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

APPENDIX

i

TABLE OF APPENDICES

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

App. 1

Appendix A

In the

United States Court of Appeals

For the Seventh Circuit

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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.

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Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

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

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ARGUED SEPTEMBER 14, 2018—

DECIDED NOVEMBER 13, 2018

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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

App. 2

complaints to the press at the moment of receipt by

her office—not after processing. Neither the Court 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 certain 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

1

This court’s Electronic Case Filing Procedures provide: “A

brief, appendix and petition for rehearing (and any answer filed

thereto) will be considered timely once it is submitted to the

court’s electronic filing system. It will be considered filed on the

court’s docket only after a review for compliance with applicable

rules, acceptance by the Clerk, and issuance of a Notice of

Docket Activity.” Available at http://www.ca7.uscourts.gov/ecf/ECF

procedures.htm.

The Supreme Court’s Guidelines for the Submission of Documents to the Supreme Court’s Electronic Filing System provide:

“Filings that initiate 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/filingandrules/Electronic

FilingGuidelines.pdf.

App. 3

(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 preliminary injunction

and order this action dismissed without prejudice.

I.

Factual & Procedural Background

CNS is a news service with hundreds of reporters

and editors who cover civil litigation in thousands of

state and federal courthouses across the country. In addition to writing and publishing articles, CNS reporters compile “New Litigation Reports,” which contain

summaries of newsworthy new civil complaints. Before

the advent of electronic filing systems, 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 complicated.

In the past, the Cook County Clerk’s Office

(“Clerk’s Office”) 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, reporters cannot view electronically filed complaints until they are processed and

posted online. This leads to delays in access.

App. 4

CNS and the Clerk characterize the delays differently. CNS contends that almost 40% of electronically

filed complaints 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 business days.

Some of the delays are the result of nothing more than

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

complaint 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 allow the press to obtain quicker

access to electronically filed complaints. The Clerk

pushed back and explained that electronically 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

App. 5

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

procedures would remain the same.

When talks with the Clerk’s Office did not produce

the desired changes, CNS brought this action in November 2017. CNS moved for a preliminary injunction

prohibiting the Clerk from processing electronically

filed complaints before allowing press access. The

2

The district court did not interpret these orders as mandating an “accept/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 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. Instead,

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

Filing Standards and Principles provide that the complaints are

not ‘filed’ until accepted.”); id. at *5 (“Brown contends that she is

justified in withholding e-filed complaints from the public and the

press until after processing because both Order No. 2014-02 and

the Electronic Filing Standards 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 discussed,

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 explain below regarding abstention, the Illinois state courts are best situated to interpret their own orders

and to decide how important the “accept/reject” process is to them.

App. 6

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 presumption of access to documents filed in court applies to civil

complaints. She instead argued that the presumption

does not require 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 because if complaints were released to the press before processing,

confidential information contained therein could be exposed.3 The Clerk also explained that confusion may

result 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 under 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 injunctive relief

3

While this sounds like a reasonable consideration, the

Clerk has presented no evidence showing how prevalent this issue

is and how often the Clerk’s Office catches information that

should not have been included. The district court also was not

“convinced that it is, in fact, the responsibility 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.

App. 7

against a state official who was acting pursuant to a

state court’s standing order (Order No. 2014-02). According to the Clerk, the state court order requires her

to perform an “accept/reject” function, whereas the federal court injunction 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 proceedings 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 proceeding made Younger abstention inappropriate.

The district court then turned to the merits and

determined 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

reasons 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 contemporaneously with their receipt

by her office.” 2018 WL 318485, at *7. Clerk Brown

filed a notice of appeal and a motion to stay the

App. 8

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

Council, 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 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 Council, 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

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.

App. 9

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 warranted. Mazurek v. Armstrong, 520

U.S. 968, 972 (1997) (per curiam).

In reviewing the grant or denial of a preliminary

injunction on appeal, we examine “legal conclusions de

novo, findings 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 abstain, the underlying legal questions are subject to de novo review, 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 records 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 Amendment itself protects access to criminal trials. Richmond Newspapers, Inc. v. Virginia, 448 U.S.

555, 576–78 (1980) (plurality opinion). The Supreme

App. 10

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 explained that

the Framers were concerned with broad principles, 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 nonetheless 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 protect 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 reasoned 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 observe at first hand the operations of his government, he relies necessarily upon the press

. . . With respect to judicial proceedings in particular, the function of the press serves to . . .

bring 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).

