Novoselsky v. Brown
| Decision Date | 10 May 2016 |
| Docket Number | No. 15–1609.,15–1609. |
| Citation | 822 F.3d 342 |
| Parties | David NOVOSELSKY, Plaintiff–Appellee, v. Dorothy BROWN, in her individual capacity, and Cook County, a Body Politic, Defendants–Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph E. Tighe, Attorney, Alan J. Mandel, Ltd., Skokie, IL, for Plaintiff–Appellee.
Sisavanh Baker, Attorney, Daniel Francis Gallagher, Attorney, Chicago, IL, for Defendants–Appellants.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
The parties in this action have a long and litigious relationship. Over the past decade, plaintiff David Novoselsky has filed many lawsuits alleging improprieties by defendant Dorothy Brown in her capacity as Clerk of the Circuit Court of Cook County, Illinois. Brown later made statements to the public and to private parties accusing Novoselsky of being an unscrupulous attorney. Those statements form the basis of this case.
Novoselsky brought this suit against Brown under state law for defamation and under 42 U.S.C. § 1983 for First Amendment retaliation, and he seeks to hold Cook County liable for Brown's actions pursuant to Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Brown moved for summary judgment based on arguments that her communications are protected from liability by a web of immunity defenses. The district court denied defendants' motion for summary judgment, and defendants have taken this interlocutory appeal from the rejection of the immunity defenses.
We reverse. On the state-law defamation claim, Brown's communications were all statements reasonably related to her official duties. Illinois state law provides immunity to Brown for claims based on these statements. Brown is also entitled to summary judgment on the First Amendment retaliation claim, for all she did to retaliate was criticize Novoselsky. It follows that Cook County is also entitled to summary judgment.
At relevant times, defendant Dorothy Brown has been the Clerk of the Circuit Court of Cook County, Illinois. Plaintiff David Novoselsky is a Wisconsin citizen with a law practice in Chicago. Since 2004, Novoselsky has served as attorney in over a dozen lawsuits brought by various plaintiffs against Brown and Cook County. These lawsuits repeatedly raised allegations that Brown was misappropriating county filing fees. In particular, Novoselsky alleged that between 2001 and 2011, the Cook County Clerk's office did not report a shortfall of receipts totaling upwards of $300 million. None of Novoselsky's lawsuits have resulted in favorable judgments for his clients.
On June 14, 2010, Brown filed a complaint with the Illinois Attorney Registration and Disciplinary Committee (“ARDC”). Her complaint said that Novoselsky had breached a number of provisions of the Illinois Supreme Court Rules of Professional Conduct, including: Rule 3.1, filing meritless claims; Rule 3.6, making extrajudicial statements to the public; Rule 4.1, making false statements; and Rule 8.4, committing general misconduct. Brown's office also issued a press release that summarized the contents of the complaint. The release said that Novoselsky was “guilty of misconduct,” had “wasted taxpayer money,” and had engaged in conduct that was “clearly not professional.”
Novoselsky counters that the ARDC complaint amounted to retaliation for his behavior at a January 2010 press conference held by Brown. In the midst of a campaign for the Democratic nomination for Cook County President, Brown had been criticized for her handling of her office's “Jeans Day” program. The program gave employees the opportunity to pay a small sum for the privilege of wearing jeans to work on designated days. The funds were collected and used to aid employees in times of misfortune, to provide donations to charities, and to fund office parties. Questions arose as to both recordkeeping and the propriety of Brown soliciting donations from public employees. Brown called the press conference to address these accusations.
After reading a prepared statement, Brown invited questions. Believing Novoselsky was a member of the press, Brown engaged him in discussion. She found his questions, which implied that she had engaged in criminal conduct, “unprofessional and disrespectful.” Brown later expressed concern that the public would accept as true Novoselsky's repeated false accusations at the press conference and in litigation. In any event, Brown lost the primary election in March 2010. Brown's office completed a first draft of the ARDC complaint in April and filed the complaint in June. The filed complaint accused Novoselsky of fraudulently representing himself as a member of a legitimate news organization to gain entry to the press conference, as well as of making numerous disparaging allegations and filing multiple meritless lawsuits against Brown.
