Nov. 15, 2018 – Courthouse News Service, which covers state and federal courts nationwide, recently lost a fight to compel a circuit court clerk in Illinois to release newly filed complaints to reporters the moment they are received by the clerk’s office.

In Courthouse News Service v. Brown, No. 18-1230 (Nov. 13, 2018), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit (which covers Wisconsin), dismissed the case, concluding the issue belongs in state court first.

But the three-judge panel, in an opinion by Judge David Hamilton, noted that federal court clerks review court filings to ensure compliance with applicable rules before it is considered filed, and administrative processing occurs before release to the public.

“That fact would make it unusual, and perhaps even hypocritical, for us to order a state court clerk to provide such instant access on the basis of the same Constitution that applies to federal courts,” Judge Hamilton wrote for the three-judge panel.

Delayed Access

In 2009, Illinois courts opened electronic filing. For about six years, the Cook County Clerk’s Office printed out e-filed complaints for reporters to review when received.

In 2015, the clerk’s office stopped doing that. Instead, the clerk withheld complaints and posted them online after administrative processing, which delayed access by reporters.

Courthouse News Service (Courthouse News) argued that the new processing system denied access to almost 40 percent of e-filed complaints on the same day of filing.

The clerk’s office argued that 90 percent of filings are available within one business day, and delays beyond that usually occur because some filings are received late in the day or on Fridays, so a complaint may not be available until the following Monday.

Mandatory e-filing started in Cook County this year, and Courthouse News maneuvered to obtain all complaints more quickly, but the court clerk said the complaints must be administratively processed first because they are not considered filed until processed.

Courthouse News, which has thousands of reporters who break news on civil litigation, filed a lawsuit seeking a preliminary injunction that would force same-day release, before administrative processing. Cook County Circuit Court Clerk Dorothy Brown did not dispute the First Amendment presumption in favor of access, but said slightly delayed access for administrative processing does not violate the First Amendment.

The circuit court clerk also argued that the federal courts should abstain from deciding the case since the clerk was acting as a state official under state court rules.

State Court First

The federal district court in Illinois ruled for Courthouse News and granted a preliminary injunction, requiring the clerk to release civil complaints when received.

On the merits, the district court also ruled for Courthouse News, concluding “immediate and contemporaneous” access was required by Seventh Circuit precedent.

But the Seventh Circuit Court of Appeals panel reversed. The panel discussed the framework for analyzing press access but concluded state court should decide first.

“State courts have a significant interest in running their own clerks’ offices and setting their own filing procedures – especially in a court like Circuit Court of Cook County, where more than one million cases are filed annually,” Judge Hamilton wrote.

“When these procedures are challenged as they have been here, the state courts should be given the first opportunity to determine precisely what level of press access is required, appropriate, and feasible in a state court.”

The three-judge panel, based in Chicago, said federal courts should not exercise jurisdiction “[u]nless and until the state courts have proven unwilling to address an alleged First Amendment violation – which we are not convinced exists.”

The panel’s ruling fell under the so-called Younger abstention doctrine, which says courts should not exercise jurisdiction on federal claims that interfere with ongoing state claims. The district judge said Younger doesn’t apply since a state case is not ongoing.

But the three-judge panel concluded that other federal cases extending the Younger abstention doctrine apply. “This temporal access dispute with a state court clerk should be heard first in the state courts,” Judge Hamilton explained.

Courthouse News reported on the decision, likely first, saying the ruling “runs counter to an opinion in the Ninth Circuit, as well as a host of federal district court rulings.”

“It also runs counter to decades of tradition in both state and federal courts in Illinois,” Courthouse News reporter Lorraine Bailey wrote.