-: SJC 13576, Kenneth Bresler versus Lynn Muster et al.
-: Okay, Attorney Bresler.
-: Chief Justice and Associate Justices,
be it please the court.
I'm Kenneth Bresler,
plaintiff, appellant and cross appellee in this case,
I will be referring to myself in the first person.
The first point I want to make is to amplify
on something in my briefs, namely that
an iota of legitimate government interest
does not insulate supervisors from liability.
We know that from a few reasons
aside from what I've mentioned in my briefs.
First is the controlling factor inquiry,
that implies that other factors can coexist
with malignant spiteful purpose,
such as a legitimate governmental interest.
Another way we know that is the Sklar case,
the appeals court case that I discussed in my briefs.
Sklar discusses a spiteful malignant purpose
unrelated to the legitimate
corporate interest of the employer, the familiar formula,
and then says, put differently,
the defendant was personally hostile
or harbored ill will toward the plaintiff.
The Sklar case provides two alternative definitions
of actual malice that do not include legitimate governmental
corporate or employer interest.
-: It's difficult to find and this might be in your favor,
but it's difficult to find 12(b)(6) cases in this area.
But I've, and you discussed two of them
or looked at two of them that are,
I'd like you to distinguish if you can.
The first is the Kelleher case from the appeals court,
which you talk about, but the second is the First Circuit
Najas case, realty case
'cause both of those cases seem to me
to say if there's personal animus,
that's unfortunate but not actionable.
We need to have something more than that,
so could you walk me through Kelleher and Najas if you can?
-: The Kelleher case is distinguishable from this one.
Again, it's a, as you said, a rare
appellate case at the motion to dismiss stage.
Kelleher, the complainant Kelleher
provided legitimate employer interest
that the Superior Court could look at
and ultimately the appellate court.
There is nothing-
-: But in your situation, reading the complaint
in a light most favorable,
there are interests that are vindicated that,
in the 13 points, et cetera,
there are reasons given as for the termination, correct?
-: They are, yes, there are-
-: That are related to the appeals court interests.
-: I don't see a legitimate interest in the appeals court
in its supervisors fabricating evaluations
of its employees such as me.
And I don't find a legitimate interest of the appeals court
in artificially splitting two minor errors into two charges
to increase the number of charges
when those errors are similar to ones that other
employees of the appeals court and judges themselves
unfortunately make.
The editing process is predicated on the
principle that humans are human and make errors
and the processes designed to catch them,
not all errors are caught.
And my opposition to the motion to dismiss has a footnote
discussing errors that made it
into published decisions of appellate courts.
-: Okay, and I interrupted you
when you were distinguishing Kelleher, so please continue.
-: That is the main distinction
with Kelleher is that the complainant Kelleher it,
itself undid itself by discussing
things that the appellate court could extract from it
to discern legitimate governmental interest.
The Najas case that you asked about
because it's about real estate,
really is hard to compare to the workplace
and animus by supervisors towards an an employee.
And that is the major distinction that I would make.
-: There's a line in Najas
which struck me as problematic for you,
says the rule is that
there's every presumption in favor of the honesty
and sufficiency of the motives actuate in public offices
and actions substantially taken for the general welfare.
-: There is that presumption,
of course that presumption can be overcome by actual malice,
by bad faith in malice.
And I believe in this case, the things
that the defendants have done overcome that presumption.
I think that the complaint plausibly alleges
that they were doing things
for purposes other than legitimate government interests
and the interests of the court.
My complaint plausibly alleges five times
that the things that the supervisors did, the defendants
actually hurt the legitimate interests of the appeals court.
-: Can you divide up I'd like to focus on,
I'd like to focus on Bowe and De Rossi
because I have trouble identifying anything plausible there.
I get the other is different
and I'm not focused on that right now.
So tell me what Bowe gives a very positive evaluation of you
when she starts.
So she clearly has nothing,
there's no ill will in the beginning here,
it what happens later.