App. 11

Though the Supreme Court has not yet extended

these principles from criminal proceedings, the federal

courts of appeals 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 Illinois Sec. Litig.,

732 F.2d 1302, 1308 (7th Cir. 1984) (finding right of access by press to litigation committee reports in shareholder 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 documents in civil case). The press’s right

of access to civil proceedings 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 Newspaper, 457 U.S. at 606. There is a constant

tension between the interest in public disclosure and

privacy concerns. To determine whether a right of access attaches under the First Amendment, courts use

the two-part test set out in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) (“Press-Enterprise

II”). This test is generally referred to as the “experience and logic test.” It asks whether a proposed right

App. 12

reflects a well-developed tradition of access to a specific

process and whether the right “plays a significant positive role in the functioning 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 deserve the first opportunity to hear such

a constitutional challenge to their internal procedures.

The vast majority of access precedents arise from litigation before the courts whose records 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,

App. 13

we decline to impose a requirement on the state court

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

C. Abstention

This action falls within the terms of 42 U.S.C.

§ 1983: plaintiff 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 principles of equity, comity, and federalism.” See SKS & Associates,

Inc. v. Dart, 619 F.3d 674, 676–77 (7th Cir. 2010) (affirming abstention in federal case seeking injunction

directing management of state courts’ eviction cases).

Even though abstention is the exception, not the rule,

e.g., Colorado River Water Conservation Dist. v. United

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

(Blackmun, J., in chambers) (staying state-court order restricting

media coverage of pending criminal case). Grove Fresh addressed

delays on the order of months and years, not hours or even

minutes. Our decision in Grove Fresh approved a review process

for documents that would require adversarial exchanges lasting

weeks before the sealed information would be released. Id. at 898.

Grove Fresh continues to provide helpful guidance on the qualified 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.

App. 14

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 Supreme Court has put it, federal courts may

decline to exercise jurisdiction where denying a federal

forum would “clearly serve an important countervailing interest,” including “regard 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, against the State’s interests in maintaining ‘uniformity in the treatment of an “essentially local problem.” ’ ” Id. at 728, quoting New Orleans Pub. Serv., Inc.

v. Council of City of New Orleans, 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

App. 15

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

categories 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 extensions 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 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 refrain 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 constitutional grounds. See 401 U.S. at 40–41. The Supreme

App. 16

Court has extended the doctrine to civil proceedings in

limited circumstances, 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

federal 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 exercise of federal judicial power over

those proceedings would disregard the comity

between the states and federal government.

See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13

(1987) (requirement 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 seeking return of

welfare payments wrongfully received); Juidice v. Vail, 430 U.S. 327, 335–36 & n.12 (1977)

(civil contempt proceedings); Huffman, 420

U.S. at 604 (state court action to close adult

theater); Majors v. Engelbrecht, 149 F.3d 709,

712–13 (7th Cir. 1998) (nursing license suspension 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 abstention specifically inapplicable. It is true that in Ankenbrandt v. Richards, the

App. 17

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 ongoing.” 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 allegations, the district court should fashion appropriate injunctive 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 insufficient probability that the

plaintiffs would be brought 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 abstain. The Court reasoned that comity and federalism

“preclude[d] equitable intervention” because the plaintiffs sought “an injunction aimed at controlling or

App. 18

preventing the occurrence of specific events that might

take place in the course of future state criminal trials.”

Id. at 499–500. The Court cautioned against injunctions that would lead to “an ongoing federal audit of

state criminal proceedings which would indirectly accomplish the kind of interference that Younger v. Harris . . . and related cases sought to prevent.” Id. at 500.

In Rizzo, the Supreme Court further extended the

principles of Younger to limit federal court review of

local executive actions. In that case, the plaintiffs alleged a pattern of unconstitutional police mistreatment of minority civilians in Philadelphia. 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

complaints pursuant to the court’s detailed guidelines.

Id. at 364–66, 369–70. In reversing the injunction, the

Supreme Court explained that the “District Court’s injunctive order here, significantly 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 affairs.” Id.

at 379 (quotation marks omitted). The Court reasoned:

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-established rule that the Government

has traditionally been granted the widest latitude in the dispatch of its own internal affairs. * * *

App. 19

When the frame of reference moves from

a unitary court system, governed by the principles just stated, to a system of federal courts

representing 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 preserved between federal equitable

power and State administration 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

App. 20

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 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

processes 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 continuance 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

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. SKS & Associates, 619 F.3d at 682.

Despite SKS & Associates not being a typical

Younger scenario, we pointed out that the Supreme

Court characterized the holding of Younger as “farfrom-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.”