The ARDC complaint did not end Novoselsky's litigation efforts. After Brown filed the complaint, Novoselsky took part in a lawsuit seeking to force the funding and implementation of a previously approved juvenile intervention program. The program was designed to reassign non-violent juvenile offenders from the criminal justice system to social services supervision, sparing them from incarceration alongside more serious offenders. Leaders of the lawsuit said that Brown had refused to release funds because she had determined that the program violated the Illinois Constitution. Novoselsky took the case, working alongside a former state court judge who had resigned from the bench specifically to pursue the lawsuit. Civil rights leader Reverend Jesse Jackson, Sr. agreed to serve as named plaintiff. The suit was filed on May 19, 2011.
On May 20 and 21, Brown reached out to Reverend Jackson to discuss the case. Brown also forwarded two documents to Reverend Jackson. The first was a detailed assessment of the merits of the case by the Office of the Clerk in which Brown denied that she was delaying implementation of the juvenile intervention program and claimed that Novoselsky had instigated the lawsuit in order to “turn the public trust against the first African–American Clerk of the Circuit Court of Cook County.” The second was an annotated index of Novoselsky's previous litigation efforts against Brown. These communications had an effect on Reverend Jackson. He appeared with Brown on the afternoon of May 21 on a local Chicago television station to discuss their efforts to cooperate on the program moving forward. He also withdrew his name from the lawsuit against Brown.
In response to both Brown's communications with Reverend Jackson and her pursuit of the ARDC complaint and press release, Novoselsky filed this lawsuit on June 1, 2011, presenting a state-law claim of defamation and a § 1983 claim of First Amendment retaliation. Less than a week after Novoselsky filed this suit, Brown sent a long letter to an investigator for a private watchdog group, the Better Government Association (“BGA”). The letter spelled out again the lawsuits Novoselsky had filed against Brown, his behavior at the Jeans Day press conference, and his potential “racial animus against Clerk Brown” feeding into the “unconscious perception some people may have that African–Americans are intellectually and morally inferior.” For good measure, Brown included quotations from Lewis Carroll and various psychologists. Brown followed this up in November with a letter to the Cook County President and Board of Commissioners. The letter repeated Brown's characterizations of Novoselsky's litigiousness. It also accused an unknown county official of leaking an internal memorandum to Novoselsky. Brown argued that this memorandum, suggesting that the County should sever its present banking relationship with low-rated financial institutions, was fueling Novoselsky's accusation that Brown was irresponsibly depositing County funds in high-risk banks.
In March 2012, Novoselsky filed a second amended complaint, which is now the operative complaint for this case and this appeal. His claims of a First Amendment violation and of defamation remained the same, but he added allegations regarding Brown's communications to the BGA and the Board of Commissioners. Novoselsky now bases his suit on four communications: (1) Brown's ARDC complaint and press release; (2) Brown's communications to Reverend Jackson; (3) the letter to the BGA; and (4), the letter to the Cook County President and Board of Commissioners.
In September 2013, Novoselsky filed a motion for partial summary judgment, arguing that there were no issues of fact regarding the communications with Reverend Jackson, the letter to the BGA, and the letter to the Board of Commissioners. In September 2014, the district court denied the motion. In the interim, Brown and Cook County filed their own motion for summary judgment. Brown argued that she was protected by both absolute and qualified immunities from suit based on her communications. Cook County also sought summary judgment on several grounds.
The district court denied defendants' motion for summary judgment in early March 2015. The judge rejected Brown's theories of absolute immunity: that she was protected by an Illinois judicial rule, that her communications were privileged because they were made during a judicial proceeding, and that her communications were speech related to her official duties. Nor was the judge persuaded that Brown was entitled to qualified immunity on either the retaliation or defamation claims. Brown and the County appealed the district court's decision to deny the motion for summary judgment.
Federal jurisdiction in this case is appropriate: the § 1983 retaliation claim arises under federal law, 28 U.S.C. § 1331, and the defamation claim is part of supplemental jurisdiction, 28 U.S.C. § 1367. Diversity jurisdiction is also available for the state-law...
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