I understand you think she got
some of the disciplinary descriptions wrong,
but I don't see lack of good faith here, actual malice.
So show me how, what is it that she has done?
And then I want you to refer on again for De Rossi
and I'd like to turn to paragraph 78 eventually,
but tell me about De Rossi and Bowe.
What is there besides the fact
that you disagree with the evaluation,
the specifics of the evaluation?
-: Whether or not Bowe and De Rossi
had personal animus to me,
they did demonstrate bad faith
which stripped them of common law immunity.
What Bowe did was fabricate evaluations against me
in verifiable ways.
-: She doesn't do the evaluations, right?
She's not providing the material for that,
someone else is providing them,
I assume Muster is providing that to her.
Is that right?
I just don't, I don't understand what she's doing
that's besides getting the facts,
some of these facts wrong, according to you.
-: A reasonable inference from the complaint
is that Muster is giving information to Bowe
and influencing her.
But Bowe is exercising independent judgment
by giving me oral evaluations and written evaluations
that contain verifiable fabrications.
Fabrications that can be checked
to see whether they're accurate
and if she's getting them from Muster.
-: Give me a specific example besides the
IT problem one, is there,
explain the specifics of why it shows bad faith
because it again, it seems like you disagree.
Okay, you didn't edit something
as well as they thought it should be
and you have a disagreement about the facts,
it doesn't show ill will though.
-: The verifiable errors besides blaming me
for a computer error are blaming me for an error
that another employee did
and that Bowe as Chief Staff Attorney
knew was not within my purview as a staff attorney.
-: Give me an example of that out of,
'cause your complaint is chockfull of a lot of detail
but give me an example of what she did that shows bad faith
'cause I have trouble and you're gonna have to articulate it
just 'cause you think she wasn't accurate
that a judge was somewhat more positive
than that description, help us out.
-: One of the charges against me
was that I made an error in a rescript cover,
which I as a staff attorney had nothing to do with
and Bowe as Chief Staff Attorney
knew that that was not within my purview.
Another allegation that originated with Bowe
was that I included objectionable language in a case
in a draft that did not include that language.
I think that's a clear example of bad faith
to fabricate evaluations that can be verified.
Those are my examples from the complaint there,
as you mentioned, the complaint is detailed
and I think it adequately demonstrates bad faith malice.
-: I have the same confusion.
So is it that these were things that
were easily verifiable
and the bad faith is in not unearthing
that they were wrong?
Stated differently,
are you saying that bad faith is demonstrated
for not only Bowe but also for de Rossi
in not doing a better investigation?
-: I'm saying more than that.
So for the complaint plausibly alleges
not that Bowe and de Rossi got information
that was incorrect
that they incorporated in their evaluation
and charges against me,
but they fabricated the evaluations.
So if Bowe got incorrect information from Muster,
first it was bad faith in relying on
because she knew that Muster was a inaccurate reporter.
I had already asked Bowe to be protected from
from defendant Muster,
the union steward had told Bowe
that Muster was bullying me
and it would be bad faith
for Bowe to accept information from Muster.
-: Isn't it more attenuated when it gets to De Rossi as well?
-: It is not as direct with De Rossi as with Bowe,
but there's still enough in the complaint
to strip De Rossi of common law immunity and her
and her protection as a supervisor.
Because what De Rossi did was adopt
fabrications three times, once by sending them to me.
-: But she has, if she supervises
the other supervisors, correct?
-: Yes.
-: Your position is it's bad faith
'cause she didn't look underneath
what Bowe and Muster told her
what Bowe told her, who was told by Muster?
-: It was bad faith for a couple reasons.
One, she did not give me access to my files
to allow me to refute the charges.
She was interested in terminating me,
not in learning the truth of her charges against me.
-: That's sufficient to negate common law immunity?
-: Not sufficient by itself. -: The rebuttal process?
-: Not sufficient in and of itself,
but combined with other factors.
So for instance, the outside consultant
that the appeals court brought in
to evaluate staff attorney operations
advised the appeals court
to bar de Rossi and Muster from working together
because they were intriguing against staff attorneys.