Kowalski v. Tesmer, 543 U.S. 125, 133 (2004), citing

App. 21

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 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 protecting CNS’s substantial First

Amendment rights. As the Supreme Court underscored in Younger, the Constitution established

a system in which there is sensitivity to the

legitimate interests of both State and National Governments, and in which the National Government, 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 federal courts are asked to decide how state

courts should conduct 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

App. 22

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 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. 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 issues presented by this case may be adjudicated on the

merits in federal court, where they belong.” Id. In declining to abstain under O’Shea, the Ninth Circuit explained that an injunction 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.

App. 23

On this point, we respectfully disagree with our

colleagues 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 certainly continue as it oversees

the implementation of its order. Further, we have no

doubt CNS would attempt to use a different decision in

this case to force the hand of other state courts that do

not provide immediate press access to court filings.

This would likely lead to subsequent litigation in the

federal courts. We want to avoid a situation in which

the 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 oversight 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 decisions on which SKS &

Associates was based. This temporal access dispute

with a state court clerk should be heard first in the

state courts.

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.

App. 24

The district court’s order granting a preliminary

injunction is REVERSED, and the case is REMANDED with instructions to dismiss this action

without prejudice.

App. 25

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

COURTHOUSE NEWS

SERVICE,

)

)

)

Plaintiff,

)

vs.

)

)

DOROTHY BROWN, in

her official capacity as the )

Clerk of the Circuit Court )

)

of Cook County, Illinois

)

Defendant.

)

Case No.

17 C 7933.

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Courthouse News Service (CNS) has sued Dorothy

Brown, in her official capacity as the Clerk of the

Circuit Court of Cook County, for injunctive and declaratory relief under 42 U.S.C. § 1983. CNS alleges violations of the First Amendment stemming from Brown’s

policy of withholding electronically-filed (e-filed) civil

complaints from the press and the public until after

they have been processed and officially “accepted” for

filing by the Clerk’s Office. CNS alleges that the resulting delay in access to new complaints constitutes a denial of timely and contemporaneous access to court

records in violation of the First Amendment of the

U.S. Constitution. CNS has moved for a preliminary

App. 26

injunction prohibiting Brown from enforcing her policy

of withholding e-filed complaints until administrative

processing is complete and requiring her to provide

timely, contemporaneous access to the complaints

upon filing. For the following reasons, the Court grants

CNS’s motion for a preliminary injunction.

Background

Courthouse News Service is a news service that

covers civil litigation news from over 2,500 state and

federal courts across the nation. Its subscribers include law firms, law schools, and other news media outlets. In addition to reporting on legal news through its

website and various other publications, CNS provides

written summaries of newsworthy new civil complaints in a “New Litigation Reports” e-mail publication that is sent to subscribers on a daily basis. To

prepare the New Litigation Reports, CNS reporters

typically visit their assigned courts to review new complaints in person, although some courts now make new

complaints accessible over the Internet.

According to CNS, since it began covering the Circuit Court of Cook County in 1997, reporters have been

afforded access to new paper-filed complaints on the

same day they are filed. Specifically, press copies of

new paper complaints are placed in a bin or tray behind the intake counter, and members of the press are

permitted to reach over the counter to retrieve and review the press copies.

After the Circuit Court was selected to participate

in Illinois’s electronic filing pilot program in 2009, it

App. 27

became one of the first courts in Illinois to implement

an optional electronic filing system. Prior to January

2015, the Clerk’s Office simply printed out new e-filed

complaints as they came in, which allowed reporters to

review the e-filed complaints along with the paper

ones. In January 2015, however, the Clerk’s Office

stopped printing e-filed complaints for the press. As a

result, reporters now are unable to review new e-filed

complaints until they are processed and posted electronically to computer terminals in the Clerk’s Office

and the courthouse press room. As a consequence of

this change in policy, the press is not able to access a

significant number of e-filed complaints until at least

the next business day after they are filed. According to

CNS, from June 1, 2017 to September 30, 2017, only 61

percent (1462 of 2414) of new e-filed complaints were

made accessible on the same day they were filed, in

contrast with 94 percent (2917 of 3119) of new paper

complaints. See Pl.’s Mem. in Support of Mot. for Prelim. Inj. (Pl.’s Mem.), Ex. C (Angione Decl.), Ex. 4 at 1.

Brown counters that, during that same period, 90.9

percent of e-filed complaints were publicly available

within one business day of filing, 94.7 percent were accessible within two business days, and 96.8 percent

within three business days.1 See Def.’s Resp. to Pl.’s

Mot. for Prelim. Inj. (Def.’s Resp.) at 3.

