Andrew Burger Jul. 29, 2016, 5:42pm

CHICAGO – A recent appellate court ruling highlights the special status state law confers on those who hold elected public office, and use that office to level claims against opponents and critics - even if those assertions may be considered defamatory if they had been uttered by a private citizen.

Reversing a lower court's decision, the U.S. Seventh Circuit Court of Appeals in Chicago confirmed that Illinois public office holders enjoy absolute immunity from claims of defamation when acting within the scope of their official duties. Ordinary citizens – including attorneys and political opponents – do not.

In David Novoselsky v. Dorothy Brown, Illinois attorney Novoselsky had accused Cook County Circuit Clerk Dorothy Brown of professional misconduct, alleging that she failed to segregate court fees into separate bank accounts, failed to audit court funds and unlawfully used court funds for personal and political gain.

Brown in turn sued Novoselsky for defamation and filed a complaint with the Illinois Attorney Registration and Disciplinary Commission, in which she asserted he violated the rules of professional conduct by repeatedly filing lawsuits in which he accused her of dereliction of her responsibilities as court clerk. She added that by doing so, Novoselsky wasted taxpayer money and behaved unprofessionally.

Brown issued an official press release and held a press conference just before filing her complaint with the ARDC, during which she purportedly spotted Novoselsky in the crowd allegedly pretending to be a member of the press. Brown's press release said Novoselsky was guilty of misconduct and had engaged in unprofessional conduct.

In its ruling, the Seventh Circuit pointed out the inequity that results from state law granting elected public office holders absolute immunity from claims of defamation. Ordinary citizens, on the other hand, may be liable if they make false, malicious or slanderous accusations against a public office holder.

“This case highlights a fundamental asymmetry in Illinois law of absolute immunity,¨ the court wrote. ¨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.”

The appellate court concluded that the Cook County court clerk's position was part of the executive branch of government and hence cannot be held liable in civil court cases for statements office holders make that fall within the scope of their official duties. That's in keeping with state law and longstanding judicial precedent.

The court added that, under Illinois law, Brown was immune from defamation claims when acting in her official capacity as Cook County court clerk. 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," the court wrote. "In this regard, the absolute privilege is absolute. It is not defeated by malicious intent or improper motivation.”

¨Novoselsky made some very serious allegations in his lawsuits,¨ Chicago attorney Richard Balough, of Balough Law Offices told the Cook County Record. "One would hope those that file legal complaints pertaining to an elected public office holder's conduct and performance have undertaken some type of investigation before making their assertions ... Apparently, Ms. Brown and Cook County felt that Novoselsky went beyond the boundaries of attorney professional conduct in doing so."

Illinois state law creates a sort of uneven playing field in such cases, Balough continued.

"Elected state office holders can make defamatory statements, even if they're deemed to have been made with actual malice, as long as it falls within the scope of their official duties and responsibilities," he said. "Ordinary citizens may be held liable, which confers a big advantage to incumbent public office holders."

The First Amendment of the U.S. Constitution guarantees U.S. citizens the right to freedom of speech, but that does not extend to making false accusations, libel or slander, Balough noted.

"You can say whatever you want to say when you criticize and make complaints about public office holders, but you may be held liable for defamatory statements. They, on the other hand, are not, as long as they are acting within their official capacities," he said.

The ruling should prompt caution, he added.

"I think the Seventh Circuit's ruling pulls into closer focus and draws into sharper contrast the difference between what an elected public office holder can say and what a private citizen can say," Balough said. "I think most people believe they can say whatever they want to regarding elected public officials with impunity. They may want to reconsider that and be more measured in their accusations in light of the Seventh Circuit Court's ruling."

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Organizations in this Story

Balough Law Offices, LLC
1 N LaSalle Blvd
Chicago, IL 60602

Seventh Circuit Court of Appeals
219 South Dearborn Street
Chicago, IL 60604

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