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December 24, 2004

More on Maag

My comments yesterday on the Gordon Maag defamation suit have stirred up more commentary over at the Legal Underground, where Evan Schaeffer originally made the posting to which I responded. Interested readers may wish to check it out, since both Ted Frank and I give some new details about the Marcus Jackson case, in addition to more thoughts about the defamation suit.

I do want to say, though, that it just seems to me that Evan and his commenting allies Mike and "1L" (who are in or just out of law school, from what I can tell) are missing the forest for the trees. This is was a very nasty race. As Ted pointed out on overlawyered back in October, both sides were reprimanded by the Illinois State Bar Association for deceptive negative ads.

According to the Brennan Center, Karmeier and his backers spent $2,713,822 on 3,588 television advertisements and Maag and his backers spent $2,576,320 on 3,765 TV ads. Many of those ads were nasty, inflammatory, and lacked full context (see, e.g., here, here, and here). Maag's ad alleging that Karmeier had granted "probation" to a child rapist and molester "[d]espite prosecutors'objections" was particularly deceptive; Karmeier had originally sentenced the criminal to seven years in jail and only reduced the sentence to probation after he was overruled from an appellate court. So Maag's ad insinuates that Karmeier is soft on crime, when in actuality in this case he was reversed on appeal for being too tough on the criminal.

But that deception proves the point as to why the defamation claim can't be appropriate for the pro-Karmeier flyer. Karmeier responded in kind to Maag's charge in an ad that stated, "Why won't Gordon Maag tell the whole truth? . . . . Maag's new ad distorts Lloyd Karmeier's good record on crime. The truth is Lloyd Karmeier sentenced a child molester to prison twice. But an Appellate Court overruled Karmeier and threw out the prison term."

Both candidates also ran other rehabilitative ads: Karmeier's featured a police officer saying "Those ads attacking him are nothing more than politics. Judge Karmeier has a long record of being a friend to law enforcement."; Maag's said "Lloyd Karmeier is lying about Gordon Maag's record" and touted his endorsement from the Fraternal Order of Police.

The point is not only that the candidates' first amendment rights permitted them to fight back-and-forth given each's well-funded campaign; but also that it's ludicrous to assert -- as Maag does in his suit -- that this single flyer, which made claims very similar to those already being thrown back and forth in thousands of ads on the airwaves, caused his defeat and was so injurious to his reputation as to have caused him millions of dollars of damages. In an editorial today, the Chicago Tribune gets it:

Maag is a product of Madison County, the nation's No. 1 Judicial Hellhole according to the American Tort Reform Foundation. He received substantial support from trial lawyers in this campaign, which was widely viewed as a referendum on the state's medical malpractice crisis and the overall deplorable condition of the civil justice system that Madison County embodies.

But Maag discounts all of that as if the context of last fall's campaign was irrelevant. He claims he lost both the race and his Appellate Court seat not because voters were fed up with a court system that allows too many meritless lawsuits and tilts too far toward plaintiffs, but because of one particular piece of negative campaigning.

Maag blames his loss on a flier distributed by the Illinois Coalition for Jobs, Growth and Prosperity and one of its members, the Illinois Chamber of Commerce. Maag claims the flier misled voters into believing he was both soft on crime and a reason employers leave Illinois. Also named in his suit are the coalition's chairman, Ronald Gidwitz, and treasurer, Gregory Baise. . . .

The Maag-Karmeier race was a vicious, mudslinging affair that became the most expensive judicial race in Illinois history. Both Maag and Karmeier were targets of fierce negative ad campaigns financed by $8.5 million raised by the candidates' supporters. The ads were so nasty the Illinois State Bar Association implored both sides to withdraw them. Neither did.

But there's a whole lot of 1st Amendment freedom of speech between nasty fliers and proving, as Maag must, that the defendants either knew the statements they made were false or spread them with reckless disregard for the truth.

Given that Maag is from Madison County, suing for the big dollars may come naturally. But, as with so much that comes out of that corner of the state, this suit perfectly illustrates the misuse of the state's justice system that so disgusted voters as they made judicial choices last month.

Sadly, Madison County last week was again named the nation's worst "judicial hellhole" by the American Tort Reform Association, and this time neighboring St. Clair County came in second. The Maag suit is the latest in a line of intimidating suits designed to silence those who criticize the jurisdictions' mockery of justice: See here for the story of how Madison County class action lawyers sued a St. Louis Post-Dispatch reporter for defamation for his critique of their suit against Publisher's Clearing House (you know, people are "misled" by that "you may have already won" message); see here for the account of how a Madison County plaintiffs' lawyer subpoenaed the leaders of four business groups in a case in which they had no involvement after they spoke at an event criticizing the jurisdiction.

But in rejecting Maag, southern Illinois voters fought back against these shenanigans. Time will tell if the region can, over time, clean up its legal act.

Posted by James R. Copland at 07:59 PM | TrackBack (1)




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