1

CNS and Brown quibble over how these delays are counted

and characterized. Brown argues that CNS inflates the length of

delays by counting holidays and weekends, and CNS takes issue

with Brown’s attempt to measure delays in terms of “business

hours.” These disputes over the exact length of the delays are

App. 28

In January 2016, the Illinois Supreme Court issued an order directing all Illinois Circuit Courts to

make electronic filing of civil cases mandatory by January 1, 2018. (The Supreme Court recently extended

by several months the date for compliance by the Circuit Court of Cook County.) In early 2017, in light of

the anticipated transition to mandatory e-filing, CNS

contacted the Clerk to discuss the delays in access to

e-filed complaints and propose various solutions. To

that end, CNS sent the Clerk two memoranda explaining how other state courts provide media and public

access to e-filed complaints prior to processing. As CNS

explained, a Las Vegas trial court and four trial courts

in Georgia have created an electronic in-box queue,

which allows the press to view complaints immediately

upon receipt, before they have been processed and assigned a case number. CNS noted that access to such

an electronic in-box could be provided remotely over

the Internet or locally at courthouse computer terminals. CNS also provided a detailed description of the

New York State Court Electronic Filing system website

that makes newly filed documents remotely available

to the public prior to manual review by the New York

County Clerk’s Office. CNS further noted that “the

great majority of federal courts,” including this one,

make electronically filed documents available immediately upon receipt. Pl.’s Mem., Ex B (Girdner Decl.), Ex

8 at 3.

immaterial to the Court’s assessment of CNS’s likelihood of success on the merits.

App. 29

CNS received a written response from Brown in

June 2017. The response, which was signed by the

Clerk’s general counsel Kelly Smeltzer, stated that efiled complaints are not considered to be received or

filed until they are accepted by the Clerk’s Office. Girdner Decl., Ex. 11 (Smeltzer Letter). In support of this

position, Brown cited General Administrative Order

No. 2014-02 and the Illinois Supreme Court’s Electronic Filing Standards and Principles, both of which

provide that electronically submitted documents shall

be considered filed “if not rejected” by the Clerk’s Office. Def.’s Resp., Ex. B (Order No. 2014-02) at 3, Ex. C

(Electronic Filing Standards and Principles) at 1.

Brown further noted that providing access to e-filed

complaints prior to acceptance by the Clerk’s Office

could create “mass confusion . . . leading to false reporting and potential liability for the court and the

press” if the press reported on a complaint that was

ultimately rejected for failure to comply with court

rules. Smeltzer Letter at 2. Brown stated that she had

no intention of changing her policy of withholding access to new e-filed complaints until they are officially

accepted and electronically posted to the courthouse

computer terminals.

CNS brought this action for injunctive and declaratory relief against Brown in November 2017, and it

moved for a preliminary injunction a short time later.

Brown argues that the Court should deny CNS’s motion because CNS cannot demonstrate a likelihood of

success on the merits. Brown also contends that CNS

cannot establish that any of the other requirements for

App. 30

the issuance of a preliminary injunction are met in this

case.

Discussion

A plaintiff seeking a preliminary injunction must

establish (1) a likelihood of success on the merits, (2)

that, in the absence of such relief, it is likely to suffer

irreparable harm, (3) that the balance of equities tips

in the plaintiff ’s favor, and (4) that an injunction is in

the public interest. Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 20 (2008); Higher Soc’y of Indiana v.

Tippecanoe Cty., 858 F.3d 1113, 1116 (7th Cir. 2017). In

cases implicating the First Amendment, “the [plaintiff ’s] likelihood of success on the merits will often be

the determinative factor.” Higher Society, 858 F.3d at

1116 (citation omitted). Preliminary injunctions requiring an affirmative act by the defendant are “ordinarily cautiously viewed and sparingly issued.”

Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th

Cir. 1997).

As an initial matter, Brown’s contention that the

Younger abstention doctrine applies to this case lacks

merit. Notwithstanding Brown’s strained attempt to

characterize the case as a challenge to “an ongoing,

standing” Cook County Circuit Court order that supposedly requires the Clerk to review and officially accept or reject e-filed complaints prior to making them

accessible to the public, there are simply no ongoing

state judicial proceedings with which CNS’s requested

injunctive relief might interfere. Def.’s Resp. at 7. For

App. 31

that reason alone, Younger abstention is not appropriate. See Ankenbrandt v. Richards, 504 U.S. 689, 705

(1992) (“Absent any pending proceeding in state tribunals, therefore, application by the lower courts of

Younger abstention was clearly erroneous.”) (emphasis

in original); Barichello v. McDonald, 98 F.3d 948, 955

(7th Cir. 1996) (a “paramount concern[ ]” in the

Younger abstention context is that “the judicial or judicial in nature state proceedings must be ongoing”).

