Appeals court pauses judge's order forcing Cook courts clerk to let public immediately access lawsuits

By Jonathan Bilyk | Feb 16, 2018

A federal appeals court in Chicago has slapped a hold on a federal judge’s order to force Cook County’s courts clerk to begin providing the press and public immediate access to publicly filed court documents, at least until the appellate judges can rule on the court clerk’s claims that the federal judge had no business issuing the order, on the grounds of protecting the public’s First Amendment rights to public information.

On Feb. 14, the U.S. Seventh Circuit Court of Appeals issued an order granting Cook County Circuit Clerk Dorothy Brown’s request to stay the preliminary injunction from U.S. District Judge Matthew Kennelly. In that order, issued Jan. 8, Kennelly had given Brown’s office 30 days to create a system by which the press and public could gain immediate access to all electronically filed lawsuits in the county’s court system.

Kennelly had then followed his order with a Feb. 13 ruling denying Brown’s request to put that order on hold pending the outcome of her appeal to the Seventh Circuit, which was filed Feb. 2. In that Feb. 13 ruling, Kennelly had chided Brown for creating a system designed to take an “end-run” around the First Amendment to the U.S. Constitution, by withholding access to electronically filed lawsuits pending her staff’s review of the filings. He noted “the public's right of access to judicial proceedings is a necessary component of an appropriate e-filing system … and not some sort of a frill.”

In a filing that followed the Feb. 13 ruling, however, Brown, through the Cook County State’s Attorney’s office, asserted Kennelly should not have even heard the lawsuit brought by Courthouse News Service, much less ordered an injunction against her.

In that action, filed in November, CNS had accused Brown’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.

In her filing to the Seventh Circuit, however, Brown argued CNS wasn’t even suing the right office, as she asserted she was simply dutifully following rules put in place by the Illinois Supreme Court and Cook County Chief Judge Timothy Evans, which she said compelled her to screen all e-filed lawsuits to prevent the disclosure of sensitive information, such as the names of juveniles or the identities of plaintiffs the court has permitted to file a lawsuit anonymously or under seal.

Claiming Kennelly’s order would not permit her office to so screen new lawsuits and filings, Brown argued repeatedly that Kennelly’s order would put her in “the horns of a dilemma” between abiding by the federal judge’s order and the state court rules.

Kennelly said he determined Brown had misinterpreted those rules to protect herself in this case, 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.

Brown, however, in her appeal argued U.S. Supreme Court precedent should have compelled Kennelly to step aside from CNS’ constitutional claims entirely, and instead send the matter to a state court to unravel the “dilemma.”

“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 Feb. 13 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.”

 

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Cook County Clerk of the Circuit Court 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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