Courthouse News Services v. Dorothy Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 18-1230

COURTHOUSE NEWS SERVICE,

Plaintiff-Appellee,

v.

DOROTHY BROWN, in her official capacity

as Clerk of the Circuit Court of

Cook County, Illinois,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 17-CV-7933 — Matthew F. Kennelly, Judge.

____________________

ARGUED SEPTEMBER 14, 2018 — DECIDED NOVEMBER 13, 2018

____________________

Before BAUER, HAMILTON, and SCUDDER, Circuit Judges.

HAMILTON, Circuit Judge. Plaintiff-appellee Courthouse

News Service (“CNS”) seeks injunctive relief under 42 U.S.C.

§ 1983, arguing that the First Amendment requires Dorothy

Brown, Clerk of the Circuit Court of Cook County, Illinois, to

release newly filed complaints to the press at the moment of

receipt by her office—not after processing. Neither the Court

2 No. 18-1230

of Appeals for the Seventh Circuit nor the Supreme Court of

the United States provides the press with this sort of instant

access to court filings.1 Instead, in our court and apparently in

the Supreme Court, as well, the clerks’ offices undertake cer-

tain administrative processing before a filing is made publicly

available, giving our practices a similarity to the practices in

state court challenged in this case. 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. Adhering to

the principles of equity, comity, and federalism, we conclude

that the district court should have abstained from exercising

jurisdiction over this case. See O’Shea v. Littleton, 414 U.S. 488,

499 (1974); Rizzo v. Goode, 423 U.S. 362, 379–80 (1976); SKS &

Associates, Inc. v. Dart, 619 F.3d 674, 678–80 (7th Cir. 2010). We

therefore reverse the district court’s order granting a prelimi-

nary injunction and order this action dismissed without prej-

udice.

1 This court’s Electronic Case Filing Procedures provide: “A brief, ap-

pendix and petition for rehearing (and any answer filed thereto) will be

considered timely once it is submitted to the court’s electronic filing sys-

tem. It will be considered filed on the court’s docket only after a review

for compliance with applicable rules, acceptance by the Clerk, and issu-

ance of a Notice of Docket Activity.” Available at

http://www.ca7.uscourts.gov/ecf/ECFprocedures.htm.

The Supreme Court’s Guidelines for the Submission of Documents to

the Supreme Court’s Electronic Filing System provide: “Filings that initi-

ate a new case at the Supreme Court will be posted on the Court’s website

only after the Clerk’s Office has received and reviewed the paper version

of the filing, determined that it should be accepted for filing, and assigned

a case number.” Available at https://www.supremecourt.gov/filin-

gandrules/ElectronicFilingGuidelines.pdf.

No. 18-1230 3

I. Factual & Procedural Background

CNS is a news service with hundreds of reporters and ed-

itors who cover civil litigation in thousands of state and fed-

eral courthouses across the country. In addition to writing

and publishing articles, CNS reporters compile “New Litiga-

tion Reports,” which contain summaries of newsworthy new

civil complaints. Before the advent of electronic filing sys-

tems, CNS reporters would go to clerks’ offices in courthouses

and review paper copies of complaints in person. With the

shift to electronic filing, things have become more compli-

cated.

In the past, the Cook County Clerk’s Office (“Clerk’s Of-

fice”) allowed reporters to have same-day access to newly

filed paper complaints by placing copies in a tray behind the

intake counter. Electronic filing began in 2009, and until 2015,

the Clerk’s Office would simply print out electronically filed

complaints as they were received and allow reporters to view

them along with the paper complaints. In January 2015, the

Clerk’s Office stopped printing electronically filed complaints

and started withholding them until administrative processing

was completed and they were officially accepted. Now, re-

porters cannot view electronically filed complaints until they

are processed and posted online. This leads to delays in ac-

cess.

CNS and the Clerk characterize the delays differently.