If De Rossi relied on Muster for information,
that was bad faith because-
-: Paragraph 78, that's the only,
that's the only thing I see about De Rossi that isn't
basically that she didn't have two levels of
supervisors between her and the information.
And is that a quote?
I mean, it's not quoted,
I'm just trying to understand what we do with paragraph 78.
-: Paragraph 78 is a plausible allegation
that De Rossi was not supervising in good faith,
that she was inappropriately relying on Muster
and intriguing against staff attorneys,
trying to undo them rather than
seek the truth about their accurate performance.
-: Yeah, I have problems
'cause you keep using fabricating, intriguing,
if intriguing were in quotes,
I'd have some more concern about it,
but I can't tell whether, again,
it's a characterization from you.
-: It is a characterization.
The complaint does not contain any quotation
from a report from the consultant
or lead one to believe that a report was ever released.
-: So what do we do with that?
I mean, we're at a motion to dismiss stage,
I can't tell whether the word intriguing is a factual
or an overlay from you.
-: Well, what I hope this court does
at this motion to dismiss stage
is what the appeals court said in Frielich versus Percit,
which is the tortious interference claim
requires an assessment of the state of the mind
and should be evaluated on the basis of a factual record.
And the factual record would also include
finding out more about
an objective outside observer's assessment of how the
appeals court was treating its staff attorneys
and what it was allowing its supervisors to do.
-: Okay, thank you very much. -: Thank you.
-: Attorney White?
-: Associate Justice Gaziano,
Associate Justice Kafker, Associate Justice Judge,
how are you?
I have the privilege of representing Lynn Muster
in this appeal.
I am an appellant, which is a somewhat unusual
and we're asking the court
to overturn the decision of the trial court
on the issue of common law immunity
but also on the,
if not on the issue of the intentional interference
with the advantageous relationship claim.
Some of the questions that the court just posed
to my brother deal almost exclusively
with the arguments I intended to make.
When you look at the complaint,
it is very detailed and very thorough,
but it's a, from from its absence,
you can see that there are no quotations to some of the
allegations against specifically my client.
The complaint that Mr. Bresler has filed
only talks about my client's conduct in detail
on three pages.
There's only 13 paragraphs,
then it goes on to talk about the conduct of Ms. De Rossi,
Ms. Bowe and spends nine pages defending the 13 items
that he was terminated for.
-: I think what's problematic
are paragraphs 38 to 41 that deal with,
there's a allegation of bullying,
but then when you read paragraph 39 and 40,
it talks about your client soliciting two judges
to turn against the plaintiff.
So is that enough?
-: So it's not enough, and here's why.
First, this, and this goes to what you were saying earlier,
these are labels, at least there's a bullying label,
there's a jealousy label,
there's no context given whatsoever,
and he was, he had the opportunity to do that when he pled,
he could have quoted something that she said,
he could have provided a specific circumstance,
but he doesn't do that, and that's his burden here.
He can't just say this my superior bullied me.
He could say my superior bullied me
and did the following, but he doesn't do that.
He could say as he does that she spoke with judges
and that judges thereafter
provided negative comments at her direction.
But on that point,
we have to look at the plausibility issue, right?
-: So I mean there's a,
I know there's separate analytical pathways here,
we have the 12(b)(6) and we have the common law immunity,
but there's a lot of overlap-
-: There is. -: In those two areas.
What's your best case as far as
these conclusory language labeling that means
that would allow you to win before discovery?
-: The best case
that prevents someone from just providing labels to?
-: Right.
-: The Einchino case, which is kind of the basis
for all 12(b)(6) arguments.
-: Right, I meant specific to this tort.
-: Specific to this tort? -: Yeah.
-: I think that's it.
It's cited in several of the other cases.
-: No, I mean you're citing to us just the 12(b)(6) standard,
but I'm looking to see if you have
a case you can direct us to that deals with the tort
of advantageous relationship
and sufficiency on mere labels and conclusory language.