Brown’s argument that she is not a proper defendant in this case likewise misses the mark. Brown contends that, by reviewing e-filed complaints before

“posting them as filed,” she is merely following the

mandates of the Illinois Supreme Court and the Chief

Judge of the Circuit Court of Cook County, as set forth

in Order No. 2014-02 and the Electronic Filing Standards and Principles. Def.’s Resp. at 8. Thus, according

to Brown, “CNS’[s] actual complaint is with the filing

requirements of Order 2014-[02] and the Electronic

Filing Standards and Principles and not with the Circuit Clerk’s compliance with those requirements.” Id.

The problem with this argument is that Brown points

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

Filing Standards and 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. Instead, Brown simply asserts that Order No.

2014-02 and the Electronic Filing Standards and Principles provide that the complaints are not “filed” until

accepted. In fact, what they actually say is that electronically submitted documents shall be considered

App. 32

filed “if not rejected” by the Clerk’s Office. Order No.

2014-02 at 3; Electronic Filing Standards and Principles at 1. Because the Electronic Filing Standards and

Principles and Order No. 2014-02 are silent regarding

whether the Clerk’s Office may provide public access

to e-filed complaints prior to official acceptance—and

because CNS claims instead that the allegedly unconstitutional delays in access to e-filed complaints stem

specifically from Brown’s policy of withholding them

from the press until they are processed—Brown is the

proper defendant in this action for prospective relief.

See, e.g., Grieveson v. Anderson, 538 F.3d 763, 771 (7th

Cir. 2008) (to survive summary judgment on a section

1983 official-capacity claim, the plaintiff must show

that an official policy or custom was the moving force

behind the alleged constitutional violation); Williams

v. State of Wisconsin, 336 F.3d 576, 581 (7th Cir. 2003)

(“Official-capacity suits against state officials seeking

prospective relief are permitted by § 1983. . . .”).

“The public’s right of access to court proceedings

and documents is well-established.” Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th

Cir. 1994).2 As the Seventh Circuit has explained,

2

The Seventh Circuit observed in Bond v. Utreras, 585 F.3d

1061, 1068 n.4 (7th Cir. 2009), that, to the extent Grove Fresh was

“premised upon a principle that pre-trial discovery must take

place in . . . public unless compelling reasons exist for denying the

public access to the proceedings,” it was superseded by the 2000

amendment to Rule 5 of the Federal Rules of Civil Procedure. (internal quotation marks and citations omitted). That observation

does nothing to undermine Grove Fresh’s general analysis of the

App. 33

“[p]ublic scrutiny over the court system serves to (1)

promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants,

and (3) foster more accurate fact finding.” Id. Although

this right of access, which stems both from the common

law and from the First Amendment, is wellestablished, it is not absolute. Id. Specifically, “the

First Amendment provides a presumption that there is

a right of access to proceedings and documents which

have historically been open to the public and where the

disclosure of which would serve a significant role in the

functioning of the process in question.” In re Associated

Press, 162 F.3d 503, 506 (7th Cir. 1998) (internal quotation marks and citations omitted). Although the presumption of access may be rebutted by a showing that

suppression is “necessary to preserve higher values

and . . . narrowly tailored to serve those interests,”

overcoming the presumption is a “formidable task.” Id.

(internal quotation marks and citation omitted). A

court must resolve any doubts in favor of disclosure.

See Grove Fresh, 24 F.3d at 897.

The Seventh Circuit has repeatedly observed that,

where a First Amendment right of access is found, such

access should be “immediate and contemporaneous.”

Id.; see also In re Associated Press, 162 F.3d at 506

(“[T]he values that animate the presumption in favor

of access require as a necessary corollary that, once access is found to be appropriate, access ought to be immediate and contemporaneous.”) (internal quotation

First Amendment right of access to judicial documents and proceedings outside the pre-trial discovery context.

App. 34

marks and citations omitted); Matter of Cont’l Ill. Sec.