CNS contends that almost 40% of electronically filed com-

plaints are not accessible on the same day they are filed. By

contrast, the Clerk contends that 90.9% of electronically filed

complaints are publicly available within one business day;

94.7% within two business days; and 96.8% within three busi-

ness days. Some of the delays are the result of nothing more

4 No. 18-1230

than the normal business hours of the Clerk’s Office. If a com-

plaint is filed right before the Clerk’s Office closes for the day,

it likely will not be available until the next day. Weekends also

lead to longer delays. If a complaint is filed Friday evening, it

will not be available until Monday when the Clerk’s Office re-

opens and has time to process it. While the delays can be

framed differently, the parties seem to agree that the thrust of

this dispute concerns CNS’s displeasure with a delay of no

more than one business day in access to the vast majority of

electronically filed complaints.

An Illinois Supreme Court order made electronic filing

mandatory in the Cook County Circuit Court as of July 1,

2018. In advance of this effective date, CNS contacted Clerk

Brown’s office and proposed various options that would al-

low the press to obtain quicker access to electronically filed

complaints. The Clerk pushed back and explained that elec-

tronically filed complaints are not considered received or filed

until they have been processed and accepted. She pointed to

Cook County Circuit Court General Administrative Order

No. 2014-02 (“Order No. 2014-02”) and the Illinois Supreme

Court’s Electronic Filing Standards and Principles (“Illinois

Standards”), which both state that electronically submitted

documents shall be considered filed “if not rejected” by the

Clerk’s Office. The Clerk interprets these orders as mandating

an “accept/reject” process before complaints are released to

the press.2 The Clerk informed CNS that the policies and pro-

cedures would remain the same.

2 The district court did not interpret these orders as mandating an “ac-

cept/reject” process before release. See Courthouse News Service v. Brown,

No. 17 C 7933, 2018 WL 318485, at *3 (N.D. Ill. Jan. 8, 2018) (“Brown points

to nothing in Order No. 2014-02 or in the Electronic Filing Standards and

No. 18-1230 5

When talks with the Clerk’s Office did not produce the de-

sired changes, CNS brought this action in November 2017.

CNS moved for a preliminary injunction prohibiting the Clerk

from processing electronically filed complaints before allow-

ing press access. The motion was submitted on the affidavits,

and no evidentiary hearing was held. The Clerk opposed the

motion but did not dispute that a First Amendment presump-

tion of access to documents filed in court applies to civil com-

plaints. She instead argued that the presumption does not re-

quire immediate access, that the delays here are insignificant,

and that the First Amendment is not being violated. The Clerk

explained that the “accept/reject” process is important be-

cause if complaints were released to the press before pro-

cessing, confidential information contained therein could be

exposed.3 The Clerk also explained that confusion may result

Principles that requires her to accept or reject or otherwise process e-filed

complaints prior to making them available to the public in some form. In-

stead, Brown simply asserts that Order No. 2014-02 and the Electronic Fil-

ing Standards and Principles provide that the complaints are not ‘filed’

until accepted.”); id. at *5 (“Brown contends that she is justified in with-

holding e-filed complaints from the public and the press until after pro-

cessing because both Order No. 2014-02 and the Electronic Filing Stand-

ards and Principles provide that electronically submitted documents shall

be considered filed ‘if not rejected’ by the Clerk. Order No. 2014-02 at 3;

Electronic Filing Standards and Principles at 1. But as the Court has dis-

cussed, Brown points to nothing that would require her to delay access to

e-filed complaints until after they are processed and officially accepted.”).

We read these orders differently and agree with Brown: these orders do

require an “accept/reject” process before release. In any event, as we ex-

plain below regarding abstention, the Illinois state courts are best situated

to interpret their own orders and to decide how important the “accept/re-

ject” process is to them.

3 While this sounds like a reasonable consideration, the Clerk has pre-

sented no evidence showing how prevalent this issue is and how often the

6 No. 18-1230

due to reporting on a complaint that was later rejected by the

Clerk’s Office for failure to comply with court rules.