-: Well, I can go through the cases
that I think support my client's claim
and most of them, whether they're 12(b)(6) or not,
look at the conduct and that when they look at the conduct,
they look at the conduct of the individual.
-: Because that's why I started
with Kelleher in the Najas case
'cause those are the only in,
there's a string site in one of the briefs,
but a lot of 'em are trial court decisions.
The only cases I found
or found were helpful to me Kelleher and Najas
as far as at that stage.
-: You're right, your Honor,
we've looked at that really is it,
and that's why I think you have to look further to the cases
that involve summary judgment
and when you, you're actually looking at what's being pled
and what the allegations are.
Do they state a claim that of actual malice,
that's what the court's doing, whether it's a 12(b)(6) or,
or even the summary judgment stage.
And the cases that,
that the specifically the trial court relied on are,
are very distinguishable from this.
The Brothers case versus Millbury,
which is the primary case that the trial court relied on,
talked about a twisted investigation,
it talked about destroying evidence
and making false public charges against this contractor.
Those are, that may be the type of conduct
that is actual malice,
but it's not similar to the type of conduct
that's alleged here.
What you're seeing here is conduct of a supervisor
performing their position
and we see through the nine pages
of back and forth about the 13 items
that Mr. Bresler was terminated for
that he disagrees with those.
Judge: But I know you remember this better than I do,
what was the procedural posture of Brothers?
-: It was, well, Brothers was a US District court case.
-: But what was the, where were they,
trials, summary judgment?
-: They were at summary judgment.
-: So I mean I can, that's the real issue here is that,
so they were able to develop a discovery record
before that decision came.
Here, maybe not so much with Bowe and de Rossi,
but there does seem to be direct factual allegations
that seemingly support that,
that your client had this vendetta against the plaintiff.
And I agree with you,
there are no quotes in there, there's no report.
But at least in as much as the substance
of what he claims that
the relationship deteriorated enough people,
including the shop steward were cognizant of this
and that it imputed all the way down to
other supervisors and other judges,
there's not enough here against your client?
I know you're gonna say yes,
but leaving aside the, at the kind of adversarial gloss,
isn't there really enough here?
-: Well, we could, I think the answer is no.
And yes, they did have the opportunity
to do discovery in many of these cases,
but you still have to look at that conduct.
I mean that's what we're talking about.
The cases support, the cases
specifically the Brothers case I think supports my client
because they are very different.
We've cited to multiples of other cases that the conduct is,
it's either illegal or it's suggesting illegal conduct,
it's terminating someone for not following
statutes and rules and regulations,
none of that is in this case, in our case.
This case is about an employment decision
that was made by the appeals court and other supervisors.
If you look at the language in the complaint,
it's not a claim against,
my client wasn't involved in the termination.
He said to you today
that there is an inference that she was involved in it,
but there are no facts
and he spends more than 12 pages in the complaint
talking about that termination.
He says there's an inference that you have to adopt the-
-: She's the direct supervisor though, right?
-: She is the direct supervisor of certain.
-: I mean almost the whole complaint is
suggesting that she's, yeah, once she starts out,
weighing in on whether he should teach a seminar or not,
which is, should be none of her concern,
then I don't know what this taking over thing means,
but it's a seems to be a quote rather than
it's different from sort of just a pure characterization.
And then we've got statements by other attorneys,
including the union steward
that talk about personal hostility.
It just seems different here, doesn't it?
Then not, I just,
I don't understand how we can ignore all those comments.
-: Well, I'm not asking you to ignore them,
the trial court identified seven issues that taken together,
the trial court found that there was enough.
The trying to take over statement,
I don't know what that was,
but it doesn't sound to me like malice or actual malice.
-: It's just strange that you've got one staff attorney
concerned that another staff attorney is teaching a seminar
on legal writing.
Well, it's, I get it.
Bowe changed if Bowe decides
the writing is not good down the road
as the manager of the department, that,
but it seems a little different when another employee
doesn't think it's appropriate, right?