Litig., 732 F.2d 1302, 1310 (7th Cir. 1984) (“[T]he presumption of access normally involves a right of contemporaneous access. . . .”) (emphasis in original). In Grove

Fresh, a group of journalists challenged the district

court’s decision to delay disclosure of certain documents that were either sealed or otherwise the subject

of a protective order, despite the court’s acknowledgement that the press had a right of access to any documents upon which the court relied in making its

decisions. See Grove Fresh, 24 F.3d at 895. The Seventh

Circuit concluded that “the right of the press to obtain

timely access to judicial decisions and the documents

which comprise the bases of those decisions is essential.” Id. at 898. As the Seventh Circuit explained, because “[t]he newsworthiness of a particular story is

often fleeting,” delaying or postponing disclosure could

have “the same result as complete suppression.” Id. at

897 (“[E]ach passing day may constitute a separate

and cognizable infringement of the First Amendment.”) (quoting Nebraska Press Ass’n v. Stuart, 423

U.S. 1327, 1329 (1975)).

Brown does not dispute CNS’s contention that the

First Amendment presumption of access applies to

civil complaints. Instead, Brown argues that this presumption does not confer a right to immediate access

to electronically submitted complaints. She contends

that the delays at issue in this case are so minor that

they do not implicate the First Amendment. In support

of this contention, Brown cites a decision from the Central District of California, Courthouse News Service v.

App. 35

Yamasaki, No. SACV 17-00126 AG (KESx), 2017 WL

3610481 (C.D. Cal. Aug. 7, 2017). In that case, the

Clerk of the Orange County Superior Court (OCSC)

followed essentially the same procedure that Brown

has implemented in the Cook County Circuit Court:

before making new e-filed complaints publicly available, the OCSC Clerk reviewed them for confidentiality

and “spent an additional few minutes completing the

remaining steps necessary to formally accept the complaints for filing.” Id. at *2. CNS alleged, as it does in

this case, that the resulting delays in access constituted a violation of its First Amendment right of timely

access to newly filed complaints, and it asked the court

to enjoin OCSC from continuing this practice. Id. at *1.

The district court denied CNS’s motion for a preliminary injunction on the ground that it could not prove

OCSC denied “timely access” to newly filed complaints

where, during a three-month period, OCSC made 89.2

percent of newly filed complaints publically [sic] available within eight business hours and 96.5 percent

available within eight to fifteen business hours. Id. at

*3. The court concluded that that [sic] such “minor delays . . . simply do not constitute a First Amendment

violation.” Id.

Brown contends that the access delays in this case

are equally minor when they are framed in terms of

business days. By Brown’s count, for the period from

June 1, 2017 to September 30, 2017, the Clerk’s Office

made 90.9 percent of e-filed complaints publicly available within one business day, 94.7 percent within two

business days, and 96.8 percent within three business

App. 36

days. Def.’s Resp. at 3. A declaration by the Clerk’s general counsel further attests that “the vast majority of

these complaints are made public, and viewable,

within twenty four (24) business hours of filing.” Def.’s

Resp., Ex. A ¶ 7. Brown argues that this Court should

adopt the reasoning of the district court in Yamasaki

and deny CNS’s motion for a preliminary injunction on

the ground that the delays in this case are likewise so

minor that they do not interfere with CNS’s First

Amendment right of timely access to new complaints.

CNS contends that Yamasaki was wrongly decided

and points to three other district court decisions that

it says adopt the correct approach to the First Amendment issue of timely access. In Courthouse News Service v. Jackson, No. CIV A H-09-1844, 2009 WL

2163609, at *1-2 (S.D. Tex. July 20, 2009), the court

granted CNS’s motion for a preliminary injunction prohibiting the Harris County District Clerk from denying

timely access to newly filed civil petitions. Citing Grove

Fresh, the court concluded that an access delay of

twenty-four business hours for petition indexing, verification, and other processing constituted a denial of

timely access that was not narrowly tailored to serve

an overriding government interest. Id. at *2-4. The district court ordered that CNS “be given access on the

same day the petitions are filed,” except in certain situations, such as when the filing party is seeking a temporary restraining order or has filed the pleading

under seal. Id. at *5.

In Courthouse News Service v. Planet, No. CV 1108083 SJO (FFMx), 2016 WL 4157210, at *11-13 (C.D.

App. 37

Cal. May 26, 2016), judgment entered, 2016 WL

4157354 (C.D. Cal. June 14, 2016), although the court

concluded that the First Amendment did not categorically require same-day access to newly filed civil complaints, it determined that the right of timely access

arose when the complaint was received, rather than after processing was complete. Accordingly, the court explained that the policy of the Clerk of the Ventura

County Superior Court to delay public access to newly

filed complaints until after they were processed would

be permissible only if it was “essential to preserve

higher values and . . . narrowly tailored to serve that

interest.” Id. at *13 (citation omitted). In addition to

concluding that the clerk had not met his burden of

proving that the processing policy was essential to preserve higher values, the court concluded that the policy

was not narrowly tailored to serve a substantial governmental interest, in light of the existence of “a number of alternative policies and procedures . . . [that]

would have provided improved access for the public

and the press.” Id. at *17. The court issued an injunction prohibiting the clerk from refusing to make newly

filed civil complaints available to the public until after

they are processed. Id. at *19.

