Thе 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,
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 sеrved 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 jеans to work on designated days. The funds were collected and used to aid
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 Nоvoselsky’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
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.
B. Procedural History
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 mоtion 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 dеny the motion for summary judgment.
II. Analysis
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 claim since plaintiff is a citizen of Wisconsin. See 28 U.S.C. § 1332. We have jurisdiction to consider this interlocutory appeal under the collateral order doctrine. See Will v. Hallock,
We review de novo a district court’s denial of summary judgment on these legal immunity defenses. Gustafson v. Adkins,
A. Absolute Immunity for Defamation
Brown makes three principal arguments as to why she is absolutely immune from liability against the state-law defamation claims. First, she argues that Illinois Supreme Court Rule 775 shields complainants from liability for complaints filed with the ARDC. Second, she contends that some of the communications are privileged because they were made during the course of a judicial proceeding. Third, Brown argues that her communications are privileged as within the scope of her duties as Clerk of the Circuit Court of Cook County. The district court rejected each of these arguments. We focus our attention on Brown’s argument that she is absolutely immune bеcause her statements were related to her official duties. We agree with Brown and reverse on this basis.
1. Communications Related ' to Official Duties
Illinois courts have long held that executive branch officials of state and local governments cannot be civilly liable for statements within the scope of their official duties. Geick v. Kay,
The privilege “provides a complete immunity from civil action.” Zych v. Tucker,
Absolute immunity extends to “executive officials.” Blair,
As Clerk of the Circuit Court of Cook County, Brown’s position does not entail the same level of executive authority as a governor or mayor. But the clerk is an elected official who is the chief administrator of a local government office and is charged with a number of executive functions and duties. See 705 Ill. Comp. Stat. 105/13 (2015). Brown is thus immune from liability insofar as she communicated within the scope of those functions and duties.
The scope of the immunity is broad. The sole consideration is “whether the statements made were reasonably related” to the official’s duties. Geick,
We conclude that all of the arguably defamatory communications in this case are protected by this official immunity. First, Brоwn’s complaint to the ARDC was within the scope of her official duties. No-voselsky’s numerous lawsuits against Brown alleged her dereliction of the office’s responsibilities — failure to segregate court fees into separate bank accounts, failure to audit court funds, and unlawful use of court funds for personal gain. Brown’s complaint focused on these issues and pointed to the Illinois provisions regulating her conduct in each of these areas. To be sure, Brown tested the boundaries of her immunity by remarking in a footnote that Novoselsky is guilty of “racial animus” and citing controversial publications to show the public has an unconscious perception of African Americans as “intellectually and morally inferior.” But taken altogether, the complaint falls within the ambit of Brown’s official duties to oversee the Circuit Court Clerk’s office and to respond to litigation filed against it.
Brown’s press release regarding the ARDC complaint is protected by the immunity as well. Blair is particularly instructive and provides a helpful starting point. There, the Governor released a press statement detailing his actions in a tax delinquency case in which two real estate brokers had allegedly taken advantage of distressed homeowners. Blair,
The Illinois Supreme Court determined that this communication was absolutely privileged. Id. at 389. Though the court acknowledged that “press releases can result in great damage to an allegedly defamed individual,” it countered that government officials need to be able to inform the public and their constituents of the issues before their offices. Id. at 389. This point echoed the U.S. Supreme Court’s similar holding that “a public statement of agency policy in respect to matters of wide public interest and concern is ... action in the line of duty” and therefore “within the outer perimeter” of an official’s duty for purposes of immunity. Barr,
Novoselsky argues that Barr and Blair are inapposite. First, he contends that Barr involved the personnel decisions of a supervisor over a supervisee, and that the subject matter of the press releases was therefore far more within the line of duty of the supervisor than is the case with Brown’s press release. But there was no such internal personnel decision at issue in Blair, and this did not bar the Governor’s communications from receiving immunity. Blair,
That is not the proper inquiry. See Geick,
Novoselsky argues further that the substance of the press release was generally not related to Brown’s official duties as clerk. He contends that Brown’s allegations concerned “personal, not official matters,” including her campaign for Cook County President. The press release’s references to Novoselsky’s lawsuits against the Circuit Court are at odds with “the true thrust and purpose” of the document, he argues, which was to defame Novosel-sky over personal matters. The district court agreed with Novoselsky’s conclusion, noting that the communications were of a “personal nature ... in relation to elections for which Brown, as an individual, was on the ballot.”