Apart from the merits of the case, the Clerk argued that

federal courts should abstain from adjudicating this case un-

der the Younger abstention doctrine. See Younger v. Harris, 401

U.S. 37 (1971). The Clerk argued that Younger abstention

should apply because CNS was asking a federal court for in-

junctive relief against a state official who was acting pursuant

to a state court’s standing order (Order No. 2014-02). Accord-

ing to the Clerk, the state court order requires her to perform

an “accept/reject” function, whereas the federal court injunc-

tion being sought by CNS would require immediate release.

She argued that she would be unable to comply with both.

The district court granted CNS’s motion for a preliminary

injunction on January 8, 2018. The court rejected the Clerk’s

abstention arguments, reasoning that Younger abstention did

not apply because there were “no ongoing state judicial pro-

ceedings with which CNS’s requested injunctive relief might

interfere.” The court relied on Ankenbrandt v. Richards, 504

U.S. 689, 705 (1992), to conclude that the lack of a state pro-

ceeding made Younger abstention inappropriate.

Clerk’s Office catches information that should not have been included.

The district court also was not “convinced that it is, in fact, the responsi-

bility of the Clerk” to ensure this information is “not included in e-filings,

as the Illinois Supreme Court rules pertaining to confidential and personal

identity information specifically place the burden of compliance on the

filing parties.” 2018 WL 318485, at *5. We agree with this latter point as a

matter of law. However, we do not believe the Clerk’s Office is somehow

prohibited from checking for compliance by fallible attorneys and pro se

parties.

No. 18-1230 7

The district court then turned to the merits and deter-

mined that a First Amendment right of access applies and that

Seventh Circuit precedent requires that access be “immediate

and contemporaneous.” 2018 WL 318485, at *3, citing Grove

Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897

(7th Cir. 1994), and In re Associated Press, 162 F.3d 503, 506 (7th

Cir. 1998). In the district court’s view, the Clerk’s stated rea-

sons were insufficient to justify the delays in access, so that

the delays violate the Constitution. The district court ordered

the Clerk to implement within thirty days “a system that will

provide access to newly e-filed civil complaints contempora-

neously with their receipt by her office.” 2018 WL 318485, at

*7. Clerk Brown filed a notice of appeal and a motion to stay

the preliminary injunction pending appeal. The district court

denied that motion, but this court then granted a stay.4

II. Analysis

A. Standard of Review

To obtain a preliminary injunction, a plaintiff must first

show that: (1) without such relief, it will suffer irreparable

harm before final resolution of its claims; (2) traditional legal

remedies would be inadequate; and (3) it has some likelihood

of success on the merits. E.g., Valencia v. City of Springfield, 883

F.3d 959, 965 (7th Cir. 2018), citing Girl Scouts of Manitou Coun-

cil, Inc. v. Girl Scouts of the U.S. of Am., Inc., 549 F.3d 1079, 1086

(7th Cir. 2008). If a plaintiff makes such a showing, the court

next must weigh the harm the plaintiff will suffer without an

injunction against the harm the defendant will suffer with

4 This court received helpful amicus briefs from the Judicial Council

of California in support of Clerk Brown and the Reporters Committee for

Freedom of the Press in support of CNS.

8 No. 18-1230

one. See Ty, Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir.

2001). This assessment is made on a sliding scale: “The more

likely the plaintiff is to win, the less heavily need the balance

of harms weigh in his favor; the less likely he is to win, the

more need it weigh in his favor.” Girl Scouts of Manitou Coun-

cil, 549 F.3d at 1086, quoting Roland Machinery Co. v. Dresser

Industries, Inc., 749 F.2d 380, 387 (7th Cir. 1984). Finally, the

court must ask whether the preliminary injunction is in the

public interest, which entails taking into account any effects

on non-parties. Id. at 1086. Ultimately, the moving party bears

the burden of showing that a preliminary injunction is war-

ranted. Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per cu-

riam).

In reviewing the grant or denial of a preliminary injunc-

tion on appeal, we examine “legal conclusions de novo, find-

ings of fact for clear error, and the balancing of harms for

abuse of discretion.” Valencia, 883 F.3d at 966, citing Coronado

v. Valleyview Pub. Sch. Dist. 365–U, 537 F.3d 791, 795 (7th Cir.

