dorothy brown is entitle to privileges and immunities which includes privileges and immunities from beings having to endure the litigation process your honor first i'd like to turn our attention to the qualified immunity that she's asserting under the first amendment retaliation claim and specifically i'm asking to look first at the clearly established segment of that analysis in this case it is a did no review and the pla bears the burden to demonstrate to the court that a court has upheld the purported right in effect case factual similar to the one under review the plaintive has not provided any case l to this court which would support his position that what dorothy brown has done is clearly perhaps added or a violation of his constitutional rights specifically your honor what the facts revealed the undisputed facts reveal is that mismanaged her office in that case your honor mr novak can never show has never shown that there's any case law that show that when an elected official but person in her position has filed an airy d c complaint challenging that these lawsuits war frivolous let's not forget that these lawsuits none of them he ever them went forward beyond the discovery point most of the time they were dismissed on motions to dismiss or they were voluntarily dismissed they were frivolous and even under the standard that this court found under the conrad case where the plaintiff was determined to have found to be used the legal process by filing eight lawsuits none of which she prevailed upon but three in which she subtle old was a abuse of the legal process by incessant filings in frivolous lawsuits so the facts in this case will show do show that under those circumstances specifically she's saying that he has a first amendment right to file grievances and certainly does have the right to do that he doesn't have the right it's not a first amendment right to file grievances on behalf of his client briefs that the seventh circuit had found that an attorney retains no first amendment rights on his own behalf when representing a client in judicial proceedings that would seem like a pretty powerful authority it's not the seventh circuit it's the sixth circuit i apologize your honor that with an error rather elementary when you're practicing in the seventh circuit you have any idea how that happened and did you read judge moore is rather persuasive dissent your honor i'm i'm sure that i've read that defense and i'm sure that you never noticed that this was not a judge on the seventh circuit or that the case was with regard to the first amendment substantive right to be free from retaliation by government officials council could you address our case law that says for example prisoners and public employees cannot be targeted by retaliation for exercising their first amendment rights yes right i think that's a very different set set of circumstances and what's going on here and here the says  appeal it doesn't and i like a jury appeal based upon immunity your honor and so we're saying that these issues are technically well have been considered to be fine no because of the community issues  retaliate against people who are subject to their powers because those people have exercised their first amendment rights and i was wondering if you could address that you just said there are different but i was wondering if you could be more specific yes here and i can the the question that the court will look at when applying an immunity issue for retaliation is first whether or not the plaintiff has asserted a first amendment right the second as whether or not they've clearly established a right in this particular claim case the plaintiff has not established a clear violation of their first amendment right and the standard is whether or not when looking at whether or not the plaintiff can provide a case that is factual or similar to the one under review that the alleged misconduct constitute an obvious violation of constitutional right and plaintiff never does that plaintiff can only try to attempt to distinguish our cases there's never been a case where your argument was  your honor that is specifically she has immunities with respect to actions or communications taken in her facial capacity and also portions of the communications especially the checks and communication seems to be very clear imposing sanctions on an attorney who was also him selfe party in each case communicating directly with the opposing party who is represented by counsel is there any illinois case you but i will say that segal is distinguished because in seemed well he was represent the lawyer with representing himself pro se in this particular case dorothy brown cannot for the browns office  represent herself she is an attorney she has a license but she acts as the clerk of the circuit court pursuant to illinois law only and state's attorney may represent dorothy brown the in any kind of litigation and on on the air d c issue you agree that the press release is not protected by the supreme court rule i agree ok with respect to the absolute immunity which seems to me to be your strongest under bill or against walker and g k seems to have extended the blair case to all public officials if i understand it correctly granting absolute immunity from defamation for deliberately false and malicious attacks on private citizens correct that's correct without also extend you think to public disclosure of confidential files let's say disclosing of former employees medical records i don't believe thought i think that the at this point if we've got a candidate who's running against an incumbent the incumbent can respond to criticisms with deliberately false and malicious statements about the challenger and his entitle to absolute immunity correct that's your position correct no that's not my question and what i'm saying is that when ed that she has absolutely no money if what she is trying to do is express her own opinion when she's trying to exercise her own first amendment right wing is now there's nobody related to her official duties correct that that's correct you understand that very broadly right reasonably related yes i understand that ok so if the incumbent is responding to criticisms by the challenger she's entitled to make deliberately false and