(CN) – In a First Amendment case for the digital age, Chicago’s court clerk has failed to comply with an injunction that forbids her from withholding press access to electronically filed court pleadings. On Tuesday, a federal judge refused to stay that injunction while the clerk appeals to the Seventh Circuit.
“Brown has shown at best only a small likelihood of success on the merits, and she has shown neither irreparable harm nor any risk of damage to the public interest,” wrote U.S. District Judge William Kennelly in a 7-page order. “To the contrary, the public’s interest in maintaining its right of access to judicial proceedings counsels against entry of a stay.”
The clerk, Dorothy Brown, made the common argument that she holds back access to new electronic filings because they might be confidential.
A similar argument was raised by the state court clerk in Manhattan and rejected by a federal judge in New York.
The same argument is also relied on by a Southern California clerk to defend against an action currently under way in federal court in California.
First Amendment law requires a step-by-step analysis of situations where a government official is restraining access to public documents. If the restraint is taking place, then it must be justified by a “higher value” and it must be narrowly tailored.
Simply put, the clerk must show a lack of options.
In the case against Brown, lawyers Brian Sher, Rachel Matteo-Boehm and Donald Cole with Bryan Cave demonstrated that the clerk has two simple and universally available alternatives.
Clerks can require that non-public documents be put into court the old fashioned way, in paper form delivered over the counter by hand. Or they can allow the filing lawyer to efile non-public documents into a secure electronic queue.
In his January injunction and again in Tuesday’s denial of a stay, Kennelly relied on Grove Fresh, the seminal Seventh Circuit case on public access.
“The only conceivable `higher value’ identified by Brown was her contention 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 ,’” wrote Kennelly.
But it is not the clerk’s duty to review documents for confidentiality, said the judge. That responsibility is placed by the Illinois Supreme Court on the filing lawyer.
Even if somehow Brown had the duty to screen for confidential filings, said the judge, she had alternatives that would have allowed immediate press access, a point made in the original injunction.
“And even if this responsibility actually existed, the Court found that ‘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,’ as required when the First Amendment is implicated, 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,’” wrote Kennelly.
Brown, represented by Illinois assistant state’s attorneys James Hanlon, Paul Castiglione and Oscar Kpopta, raised other objections. She claimed the injunction required her to provide press access to sealed documents.
Rejecting that argument, the judge said Tuesday it was clear the media is not entitled to see sealed documents, and if the clerk genuinely believed her argument, he would have been glad to make the point clear in an amended order.
In a footnote with repercussions, Kennelly said he doubted he still has jurisdiction over the matter now that Brown has filed a notice of appeal in the Seventh Circuit. The footnote is relevant to a point made in the ongoing litigation in California’s Orange County where lawyers for Courthouse News are arguing that jurisdiction over the case now lies in the Ninth Circuit.
In denying a stay, Kennelly came to a blistering conclusion that extends well beyond Chicago.
“What is actually afoot is a system, effectively created by Brown herself, in which all e-filed complaints are treated as having been filed under seal until Brown herself clears them for public access,” wrote Kennelly. “Brown cannot end-run the First Amendment by creating a system in which hypothetical doubt regarding whether litigants comply with rules about redaction allow her to exclude the public from access to judicial proceedings until she is good and ready to provide it.”
Late Tuesday afternoon, the clerk filed a motion to stay in the Seventh Circuit. Her time to comply with the original injunction expires Wednesday morning.