2008). In reviewing the district court’s decision whether to ab-

stain, the underlying legal questions are subject to de novo re-

view, and the ultimate decision itself is reviewed for abuse of

discretion. Property & Casualty Ins. Ltd. v. Central National Ins.

Co. of Omaha, 936 F.2d 319, 321 (7th Cir. 1991).

B. Right of Access

While the First Amendment does not explicitly mention a

right of access to court proceedings and documents, “the

courts of this country recognize a general right to inspect and

copy public records and documents, including judicial rec-

ords and documents.” Nixon v. Warner Communications, Inc.,

435 U.S. 589, 597 (1978). This right of access has its roots in the

common law, but the Supreme Court has held that the First

No. 18-1230 9

Amendment itself protects access to criminal trials. Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 576–78 (1980) (plural-

ity opinion). The Supreme Court has also cautioned against

any “narrow, literal conception” of the First Amendment’s

terms, NAACP v. Button, 371 U.S. 415, 430 (1963), and has ex-

plained that

the Framers were concerned with broad princi-

ples, and wrote against a background of shared

values and practices. The First Amendment is

thus broad enough to encompass those rights

that, while not unambiguously enumerated in

the very terms of the Amendment, are nonethe-

less necessary to the enjoyment of other First

Amendment rights.

Globe Newspaper Co. v. Superior Court for the County of Norfolk,

457 U.S. 596, 604 (1982) (citations omitted).

“[A] major purpose of [the First] Amendment was to pro-

tect the free discussion of governmental affairs.” Id., quoting

Mills v. Alabama, 384 U.S. 214, 218 (1966). “Free speech carries

with it some freedom to listen,” so the Supreme Court has rea-

soned that freedom of speech and freedom of the press

“would lose much meaning if access to … the trial could … be

foreclosed arbitrarily.” Richmond Newspapers, 448 U.S. at 576–

577. Press access in particular is important:

In a society in which each individual has but

limited time and resources with which to ob-

serve at first hand the operations of his govern-

ment, he relies necessarily upon the press …

With respect to judicial proceedings in particu-

lar, the function of the press serves to … bring

10 No. 18-1230

to bear the beneficial effects of public scrutiny

upon the administration of justice.

Cox Broad. Corp. v. Cohn, 420 U.S. 469, 491–92 (1975).

Though the Supreme Court has not yet extended these

principles from criminal proceedings, the federal courts of ap-

peals have widely agreed that the First Amendment right of

access extends to civil proceedings and associated records

and documents. See Courthouse News Serv. v. Planet, 750 F.3d

776, 786 (9th Cir. 2014) (“Planet I”), citing In re Continental Illi-

nois Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (finding right

of access by press to litigation committee reports in share-

holder derivative suits); New York Civil Liberties Union v. New

York City Transit Auth., 684 F.3d 286, 305 (2d Cir. 2012) (finding

right of access to administrative civil infraction hearings);

Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1061 (3d Cir.

1984) (“We hold that the First Amendment does secure a right

of access to civil proceedings.”); Brown & Williamson Tobacco

Corp. v. Federal Trade Comm’n, 710 F.2d 1165, 1177 (6th Cir.

1983) (First Amendment limits judicial discretion to seal doc-

uments in civil case). The press’s right of access to civil pro-

ceedings and documents fits squarely within the First

Amendment’s protections.

Yet the press’s right of access to court documents is not

absolute—it is qualified. Nixon, 435 U.S. at 598; Globe Newspa-

per, 457 U.S. at 606. There is a constant tension between the

interest in public disclosure and privacy concerns. To deter-

mine whether a right of access attaches under the First

Amendment, courts use the two-part test set out in Press–En-

terprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) (“Press-Enter-

prise II”). This test is generally referred to as the “experience

and logic test.” It asks whether a proposed right reflects a

No. 18-1230 11

well-developed tradition of access to a specific process and

whether the right “plays a significant positive role in the func-

tioning of the particular process in question.” Id. at 8. If so, a

rebuttable presumption of access applies. Id. at 9.

