Cook Courts Clerk appeal: Federal judge wrongly stepped into dispute over public access to court files

By Jonathan Bilyk | Feb 14, 2018

Moments after a Chicago federal judge chided her for creating a system designed to take an “end-run” around the First Amendment’s guarantee of public access to public information, the clerk of Cook County’s courts has asked a federal appeals court to remove the matter from the judge’s consideration entirely.

On Feb. 13, Cook County Circuit Clerk Dorothy Brown, through the Cook County State’s Attorney’s Office, filed a motion with the U.S. Seventh Circuit Court of Appeals, asking the judges of that court to slap a hold on the order from U.S. District Judge Matthew Kennelly requiring her to begin providing the press and the public immediate access to lawsuits publicly filed in Cook County Circuit Court.

In her motion to stay, Brown asserts Judge Kennelly overstepped in inserting himself into the dispute between Courthouse News Service and the court clerk’s office over access to electronically filed lawsuits.

Citing the U.S. Supreme Court’s 1971 decision in Younger v. Harris, Brown asserted Kennelly should have followed the lead of other federal courts who have abstained from hearing such lawsuits over public access to court documents, and referred the matter to an Illinois state judge to unravel what Brown has repeatedly maintained is a “dilemma” caused by a conflict between Kennelly’s order and what Brown maintains are rules put in place by the Illinois Supreme Court requiring her staff to screen all new filings to ensure the filings comply with rulings in place to protect sensitive information, such as the identities of minors or others who a judge has permitted to file a lawsuit either anonymously or under seal.

Courthouse News had sued Brown and her office in late November, accusing the clerk’s office of routinely sitting on up to half of all electronically filed lawsuits for days or even weeks at a time, violating their constitutional rights to access to public information.

The circuit clerk’s office has consistently maintained in replies filed with the courts that the office has no obligation under the First Amendment to grant any member of the public such immediate access to “complaints before they are accepted for filing,” pursuant to the court rules she claims bind her.

In a preliminary injunction order entered Jan. 8, however, Kennelly had brushed aside Brown’s assertions, finding the Illinois Supreme Court places the burden of protecting such information on the attorneys filing the complaints and motions, not on the clerk’s office. Rather, he said the rights of the public and the press to access public information under the First Amendment should reign in this case.

Kennelly had given Brown 30 days to create a system under which the press and public could gain immediate access to all electronically filed cases.

And, in an order issued Feb. 13, Kennelly further denied Brown’s request to stay his order, saying public access to court documents should not be treated as a “frill” feature of the court system.

“Brown cannot end-run the First Amendment by creating a system in which hypothetical doubt regarding whether litigants comply with rules about redaction allow her to exclude the public from access to judicial proceedings until she is good and ready to provide it,” Kennelly said.

In her filing to the Seventh Circuit, however, Brown persisted in her contention Kennelly had incorrectly read the situation, insisting she is only a servant of the court, abiding by the rules laid down by the Illinois Supreme Court and the Chief Judge of the Cook County Circuit Court.

To that end, she asserted Courthouse News had wrongly sued her office, as the legal action should also have named the Administrative Office of the Illinois Courts and the office of the Cook County chief judge.

“The district court claims that the Circuit Clerk created this system. She did not. The Illinois Supreme Court and the Chief Judge did,” Brown wrote in her motion. “And the Circuit Clerk has not and does not seek any ‘end-run’ around the First Amendment. The Circuit Clerk acknowledges that First Amendment interests are in play. She also has raised federalism concerns which should have resulted in the courts of Illinois … adjudicating CNS’ First Amendment claims.”

To help her in her “dilemma,” Brown had also petitioned the Illinois Supreme Court in late January, about a week before appealing Kennelly’s Jan. 8 order, asking the state’s high court 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.”

She also asked the state Supreme Court to grant her leniency in directing resources to complying with Kennelly’s order, while also continuing work on converting her office’s current “standalone e-Filing” system to be compatible with the state courts’ e-Filing system.

In an order granted in January, the Illinois Supreme Court had granted Brown an additional six months to complete the work the court had ordered to be completed on Jan. 1. In that order, 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.”

However, in a short order entered Feb. 14, the Illinois Supreme Court denied Brown’s petition without explanation.

“This cause coming to be heard on the petition of the Cook County Circuit Court Clerk for relief from certain orders of this court related to e-Filing on the grounds that such relief is necessary to permit her office to comply with the order entered by U.S. District Court Judge Matthew F. Kennelly … and the Court being fully advised in the premises; It is ordered that the petition is denied,” the state Supreme Court said.

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Administrative Office of the Illinois Courts Cook County Clerk of the Circuit Court Cook County Office of the Chief Judge Cook County State's Attorney's Office Courthouse News Service Illinois Supreme Court U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

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