Petition for Writ of Certiorari — Courthouse News Service, Petitioner v. Dorothy Brown, Clerk, Circuit Court of Illinois, Cook County

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------COURTHOUSE NEWS SERVICE,

Petitioner,

v.

DOROTHY BROWN, in her official capacity as

Clerk of the Circuit Court of Cook County, Illinois,

Respondent.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------RACHEL E. MATTEO-BOEHM

BRYAN CAVE LEIGHTON

PAISNER LLP

Three Embarcadero Center

Seventh Floor

San Francisco, CA 94111

(415) 675-3400

K. LEE MARSHALL

Counsel of Record

BARBARA A. SMITH

BRYAN CAVE LEIGHTON

PAISNER LLP

211 N. Broadway, Suite 3600

St. Louis, MO 63102

(314) 259-2000

klmarshall@bclplaw.com

March 13, 2019

Counsel for Petitioner

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Petitioner, a news service that reports on civil litigation in the federal and state courts nationwide,

sought timely access to public civil complaints filed in

Cook County, Illinois. After the Clerk of the Court for

Cook County declined to provide such access, Petitioner filed suit pursuant to 42 U.S.C. § 1983 to redress

this First Amendment harm.

Creating an acknowledged and irreconcilable split

with the United States Court of Appeals for the Ninth

Circuit, and also splitting with the Second Circuit,

both of which have held that federal courts should not

abstain from hearing First Amendment challenges

seeking access to public court filings, the Seventh Circuit held that federal courts should abstain from hearing First Amendment claims of this type pursuant to

Younger v. Harris, 401 U.S. 37 (1971) and its progeny.

The Seventh Circuit’s decision was grounded not in

any clearly defined category of Younger cases in which

this Court has stated abstention is appropriate, but rather in general principles of “equity, comity, and federalism.”

The question presented is thus:

Whether Younger and its progeny permit federal

courts to abstain, on the basis of general principles of

comity and federalism, from hearing First Amendment

challenges that seek access to state court filings.

ii

PARTIES AND RULE 29.6 STATEMENT

Petitioner, Courthouse News Service, is a privately

held corporation with no parent corporation. No publicly held corporation holds more than ten percent of

its stock.

Respondent, an individual, is the Clerk of the Circuit Court of Cook County, Illinois, and was sued in her

official capacity.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .....................................

i

PARTIES AND RULE 29.6 STATEMENT ............

ii

TABLE OF AUTHORITIES ...................................

v

PETITION FOR WRIT OF CERTIORARI ............

1

OPINIONS BELOW ...............................................

2

JURISDICTION .....................................................

2

STATUTORY PROVISIONS INVOLVED .............

3

STATEMENT OF THE CASE ................................

3

A. Background ..................................................

3

B.

The District Court Enjoins The Clerk’s Actions ..............................................................

4

The Court Of Appeals’ Decision ..................

7

REASONS FOR GRANTING THE PETITION .....

10

C.

I. The Courts of Appeals Are Divided Over

Whether Federal Courts Should Abstain

From Hearing First Amendment Claims Of

This Type ...................................................... 12

A. The Decision Below Conflicts With Decisions From The Second And Ninth

Circuits .................................................. 13

II.

The Decision Below Is Wrong ......................

20

A. The Decision Below Expands The Circumstances In Which A Federal Court Should

Abstain Beyond The Narrow Exceptions

This Court Has Articulated................... 20

iv

TABLE OF CONTENTS – Continued

Page

B. The Decision Below Turns On Its Head

The Presumption That Courts Must Exercise Jurisdiction When They Have It .... 24

III.

The Question Presented Is Important And

Should Be Decided In This Case ................. 27

CONCLUSION .......................................................

32

APPENDIX

Appendix A

Opinion, United States Court of Appeals for

the Seventh Circuit, Courthouse News Serv. v.

Brown, No. 18-1230 (Nov. 13, 2018) ................. App. 1

Appendix B

Memorandum Opinion and Order, United States

District Court for the Northern District of

Illinois, Courthouse News Serv. v. Brown, No.

1:17-cv-07933 (Jan. 8, 2018) .......................... App. 25

Appendix C

Judgment in a Civil Case, United States

District Court for the Northern District of

Illinois, Courthouse News Serv. v. Brown, No.

1:17-cv-07933 (Dec. 7, 2018) .......................... App. 44

Appendix D

Relevant Statute ............................................ App. 46

v

TABLE OF AUTHORITIES

Page

CASES

Alabama Pub. Serv. Comm’n v. Southern Ry. Co.,

341 U.S. 341 (1951) .................................................24

Allen v. McCurry, 449 U.S. 90 (1980) .........................26

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ............5

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ...............17

Christian Legal Soc’y v. Walker, 453 F.3d 853

(7th Cir. 2006)............................................................6

Cohens v. Virginia, 19 U.S. 264 (1821) ................. 24, 25

Colorado River Water Conservation Dist. v.

United States, 424 U.S. 800 (1976) ............. 21, 24, 25

County of Allegheny v. Frank Mashuda Co., 360

U.S. 185 (1959) ............................................ 20, 21, 25

Courthouse News Serv. v. Planet, 750 F.3d 776

(9th Cir. 2014).................................................. passim

Glassroth v. Roy Moore, 229 F. Supp. 2d 1290

(M.D. Ala. 2002) .......................................................26

Globe Newspaper Co. v. Superior Court for Cty.

of Norfolk, 457 U.S. 596 (1982) ...............................30

Grove Fresh Distribs., Inc. v. Everfresh Juice Co.,

24 F.3d 893 (7th Cir. 1994) ........................................6

Hartford Courant Co. v. Pellegrino, 380 F.3d 83

(2d Cir. 2004) ................................................... passim

McNeese v. Board of Educ. for Cmty. Unit Sch.