It seems different.
-: But it may be different,
something that we've not encountered,
but it doesn't mean that it's malice or actual malice.
-: But they're not doing their job
because what's the relationship between her job
and whether he teaches a seminar at social law?
-: Well, he says in his complaint that
she failed to publish information about his CLE program
but published other.
Kafker: It's the second one.
-: That's the second one.
-: First one, he's suggesting
this starts right in the beginning before she's a manager,
that it's personal.
-: Well, I suppose I mean that the manager sees the writing
and it's a course on legal writing
and possibly thinks the individual is-
-: She's not a manager at that point, right?
She's a co-employee, she's just another staff person then.
-: Well, so that's in the first several months
of his employment based on his complaint,
I mean the termination,
I don't know how you can relate back that
first that comment,
before she's even a manager as a co-employee
to a termination that occurs 18 months later.
-: He writes back and he says she's jealous of, I mean,
whether any of this is true-
-: Yeah, of course -: It's too early,
but he suggests that
she's jealous of the attention he's getting,
that he's speaking out there
and then she goes out to undermine that
and then when she becomes a manager,
she's empowered to do it.
That's a suggest,
again, I have no idea if any of that's true,
but it's early in the process.
-: He labels it as jealousy,
he labels her conduct as jealousy, I'll point out.
-: But he quotes other people too, doesn't he?
He says other staff people are making the same comments.
-: I don't think that that's accurate.
And in particular, footnote three
of the court's, lower court's decision
talked about the jealousy,
said there was no evidence of jealousy
that he pled in his complaint.
So I guess if we're reviewing
the decision of the lower court, is that there,
I know that's a de novo review,
but she says in footnote three,
despite saying there are seven
facts that she could find taken together,
plausibly for this claim.
-: Again, I just want 31 and 32,
staff attorneys widely considered defendant Muster
to be vindictive and petty bully,
staff attorneys widely considered defendant Muster
to be jealous of attorney Bresler's achievements
as a legal writer and teacher.
We do what with those?
-: Those are labels. -: Okay.
Those are labels, they're not statements of facts
that we need discovery on later.
-: They're labels in their conclusions.
I mean, it is generalization about,
there's a room full of staff attorneys.
He identified judges, he identified Judge Blake
and judge Hand in the complaint
and said that my client unduly influenced them
to provide negative support, but he,
or excuse me, negative criticism,
but he doesn't do the same with these generalizations
and that I think is the problem.
-: Perhaps with the jealousy one.
But when you go through,
and I agree with you, if you were to take them in isolation,
perhaps none of them get over the hump,
but the trial court judge
or the trial judge said the taking over,
soliciting to other justices,
disparagement in front of other staff attorneys,
disparaged him,
discouraged staff attorneys to attend his seminars,
refused to publicize his seminars,
influenced him to give others poor evaluations,
subjected him to impossibly high standards.
When you take all of those together,
I'm still struggling to see
how that doesn't plausibly under the Einchino standard say,
he at least gets past 12(b)(6) in common law immunity.
He might not get past rule 56,
but how does he not get over that hump?
-: Because I think if you, what you're looking at,
and two of those were disparaged, okay?
There's examples, no examples in the complaint at all,
no factual statements other than he disparaged
or she disparaged me in the complaint
to judges and to staff attorneys.
There would have to be more,
otherwise it's a conclusion.
-: Give me the time and what he said
versus just putting a conclusory label on it.
-: Anything, he hasn't provided anything for,
and if you take the disparagement,
the two claims about disparagement out of those five items,
then you're left with conduct that,
that would reasonably be occurring
and supporting the legitimate interest of the Commonwealth,
also conduct that a supervisor
might undertake in this position.
We're talking about legal writing for the appeals court of,
the Commonwealth of Massachusetts.
The fact that my client,
her reviews of his writing have been labeled as brutal
without more, it's exactly what I'm saying,
it's a label and it's a conclusion.