Even if the true thrust and purpose of the press release was personal and nefarious, that would not defeat Brown’s immunity under Illinois law. In this regard, the absolute privilege is absolute. It is not defeated by malicious intent or improper motivation. Horwitz,
This case highlights a fundamental asymmetry in Illinois law of absolute immunity. A government official may make defamatory statements, and may even do so with actual malice, about a political opponent so long as the communications pertain to the duties and responsibilities of her office. See Prosser and Keeton on Torts § 114, at 822-23 (5th ed. 1984) (noting that many critics contend this immunity affords “a golden opportunity for utterly unscrupulous politicians to abuse their position by inflicting outrageous injury upon the helpless and innocent”). Yet under New York Times Co. v. Sullivan,
But the courts of Illinois have determined that the values of “full public knowledge” arid “unfettered discharge of public business” justify such an imbalance. Blair,
For similar reasons, the other communications by Brown are subject to the same privilege. Brown’s communications with Reverend Jackson concerned a lawsuit brought against her in her official capacity. The subject of the litigation was Brown’s administration of funds pertaining to a juvenile intervention program, a decision within the responsibilities of her office. While Brown made potentially defamatory statements within this correspondence, alleging Novoselsky’s litigiousness and racial bias, the communications themselves fall within the broad scope of absolute immunity for statements made in the scope of official duty.
The letter to the BGA was similarly related to Brown’s official duties. The correspondence sets out to “serve as a summary of the 23 legal actions” filed by Novoselsky against Brown and her office. Brown noted in the BGA letter that defending the lawsuits has'cost her department and the taxpayers in excess of one million dollars. Though her correspondence again veers toward alleging “racial animus” on the part of Novoselsky, Brown’s letter concerned her responsibilities and duties as an elected official and
And, finally, the letter to the Cook County Board of Commissioners was also protected by the absolute immunity under state law. The letter was concerned primarily with an internal investigation by the Office of the Independént Inspector General to determine the source of an internal leak. The investigation began upon Brown’s request for an official investigation of a leak of internal assessments of banks used by the County. This leaked information was important to pending litigation brought by Novoselsky. The County Board letter from Brown discussed No-voselsky by way of background for the broader conversation about the litigation documents. While that discussion of No-voselsky was not flattering, it was largely an aside to a lengthy discussion of Brown’s defense of a lawsuit brought by Novosel-sky and filing of a formal request with the Inspector General. This set of actions and cooperation with the Cook County Board was reasonably related to Brown’s duties as clerk.
2. Alternative Immunity Arguments
Brown also receives immunity for the ARDC complaint as a statement made during the course of a legal proceeding. Under Illinois law, “anything said or written in the course of a legal proceeding is protected by an absolute privilege.” Zanders v. Jones,
In Illinois, the ARDC “sometimes acts as a quasi-judicial body,” and “sometimes acts merely as an investigative agency.” Lykowski v. Bergman,
That judicial proceeding immunity extends only to the comрlaint itself. Statements concerning quasi-judicial proceedings are no longer privileged once given “to third parties such as the media,” and therefore the press release would not receive privilege under this theory. Lykowski,
B. Qualified Immunity on First Amendment Claim
We turn next to Brown’s qualified immunity defense to Novoselsky’s § 1983 First Amendment retaliation claim. Qualified immunity protects government agents from liability for their actions so long as they did not violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Purvis v. Oest,
Novoselsky claims that Brown violated his First Amendment rights by retaliating against him for his exercise of those rights. As a general rule, to prevail on the retaliation claim, Novoselsky must demonstrate that “(1) he engaged in activity protected by the First Amendment; (2) he suffered a deprivation that would likely deter First Amendment activity in the future; and (3) the First Amendment activity was at least a motivating factor in the Defendants’ decision to take the retaliatory action.” Gomez v. Randle,
Novoselsky’s retaliation claim raises two questions for us. First, is Novoselsky’s work as a lawyer in and of itself activity protected by his personal rights under the First Amendment? Second, were Brown’s
We turn first to the question of protected activity. Novoselsky argues he was exercising his own First Amendment rights “to petition the government for redress of grievances” and, acting as an attorney, “to bring an action on behalf of [plaintiffs] to seek redress of grievances affecting the public interest.”