Dist. 187, Cahokia, Ill., 373 U.S. 668 (1963) ...........26

Mills v. Alabama, 384 U.S. 214 (1966) .......................30

vi

TABLE OF AUTHORITIES – Continued

Page

Nebraska Press Ass’n v. Stuart, 423 U.S. 1327

(1975) .......................................................................31

Nebraska Press Ass’n v. Stuart, 427 U.S. 539

(1976) .......................................................................31

New Orleans Pub. Serv., Inc. v. Council of City of

New Orleans, 491 U.S. 350 (1989) .................... 21, 27

Nixon v. Warner Commc’ns, Inc., 435 U.S. 589

(1978) .......................................................................30

O’Shea v. Littleton, 414 U.S. 488 (1974).... 8, 13, 14, 22, 23

Railroad Comm’n v. Pullman Co., 312 U.S. 496

(1941) .......................................................................13

Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555 (1980) ................................................................30

Rizzo v. Goode, 423 U.S. 362 (1976) .................. 8, 22, 23

SKS & Assocs., Inc. v. Dart, 619 F.3d 674 (7th Cir.

2010) ..........................................................................9

Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69

(2013) ............................................................... passim

Younger v. Harris, 401 U.S. 37 (1971) ................ passim

STATUTES

28 U.S.C. § 1254(1) ........................................................2

42 U.S.C. § 1983 .................................................. passim

1

PETITION FOR WRIT OF CERTIORARI

Federal courts bear responsibility to resolve cases

and controversies over which they have jurisdiction

and should abstain from hearing such cases only in the

narrowest of circumstances. Thus, when a federal court

decides to abstain on the basis of this Court’s decision

in Younger v. Harris, 401 U.S. 37 (1971), it may do so

only pursuant to three limited exceptions, which preclude federal intrusion into (1) ongoing state criminal

proceedings; (2) certain civil enforcement proceedings;

and (3) pending civil proceedings involving certain orders uniquely in furtherance of a state court’s ability

to perform its judicial functions. See Sprint Commc’ns,

Inc. v. Jacobs, 571 U.S. 69, 78 (2013).

Comity, and a respect for the concurrent role of

state courts in our constitutional system, is the chief

rationale for these narrow exceptions, but is not itself

an independent reason to abstain. The decision below—which holds that federal courts should abstain

from hearing First Amendment claims brought against

state court clerks denying the press timely access to

public filings—turns this Court’s abstention jurisprudence on its head. It calls on federal courts to abstain

from hearing claims that could be brought in state

court, regardless of whether any of the three narrow

Younger exceptions to federal jurisdiction apply, and

notwithstanding that any delay in reviewing the constitutional claim at issue eviscerates the very right the

claim seeks to vindicate. Each additional day that the

Clerk delays press access to new complaints makes reporting on those complaints less newsworthy, and that

2

delay necessarily undermines the First Amendment

interest in play.

The decision below is wrong, and acknowledges

that it creates a square split of authority with the

Ninth Circuit. It also splits with the Second Circuit. A

split of authority over a question of federal jurisdiction

merits this Court’s prompt review. The fact that the

underlying merits of this claim implicate an important

constitutional interest only magnifies the importance

of resolving this question now.

------------------------------------------------------------------

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Seventh Circuit is reported at 908 F.3d 1063

and reproduced at Pet.App.1–24. The memorandum

opinion and order of the United States District Court

for the Northern District of Illinois is available at 2018

WL 318485 and reproduced at Pet.App.25–43.

------------------------------------------------------------------

JURISDICTION

The Court of Appeals entered judgment on November 13, 2018. On January 25, 2019, Justice Kavanaugh

extended the time for filing this petition to March 13,

2019. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

------------------------------------------------------------------

3

STATUTORY PROVISIONS INVOLVED

The relevant provisions of 42 U.S.C. § 1983 are reprinted in the Appendix at Pet.App.46.

------------------------------------------------------------------

STATEMENT OF THE CASE

A. Background.

Courthouse News Service (“CNS”) reports on civil

litigation, from the opening complaint to final appeal.

Its subscribers include other media outlets—newspapers, television news, and online news publications—

as well as lawyers, law firms, law schools, and others.

CNS publishes its reporting on its website and through

print and email distribution. Pet.App.26. One example

of CNS’s reporting is its circulation of written summaries of newsworthy new civil complaints via its “New

Litigation Reports,” which are sent to subscribers

nightly. Id.

CNS reporters cover more than 2,500 state and

federal courts across the country. Id. CNS reporters

physically visit their assigned courts to review new

complaints in person or, where possible, access newlyfiled complaints electronically over the Internet. Id.

They then write original summaries of newsworthy

new civil litigation.

CNS’s media coverage of the Circuit Court of Cook

County, Illinois began in 1997. At that time, reporters

would visit the Cook County Clerk’s office to review

newly-filed complaints in person on the day they were

4

filed. Id. The Clerk permitted members of the press, including CNS reporters, to retrieve copies of newly-filed

complaints that were housed in a tray behind the

Clerk’s intake counter. Id.

As Cook County adopted optional electronic filing

in 2009, access remained largely the same: the Clerk

printed e-filed complaints as they came in and added

them to the pile of complaints available for review by

the press from the intake tray. Pet.App.27. But in January 2015, the Clerk’s Office abruptly stopped printing

newly-filed electronic complaints for review by members of the press in a timely fashion, and instead began

making them available on a delayed basis. Id. The result of this new system is that “reporters cannot view

electronically filed complaints until they are processed

and posted online[,]” which “leads to delays in access.”

Pet.App.3.

In advance of the date on which optional electronic

filing would become mandatory, CNS contacted the

Clerk’s Office to discuss the delays in access to electronically filed complaints. But the Clerk rejected the

alternative access options used by other courts that

CNS proposed and refused to change its policies and

procedures. Pet.App.28.

B. The District Court Enjoins The Clerk’s Actions.

In November 2017, pursuant to 42 U.S.C. § 1983,

CNS filed suit against Dorothy Brown, in her official

capacity as Clerk of the Circuit Court of Cook County,

seeking declaratory and injunctive relief on the

5

basis that the Clerk’s actions in delaying access to

newly-filed complaints violated the First Amendment.