Thank you for your time. -: Thanks.
-: Okay, Attorney Collins.
-: Good morning Chief Justice, Associate Justices
may it please the court, Jeffrey Collins for the appellees,
Gina De Rossi and Mary Bowe.
The parties don't disagree on the applicable standards here
it is plaintiff's burden to overcome the presumption
that Ms. De Rossi and Ms. Bowe acted in good faith
and without malice.
-: Can I get to the easier one on De Rossi?
And Justice Kafker pointed out the paragraph
that talks about the consultant and the dispar
and the intriguing against staff attorneys.
How do you get around that for 12(b)(6) or immunity?
-: Well, your Honor, I believe that
Mr. Bresler just admitted to the court
that this was a characterization of his own,
not a specific allegation against Ms. De Rossi.
Also, it's a generalized conclusory statement.
He says simply,
and again, it's not a direct quote from a report,
it's not a direct quote from Attorney Damon,
he says generally and conclusively that
these two individuals were intriguing, whatever that means,
intriguing against staff attorneys.
It says nothing, nothing at all,
specifically about Mr. Bresler, and so-
-: It does reference a specific report though, right?
It just, that makes it a little odd,
it's not, this isn't just an allegation,
okay, that De Rossi and Muster are intriguing,
it's this outside consultant
found they were intriguing, right?
-: Yes, Justice Kafker, but again-
-: No discovery, nothing, it's just,
I understand it's not in quotes,
but it's more than just a,
it has some kind of factual level to it.
-: I respectfully disagree,
I mean I think it is a conclusory statement.
I think saying that two
staff employees intriguing again, whatever that means
because Mr. Bresler doesn't tell us what that means.
Whatever that means certainly does not rise to the level,
it certainly doesn't plausibly suggest,
it's not a specific fact
that plausibly suggests bad faith or malice,
and it certainly doesn't plausibly suggest actual malice.
Again, it's a conclusory statement.
Judge: Your position is,
it's doing too much work in this complaint.
-: I'm sorry? -: It's doing too much work
that one paragraph to satisfy 12(b)(6), correct?
-: That's right. -: Or immunity.
-: That's right, your Honor, correct.
So again, the parties don't disagree
on the standards here.
The standard for actual malice is clear.
and again, there are simply no specific facts, right?
It is the plaintiff's burden to plead specific facts,
specific facts plausibly suggesting bad faith
or malice, specific.
-: Well, what about, it's hard enough being in a position
of being at will
and you're alleging you were wrongfully terminated
and the sequence of events are kind of like a,
almost like Russian nesting dolls, right?
That begins with Bresler and then it goes to Bowe
and then goes to De Rossi.
When you get to the point though of saying
they didn't in good faith investigate
whatever it is they say I did,
and when I tried to get my file to respond
or be given an opportunity to respond,
can't we in drawing all reasonable inferences
in favor of the plaintiff, say, well,
you didn't give them an opportunity to give to respond to
these 12 or 13 things
that you say you warrant your termination.
And when you go one step before that,
that you didn't adequately investigate to begin with,
to even rely on these things,
that you're not giving me an opportunity to respond to.
-: This court and other courts have repeatedly said that,
and I cite, we cite to the Bach case, the ISA case,
Nasir, Greg and Graham,
that unreasonable action without sufficient diligence
does not rise to the level of attack.
-: I asked the same question that I asked attorney White,
what procedural posture were those cases,
were they 12(b)(6) cases?
-: Some of them were, your Honor, and I can,
the Bach case was a motion to dismiss that was allowed.
The ISA case was a motion to dismiss that was allowed.
-: That's helpful, thank you.
-: The Nassir case was a motion to dismiss case.
The Greg case was a motion to dismiss case
and the Graham case, which is a case from this court,
was a reversal of a trial court judgment
where all the facts were developed at trial,
reversal of a trial court judgment
in favor of the plaintiff. -: Thank you.
-: How about, I'm reading through the complaint.