malicious statements as long as they are quote reasonably related to or official duties and she's absolutely correct that's correct while the challenger is under your reading of illinois law at least required not to be deliberately or recklessly falls correct trying no question you are yes you did discuss i discussed it by ten to find the statutory provision under which she is elected and under which she is required to manage and administrate her office but have you have you looked at how the illinois courts statute or and layer the constitutional provision which discusses both those responsibilities this is a very unusual factual setting as your honour's can see this is not a response by dorothy round to a question from the public as to mr no selsey this was a four or citizen attended a public press conference was allowed to ask questions and asked questions that made a candidate for a different office office a cook county president on comfortable because a press conference did not go as she had envisioned it the triggering event that gave rise to the letter to the a or b c had nothing to do with the clerk as clerk it had to do with the clerk as a candidate trying to run for a different office and holding a press conference at a public place and then she asked questions of my client questions that she stated on her deposition she would not have refused to answer she added it was and from a member of the press the member of the pressure described as being surprised to find out that my client was a private citizen this was not somebody who conducted himself in a manner that was was inappropriate but the real driver of this lawsuit was what happened a year later when the a r t c had told dorothy brought home that they were not going to pursue claims against my client because in fact he did not have a demonstrated history of frivolous and baseless lawsuits she went to my client client within a day of having received a new complaint and she went to that client and she said do you realize that your lawyer is a racist and your lawyer is putting you one of the icons of the american civil rights movement to use for his agenda which is racially tinge to embarrass the clerk as the first african american clerk of the circuit court of cook county she didn't lock him out of the courtroom she took away his plaintiff and effectively took away his standing argument his strongest standing army that had been the bugaboo for years of advocacy litigation that my client had been trying to bring to address a matter of public concern that is the way the clerk is managing and accounting for the funds that are received from live against on a daily basis in the circuit court of cook county in two thousand and eleven my client was brought to a case by a former judge who retired from the bench because he could not get relief within his job to through the chief judge to force the circuit court clerk to receive and implement a peer jury program intended to help juvenile offenders who are nonviolent offenders ovoid the consequences and risks of that you dish of the juvenile justice system by sitting down with mediator defamation and she has conceded during oral argument that we are talking about the press release for which there is no unity jointing about the press release of the a r d c letter is separate from the a r t c letter itself and that repeats the defamatory conduct she addresses the judicial proceedings privilege and we have responded to that and to what levels first of all she never had a right to contact mr jackson  absolute immunity from defamation when you're when you're performing your official duties so the the letter from dorothy brown to the r t c was not an official duty it was an act that she undertook on her own volition and was it reasonably related no sir it was not because she was complaining about how my client had acted in regard to her efforts for another job i had nothing to do with the press conference had nothing to talk about the motive for the letter rather than come to her and talked about litigation with her office read it mention litigation of there i was all that was virtually all it wasn't now so it started with and ended with the press room press conference and then there was a long discussion on the ninth draft and the presentation of the discussion the concept of racism was injected as a motivating factor and and the author and brown both acknowledge they had no basis to believe that they had no facts  suggest that but the press release was an announcement by the clerk that she had asked to describe system to do something else had nothing to do a saving taxpayers money because there were no lawsuits pending against the clerk at the time there was no threat to the taxpayers money from past lawsuits that hadn't been dismissed but let me ask you if i could mr child what what do you think is the strongest part of your case with respect to it being totally unrelated to this brown's official duties i think the strongest part of it is your honour's that the the gist and the impetus to the air d c letter was that the motive as opposed to the content well i believe they're both and i think this is a letter that has some reference to past lawsuits but i do not believe that the fact that there were past lawsuits has anything to do with her ongoing duties and then i think the with i'm going to ask you on the the question of your first amendment claim yes or i went back looking for some response to on the qualified immunity defense to some so case law something to meet your burden of showing that this would qualify i didn't see any of it in the opening brief by the defendants a quote from dorothy brown statement in two thousand and ten that she recognizes the right of people to bring but good faith claims in the court system she acknowledged and with respect operation push and jesse jackson could you address this in the terms that the courts of the s terms of case law that would show that mr brown should recognize that this conduct was unconstitutional he i took her statement as admission of an awareness that the constitution protects the right of litigants to bring good faced meritorious claims to court and then in violation of her restrictions on a rule four point two binding upon her with the force of law