Pet.App.25. CNS also moved for a preliminary injunction restraining the Clerk “from denying CNS’s constitutional right of contemporaneous access to newly

electronically filed complaints,” and “requiring her to

provide access to new complaints contemporaneously

with their receipt by the Circuit Court Clerk.” See Pl.’s

Mot. for Prelim. Inj., No. 1:17-cv-07933, Dkt. 6 (N.D. Ill.

Nov. 8, 2017).

Although the Clerk opposed the motion for a preliminary injunction, she did not dispute that the First

Amendment, which includes a presumption of access

to documents filed in court, applies to civil complaints.

Pet.App.6. Instead, she argued, inter alia, that the

federal court should abstain from hearing this First

Amendment claim on the basis of Younger v. Harris,

401 U.S. 37 (1971).

The District Court (Kennelly, J.) flatly rejected this

argument holding, inter alia, that because “there are

simply no ongoing state judicial proceedings with which

CNS’s requested injunctive relief might interfere . . .

Younger abstention is not appropriate.” Pet.App.30–31;

see id. at 31 (“Absent any pending proceeding in state

tribunals, therefore, application by the lower courts of

Younger abstention was clearly erroneous.”) (quoting

Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992)).

The District Court first noted that the First

Amendment “right of access to court proceedings and

documents is well-established.” Pet.App.32 (quoting

6

Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24

F.3d 893, 897 (7th Cir. 1994)). The Court then proceeded to evaluate the merits of injunctive relief, concluding that CNS was likely to succeed on its claim

because “a policy of delaying access to e-filed complaints until after they are officially accepted or rejected or otherwise processed by the Clerk violates the

First Amendment right of timely access to those complaints, unless the Clerk can demonstrate that the policy is narrowly tailored and necessary to preserve

higher values.” Pet.App.39. The Court also noted that

the Clerk “made no effort to explain how her policy of

withholding all access to e-filed complaints until acceptance is narrowly tailored” and “has made no effort

to explain why it is not feasible for her to adopt any

one of the various methods that numerous other state

and federal courts currently use to provide public access to e-filed complaints before they have been fully

processed.” Pet.App.40.

The District Court determined that the other

preliminary injunction factors were also met. On the

public interest prong, “injunctions protecting First

Amendment freedoms are always in the public interest.” Pet.App.41 (quoting Christian Legal Soc’y v.

Walker, 453 F.3d 853, 859 (7th Cir. 2006)). Moreover,

“[t]here is an important public interest in ensuring

that the press and the public have timely access to new

civil complaints.” Pet.App.41. The deprivation to CNS

of its First Amendment rights constituted irreparable

harm. Pet.App.42–43.

7

Likewise, the balance of the equities favored injunctive relief because “[i]n the absence of an injunction, CNS will continue to be deprived of its First

Amendment right of timely . . . access to e-filed complaints,” and the Clerk failed to “explain[ ] why she

cannot implement any of the measures other state and

federal courts have taken to provide access to e-filed

complaints prior to official acceptance and other processing.” Pet.App.42.

The injunction gave the Clerk “thirty days . . . to

implement a system that will provide access to newly

e-filed civil complaints contemporaneously with their

receipt by her office.” See Pet.App.43.

C. The Court Of Appeals’ Decision.

The United States Court of Appeals for the Seventh Circuit granted a stay of the preliminary injunction pending appeal, and ultimately reversed and

remanded the case with instructions to dismiss the action. Pet.App.1–24.

The Seventh Circuit held that it was required to

“[a]dher[e] to the principles of equity, comity, and federalism,” and concluded as a matter of law that “the

district court should have abstained from exercising

jurisdiction” to hear the First Amendment claim that

CNS raised. Pet.App.2. The Court acknowledged that

“[t]his action falls within the terms of 42 U.S.C.

§ 1983,” and that “CNS claims that its federal constitutional rights are being violated by a person acting

under color of state law.” Pet.App.13. But the District

8

Court should have declined to exercise jurisdiction

over those claims anyway because they “affect[ ] the

administration of the state courts” and, as an “equitable” matter “[s]tate 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.” Pet.App.13, 14.

The Court of Appeals noted that “[t]he situation

here is not a traditional Younger scenario: there is no

individual, ongoing state proceeding that plaintiffs

seek to enjoin.” Pet.App.16. Moreover, the Court noted

that the order under review “does not map exactly

on the orders in O’Shea and Rizzo,” Pet.App.19,

cases which extended the scope of Younger to other

contexts. In other words, the Court held, neither

Younger, nor O’Shea v. Littleton, 414 U.S. 488 (1974)

or Rizzo v. Goode, 423 U.S. 362 (1976), which extend

Younger, squarely applied.

Instead, the Seventh Circuit grounded its rationale for abstaining in “a deeper principle of comity,”

namely, “the assumption that state courts are co-equal

to the federal courts and are fully capable of respecting

and protecting CNS’s substantial First Amendment

rights.” Pet.App.21. Because CNS could have adjudicated its federal constitutional claim in state court, the

Court held, the principles underlying Younger and its

progeny required it to do so.

The chief legal authorities on which the Seventh

Circuit relied to require abstention in this context

were “the principles of equity, comity, and federalism.”

9

Pet.App.2, 13. The primary case that led the Court to

this result was not a decision of this Court, but rather

the Seventh Circuit’s own circuit precedent, SKS & Assocs., Inc. v. Dart, 619 F.3d 674 (7th Cir. 2010) (Hamilton, J.). See Pet.App.23 (“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 decisions on which SKS & Associates was

based.”).

The Court of Appeals acknowledged that its abstention decision on the scope of federal jurisdiction

created a square split with a “nearly identical” case from

the Ninth Circuit. See Pet.App.22 (“We acknowledge

that the Ninth Circuit in . . . a case nearly identical to

this one[ ] came to the opposite conclusion regarding

abstention.”) (citing Courthouse News Serv. v. Planet,

750 F.3d 776, 793 (9th Cir. 2014)) (“Planet”); see also

Pet.App.23 n.6 (“Because this opinion creates a circuit

conflict on the abstention issue, we circulated it to all

judges in active service.”).

