Supreme Court hears argument in Bressler v. Muster over immunity and allegation supervisors fabricated evaluations

The state Supreme Court heard oral argument Oct. 12, 2025, in Kenneth Bressler v. Lynn Muster et al. over whether Bressler’s complaint plausibly alleges “actual malice” or bad faith sufficient to overcome common-law immunity and survive a Rule 12(b)(6) motion to dismiss, plaintiff Kenneth Bressler told the court.

Bressler, who identified himself as the plaintiff, appellant and cross-appellee, told the justices that “an iota of legitimate government interest does not insulate supervisors from liability” and urged the court to allow discovery on his claims. He argued the complaint contains specific, verifiable allegations that supervisors fabricated evaluations and relied on inaccurate reports from co-worker Lynn Muster, citing examples in the complaint including an allegation that he was blamed for a computer error on a rescript cover and for inserting objectionable language into a draft opinion that he says he did not include.

The complaint, Bressler said, alleges multiple instances in which supervisors’ actions “actually hurt the legitimate interests of the appeals court,” and points to an outside consultant’s recommendation that certain supervisors be barred from working together as an objective indicator the court should consider at a later factual stage. He asked the justices to distinguish cases the appellees cited and to allow development of a factual record before resolving immunity questions.

Counsel for appellees pressed the opposite view. Attorney White, representing Lynn Muster, told the court many of the complaint’s passages are conclusory labels rather than specific factual allegations and said, “Those are labels,” arguing the plaintiff had not pleaded discrete statements, dates or quotations tying the alleged misconduct to the named defendants. Jeffrey Collins, counsel for appellees Gina de Rossi and Mary Bow, argued the complaint lacks the “specific facts plausibly suggesting bad faith or malice” required to defeat common-law immunity and emphasized that many alleged errors the complaint cites concern editorial conventions and routine supervisory critique.

Throughout the argument the justices asked for concrete examples and distinctions between cases decided at summary judgment and those decided at the motion-to-dismiss stage. At one point a justice asked Bressler to identify particular acts by supervisors Mary Bow and Gina de Rossi that would show bad faith; Bressler pointed to alleged “fabrications” in written evaluations, the allegation that he was denied access to files needed to rebut charges, and the rescript-cover example as types of verifiable wrongdoing pleaded in the complaint. Appellees’ counsel answered by pointing to precedent holding that generalized assertions of hostility, jealousy or bullying—without factual specifics—do not plausibly allege actual malice.

The argument touched repeatedly on three issues: (1) whether the complaint’s statements that staff widely viewed Muster as a “petty bully” or “jealous” are actionable factual allegations or impermissible labels; (2) whether reliance on reports from judges and an outside consultant to supervisors can be shown to be in bad faith rather than routine supervisory fact-gathering; and (3) whether the cumulative set of allegations (the complaint cites 13 termination-related items) is sufficient, when read together, to survive dismissal.

No decision was announced at the hearing. The court took the arguments under advisement; any ruling on the Rule 12(b)(6) motion and the scope of common-law immunity will be issued in a written opinion.

The argument record shows the court focused on the legal threshold for pleading actual malice and on whether alleged conduct—ranging from disputed editorial choices to allegedly fabricated supervisory evaluations—should be resolved at the pleading stage or after factual development in discovery.