Novoselsky v. Brown
2016 U.S. App. LEXIS 8589
| 7th Cir. | 2016Background
- Dorothy Brown, Clerk of the Circuit Court of Cook County, publicly and privately criticized attorney David Novoselsky after he repeatedly sued her office alleging mismanagement of funds; Brown filed an ARDC complaint and issued a press release, and sent letters to a reverend, the Better Government Association (BGA), and the Cook County Board.
- Novoselsky sued Brown (state-law defamation) and under 42 U.S.C. § 1983 (First Amendment retaliation), and also sued Cook County under Monell; defendants moved for summary judgment based on immunities, which the district court denied.
- On interlocutory appeal the Seventh Circuit reviewed de novo whether Brown’s communications were protected by (1) Illinois absolute immunity for statements related to official duties, (2) judicial/quasi-judicial privilege for ARDC filings, and (3) qualified immunity for the § 1983 retaliation claim.
- The court found Brown’s ARDC complaint, press release, and letters were reasonably related to her duties as Clerk (defending office operations, litigation, and internal investigations), so Illinois absolute official-duty immunity bars the defamation claim.
- The court held Brown’s noncoercive critical speech did not constitute actionable First Amendment retaliation (no threat, coercion, or profoundly humiliating disclosures), and therefore she was entitled to qualified immunity on the § 1983 claim.
- Because Brown did not violate clearly established constitutional rights, Novoselsky’s Monell claim against Cook County also failed; the Seventh Circuit reversed and remanded with judgment for defendants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Brown’s allegedly defamatory statements are immune under Illinois law | Novoselsky: statements were personal/retaliatory and not within official duties, so no absolute privilege | Brown: statements were reasonably related to duties as Clerk and thus absolutely privileged | Held: Statements were within scope of official duties; absolute immunity bars defamation claim |
| Whether ARDC complaint/related communications are privileged as part of a judicial/quasi‑judicial proceeding | Novoselsky: press release and third‑party disclosures exceed any judicial privilege | Brown: ARDC filing and preliminary communications are part of quasi‑judicial process and privileged | Held: ARDC complaint is privileged as part of quasi‑judicial proceeding; press release to third parties not privileged under that theory but covered by official‑duty immunity |
| Whether Brown’s speech constituted actionable First Amendment retaliation under § 1983 | Novoselsky: Brown’s statements and outreach were retaliation for protected petitioning (litigation) | Brown: her communications were speech/criticism, lacking threats/coercion; qualified immunity applies | Held: Speech alone (absent threat/coercion or extreme humiliation) does not constitute actionable retaliation; qualified immunity applies |
| Whether Cook County is liable under Monell for Brown’s actions | Novoselsky: County can be held liable for constitutional violation by its official | Brown/County: No constitutional violation by Brown; clerk is not a county employee for Monell purposes | Held: No underlying constitutional violation, so Monell claim fails; County not liable |
Key Cases Cited
- Monell v. Department of Social Services, 436 U.S. 658 (1978) (municipal liability requires an official policy, custom, or practice causing constitutional deprivation)
- Barr v. Matteo, 360 U.S. 564 (1959) (officials’ statements within scope of duties can be privileged)
- Blair v. Walker, 64 Ill.2d 1 (1976) (Illinois absolute immunity for executive officials’ statements reasonably related to duties)
- Geick v. Kay, 236 Ill.App.3d 868 (1992) (immunity for executive branch officials for statements within scope of official duties)
- King v. Chicago School Reform Bd. of Trustees, 197 F.3d 853 (7th Cir. 1999) (Illinois privilege covers defamatory statements reasonably related to official duties)
- Hutchins v. Clarke, 661 F.3d 947 (7th Cir. 2011) (retaliatory speech actionable only when involving threat, coercion, or extreme humiliation)
- X-Men Security, Inc. v. Pataki, 196 F.3d 56 (2d Cir. 1999) (public officials’ condemnatory statements not actionable absent coercion)
- Mezibov v. Allen, 411 F.3d 712 (6th Cir. 2005) (debated; attorney’s litigation activities may not be protected personal First Amendment conduct)