The Seventh Circuit’s decision also conflicts with

a decision from the Second Circuit. The Second Circuit

has held that courts should not abstain from cases that

raise First Amendment right of access claims. See

Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir.

2004) (“Hartford Courant”).

------------------------------------------------------------------

10

REASONS FOR GRANTING THE PETITION

The decision below acknowledges and creates a

circuit split on a question of exceptional importance regarding whether certain constitutional claims may be

heard in federal court. The Seventh Circuit’s decision

broke with decisions of the Second and Ninth Circuits

by holding that federal courts should abstain from

hearing First Amendment claims asking a court clerk

to make public court filings available in a timely manner. The decision to abstain in this context is wrong

and—because it closes the federal courthouse doors

to important constitutional claims—merits immediate

review.

The Seventh Circuit acknowledged, in part, the

clean split of authority its decision created. On facts

“nearly identical” to those presented below, the Ninth

Circuit reached precisely the opposite conclusion on

the question whether federal courts should abstain

from hearing First Amendment claims of this type. See

Pet.App.22 (acknowledging the split with Courthouse

News Serv. v. Planet, 750 F.3d 776 (9th Cir. 2014)). In

both the Seventh Circuit and Ninth Circuit cases, CNS

sought to continue timely access to newly-filed civil

complaints, but faced resistance from local court clerks

who did not want to provide that access. In both cases,

CNS filed suit seeking declaratory and injunctive relief

under the First Amendment. In both cases, the appellate court evaluated whether Younger and its progeny

required federal courts to abstain from hearing CNS’s

claims on the basis that injunctive relief would be too

11

intrusive. Now, such claims may be brought in the

Ninth Circuit but not in the Seventh Circuit.

The split runs even deeper. When the Ninth Circuit decided in Planet that federal courts need not abstain from claims of this type, it expressly “join[ed] the

Second Circuit in reaching this conclusion.” See Planet,

750 F.3d at 787 (citing Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004)). The Seventh Circuit’s decision thus pits it against decisions from two

other courts of appeals.

Without a doubt, the question whether federal

courthouse doors are closed to First Amendment

claims of this type is exceptionally important. This

Court has repeatedly emphasized the virtually unflagging obligation of federal courts to hear and decide

cases when they have jurisdiction to do so. Exercising

that jurisdiction is nowhere more important than in

deciding the scope and breadth of fundamental First

Amendment rights.

The decision below wrongly evinces a crabbed

view of the scope of federal jurisdiction and closes

those courthouse doors to important constitutional

claims. The basis of the Seventh Circuit’s decision was

a standardless deference to “comity” and “respect” for

the ability of state courts to hear claims of this type

even when no such state case is pending. But exercising federal jurisdiction is an obligation, not a choice.

Worse still, this standardless rationale could be read to

preclude the adjudication in federal court of other important constitutional interests. If First Amendment

12

claims cannot be adjudicated in federal court simply

because they touch on state court interests and they

could be brought in state court, then nothing stops federal courts in the Seventh Circuit from refusing to hear

other important cases over which federal courts unquestionably have jurisdiction—cases raising Fourth

Amendment challenges to the actions of state judicial

security officers, cases alleging employment discrimination in state court hiring practices, establishment

clause challenges to displays at state courthouses, and

cases raising other important interests that touch on

the state courts.

I.

The Courts of Appeals Are Divided Over

Whether Federal Courts Should Abstain

From Hearing First Amendment Claims Of

This Type.

The decision below creates a split of authority

with prior decisions from the Ninth and Second Circuits. Before the decision below, every court of appeals

to address the question had held that federal courts

should not abstain from hearing constitutional challenges seeking access to public court documents. The

Seventh Circuit’s decision cannot be reconciled with

these other cases.

13

A. The Decision Below Conflicts With Decisions From The Second And Ninth Circuits.

1. As the Seventh Circuit acknowledged, its decision created a square split of authority with the

Ninth Circuit. See Pet.App.22, 23 n.6. Given the overlap in parties, facts, and legal issues, there is no way to

reconcile the split the decision below creates.

In Planet, CNS filed suit for declaratory and injunctive relief against the Clerk of Ventura County Superior Court, who was “withholding complaints until

after they had been fully processed” and, as a result,

made “review of new civil complaints less timely and

more difficult.” 750 F.3d at 781. As a result of the

clerk’s withholding of new complaints, when they were

finally available to the press they were significantly

less newsworthy. The District Court granted the clerk’s

motion to dismiss the case on the basis of O’Shea and

Pullman abstention. See id. at 782 (citing Railroad

Comm’n v. Pullman Co., 312 U.S. 496 (1941)). But the

Ninth Circuit reversed, squarely rebutting the abstention holding reached by the trial court there.

The Planet decision noted that “Pullman abstention is an extraordinary and narrow exception to the

duty of a district court to adjudicate a controversy.”

Id. at 783 (internal quotation marks omitted). And

while it exists to ensure “the rightful independence of

the state governments and for the smooth working of

the federal judiciary,” it “is generally inappropriate

when First Amendment rights are at stake.” Id. at 784

(citation omitted). Given the significance of the First

14

Amendment rights at stake, the court in Planet held

that Pullman abstention was inappropriate. Id. at

786–87.

The Ninth Circuit then carefully walked through

other prior abstention cases to conclude abstention

was not warranted. In particular, with respect to

O’Shea, the court concluded that O’Shea stands for the

“general proposition that [courts] should be very reluctant to grant relief that would entail heavy federal

interference in such sensitive state activities as administration of the judicial system.” Id. at 789–90

(internal quotation marks omitted). In other words,

“O’Shea compels abstention where the plaintiff seeks

an ‘ongoing federal audit’ of the state judiciary,

whether in criminal proceedings or in other respects.”

