As she prepares to make her case to a federal appeals panel, the clerk of the Cook County Circuit Court is also awaiting an intervention from Illinois’ highest state court on her request for relief from state court rules she argues preclude her from abiding by a federal judge’s order to make publicly filed lawsuits immediately available to the press and the public.

On Jan. 26, Cook County Circuit Clerk Dorothy Brown petitioned the Illinois Supreme Court, specifically asking the justices to explicitly grant her permission to “allow access, to the press and the public, to images” of lawsuits “submitted electronically to the Clerk’s Office … and officially accepted as part of the basic record” including “documents that litigants file under seal.”

That petition came about six days before Brown filed a notice to appeal to the U.S. Seventh Circuit Court of Appeals a ruling from U.S. District Judge Matthew F. Kennelly, ordering Brown’s office to create a system under which the press, at least, can gain immediate access to newly filed lawsuits, including those filed electronically, or e-filed, through the circuit clerk’s online filing system.

Kennelly’s order had been delivered Jan. 8, as he granted the request for a preliminary injunction from Courthouse News Service, which had sued in November to compel such immediate access, as CNS accused the circuit clerk’s office of sitting on up to half of all filed lawsuits for days or even weeks at a time, even though the lawsuits were electronically filed, violating their constitutional rights to access to public information.

In that lawsuit, CNS alleged Brown’s office had said it could not provide access to such lawsuits until office staff can confirm administrative “acceptance” of the complaint.

The circuit clerk’s office responded by arguing her office had no obligation under the First Amendment to grant any member of the public such immediate access to “complaints before they are accepted for filing.” She said the delays are needed to allow clerks time to review new e-filings for documents Brown said could violate standing rules from the Illinois Supreme Court concerning the protection of certain identities, such as minors or plaintiffs allowed by judges to file certain lawsuits under seal.

Judge Kennelly, however, brushed aside those concerns, saying he believed prior court rulings on such questions had determined delays in access to public information, including publicly filed lawsuits, amounted to suppression of those records and denial of the First Amendment rights of the press and the public.

He further said Illinois Supreme Court rules place the burden of protecting such sensitive information on those filing the lawsuits, not the clerk’s office.

And the judge noted many other state and federal courts have already taken steps sufficient to grant journalists and the public access to new e-filed lawsuits “before they have been fully processed,” prompting him to question why Brown’s office couldn’t do the same.

He gave Brown 30 days to create a system granting immediate access to e-filed lawsuits.

Following Kennelly’s ruling, Brown filed a motion to clarify, reiterating her concerns over the potential for conflict with Illinois Supreme Court rules.

“As the Circuit Clerk is required to follow both this Court’s order and the rules of the Illinois Supreme Court, she may be facing the horns of a dilemma,” Brown wrote in her motion for clarification.

Kennelly, however, brushed aside that motion on Jan. 17, prompting Brown’s appeal on Feb. 1.

However, before she appealed, Brown asked the state Supreme Court to step into the matter.

As in her motion for clarification, she reiterated her belief “Kennelly’s order cannot be reconciled with” the Supreme Court’s rules she asserted govern her office’s handling of lawsuits, and particularly those filed under seal to prevent the public from seeing certain ostensibly sensitive information.

And Brown noted the state Supreme Court in late December had given her office until June 30 to complete work on migrating her office’s “standalone e-filing system” to compatibility with eFileIL, the system preferred by the state’s high court, which oversees all county circuit court systems in Illinois.

Under prior Supreme Court orders, that work was to have been completed by Jan. 1. Brown had requested a 12-month extension.

As part of the order granting Brown the additional time, the Supreme Court had also instructed her to “commit all necessary resources to meet the extended deadline,” and forbade her from adding “additional case types or filing transactions … to the stand alone e-Filing system.”

In her petition, Brown contended complying with Kennelly’s order would require her office to “engage our stand-alone e-Filing vendor to add a new e-Filing transaction and will also require the Office of the Clerk of the Circuit Court to commit vital programming resources and man-hours to develop, in violation of (the state Supreme Court’s) order.”

The state Supreme Court has yet to respond to Brown’s petition.

In the meantime, Kennelly agreed to stay enforcement of his order until Feb. 9.

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