The First Amendment right to petition the government “extеnds to the courts in general and applies to litigation in particular.” Woodruff,
Accordingly, the right to petition the government is broad when litigation is used as the vehicle. But nоthing in these cases settles whether an attorney herself has a personal constitutional right to file lawsuits on behalf of her client. The right to petition protected in Woodruff was the right of the party to the litigation, not his counsel. And Novoselsky is not alleging that he has associated with other parties or his client to exercise a First Amendment right.
It appears that only one circuit court has directly decided whether an attorney can claim First Amendment protection on his own behalf in representing his client, particularly for purposes of a retaliation suit. In Mezibov v. Allen,
Judge Moore dissented on this point. Restrictions on the First Amendment rights of an attorney do not mean a lack of First Amendment rights altogether. Id. at 723 (Moore, J., dissenting in part), citing Gentile,
Our court has not yet taken sides in this debate, and we do not need to do so in this case. Novoselsky simply cannot establish that Brown’s alleged retaliation constituted a deprivation of his constitutional rights. In this case, the core of the “alleged retaliatory action is in itself speech,” namely Brown’s written communications. See Hutchins v. Clarke,
Short of that boundary, the First Amendment gives wide berth for vigorous debate, and especially for statements by public officials. As the Second Circuit has explained, such officials may express critical views of members of the public even when those views are false. X-Men Security, Inc. v. Pataki,
The D.C. Circuit reached a similar result in Penthouse International, Ltd. v. Meese,
Unconstitutional retaliation by a public official requires more than criticism or even condemnation. However impolitic defendant Brown’s statements may have
C. Novoselsky’s Claim Against Cook County
The defendants also raise a number of arguments why summary judgment should be granted on Novoselsky’s claim аgainst Cook County. That claim seeks to hold the county responsible for Brown’s alleged First Amendment violation on the theory of municipal liability under Monell v. Department of Social Services,
Moreover, under Monell, a county may not be vicariously liable for the actions of an unrelated government entity. See Thompson v. Duke,
There is a jurisdictional complication here, in that a Monell defense is a “mere defense to liability,” not immunity from suit, so that a ruling denying a Monell defense is therefore not on its own an appealable collateral order. Swint v. Chambers County Comm’n,
The judgment of the district court is REVERSED and the case is REMANDED for entry of judgment for defendants.
Notes
. Brown also makes an alternative argument that her communications should receive a "qualified privilege” under state law even if they are not shielded by absolute immunity. We need not address her argument for a qualified privilege, which was not presented to the district court.
. The absolute privilege granted to statements made during the course of judicial оr quasi-judicial proceedings provides “complete immunity from civil action.” Bushell v. Caterpillar, Inc.,
. Novoselsky also asserts that Brown's communications with his then-client, Reverend Jackson, violated her duties as an attorney under Rule of Professional Conduct 4.2, which prohibits a lawyer, even one who is herself a party to a lawsuit, from communicating directly with an opposing party known to be represented by a lawyer in the matter. See In re Segall,
. Mezibov remains the law of the Sixth Circuit but has been applied reluctantly in subsequent cases. Bright v. Gallia County,