This is the framework for analyzing restrictions on the

press’s right of access to court proceedings and documents.

Here, both parties agree there is a qualified right of access to

civil complaints. The dispute is about timing: does the right

of access attach at the moment a complaint is received by the

Clerk’s Office, or does it attach at the moment processing is

completed? How long a delay in access is too long?

While the delays appear to be minimal, we do not answer

these questions here. We conclude that the state courts de-

serve the first opportunity to hear such a constitutional chal-

lenge to their internal procedures. The vast majority of access

precedents arise from litigation before the courts whose rec-

ords are at issue. In this case, however, CNS is seeking to have

one court tell another court that its level of access is not good

enough. Further, many access disputes concern documents in

a single case, whereas the relief sought here is far-reaching. It

would apply to all civil cases filed in one of the busiest county

courts in the country. “Every court has supervisory power

over its own records and files,” Nixon, 435 U.S. at 598, and at

least at this time, we decline to impose a requirement on the

state court that we do not meet ourselves, at least not yet.5

5 We recognize that the district court here concluded that “immediate

and contemporaneous” access was required by our decision in Grove Fresh

Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994), which

used that language. We said that the “newsworthiness of a particular story

is often fleeting,” and that “each passing day may constitute a separate

and cognizable infringement of the First Amendment.” Id., quoting

12 No. 18-1230

C. Abstention

This action falls within the terms of 42 U.S.C. § 1983: plain-

tiff CNS claims that its federal constitutional rights are being

violated by a person acting under color of state law. But the

relief plaintiff seeks here directly affects the administration of

the state courts and “would run contrary to the basic princi-

ples of equity, comity, and federalism.” See SKS & Associates,

Inc. v. Dart, 619 F.3d 674, 676–77 (7th Cir. 2010) (affirming ab-

stention in federal case seeking injunction directing manage-

ment of state courts’ eviction cases). Even though abstention

is the exception, not the rule, e.g., Colorado River Water Conser-

vation Dist. v. United States, 424 U.S. 800, 813 (1976), a federal

court “may, and often must, decline to exercise its jurisdiction

where doing so would intrude upon the independence of the

state courts.” SKS & Associates, 619 F.3d at 677. As the Su-

preme Court has put it, federal courts may decline to exercise

jurisdiction where denying a federal forum would “clearly

serve an important countervailing interest,” including “re-

gard for federal-state relations.” Quackenbush v. Allstate Ins.

Co., 517 U.S. 706, 716 (1996). “This equitable decision balances

the strong federal interest in having certain classes of cases,

and certain federal rights, adjudicated in federal court,

Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975) (Blackmun, J., in

chambers) (staying state-court order restricting media coverage of pend-

ing criminal case). Grove Fresh addressed delays on the order of months

and years, not hours or even minutes. Our decision in Grove Fresh ap-

proved a review process for documents that would require adversarial ex-

changes lasting weeks before the sealed information would be released.

Id. at 898. Grove Fresh continues to provide helpful guidance on the quali-

fied right of public access to court filings. It does not, however, compel the

instant access to every filing in all civil (or criminal) cases ordered by the

district court here.

No. 18-1230 13

against the State’s interests in maintaining ‘uniformity in the

treatment of an “essentially local problem.”’” Id. at 728, quot-

ing New Orleans Pub. Serv., Inc. v. Council of City of New Orle-

ans, 491 U.S. 350, 362 (1989).

State courts have a significant interest in running their

own clerks’ offices and setting their own filing procedures—

especially in a court like the Circuit Court of Cook County,

where more than one million cases are filed annually. 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. CNS has not yet sought relief in

the state courts here. 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. 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.

