(CN) – A federal judge on Monday ordered Chicago’s court clerk to stop withholding new civil complaints from the press in a ruling with national repercussions for access to court proceedings under the First Amendment.
“The Seventh Circuit has repeatedly observed that, where a First Amendment right of access is found, such access should be ‘immediate and contemporaneous,’” wrote U.S. District Judge William Kennelly in a 16-page opinion.
By longstanding tradition, Cook County Circuit Court has allowed journalists from the Chicago Tribune, Chicago Sun Times, Daily Law Bulletin, Reuters, Bloomberg News and Courthouse News to go behind the counter and pick up copies of just-filed complaints to look them over for news stories.
As the court clerk, Dorothy Brown, started a transition from paper to electronic filing, she changed the traditional pattern.
Brown withheld more than a third of the new e-filed complaints while her staff handled clerical tasks tied to “accepting” the case into the court’s computer system. The cases that particularly suffered from delay were those filed in the afternoon when most big cases are filed.
Her embrace of a new technology in effect pushed press access backwards behind what is called “processing” in the e-filing context and was called “docketing” for paper cases.
Judge Kennelly rejected arguments from Brown that mimicked points made in a parallel case currently under way in California where Courthouse News has challenged Orange County’s state court clerk, David Yamasaki, over his withholding policy.
In that California case, U.S. District Judge Andrew Guilford in Santa Ana ruled last year in favor of the clerk, saying that “minor delays simply do not constitute a First Amendment violation.”
On Monday, Kennelly rejected that ruling.
His circuit has emphasized the principle that First Amendment access to judicial documents must be immediate and contemporaneous, Kennelly pointed out, citing the Seventh Circuit’s seminal 1994 ruling in Grove Fresh.
“For this reason – and in recognition of the fact that ‘the newsworthiness of a particular story is often fleeting’ – the Court concludes that even the supposedly ‘minor’ delays in access that were discounted by the court in Yamasaki cannot so easily be dismissed,” wrote Kennelly.
The judge cited with approval three other district court opinions where federal judges enjoined clerks who were withholding new complaints in New York, Houston and Ventura, California.
He also cited a 2014 Ninth Circuit opinion written by Judge Kim Wardlaw in a case brought by Courthouse News against Ventura’s court clerk, Michael Planet, saying, “The public cannot discuss the content of complaints about which it has no information.”
Kennelly rejected the central argument used by Brown in Chicago and Yamasaki in Orange County, claiming that court employees must first check for confidential filings before the press can see new complaints.
Courthouse News lawyers answered that the clerks have alternatives, such as requiring that confidential filings be made in paper form, the method used by many federal courts, or requiring the filer to designate a confidential filing via the e-filing interface.
“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 e-filed complaints before they have been fully processed,” the judge wrote.
He ruled that Courthouse News is entitled to timely access to the new e-filed complaints. “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,” said the opinion.
Courthouse News was represented in Chicago by Brian Sher, Rachel Matteo-Boehm and Donald Cole with the Bryan Cave law firm. They opened their brief for an injunction by citing the Planet ruling in the Ninth Circuit and the Grove Fresh ruling in the Seventh Circuit.
“The First Amendment to the U.S. Constitution guarantees the press a presumptive right of access to civil court records,” they wrote. “This right ‘is an indispensable predicate to free expression about the workings of government’ and `a necessary corollary to the presumption is that once found to be appropriate, access should be immediate and contemporaneous.’”
Brown was defended by Illinois Assistant State’s Attorneys James Hanlon, Paul Castiglione and Oscar Kpopta. In the introduction to their responding brief, they cited the Santa Ana district court opinion.
“CNS seeks a mandatory injunction against the Circuit Clerk directing her to provide immediate it with immediate access to complaints submitted electronically to the Circuit Clerk’s office but not yet accepted for filing. No law imposes a duty upon the Circuit Clerk to provide such access to CNS or any other member of the media. CNS argues that the First Amendment requires such access. It does not. See Courthouse News Serv. v. Yamasaki.”
In his Monday ruling, Kennelly concluded by giving the clerk 30 days to put in place a system that “will provide access to newly e-filed civil complaints contemporaneous with their receipt by her office.”