I think does the plaintiff say he's the first
staff attorney ever fired from the appeals court?
-: That is the allegation.
-: First, and then I look at these 13 things
and a lot of them have to do with editorial conventions.
I don't know how many of them are 128s,
whatever the new rule is, what it's called,
how long did he work there?
He worked just shy of two years, your Honor.
-: So he works there two years,
they identify 13 sort of disputed
and a lot of them are editing,
I can't remember how many of them are actual writing.
And this is at a time when the appeals court
transitions from having specialized editors
to having the writers do editing, right?
Is it, is there a fair reading of the complaint saying,
okay, this, especially when I look at the statement Bowe
it's taken on a life of its own, that this is like two,
a personality dispute between two employees
and they just can't keep them together there
'cause they're scrapping with each other,
is that a fair reading of this?
-: I don't believe it is, your honor,
and first of all, there's no allegation in the complaint.
-: Again, let's start with the premise.
No one's again, I accept this is true,
no one's been fired as a staff attorney there ever.
Attorney: Correct, your Honor.
-: And I look at these fights
and they're murky and often about trivia, right?
A lot of them are editorial errors
or corrections that happen all the time.
-: I don't believe that's true, your Honor,
and I don't believe it's accurate to say
that most of them are about editing, I don't think they are.
-: But tell me, I mean, there's 13 of them
and it was painful to try to go through them,
but a lot of them seem to be editing conventions is no.
-: I don't believe so, your Honor.
I think the bulk of them were
critiques and criticisms from the justices
from no less than four justices
about draft decisions that Mr. Bresler.
-: Well, we got, again, we've got a record
we have to read in a light most favorable.
-: Don't we have things like there was a docket number
that wasn't right?
There was a snapper that said judgment affirmed
as opposed to judgments affirmed?
-: We do, we do.
-: If I get graded on my snappers, I'm in trouble,
I can tell you that.
So I mean, a lot of these things are, like you said,
editing conventions.
-: Judgements affirmed versus judgment affirmed,
we've got where the judges are brought into the mix,
he's saying that the judge also complimented him
on the decision as well as there's some criticism,
and again, it's a, we're at a immunity stage just.
-: There's more than that justices
and I'm happy to go through it.
And this isn't me characterizing the complaint,
the claims or allegations,
these are the actual claims in the complaint.
Ms. Bowe critiqued Mr. Bresler
about a draft opinion that he had written
for Justice Maldonado in which Justice Maldonado complained
about to her and called that draft opinion unusable.
That is not insignificant.
-: Doesn't he have a response to that,
that she actually complimented him on that
and that she's criticizing something
that Maldonado's law clerk wrote, not that he wrote?
There's an explanation here.
I don't know if it's true,
again, I have no idea who's telling the truth.
-: What the explanation is, your Honor,
is that the beginning part of the draft opinion
that Mr. Bresler wrote,
I'm sorry that Mr. Bresler passed along
to Justice Maldonado, right?
There's a beginning part of that opinion he alleges
that was written by a judicial clerk.
-: Let me just, I thought,
yes, beginning is written by a judicial clerk.
Attorney: Correct.
-: The judge asks him to step in, right?
-: That's correct.
Mr. Bresler is asked to step in
on an opinion that was written by a judicial clerk.
Mr. Bresler steps in for, in writing that opinion.
He then drafts that opinion in his own pen
and includes, your Honor,
includes the unacceptable language, the unusable portion
or maybe even more of the decision was unusable,
but certainly includes
a part of what the judicial clerk had written,
which was unacceptable
and then passes that along to Justice Maldonado.
At that point, that's his work.
I don't think at that point you get to say to the justice.
-: It is the judge's work. -: I'm sorry?
-: It's always the judge's work, it's not his work.
I mean, ultimately the judge is responsible
for the case, right?
-: Certainly, certainly.
But at that stage, your Honor,
the judge is relying on Mr. Bresler, right?
The draft opinion has been passed off to Mr. Bresler
to fix, to fix and what he does,
and again, this is in the complaint.