1. The Abstention Doctrines

The Supreme Court has recognized four principal catego-

ries of abstention: Pullman, Burford, Younger, and Colorado

River, named after Railroad Commission of Texas v. Pullman Co.,

312 U.S. 496 (1941); Burford v. Sun Oil Co., 319 U.S. 315 (1943);

Younger v. Harris, 401 U.S. 37 (1971); and Colorado River Water

Conservation District v. United States, 424 U.S. 800 (1976). Two

additional categories, O’Shea and Rizzo, can be considered ex-

tensions of Younger. See O’Shea v. Littleton, 414 U.S. 488 (1974);

Rizzo v. Goode, 423 U.S. 362 (1976). Younger, with its extension

in O’Shea and Rizzo, is most closely applicable to the present

14 No. 18-1230

case; however, it is not a perfect fit, and we ultimately base

our decision on the more general principles of federalism that

underlie all of the abstention doctrines.

Younger abstention ordinarily requires federal courts to re-

frain from exercising jurisdiction over federal constitutional

claims that seek to interfere with or interrupt ongoing state

proceedings. FreeEats.com, Inc. v. Indiana, 502 F.3d 590, 595

(7th Cir. 2007). Younger abstention originally required federal

courts to abstain when a criminal defendant seeks a federal

injunction to block his state court prosecution on federal con-

stitutional grounds. See 401 U.S. at 40–41. The Supreme Court

has extended the doctrine to civil proceedings in limited cir-

cumstances, beginning with Huffman v. Pursue, Ltd., 420 U.S.

592, 603–04 (1975). As we noted in SKS & Associates:

The civil brand of Younger extends only to a fed-

eral suit filed by a party that is the target of state

court or administrative proceedings in which

the state’s interests are so important that exer-

cise of federal judicial power over those pro-

ceedings would disregard the comity between

the states and federal government. See Pennzoil

Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987) (require-

ment for the posting of bond pending appeal);

Middlesex County Ethics Committee v. Garden State

Bar Ass’n, 457 U.S. 423, 432–34 (1982) (attorney

disciplinary proceedings); Trainor v. Hernandez,

431 U.S. 434, 444 (1977) (civil proceedings seek-

ing return of welfare payments wrongfully re-

ceived); Juidice v. Vail, 430 U.S. 327, 335–36 &

n.12 (1977) (civil contempt proceedings); Huff-

man, 420 U.S. at 604 (state court action to close

No. 18-1230 15

adult theater); Majors v. Engelbrecht, 149 F.3d

709, 712–13 (7th Cir. 1998) (nursing license sus-

pension proceedings before state administrative

board).

619 F.3d at 678.

The situation here is not a traditional Younger scenario:

there is no individual, ongoing state proceeding that plaintiffs

seek to enjoin. As a result, the district court found Younger ab-

stention specifically inapplicable. It is true that in Ankenbrandt

v. Richards, the Supreme Court stated: “Absent any pending

proceeding in state tribunals, therefore, application by the

lower courts of Younger abstention was clearly erroneous.”

504 U.S. 689, 705 (1992) (emphasis in original). We have also

explained that a “paramount concern” in whether to abstain

under Younger is that “the judicial or judicial in nature state

proceedings must be on-going.” Barichello v. McDonald, 98

F.3d 948, 955 (7th Cir. 1996). While this case does not fit neatly

into the Younger doctrine, it fits better into the Supreme

Court’s extension of the Younger principles in O’Shea and

Rizzo.

In O’Shea, plaintiffs filed a federal lawsuit asserting that a

municipal court system was intentionally discriminating

against African Americans in setting bail and in sentencing.

414 U.S. at 491–92. The district court dismissed the case, but

this court reversed, holding that if plaintiffs proved their alle-

gations, the district court should fashion appropriate injunc-

tive relief to prevent the state court judges from depriving

others of their constitutional rights in the future. Id. at 492–93.

The Supreme Court granted certiorari and reversed this court,

finding that the claims were not ripe because there was an in-

sufficient probability that the plaintiffs would be brought

16 No. 18-1230

before the municipal courts again on criminal charges. Id. at

495–99. The Court also found that even if the claims were ripe,

the principles of Younger should lead the federal courts to ab-

stain. The Court reasoned that comity and federalism “pre-

clude[d] equitable intervention” because the plaintiffs sought

“an injunction aimed at controlling or preventing the occur-

rence of specific events that might take place in the course of

future state criminal trials.” Id. at 499–500. The Court cau-

tioned against injunctions that would lead to “an ongoing fed-

eral audit of state criminal proceedings which would indi-

rectly accomplish the kind of interference that Younger v. Har-

ris … and related cases sought to prevent.” Id. at 500.

