Saying Cook County’s courts clerk shouldn’t be allowed to use court administrative rules to sidestep the public's constitutional rights, the news organization accusing the clerk of delaying access by days to new lawsuits has asked a federal appeals court to reject the clerk’s assertions she has no obligation under the Constitution to provide swift public access to newly filed court documents.
On April 12, Courthouse News Service fired back at Cook County Circuit Clerk Dorothy Brown, filing a brief with the U.S. Seventh Circuit Court of Appeals, responding to assertions leveled in briefs filed by Brown, against them and against a federal judge who had ordered Brown to swiftly develop processes to give the press and public immediate access to virtually all lawsuits.
Cook County Circuit Clerk Dorothy Brown
“Brown’s ongoing efforts to hide behind inapposite State rules and orders to justify her refusal to comply with the First Amendment should not be countenanced,” lawyers for Courthouse News wrote in their brief.
The Courthouse News brief comes about three weeks after Brown, through the Cook County State’s Attorney’s Office, filed her appellate briefs, asking the Seventh Circuit to overturn the ruling of U.S. District Matthew F. Kennelly.
Kennelly had sided with CNS in January, finding the First Amendment to the U.S. Constitution gave the public the right to access publicly filed court documents without delay, and had issued a preliminary injunction ordering Brown’s office to create a system providing quicker public access to documents.
CNS had sued Brown in November 2017, asserting the clerk’s office had routinely sat on up to half of all electronically filed lawsuits for days or even weeks at a time, violating the rights of CNS and others in the press and the public to access public information.
Brown’s office, however, appealed Kennelly’s order, and has steadfastly disputed CNS’ characterization, claiming CNS has exaggerated the situation. The clerk’s office has asserted about 90 percent of all complaints are made available to the press and the public within one business day.
Further, Brown, in her arguments, has claimed her office has no obligations under any law to provide immediate access to any lawsuits until they are officially “accepted for filing,” as determined under Illinois state court rules she says compel her staff to screen all new filings to ensure they do not include sensitive information, such as the identities of minors or others who judges have permitted to file suit either anonymously or under seal.
Further, in her brief, Brown asserted her deference to these rules should have required Judge Kennelly to refuse to hear the case at all, as the judge should have found CNS’ legal action is aimed at GAO 2014-02 and the court rules she is obligated by the Illinois Supreme Court and Cook County Chief Judge’s office to obey.
However, in the April 12 brief, CNS asserted the screening standard Brown seeks to apply to justify her office’s handling of e-filed lawsuits “appears nowhere in the relevant rules and appears to be made of whole cloth.”
Citing the rules Brown asserts support her contentions, CNS’ brief notes the rules cited by Brown, including Circuit Court General Administrative Order (GAO) 2014-02, place the burden on attorneys filing lawsuits to ensure their complaints are free of the defects Brown claims her office is required to screen for, and the rules specifically exempt court clerk’s from the responsibility for screening new lawsuits.
Further, CNS asserts “there is no record support for Brown’s position that her office is ‘checking’ e-filed complaints for compliance” with court rules.
“There also is no evidence that, even if done, any ‘checking’ for compliance has resulted in Brown identifying any improperly e-filed information such that she has protected any ‘privacy’ or ‘confidentiality’ interests,” CNS wrote.
CNS further disputed Brown’s attempt to persuade the court Kennelly’s ruling violated legal precedent which would have required the federal courts to abstain from the case altogether.
“… CNS does not seek to ‘interfere’ with GAO 2014-02 at all,” CNS wrote in its April 12 brief. “… As CNS has made clear, and as the District Court (Judge Kennelly) found, the problem is Brown’s policies, not GAO 2014-02.”
And CNS asked the appeals court to also brush aside Brown’s arguments against First Amendment-guaranteed access to court documents, saying they are not requesting “instantaneous” access to the newly filed lawsuits, but merely “contemporaneous” access. While noting other court systems, including Chicago’s federal courts, provide nearly instantaneous access, the public and press could be served, and their rights satisfied, by being able to see new lawsuits the same day they are filed, or within hours, rather than needing to obtain the new lawsuits the instant they are filed, CNS said.
“The law is clear that even short delays implicate the First Amendment, and … ‘the First Amendment right of access cannot be overcome’ by ‘conclusory assertions’ and a misreading of the applicable Illinois court rules, which is all Brown offers,” CNS said.
Brown’s position, CNS said, “has been repeatedly rejected, does not survive the experience and logic test, and its overreach demonstrates the error of its underlying premise, i.e., that access can be delayed pending administrative processing, whatever that entails and however long it takes.”
And, CNS asked the court to reject Brown’s assertions delays in making the case files available are acceptable restrictions under the Constitution. In her brief, Brown poked at CNS, asserting the news organization was simply suing to protect its “business model,” which she said relies on uncovering court documents about which to write articles and on generating “scoops,” for which lawyers and others are willing to pay. She said such information could also be obtained from “the private parties and witnesses involved in the lawsuit.”
CNS, however, said courts have already found “there is no adequate or reliable way for reporters to view complaints on the same day they are filed other than to obtain them from the courts at which they are filed.”
“Even assuming … it would be possible for CNS to track down all the filing parties for all of the complaints filed each day at the Circuit Court, those parties would have no obligation to provide CNS with the complaints, and in any event, the ‘added costs in money [and] time’ would make this option unacceptable for (time-place-manner) purposes,” CNS wrote.
They also asked the appeals court to ignore much of Brown’s arguments on appeal, arguing she did not raise a number of her arguments before Judge Kennelly, and, therefore, such arguments can’t be introduced for the first time on appeal, as what would essentially be a “second bite at the apple.”
CNS is represented in the action by attorneys Brian Sher, Donald Cole and Rachel Matteo-Boehm, of the firm of Bryan Cave Leighton Paisner LLP, of Chicago and San Francisco.