Id. at 790 (citation omitted).

Abstention was not warranted, the court in Planet

held, because “[a]n injunction requiring the Ventura

County Superior Court to provide same-day access to

filed unlimited civil complaints poses little risk of an

‘ongoing federal audit’ or ‘a major continuing intrusion

of the equitable power of the federal courts into the

daily conduct of state . . . proceedings.’ ” Id. at 792

(quoting O’Shea v. Littleton, 414 U.S. 488, 500, 502

(1974)).

That was so because an injunction would amount

to a “bright-line finding” and not “ongoing monitoring

of the substance of state proceedings.” Id. at 791. The

federal courts could “provide the requested relief ”

without an “intensive, context-specific legal inquiry.”

15

Id. Moreover, the state court clerk “has available a variety of simple measures to comply with an injunction

granting CNS all or part of the relief requested[.]” Id.

And, as a matter of fact, when an injunction was issued

on remand after the Planet decision, the clerk there

adopted simple measures that consistently provided

timely access without raising the specter of excessive

interference in the state judiciary.

Planet stands for the proposition that federal

courts should not abstain from hearing constitutional

challenges seeking to adjudicate questions about access to state court records. Thus, the Planet court held,

these cases can and should be heard in federal court,

and federal courts may issue injunctive relief to further those meritorious claims without micro-managing

state court administrative procedures.

There is no way to square the Ninth Circuit’s holding in Planet with the Seventh Circuit’s decision below.

The decision below relies on the “general principles

upon which all of the abstention doctrines are based”

to conclude that “[t]he 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.”

Pet.App.21.

The rationale for the Seventh Circuit’s decision

was that “it was not appropriate for the federal courts,

in the face of these principles of equity, comity, and federalism, to undertake the requested supervision of

state court operations.” Pet.App.20.

16

The Ninth Circuit reached the opposite conclusion

in the face of a nearly identical request for injunctive

relief. In Planet, the plaintiff sought “an injunction prohibiting Planet from continuing his policies resulting

in delayed access to new unlimited jurisdiction civil

complaints” and denying “timely access to new civil unlimited jurisdiction complaints on the same day they

are filed, except as deemed permissible following the

appropriate case-by-case adjudication.” See Planet, 750

F.3d at 782 (internal quotation marks omitted). That

language maps directly onto the relief requested (and

granted) in this case, which required the Clerk here “to

implement a system that will provide access to newly

e-filed civil complaints contemporaneously with their

receipt by her office.” See Pet.App.43.

In short—faced with the same legal question, the

same parties, and the same requested relief—the Seventh Circuit held that federal courts should abstain

from exercising jurisdiction to hear constitutional

challenges to a state’s decision to withhold public court

filings. In precisely the same context, the Ninth Circuit

previously came to the opposite conclusion.

2. The Ninth Circuit’s Planet decision expressly

rested on a prior decision of the Second Circuit, which

also has addressed this question. In Planet, the Ninth

Circuit acknowledged that its decision aligned with

Hartford Courant, 380 F.3d at 100. See Planet, 750 F.3d

at 787 (“We join the Second Circuit in reaching this

conclusion.”).

17

In Hartford Courant, the Second Circuit was

asked “to decide whether the public and press have a

qualified First Amendment right to inspect docket

sheets and, if so, the appropriate remedy for its violation by state courts.” Hartford Courant, 380 F.3d at 85.

There, Connecticut state court clerks routinely sealed

entire docket sheets, pursuant to a policy outlined by

the Civil Court manager, that resulted in thousands of

cases being sealed. Id. at 87. The Hartford Courant, a

local newspaper, filed suit pursuant to, inter alia, 42

U.S.C. § 1983, seeking injunctive relief and claiming

that a policy which resulted in the widespread sealing

of court documents violated the press’s First Amendment right to access judicial proceedings and documents. Id. at 85, 89. As described by the Second Circuit,

“the gravamen of the federal plaintiffs’ complaint” was

a challenge to “the procedures set forth in the [Civil

Court manager’s policy memo] or the unauthorized actions of the court administrators” in sealing otherwise

public court docket sheets. Id. at 101.

In response, the defendants—the Chief Court

Administrator and the Chief Justice of the Connecticut Supreme Court in their administrative capacities—moved to dismiss by claiming that the federal

court should abstain under, inter alia, Pullman and

Burford v. Sun Oil Co., 319 U.S. 315 (1943). Id. at 100–

02. After the District Court granted the motion to

dismiss, the Second Circuit reversed. The Second Circuit held that there was no reason to abstain from adjudicating the constitutional question. See id. at 86

(“[A]fter reviewing the abstention doctrines that the

18

defendants have raised, we hold that none applies in

this case.”).

In so holding, the Second Circuit rejected the argument that a challenge to the Connecticut courts’ procedures for sealing court documents affected “a central

sovereign function” over which state courts had “an inherent power.” See Br. of Defs.-Appellees, No. 03-9141,

2004 WL 5822413, at *39 (2d Cir. Feb. 24, 2004). Indeed, the appellees in Hartford Courant expressly argued that the sealing procedures “pose state and

federal constitutional issues that Connecticut courts

ought first to have the opportunity to review.” Id. at

*33. The Second Circuit disagreed.

Hartford Courant therefore squarely conflicts

with the Seventh Circuit’s decision below that the underlying “temporal access dispute with a state court

clerk should be heard first in the state courts.”

Pet.App.23.

This conflict is rendered even more stark by the

motivation for the decision of each court. The Seventh

Circuit’s decision, grounded in “comity,” was motivated

by a special concern that federal courts not interfere

with state court clerks’ oversight of their own procedures for public access to court filings. See Pet.App.21–

22 (“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.”). By contrast,

19

the Second Circuit held that “the weight of the First

Amendment issues involved counsels against abstaining.” Hartford Courant, 380 F.3d at 100. There is no

way to reconcile these competing decisions.