In Rizzo, the Supreme Court further extended the princi-

ples of Younger to limit federal court review of local executive

actions. In that case, the plaintiffs alleged a pattern of uncon-

stitutional police mistreatment of minority civilians in Phila-

delphia. 423 U.S. at 366. The Third Circuit affirmed the district

court’s injunction requiring city officials to come up with a

“comprehensive program” for dealing with civilian com-

plaints pursuant to the court’s detailed guidelines. Id. at 364–

66, 369–70. In reversing the injunction, the Supreme Court ex-

plained that the “District Court’s injunctive order here, signif-

icantly revising the internal procedures of the Philadelphia

police department, was indisputably a sharp limitation on the

department’s latitude in the dispatch of its own internal af-

fairs.” Id. at 379 (quotation marks omitted). The Court rea-

soned:

When a plaintiff seeks to enjoin the activity of a

government agency, even within a unitary court

system, his case must contend with the well-es-

tablished rule that the Government has

No. 18-1230 17

traditionally been granted the widest latitude in

the dispatch of its own internal affairs. * * *

When the frame of reference moves from a

unitary court system, governed by the princi-

ples just stated, to a system of federal courts rep-

resenting the Nation, subsisting side by side

with 50 state judicial, legislative, and executive

branches, appropriate consideration must be

given to principles of federalism in determining

the availability and scope of equitable relief.

Id. at 378–79 (internal citations and quotation marks omitted).

The Court noted that “federal courts must be constantly

mindful of the ‘special delicacy of the adjustment to be pre-

served between federal equitable power and State administra-

tion of its own law.’” Id. at 378, citing Stefanelli v. Minard, 342

U.S. 117, 120 (1951).

While the district court’s order in the present case does not

map exactly on the orders in O’Shea and Rizzo, it would also

impose a significant limit on the state courts and their clerk in

managing the state courts’ own affairs. Against the backdrop

of Younger, O’Shea, and Rizzo, we find that CNS’s request for

federal intrusion at this stage of the dispute between CNS and

the Clerk calls for abstention.

2. Abstention Principles: Equity, Federalism, and Comity

The situation here is quite similar to SKS & Associates,

where we applied the principles of Younger and declined to

exercise jurisdiction over a Section 1983 action against the

Chief Judge and the Sheriff of Cook County. 619 F.3d at 676.

In that case, the Sheriff was subject to a general order issued

by the Chief Judge that directed him not to carry out

18 No. 18-1230

residential evictions during a two-and-a-half-week period in

December and during periods of extreme cold weather. Id.

The plaintiff, a residential property manager, sought a federal

injunction against the Sheriff to speed up the eviction pro-

cesses in state court. Id.

In declining to exercise jurisdiction, we explained that it is

important for federal courts to have ‘‘a proper respect for state

functions, a recognition of the fact that the entire country is

made up of a Union of separate state governments, and a con-

tinuance of the belief that the National Government will fare

best if the States and their institutions are left free to perform

their separate functions in their separate ways.’’ Id., citing

New Orleans Public Service, 491 U.S. at 364, citing in turn

Younger, 401 U.S. at 44. We concluded that it was not appro-

priate for the federal courts, in the face of these principles of

equity, comity, and federalism, to undertake the requested su-

pervision of state court operations. SKS & Associates, 619 F.3d

at 682.

Despite SKS & Associates not being a typical Younger sce-

nario, we pointed out that the Supreme Court characterized

the holding of Younger as “far-from-novel” because it rested

primarily on the ‘‘even more vital consideration’’ of comity.

Id. at 678 (citations omitted). ‘‘Cooperation and comity, not

competition and conflict, are essential to the federal design,’’

and Younger abstention ‘‘reinforces our federal scheme.’’ Kow-

alski v. Tesmer, 543 U.S. 125, 133 (2004), citing Ruhrgas AG v.

