Novoselsky v. Brown

822 F.3d 342, 2016 U.S. App. LEXIS 8589, 2016 WL 2731544
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 10, 2016
DocketNo. 15-1609
StatusPublished
Cited by67 cases

This text of 822 F.3d 342 (Novoselsky v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Novoselsky v. Brown, 822 F.3d 342, 2016 U.S. App. LEXIS 8589, 2016 WL 2731544 (7th Cir. 2016).

Opinion

HAMILTON, Circuit Judge.

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.

I. Factual and Procedural Background

A. Communications by Brown

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, Novosel-sky 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 Novosel-sky’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 Novo-selsky 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 [347]*347employees 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 Novo-selsky 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 No-voselsky 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 Novo-selsky’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 fol[348]*348lowed 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.

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822 F.3d 342, 2016 U.S. App. LEXIS 8589, 2016 WL 2731544, Counsel Stack Legal Research, https://law.counselstack.com/opinion/novoselsky-v-brown-ca7-2016.