(CN) – Chicago’s court clerk is appealing a federal district court opinion that ordered contemporaneous access to new electronic filings under the First Amendment. The clerk’s action pushes the issue up to the Seventh Circuit Court of Appeals.
Dorothy Brown, Chicago’s elected court clerk, filed her appeal notice this week, challenging a ruling in early January by U.S. District Judge William Kennelly. The judge found the First Amendment prohibits the clerk from withholding new efiled complaints, a regular source of news, from the press corps.
He gave the clerk 30 days to provide access.
She made no move to comply and continues to argue that she must first screen the filings for confidentiality. In his 16-page opinion, Kennelly found that argument belied by a number of effective alternatives available to the clerk.
They include requiring that non-public matters be filed in paper form in a sealed envelope, a simple and traditional procedure.
In his opinion, Kennelly cited three earlier district court decisions in Houston, New York and Los Angeles, all ordering timely press access. And the judge followed appellate precedent in both the seventh and ninth circuits, finding the right of access attaches when the clerk receives new complaints.
The judge said that once the right applies, access must be timely. He defined timely as “contemporaneous.”
The same issue is currently being fought on two fronts in California, in Ventura and Orange County. The California litigation has been a long war.
Courthouse News initially filed a First Amendment action against Ventura’s court clerk in 2011. After two Ninth Circuit opinions in the case, Judge James Otero ruled in favor of Courthouse News in 2016, saying the right of access attaches when the clerk receives a new complaint, and press access must be timely.
He explicitly applied his judgment to both paper and electronic filings.
Since then the press has been able to see all the new civil complaints filed in Ventura Superior Court on the day they are filed, with rare exceptions.
The war against press access in California has been directed and paid for by the state’s Judicial Council, but it is unclear who is the commander. The Judicial Council operates through a myriad of committees that duck in an out of public view.
A committee or person within that structure, it is impossible to know, is making decisions on the California litigation, including the decision to employ Jones Day, a famous and expensive private law firm, to fight against press access.
The choice to use a private firm that must be paid out of the court budget is unusual. Clerks in Chicago, New York and Houston used state or county lawyers to defend against First Amendment challenges, at no cost to their court budgets.
Through Jones Day, the Judicial Council appealed Otero’s ruling in the Ventura case to the Ninth Circuit Court of Appeals.
In defense of Otero’s ruling, the Reporters Committee for Freedom of the Press filed an amicus brief alongside a long list of media organizations, including the Los Angeles Times, The Washington Post and The New York Times.
The appeal has been fully briefed and is now pending before a Ninth Circuit panel of judges Kim Wardlaw, Mary Murguia and Randy Smith.
Meanwhile, with Otero’s ruling in hand, Courthouse News had asked the court clerk in Orange County for timely access. The clerk, backed by the Judicial Council, refused.
Orange County requires electronic filing for most new civil complaints, thought to be a faster and more efficient method of filing. Paradoxically the most important cases in Orange County are withheld the longest, with delays of one to seven days coming during the week as well as over weekends.
In the ensuing challenge, U.S. District Judge James Guilford ruled against the press corps, saying, “The minor delays here simply do not constitute a First Amendment violation.”
That decision is also on appeal to the Ninth Circuit. Briefing is complete and it is before the same panel that is hearing the Ventura matter.
Between the clerks in Chicago and Orange County, the arguments have been very similar, with both leaning on a small number of confidential cases as their overriding reason to withhold access. They both claim they must first complete a list of administrative tasks that include a check for confidentiality.
The January ruling in federal court in Illinois swats that argument away.
“Defendant offers no reason why the solution other courts have adopted for providing contemporaneous access in their transition to e-filing would not work at her court, and it is evident that none exist, where, as here, courts in New York, Georgia, Connecticut, Utah, Alabama, Nevada, and now Fresno County, California – as well as the vast majority of federal district courts – provide access on receipt,” wrote Kennelly.
Meanwhile, back in Orange County, the Judicial Council’s law firm has moved for summary judgment. Judge Guilford has set a hearing for February 14th and asked for additional briefing on public record statutes and past procedure in Orange County for segregating non-public complaints.
A number of California courts continue to rely on paper filings and California court rules require that non-public complaints be filed in sealed envelopes.
When paper was the medium in Orange County, journalists had timely access to the newly filed paper complaints, at the end of the day. With the court’s turn to digital technology, access proceeded backwards.
The issue of timely press access is now squarely before the Ninth Circuit, but a date for oral argument has not been set. With the Chicago clerk’s appeal, the same issue is now moving forward in the Seventh Circuit.