Appeals panel: Federal judge can't order Cook Courts Clerk to provide immediate access to new lawsuits

By Jonathan Bilyk | Nov 13, 2018

Dorothy Brown   Youtube screenshot

A federal appeals panel has tossed out a Chicago federal judge’s order requiring Cook County Circuit Court Clerk Dorothy Brown to provide immediate public access to all civil lawsuits filed in the county, saying the judge was wrong to intervene in the matter both because the state courts had not been given the chance to weight in and because the appellate judges doubted delaying access to filed lawsuits violated anyone’s constitutional rights.

On Nov. 13, a three-judge panel of the U.S. Seventh Circuit Court of Appeals tossed out an injunction slapped on the Brown’s office just over a year ago by U.S. District Judge Matthew F. Kennelly amid a legal dispute initiated by online legal news site Courthouse News Service.

“Proceeding straight to the federal court to resolve a dispute with a state court clerk over the timing of access conflicts with the general principles of federalism, comity, and equity that underlie abstention,” the judges wrote. “Unless and until the state courts have proven unwilling to address an alleged First Amendment violation - which we are not yet convinced exists - the federal courts should not exercise jurisdiction over the matter.”

The decision was authored by Seventh Circuit Judge David F. Hamilton, with circuit judges William J. Bauer and Michael Y. Scudder Jr. concurring.

The matter had landed before the Seventh Circuit earlier this spring, when Brown, through the Cook County State’s Attorney’s office, appealed the decision delivered by Kennelly in January, in which he sided with CNS. Specifically, Kennelly had found the First Amendment gave the public the right to access publicly filed court documents without delay. He ordered 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, however, has steadfastly dispute CNS’ characterization, claiming CNS has exaggerated the problems. The clerk’s office claimed about 90 percent of all complaints were made available to the public within one business day.

Further, Brown argued 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 asserts forces 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.

CNS disputed Brown’s description of the rules, claiming the order she cites in her defense actually places the burden of such screening on the attorneys filing the various complaints, briefs and other documents.

On appeal, however, Brown also argued Kennelly should not have taken on the case at all, as the dispute involves rules established by the Illinois Supreme Court and the Cook County Circuit Court and, under precedent established under the 1971 decision in Younger v. Harris, the federal courts had no business involving themselves in a complaint brought against a state official acting under orders from a state court.

Judge Hamilton and the other Seventh Circuit judges agreed with Brown on that point, saying Kennelly’s injunction violated the principles of federalism. They said CNS should have first brought the matter to state court, and allowed judges there to decide the question.

The judges noted their decision contradicts a decision delivered by the U.S. Ninth Circuit Court of Appeals in California on a similar question. With that in mind, the judges noted they distributed their opinion to all of the judges in the Seventh Circuit, to see if any other judges wished to bring the matter to a hearing before all 11 judges sitting en banc. No judges indicated such a desire, the opinion noted.

The panel reversed Kennelly’s decision and ordered the case dismissed, but without prejudice, so as to allow CNS the opportunity to reintroduce their lawsuit in state court.

While indicating they harbored doubts over the validity of CNS’ claims Brown’s practices violated the Constitution, the judges said the matter needed to work its way through the state courts first.

“The level of intrusion CNS seeks from the federal court into the state court’s operations is simply too high, at least before the state courts have had a chance to consider the constitutional issue,” the judges wrote.

CNS is represented in the matter by attorneys Brian Sher, Donald Cole and Rachel Matteo-Boehm, of the firm of Bryan Cave Leighton Paisner LLP, of Chicago and San Francisco.

Want to get notified whenever we write about any of these organizations ?

Sign-up Next time we write about any of these organizations, we'll email you a link to the story. You may edit your settings or unsubscribe at any time.

Organizations in this Story

Bryan Cave LLP Circuit Court of Cook County Cook County Clerk of the Circuit Court Cook County State's Attorney's Office Courthouse News Service U.S. Court of Appeals for the Seventh Circuit U.S. District Court for the Northern District of Illinois

More News

The Record Network