Nor can the decision below be distinguished on the

basis that the filing procedures at issue are in a time

of transition (from paper to electronic filing), which

was another reason offered by the Seventh Circuit to

abstain. See Pet.App.22 (“It is particularly appropriate

for the federal courts to step back in the first instance

as the state courts continue to transition to electronic

filing and, like many courts around the country, are

working through the associated implementation challenges and resource limitations. The claims here are

not suitable for resolution in federal court at this

time.”).

The suggestion that the move from paper to electronic filing counsels in favor of abstention is wrong for

two reasons. First, the notion that a policy challenged

as unconstitutional is in flux is not a recognized basis

for abstention. Here, the transition from paper to electronic filing is a simple shift in the form a document is

delivered, not a substantive change in the filing that

should affect the First Amendment rights that attach

to it. Second, this rationale, such as it is, highlights a

further conflict with the Second Circuit. That is because the clerk’s policy memo at the heart of the Hartford Courant case was itself no longer the operative

document governing the sealing of court records when

that case was adjudicated. Rather, a new policy had

subsequently been enacted that made court documents

20

available on a timely basis (but did not apply retroactively). See Hartford Courant, 380 F.3d at 87. Thus, the

policy at issue in that case, like the underlying policy

here, was in flux and facing a time of transition. Yet the

Second Circuit, unlike the Seventh Circuit, declined to

abstain from hearing challenges to the court-sealing

policy on the basis that the state should take a first

crack at evaluating the new change.

II.

The Decision Below Is Wrong.

The Seventh Circuit’s decision is wrong in at least

two respects. First, it runs directly counter to this

Court’s clear direction that Younger abstention applies

only in limited and clearly defined circumstances. Second, the decision below upends the presumption that

federal courts adjudicate claims over which they have

jurisdiction.

A. The Decision Below Expands The Circumstances In Which A Federal Court Should

Abstain Beyond The Narrow Exceptions

This Court Has Articulated.

This Court has carved out narrow categories of

cases in which federal courts have jurisdiction to review claims brought before them but should nonetheless abstain from hearing such cases. The doctrine of

abstention “is an extraordinary and narrow exception”

to the general obligation of federal courts to “adjudicate . . . controvers[ies] properly before [them].” County

of Allegheny v. Frank Mashuda Co., 360 U.S. 185,

21

188–89 (1959) (FRANKFURTER, J., concurring). Abstention is therefore justified “only in the exceptional circumstances where the order to the parties to repair to

the state court would clearly serve an important countervailing interest.” Id.; see also Colorado River Water

Conservation Dist. v. United States, 424 U.S. 800, 813

(1976) (“Abstention from the exercise of federal jurisdiction is the exception, not the rule.”).

Younger abstention, which traces its roots to

Younger v. Harris, 401 U.S. 37 (1971), forbids federal

courts from enjoining pending state criminal proceedings. Since its inception, federal courts have struggled

to understand the scope of Younger’s applicability. That

confusion is nowhere more obvious than in the decision

below.

But recently, this Court has made clear that

Younger abstention is “confined” to “three exceptional

circumstances.” See Sprint Commc’ns, Inc. v. Jacobs,

571 U.S. 69, 78 (2013). Federal courts may abstain under Younger only to prevent them from enjoining: (1)

“ongoing state criminal prosecutions;” (2) “certain civil

enforcement proceedings;” and (3) “pending civil proceedings involving certain orders uniquely in furtherance of the state courts’ ability to perform their judicial

functions.” Id. (internal quotation marks and alteration omitted). In Sprint, the Court made clear that

these narrow exceptions constituted the entire universe of Younger. See id. (“We have not applied Younger

outside these three ‘exceptional’ categories, and today

hold, in accord with NOPSI, that they define Younger’s

scope.”); see also New Orleans Pub. Serv., Inc. v. Council

22

of City of New Orleans, 491 U.S. 350, 369–70 (1989)

(“NOPSI”) (“While [the Court has] expanded Younger

beyond criminal proceedings, and even beyond proceedings in courts, [it has] never extended it to proceedings that are not ‘judicial in nature.’ ”).

The Court has also applied Younger abstention to

preclude courts from hearing cases where there is no

concurrent pending state proceeding, in order to prevent federal courts from engaging in an “ongoing federal audit of state [court] proceedings which would

indirectly accomplish the kind of interference that

Younger v. Harris . . . and related cases sought to prevent.” O’Shea, 414 U.S. at 500 (federal courts should

abstain from enjoining future conduct); Rizzo v. Goode,

423 U.S. 362, 380 (1976) (broadly applying Younger

principles to limit federal court review of local executive branch actions).

Although O’Shea and Rizzo are based on

Younger—and the decision below plainly contemplates

they are direct extensions of Younger—the Court has

not had occasion to make clear that the limits of

Younger, as expressed in Sprint, also apply to O’Shea

and Rizzo. This case makes clear why the Court should

do so now.

Assuming O’Shea and Rizzo are limited by the

scope of Younger (on which they rely), then the only argument for abstention in this case would be that the

contemplated injunction involves “certain orders

uniquely in furtherance of the state courts’ ability to

perform their judicial functions.” Sprint Commc’ns,

23

571 U.S. at 78 (internal quotation marks omitted). No

such problem exists here: the contemplated injunction

would apply to an established policy and enjoining that

policy would involve simple compliance with a simple,

one-time injunction, not an “ongoing federal audit of

state criminal proceedings.” O’Shea, 414 U.S. at 500.

The terms of the District Court’s order make this clear,

because the order requires simply that the Clerk craft

a new, constitutionally compliant policy that ensures

timely access to new complaints, while leaving the details related to compliance up to the Clerk herself. Rather than requiring the Clerk to make one precise

change or another, the order allows the Clerk broad authority to craft a compliant policy. See Pet.App.43

(“Brown is given thirty days . . . to implement a system

that will provide access[.]”).