whether or not she's also a public official she interfered with and persuaded my client's client to walk away from the meritorious lawsuit and impeded my client's ability on the half of the issue he was trying to present to  standing to obtain the relief to which he was entitled the clients i think i understand your objection there i guess i'm siegel involved he was involved private the private individual right yes and i guess i'd like to raise with you the question whether it should extend to public officials since apparently the only courts have addressed this yet but i want you to consider for example the possibility of a county clerk who's a lawyer who's being sued for a marriage license by same sex couple for example yes or the couple comes in to talk to or can she talk to them if they are represented by counsel if they come to the clerk to talk from citizens she's supposed to serve no sir if she is aware that those citizens are represented by counsel with respect to the topic and in the generally at case your honor does address the applicant applicability of the rules of professional conduct on public officials and also has held that the rules of professional conduct have the force of law so if a person comes to a clerk on your honor's hypothetical and says i have a question and the clerk is unaware of the fact that that person is represented by counsel on a matter there is not going to be a violation of rule four point two if the person comes and they have a lawyer and the clerk says let me try to talk you out of your position in the lawsuit that's rule four point two comes into place and that is what happened here it was it's debated whether it be contact between dorothy brown i should say we do not believe that the conversation between dorothy brown and reverend jackson was initiated by reverend jackson but even if it was will four point two is there to protect reverend can she can she had back and doesn't she have an immunity from a defamation suit if she hits back very hard if she is criticized by mr know the she may respond to mr navas l c and as mr nava selsey bears a risk of defamation she bears at risk of defamation well what about her immunity she is not immune from calling somebody a criticised a lot of other stuff also yes now doesn't she have immunity from a defamation suit when she is responding to criticisms of her performance of her official dut if she were responding and it relates to her official duties she would have a basis to assert immunity well no miss elsie you admit she criticized her performance of her of her  official duties and she did respond verbal only and weren't those verbal responses protected by it by her immunity the verbal responses being her things for her performance of her official do messrs now wasn't she wouldn't she have immunity if she responded to those criticisms if she were  i think when she when she contacts reverend jackson we cannot view that as a response to her criticism over official duties because it will four point too and she just could not have had that conversation without m have the consent of the opponents counsel in order to initiate or contain have a conversation so her conversations and communications to reverend jackson were not at all within the scope of her official duties  wasn't she permitted to respond to those and be protected by her unit if she if it with respect to the official duties yes but my argument is that she had two x prior to the lawsuit being filed one of which and only one of which i need i need to go forward the one with jackson which is not and tailed with questions of whether the press release plans into the r t c letter is just an initiator of contact with a man's client whether there is any scope of protection that the law gives for that behavior and my my position is there is not and there should not be because if it's just not right i mean you hear somebody coming to court with it to bring an action needs to be addressed and they take away his client if they might as well just put a padlock on the door so i could ask one question followed quickly with this and this unfortunate reliance by defendants on the sixth circuit most of off case yes try the district judge ruled in your client's favor so he never really had to address this problem  if the issue were to go back to the district court is it fair to say that mr novus else would you argue and allege that mr nova cell ski is carrying on something of a  a campaign with a number of clients on behalf of a number of clients on an issue of public interest here he has been yes the we actually get into some pretty interesting case law on that question that goes back for example to thurgood marshall's campaign through the double a c p legalization defense fund and someone is recognizing whether he had first amendment rights for example along with other staff members to bring those cases but would you be in a position to allege something comparable the four quite different causes with respect to lawsuits that mr  respect or thank you honors on first with respect to the new york times mela standard your honor the reason why it would allow the clerk to make malicious statements is because she would be then entitled because she law correct i guess what i'm trying to say i'm trying to make the bridge there by saying that with respect to the issue of mallets why new york time requires malice for a public official is because when you're a public official there are and then out connect to illinois law that is the requirement or the desirability that public officials speak clearly and freely and strongly there to the constituency and therefore that is the is whether or not the statements were recently made in the course of the official duties there is no qualification briefly i also want to talk about the checks and communications this concern about  interfering with mr know the southeast client relationship with the reverend jackson that's not a first amendment right dorothy brown could not possibly be acting as an attorney in that situation where the state's attorney's office is identified under nelson which is an illinois supreme court case nelson first of kendall county the state's attorney has found to be an executive officer and so i would say that would be the same way