consider the source."
Spomer asked if any public official had proved defamation without an accusation of corruption or dishonesty. O'Brien said, "I am aware of none."
O'Brien said that if the judges reversed Kelley, they would change First Amendment law.
Appleton said, "Wouldn't that be a good thing – to change the law?"
O'Brien said the law favors robust discourse.
"Our society made that point 200 years ago," he said.
Spomer said, "To put it out a week before the election – that is the opposite of discourse."
O'Brien said it was a hard fought campaign.
Knecht asked if he meant that context changed the law. He asked if it would matter if one candidate fought hard and the other did not.
O'Brien said the decision belonged not in a court of law but in the court of public opinion.
Knecht asked if he meant that context was all of politics and not a specific campaign. O'Brien said yes.
Spomer quoted lines in the flyer and asked if they were facts or opinions.
O'Brien said, "I think they should all be considered opinion."
O'Brien should have stopped there but he added, "They are all substantially true."
Appleton snapped, "What does substantially true mean - mostly untrue?"
O'Brien said, "What was printed had no greater sting than literal truth."
He said defamation law serves to protect reputations. He said Maag complained about what the flyer did not include.
He said, "You cannot have defamation by omission."
Spomer quoted the line that Maag didn't think a knife murder was brutal.
O'Brien said, "That is a classic example of rhetoric. How does the author know what he is thinking?"
Again this rubbed Appleton wrong. He said, "That is a declarative statement."
He said he may have been miseducated about declarative statements but that as he learned it, this was a declarative statement.
O'Brien said the flyer stated that Maag brought the wheels of justice to a grinding halt. He said that was not literally true either.
Appleton said, "You cannot make a declarative statement and say it is just rhetoric. That is an assertion of truth."
O'Brien said voters are desensitized to rhetoric.
Knecht said citation of cases bolstered the rhetoric.
O'Brien said 99.9 percent of voters did not understand citations.
Spomer said, "It would be easier to dismiss as hyperbole without these citations."
The gavel fell and Carr stood for rebuttal.
Carr said the Illinois Supreme Court held that there is no absolute immunity for publication with knowledge of falsity or reckless disregard of truth.
He asked the judges to lay to rest the idea that a charge of corruption is required.
Spomer asked how many votes the flyer turned around.
Carr said experts would testify that the flyer cost Maag the election.
He said, "Judge Maag is the first sitting appellate judge in the state of Illinois to fail in retention."
The gavel fell and Spomer said the judges would revisit the briefs.
Spomer, Appleton and Knecht belong to the Republican Party.
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.
He wrote, "A public office holder, like a term employee, does not have a sufficient expectancy of continued employment to support a tortious interference claim."