If Younger itself is narrowly limited, then the cases

expanding its scope should likewise be so confined. Either O’Shea and Rizzo are extensions of Younger—as

the decision below believed them to be—or they are

not. If they are extensions of Younger, then the limitations of Younger that this Court has carefully staked

out apply. If they are not extensions of Younger, and

instead fall into some other, nebulous line of cases

about the scope of federal courts’ equity power to issue

injunctive relief against state actors, then that too is

patently unclear to lower federal courts and that question merits this Court’s intervention.

Further—and however these cases are described—the decision below does not grapple seriously

with why the issuance of an injunction here would lead

24

to the result the opinion fears, unnecessary interference with state courts. The decision below also ignores

that the District Court held no such interference would

occur, and that the Clerk herself put forth no evidence

or argument at all—aside from the same barebones assertion on which the Seventh Circuit relied—why an

injunction would cause excessive interference. The decision thus guts the careful line-drawing this Court

has done to delineate the narrow scope of abstention’s

reach. “[I]t was never a doctrine of equity that a federal

court should exercise its judicial discretion to dismiss

a suit merely because a State court could entertain it.”

Colorado River, 424 U.S. at 813–14 (quoting Alabama

Pub. Serv. Comm’n v. Southern Ry. Co., 341 U.S. 341,

361 (1951)).

Yet that is precisely what the Seventh Circuit did

here: abstaining from resolving an important constitutional question not on the basis of any clear mandate

from this Court to abstain, but rather on broad and

standardless equitable principles.

B. The Decision Below Turns On Its Head

The Presumption That Courts Must Exercise Jurisdiction When They Have It.

Chief Justice Marshall famously articulated the

presumption that federal courts hear cases over which

they otherwise have jurisdiction in Cohens v. Virginia,

stating that federal courts “have no more right to decline the exercise of jurisdiction which is given, than to

usurp that which is not given.” 19 U.S. 264, 404 (1821).

25

To do otherwise, the Court held, “would be treason to

the constitution. Questions may occur which we would

gladly avoid; but we cannot avoid them.” Id.

Since then, this Court has reiterated that, where

jurisdiction lies, “a federal court’s ‘obligation’ to hear

and decide a case is ‘virtually unflagging.’ ” Sprint

Commc’ns, 571 U.S. at 77 (quoting Colorado River, 424

U.S. at 817). The exceptions to this general rule, as explained above, are “extraordinary and narrow.” Colorado River, 424 U.S. at 813 (quoting County of

Allegheny, 360 U.S. at 188–89). Thus, “[a]bstention

from the exercise of federal jurisdiction is the exception, not the rule.” Id.

The rationale the Seventh Circuit applied to justify abstention in this case could apply to any challenge

to state court action. The implication of the decision

below is that abstention is warranted when questions

are uncomfortable and interference with state court

operations is possible, regardless of whether excessive

interference would actually result from the entry of an

injunction. Rather than presuming the federal courts

remain open to hear constitutional challenges—even

those raising questions the court might “gladly

avoid”—the decision below jumps to the conclusion

that the court should not hear a case that could instead

be litigated in state court.

The decision below evinces no concern for the obligation of federal courts to hear those cases that they

can, and instead voices a compulsive hesitancy to wade

into a constitutional controversy simply because it

26

involves a sister state court. The Seventh Circuit’s rationale relies heavily—almost exclusively—on the “abstention principles” of “equity, comity, and federalism,”

see Pet.App.20, but wholly ignores that these principles operate only to serve “narrow exceptions,” see supra at 19–23, and do so within the overarching

presumption that federal constitutional claims should

be litigated in federal court whenever possible.

The Seventh Circuit’s logic simply cannot be

squared with the Court’s abstention cases. It is not

enough that a complaint filed in federal court implicates “federalism and comity” concerns: All § 1983 actions challenging the conduct of state officials, by their

very nature, do. See, e.g., Allen v. McCurry, 449 U.S. 90,

101 (1980) (Section 1983 ensures that “the federal

courts could step in where the state courts were unable

or unwilling to protect federal rights.”); McNeese v.

Board of Educ. for Cmty. Unit Sch. Dist. 187, Cahokia,

Ill., 373 U.S. 668, 672 (1963) (It would “defeat [the] purposes” of 42 U.S.C. § 1983 “if [the Court] held that assertion of a federal claim in a federal court must await

an attempt to vindicate the same claim in a state

court.”). Nor is it dispositive that the official alleged to

have violated the First Amendment works in the state

judiciary. See, e.g., Glassroth v. Roy Moore, 229 F. Supp.

2d 1290, 1293 (M.D. Ala. 2002) (“Based on the evidence

presented during a week-long trial and for the reasons

that follow, this court holds that the evidence is overwhelming and the law is clear that the Chief Justice

[of the Alabama Supreme Court] violated the Establishment Clause.”).

27

The decision below, by contrast, would broadly require abstention whenever a federal constitutional

challenge touches a state court judicial function. “Such

a broad abstention requirement would make a mockery of the rule that only exceptional circumstances

justify a federal court’s refusal to decide a case in deference to the States.” NOPSI, 491 U.S. at 368. Worse

still, such an approach would close the federal courthouse doors to the litigants who may most need a neutral federal forum: those seeking to challenge the

practices and procedures of state courts.

III. The Question Presented Is Important And

Should Be Decided In This Case.

The question presented in this case is important

and merits the Court’s immediate review. The split is

clear, the issue important, and the question unlikely to

be resolved through further percolation.

1. First, the question presented is important because it goes to the heart of the federal courts’ power

to hear and decide cases. Whether First Amendment

claims against state court clerks can and should be

heard in federal court—and whether injunctive relief

is available to remedy alleged constitutional harms—

is extraordinarily important.

When the Courts of Appeals split on a question

touching questions of federal jurisdiction, only this

Court can resolve the conflict. Whether and when federal claims may be brought in federal court is a question of the highest order, and improperly preventing

28

these claims from being adjudicated in federal court

compounds the underlying harm the lawsuits seek to

redress.

