Kicking Back

Why would Illinois Supreme Court justice Robert R. Thomas, a rugged former placekicker for the Bears, sue a small newspaper’s scrappy columnist for defamation? Some observers believe the judge wants to clear the air before making bigger political moves.

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Is there any precedent for a state supreme court justice suing a newspaper for libel?

Chicago could unearth only one, and that case was in Pennsylvania. Although 21 years old, it has yet to be resolved despite the fact that the justice, James T. McDermott, died 12 years ago, and his original lead trial lawyer and other witnesses have also died, according to the Philadelphia media attorney Amy Ginensky, who is defending the newspaper being sued, the Philadelphia Inquirer.

In that suit, McDermott claimed that the Inquirer had libeled him when it published a series of articles in 1983 accusing him of corruption. Despite various rulings and appeals and the judge’s death in 1992, McDermott’s three sons continue to press forward with the case.

But the Kane County Chronicle is not the Philadelphia Inquirer. In filing the suit, Thomas has probably ensured that the charges in the small newspaper’s columns get vastly bigger and longer play than the columns ever did. Meanwhile, Baron has subpoenaed the six other justices on the state supreme court for memos and other high-court documents about the Gorecki and Page cases, a request that the Illinois attorney general, Lisa Madigan, has moved to quash. (The other justices on the court will not comment on the matter, Tybor says.)

And what will happen if appeals bring the litigation before the state supreme court? “There is literally no provision or precedent in Illinois for what you would do in this situation,” says the longtime Chicago legal journalist Rob Warden.

(In fact, the Thomas suit has already raised an issue for the Illinois Supreme Court. In September, attorneys for the cigarette maker Philip Morris USA requested that Power, who was representing the plaintiffs in a high-profile case against the company, be removed from the case because he was Thomas’s lawyer. The justice did not participate in the ruling on that motion, and the court said that Power could stay on the case, from which Thomas recused himself.)

On top of the procedural complications, Thomas faces a tough battle on the law. As an elected public official, he must prove either that the defendants knew the information was false or that they acted with reckless disregard for the truth-both hard charges to prove. Kenneth Kraus, a Chicago lawyer who teaches media law at DePaul University, says that defamation cases brought by public figures are harder to prove than those brought by private parties. “I have counseled people that, even if you win, you’ll generate so much publicity, it’s not worth it,” he says.

Despite the obstacles, Power says, Thomas is making a simple statement with his case: “You can’t lie about me.”

Baron says the case sends another message: “I think it’s a sad day for newspapers and opinion columnists if they can’t write an opinion column about public figures without fear of retribution in the form of a lawsuit.”

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Stocky, with a round head, chipmunk cheeks, and large eyes, Supreme Court justice Robert Thomas is a grayer version of the Bear who kicked for the team from 1975 through 1984. Today, he describes both his careers in unassuming ways.

The son of Italian immigrants-his father was “a fender and body man” at a collision repair shop in Rochester, New York-Thomas found his way to football from soccer, in which he excelled at a Jesuit high school in the late 1960s. As a kicker, he did well enough-hitting one 45-yarder, considered a long field goal in those days-to get several football scholarship offers.

“But my parents knew that in my heart I wanted to go to Notre Dame,” he recalls. (In an interview, Thomas would talk about his background and careers but not his lawsuit.) He was in South Bend for a year and a half before winning the scholarship, and in 1973 he kicked the winning field goal in the Sugar Bowl to help Notre Dame win the NCAA national championship. By then, Thomas’s major was government, because he wasn’t “science oriented” enough for premed. He was named an Academic All-American in 1974.

Drafted by the Los Angeles Rams, then cut, he was signed in 1975 by the Bears. Although he got his law degree from Loyola University of Chicago in 1981 while playing for the team-and even practiced law in some of the off-seasons-his football career meant a lot to him then and still does. With some emotion, he tells the well-worn story of the day he was cut from the Bears in favor of the younger, longer-booting rookie Kevin Butler (cruelly, it turned out, on the eve of the 1985 Super Bowl season).

“I was pretty broken up,” Thomas recalls. “So I go downstairs to the locker room. When no one’s in it, it’s like the most desolate place on the face of the earth. . . . So I walked to my locker . . . and there’s Walter [Payton], sitting on my shoes. . . . We went outside . . . and he buried my head in his chest, and in my opinion the greatest football player who ever played the game talks to me about what it meant for him to play with me for ten years.”

Thomas, who regularly attends Bears alumni functions, calls his hug from Payton the highlight of his career.

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