-: This has to do with proper motive to terminate?
-: Absolutely.
-: If he's, if whether it's the judge's work or not,
if he's passed along bad information, then.
-: That's right, your Honor, that's right.
There's more that rises above the level of sort of the...
-: But some, like the 13 points when you go through them
in the 13 points is significant, I guess
because that's the coup de grace, right?
That's the, you're being fired for these 13 reasons.
-: I mean certainly it was a culmination, right?
I mean there was a year period that was going on.
-: But if a staff attorney says
that a docket number is 237 and it's 238,
I don't think that's grounds for termination, is it?
-: It's not, but those aren't the grounds that were used.
There are 13 and actually within the 13, even more grounds
that are much greater than,
making a mistake on a rescript cover.
-: But we don't know how the other staff attorneys perform
whether they make these kinds of mistakes too.
I mean, again, that's why you have an editor,
a staff writer, then there's an editor,
then it goes to the reporter's office, right?
All those, at least on published decisions.
So there are many levels of checking going on,
but we don't have any sense of whether this is
disproportional to the number of mistakes
other people make there either, do we?
-: There are no allegations in the complaint.
-: But isn't that why we have discovery?
-: No, because the reality is,
is what's pled by Mr. Bresler is not sufficient.
They're not specific facts
that plausibly suggest bad faith or malice.
That's the standard here.
Common law immunity
is there to protect public employees, right?
Not just from liability, but from suit.
And when you look at the allegations in the complaint,
we see that they just simply don't rise
to the level of bad faith or malice and certainly,
certainly not to a spiteful or malignant purpose.
-: But if we don't know how his
performance compared to the other staff attorneys,
isn't that information we need to have?
I mean, he says that he was being judged unfairly.
Don't we need, I mean, don't we have to take that as true?
-: I don't believe so, your Honor,
because if you look at the four cases,
the four cases that Mr. Bresler cites,
all of which pass the case through
where there's a finding of actual malice
or a finding of bad faith or malice,
there's one common thread
through all four of those cases, right?
The Brothers case, the Falcon case, the Freilich case,
and the O'Brien case, one common thread.
And that is some level of personal vindictiveness,
personal hostility.
-: Another common thread though,
is they are all summary judgment cases.
-: I don't believe they are all summary judgment cases,
your Honor, and I'm happy to take a look at them.
-: We can do that, I don't want to.
-: The Brothers case is a motion to dismiss.
-: Okay, thank you.
-: But there's one common thread through all of them,
and there's some level of personal vindictiveness,
some level of personal hostility, personal animus,
and a retaliatory motive.
Each of those cases
have a retaliatory motive embedded in them.
You don't have that here by Mr. Bresler's own admission,
by his own admission.
We can't say that about Ms. Muster, right?
There are claims and allegations against Ms. Muster
of personal hostility, animus, vindictiveness,
being petty and the like.
-: Can we read his complaint as saying that
your clients are relying on Muster's
for all of this information or not?
-: In part, your honor.
-: With knowledge that Muster has it out for him.
-: In relying on Muster in part,
but what is very clear,
and by Mr. Bresler's own admission, page 45 of his reply,
is that they're also relying on information
that's coming directly from the judges,
no less than four judges.
And taking that information,
relying on that information and doing their job.
Doing their job, and presenting that information
to a staff attorney.
The judges are presenting it to whom?
-: Mr. Bresler.
Mr. Bresler, that information is coming
from the justices to Ms. Bowe principally, right?
Initially and-
-: So the judges are not communicating
through Muster according to your reading of the complaint.
They're communicating directly to Bowe or De Rossi
or I just wanna make sure I understand that.
-: It's not just my reading of the complaint,
your Honor, it's what Mr. Bresler alleges.
He alleges that Ms. Muster went to the justices
and asked them to pass information along
to Ms. Bowe about Mr. Bresler's performance.
So that's just not,
that's not just my reading of the complaint,
that's the actual allegation in the complaint.