Review of this question is important now because

the split of authority that the decision below creates

cannot be reconciled and so will not benefit from further development. The Seventh Circuit’s erroneous decision below may well spread to other jurisdictions,

further blurring the boundaries of abstention, which

will harm, not help, this Court’s eventual review of it.

There is no way to reconcile the Seventh Circuit’s

decision with the prior decisions of the Ninth and Second Circuits. Federal courts are either open to hearing

claims of this type, or they are not. The split may become deeper—as other courts of appeals weigh in to

evaluate this question over time—but the issue is not

likely to become clearer. Delaying review only ensures

that the doors of the federal courts will remain open in

some places, but shuttered in others. This question is

ripe for review now and, given its importance, should

be evaluated by this Court sooner rather than later.

Indeed, the Seventh Circuit itself recognized the

importance of this decision to other courts. The decision below transparently notes that “no doubt CNS

would attempt to use a different decision in this case

to force the hand of other state courts” to provide

timely access to court filings. See Pet.App.23. The court

opined that it “would likely lead to subsequent litigation in the federal courts” which, the Seventh Circuit

claims, it “want[ed] to avoid.” Id. But, of course, the

29

inverse of this statement is also true: The Seventh Circuit’s decision will “no doubt” be used by state court

clerks in some of the thousands of other jurisdictions

around the country to limit press access to public filings. The only difference now is that those actions will

be protected from any review by a neutral federal court

under the cloak of the decision below.

Worse still, the Seventh Circuit’s rationale could

be used as a basis for abstention in the context of

other federal claims. There is nothing unique about

the Seventh Circuit’s rationale that limits it only to

claims against state court clerks, or to First Amendment claims seeking access to state court documents.

The principles of “equity, comity, and federalism” apply with equal force to federal suits that would seek

to litigate Fourth Amendment claims (e.g., against

court security officers) or employment discrimination

claims (e.g., against court administrative officers), or

establishment clause claims (e.g., against state Supreme Court Justices) to take just three examples.

The federal courthouse doors should not be closed to

such suits. On the contrary, where state actors are alleged to violate federal constitutional rights or federal

statutory privileges, federal courts should hear those

claims.

2. Second, while the underlying merits of the

First Amendment claim are not at issue in this petition—because abstention does not rise or fall on the

merits of the underlying claim—the fact that this case

raises First Amendment questions magnifies its importance.

30

Although the Courts of Appeals may disagree on

the scope of the First Amendment right at issue, they

agree that the right of the press to access public court

documents is protected by the constitution. Planet, 750

F.3d at 785 (“The Supreme Court has repeatedly held

that access to public proceedings and records is an indispensable predicate to free expression about the

workings of government.”); Hartford Courant, 380 F.3d

at 91 (“[T]he public possess a qualified First Amendment right to inspect docket sheets, which provide

an index to the records of judicial proceedings.”);

Pet.App.11 (“[T]he federal courts of appeals have

widely agreed that the First Amendment right of access extends to civil proceedings and associated records and documents.”).

The appellate courts’ concern in protecting the

press’s right to access public court documents flows directly from the decisions of this Court. See, e.g., Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576

(1980) (“[T]he First Amendment guarantees of speech

and press, standing alone, prohibit government from

summarily closing courtroom doors which had long

been open to the public at the time that Amendment

was adopted.”); Globe Newspaper Co. v. Superior Court

for Cty. of Norfolk, 457 U.S. 596, 604 (1982) (“Underlying the First Amendment right of access to criminal

trials is the common understanding that ‘a major purpose of that Amendment was to protect the free discussion of governmental affairs[.]’ ”) (quoting Mills v.

Alabama, 384 U.S. 214, 218 (1966)); Nixon v. Warner

Commc’ns, Inc., 435 U.S. 589, 597 (1978) (“[T]he courts

31

of this country recognize a general right to inspect and

copy public records and documents, including judicial

records and documents.”).

Federal courts can and should continue to adjudicate the scope and breadth of that right particularly

where, as here, declining to exercise jurisdiction eviscerates the very constitutional right that CNS seeks to

protect. CNS seeks to litigate its right to timely access

to court documents. By abstaining from hearing these

claims, federal courts ensure that CNS cannot exercise

that right—and fulfill its duties as a member of the

press to provide news coverage—in a timely way.

When a First Amendment claim seeks access to information for purposes of reporting on newsworthy

events in a timely way, denial of that access compounds

the constitutional harm. For that reason, Justice

Blackmun, granting a stay of a lower court order prohibiting the news media from reporting on a pending

case, stated that “each passing day may constitute a

separate and cognizable infringement of the First

Amendment.” Nebraska Press Ass’n v. Stuart, 423 U.S.

1327, 1329 (1975) (BLACKMUN, J., in chambers). When

the full Court ultimately reviewed the merits of the

First Amendment claim raised in Stuart, it underscored the point: “If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech,

prior restraint ‘freezes’ it at least for the time.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976).

The Ninth Circuit in Planet echoed this “concern

that a delay in litigation will itself chill speech.” Planet,

32

750 F.3d at 787. The Court noted that “[e]ven though

it is not subject to prosecution, CNS will be unable

to access judicial records and report on newsworthy

proceedings during ‘the delay that comes from abstention itself.’ ” Planet, 750 F.3d at 788 (citation and alteration omitted).

The decision below merits immediate review to

keep open federal courthouse doors to First Amendment claims of this type.

------------------------------------------------------------------

CONCLUSION

The Court should grant the petition for certiorari.

Respectfully submitted,

RACHEL E. MATTEO-BOEHM

BRYAN CAVE LEIGHTON

PAISNER LLP

Three Embarcadero Center

Seventh Floor

San Francisco, CA 94111

(415) 675-3400

K. LEE MARSHALL

Counsel of Record

BARBARA A. SMITH

BRYAN CAVE LEIGHTON

PAISNER LLP

211 N. Broadway, Suite 3600

St. Louis, MO 63102

(314) 259-2000

klmarshall@bclplaw.com

March 13, 2019

Counsel for Petitioner