In Courthouse News Service v. Tingling, No. 16-cv08742, 2016 WL 8505086, at *1 (S.D.N.Y. Dec. 16,

2016), the court granted CNS’s motion for a preliminary injunction prohibiting the County Clerk of New

York County from withholding access to newly filed

civil complaints until after “clerical processing.” During the hearing on the motion, the court noted that a

App. 38

“substantial” percentage of complaints were not made

accessible to the public on the same day they were

filed. Courthouse News Serv. v. Tingling, No. 16-cv08742, 2016 WL 8739010, at 37 (S.D.N.Y. Dec. 16,

2016).3 The court then cited both Grove Fresh and Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 126

(2d Cir. 2006) (“Our public access cases and those in

other circuits emphasize the importance of immediate

access where a right to access is found.”), for the proposition that, where a right of access is found, such access should be immediate and contemporaneous. Id. at

49. The court concluded that, as was the case in Planet,

the County Clerk had failed to meet his burden of

demonstrating that his policy of delaying access to new

complaints until after they are processed was narrowly

tailored or essential to preserve higher values. Id. at

52.

As previously noted, the Seventh Circuit, in particular, has emphasized that the First Amendment

right of access to judicial documents contemplates “immediate and contemporaneous” access. Grove Fresh, 24

F.3d at 897; In re Associated Press, 162 F.3d at 506. For

this reason—and in recognition of the fact that “[t]he

newsworthiness of a particular story is often fleeting,”

Grove Fresh, 24 F.3d at 897—the Court concludes that

even the supposedly “minor” delays in access that were

discounted by the court in Yamasaki cannot be so easily dismissed. Consistent with the approach taken by

the courts in Planet and Tingling, the Court concludes

3

Pinpoint citations are to the ECF version of the Tingling

hearing transcript. See Girdner Decl., Ex. 2.

App. 39

that 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. See, e.g., In re Associated Press, 162 F.3d at 506.

As previously noted, Brown contends that she is

justified in withholding e-filed complaints from the

public and the press until after processing because

both Order No. 2014-02 and the Electronic Filing

Standards 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 discussed, Brown points to nothing that

would require her to delay access to e-filed complaints

until after they are processed and officially accepted.

Brown additionally argues that her office needs

time to fulfill its duty to ensure that e-filings do not

contain certain types of documents—including documents containing confidential and personal identity

information—that may not be electronically filed pursuant to Order No. 2014-02. The Court is not convinced

that it is, in fact, the responsibility of the Clerk to ensure that such documents are 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.

See ILCS S. Ct. Rule 15(c) (“Neither the court, nor the

clerk, will review each pleading for compliance with

App. 40

this rule.”); ILCS S. Ct. Rule 138(e) (“Neither the court

nor the clerk is required to review documents . . . for

compliance with this rule. If the clerk becomes aware

of any noncompliance, the clerk may call it to the

court’s attention. The court, however, shall not require

the clerk to review documents . . . for compliance with

this rule.”).

But even if the Clerk has the responsibility to

check all e-filed complaints for compliance with Order

No. 2014-02, and even if one assumes that this responsibility constitutes a “higher value” that might justify

a delay in access, Brown has made no effort to explain

how her policy of withholding all access to e-filed complaints until acceptance is narrowly tailored to that interest. In fact, Brown 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 efiled complaints before they have been fully processed.

For that reason alone, Brown has failed to meet her

burden of demonstrating that her policy of delaying access to e-filed complaints until official acceptance is

narrowly tailored to preserve any higher value. See

Tingling, 2016 WL 8739010, at 50-52 (court clerk did

not meet his burden of demonstrating that policy of

withholding access to newly filed complaints until they

have been screened for compliance with state law and

court rules is either essential to preserve higher values

or narrowly tailored to serve a substantial government

interest); Planet, 2016 WL 4157210, at *16-17 (court

clerk failed to meet burden where he argued that

App. 41

policy of processing complaints prior to providing access was necessary to prevent the disclosure of confidential information, to ensure accurate accounting and

input of information into the case management system, and to maintain the integrity of the case file). The

Court therefore concludes that CNS has demonstrated

the requisite likelihood of success on the merits with

respect to its claim that Brown’s current policy violates

its First Amendment right of timely access to new efiled complaints.