Marathon Oil Co., 526 U.S. 574, 586 (1999). Abstention in the

present case tracks these general principles upon which all of

the abstention doctrines are based. The level of intrusion CNS

seeks from the federal court into the state court’s operations

No. 18-1230 19

is simply too high, at least before the state courts have had a

chance to consider the constitutional issue.

Underlying Younger abstention is a deeper principle of

comity: the assumption that state courts are co-equal to the

federal courts and are fully capable of respecting and protect-

ing CNS’s substantial First Amendment rights. As the Su-

preme Court underscored in Younger, the Constitution estab-

lished

a system in which there is sensitivity to the le-

gitimate interests of both State and National

Governments, and in which the National Gov-

ernment, anxious though it may be to vindicate

and protect federal rights and federal interests,

always endeavors to do so in ways that will not

unduly interfere with the legitimate activities of

the States.

401 U.S. at 44.

This principle of comity takes on special force when fed-

eral courts are asked to decide how state courts should con-

duct their business. The Illinois courts are best positioned to

interpret their own orders, which are at the center of this case,

and to craft an informed and proper balance between the state

courts’ legitimate institutional needs and the public’s and the

media’s substantial First Amendment interest in timely access

to court filings. It is particularly appropriate for the federal

courts to step back in the first instance as the state courts con-

tinue to transition to electronic filing and, like many courts

around the country, are working through the associated im-

plementation challenges and resource limitations. The claims

20 No. 18-1230

here are not suitable for resolution in federal court at this

time. CNS is free to pursue a remedy in the state courts.

We acknowledge that the Ninth Circuit in Courthouse News

Service v. Planet, a case nearly identical to this one, came to the

opposite conclusion regarding abstention. 750 F.3d 776, 793

(9th Cir. 2014). The court there explained that CNS’s claims

“raise novel and important First Amendment questions that

the federal courts ought to decide” and reversed the district

court’s decision to abstain “so that the First Amendment is-

sues presented by this case may be adjudicated on the merits

in federal court, where they belong.” Id. In declining to ab-

stain under O’Shea, the Ninth Circuit explained that an injunc-

tion would not lead to continuous oversight of the state courts

by the federal court. Id. at 791. The Ninth Circuit thought there

would be no “ongoing federal audit” and that the “remedy

that CNS seeks is more akin to [a] bright-line finding” rather

than an impermissible “ongoing monitoring of the substance

of state proceedings.” Id. (citations omitted). Thus, the Ninth

Circuit concluded, the First Amendment interests at stake

outweighed what it thought would be minimal interference

in the state’s administration of its judicial system.

On this point, we respectfully disagree with our col-

leagues in the Ninth Circuit. If the state court clerk refuses or

fails to comply with the federal court’s injunction or complies

only partially, the federal court’s involvement would cer-

tainly continue as it oversees the implementation of its order.

Further, we have no doubt CNS would attempt to use a dif-

ferent decision in this case to force the hand of other state

courts that do not provide immediate press access to court fil-

ings. This would likely lead to subsequent litigation in the

federal courts. We want to avoid a situation in which the

No. 18-1230 21

federal courts are dictating in the first instance how state court

clerks manage their filing procedures and the timing of press

access. We also want to avoid the problems that federal over-

sight and intrusion of this sort might cause.6

In sum, the district court erred by exercising jurisdiction

and issuing a preliminary injunction. Initial adjudication of

this dispute in the federal court would run contrary to the

considerations of equity, comity, and federalism as detailed

in SKS & Associates and the Supreme Court abstention deci-

sions on which SKS & Associates was based. This temporal ac-

cess dispute with a state court clerk should be heard first in

the state courts.

The district court’s order granting a preliminary injunc-

tion is REVERSED, and the case is REMANDED with instruc-

tions to dismiss this action without prejudice.

6 Because this opinion creates a circuit conflict on the abstention issue,

we circulated it to all judges in active service. See 7th Cir. R. 40(e). No

judge in active service requested to hear the case en banc.