CNS has also met the other requirements for entry of a preliminary injunction. “[I]njunctions protecting First Amendment freedoms are always in the

public interest.” Christian Legal Soc’y v. Walker, 453

F.3d 853, 859 (7th Cir. 2006). There is an important

public interest in ensuring that the press and the public have timely access to new civil complaints. See, e.g.,

Courthouse News Serv. v. Planet, 750 F.3d 776, 788 (9th

Cir. 2014) (“[T]he public cannot discuss the content of

. . . complaints about which it has no information.”);

Jackson, 2009 WL 2163609, at *5 (“There is an important First Amendment interest in providing timely

access to new case-initiating documents.”). Additionally, the Seventh Circuit has acknowledged that “even

short deprivations of First Amendment rights constitute irreparable harm.” Higher Society, 858 F.3d at

1116; see also Elrod v. Burns, 427 U.S. 347, 373 (1976)

(“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); Christian Legal Society, 453 F.3d at

859 (“The loss of First Amendment freedoms is

App. 42

presumed to constitute an irreparable injury for which

money damages are not adequate . . . .”). These principles are no less true when the First Amendment deprivation in question is a deprivation of the right of

timely access to judicial proceedings or documents

than when it involves a deprivation of the right of free

expression. See Planet, 750 F.3d at 787 (“CNS’s right of

access claim implicates the same fundamental First

Amendment interests as a free expression claim, and

it equally commands the respect and attention of the

federal courts.”).

The balance of equities likewise tips in favor of entry of a preliminary injunction. In the absence of an

injunction, CNS will continue to be deprived of its First

Amendment right of timely (immediate and contemporaneous) access to e-filed complaints. And Brown has

not explained 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. See Tingling, 2016 WL

8739010, at 53. Brown’s conclusory and unsupported

assertion that she would require additional funding

and staff to provide immediate access to e-filed complaints is insufficient to tip the balance in her favor.

Accordingly, the Court concludes that: (1) CNS has

demonstrated a likelihood of success on the merits of

its claim that Brown’s current policy of withholding

new e-filed complaints until after formal acceptance

and other administrative processing by the Clerk’s

Office violates CNS’s First Amendment right of timely

access to those complaints, (2) CNS will suffer

App. 43

irreparable harm in the absence of an injunction, (3)

the balance of the equities favors CNS, and (4) the issuance of a preliminary injunction prohibiting Brown

from enforcing her policy of withholding e-filed civil

complaints until official acceptance and requiring her

to provide contemporaneous access to the e-filed complaints upon receipt is in the public interest.

Conclusion

For the foregoing reasons, the Court grants CNS’s

motion for a preliminary injunction [dkt. no. 6]. Brown

is given thirty days from today’s date to implement a

system that will provide access to newly e-filed civil

complaints contemporaneously with their receipt by

her office. The Court orders CNS to post a bond in the

amount of $5,000.00 as security pursuant to Federal

Rule of Civil Procedure 65(c). If the parties believe a

more specific order embodying the Court’s grant of a

preliminary injunction is required, they are to immediately confer regarding the wording of the order and

are to present a draft for the Court’s review and signature by no later than January 10, 2018.

/s/

Date: January 8, 2018

Matthew F. Kennelly

MATTHEW F. KENNELLY

United States District Judge

App. 44

Appendix C

IN THE UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF ILLINOIS

Courthouse News Service,

Plaintiff(s),

v.

Dorothy Brown,

Case No. 17 C 7933

Judge Matthew F.

Kennelly

Defendant(s).

JUDGMENT IN A CIVIL CASE

Judgment is hereby entered (check appropriate box):

⬜

in favor of plaintiff(s)

and against defendant(s)

in the amount of $

,

which ⬜ includes

pre–judgment

interest.

⬜ does not include pre–judgment

interest.

Post-judgment interest accrues on that amount at

the rate provided by law from the date of this judgment.

Plaintiff(s) shall recover costs from defendant(s).

⬜

in favor of defendant(s)

and against plaintiff(s)

App. 45

Defendant(s) shall recover costs from plaintiff(s).

☒

other: Judgment entered dismissing this

case without prejudice.

This action was (check one):

⬜

⬜

☒

tried by a jury with Judge ___ presiding, and the

jury has rendered a verdict.

tried by Judge ___ without a jury and the above

decision was reached.

decided by Judge Matthew F. Kennelly on a motion

Date: 12/7/2018

Thomas G. Bruton, Clerk of Court

Pamela J. Geringer, Deputy Clerk

App. 46

Appendix D

42 U.S.C. §1983. Civil action for deprivation of

rights

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States

or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress, except that in any

action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory

decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.