Seventh Circuit Punts First Amendment Suit to State Court

CHICAGO (CN) – In a First Amendment case over press access to new court filings, a Seventh Circuit panel on Tuesday ruled that federal courts lack jurisdiction over such matters and refused to follow the circuit’s landmark 1994 opinion in favor of contemporaneous access.

The ruling runs counter to an opinion in the Ninth Circuit, as well of a host of federal district court rulings in Houston, Los Angeles, New York and Chicago.

It also runs counter to decades of tradition in both state and federal courts in Illinois.

The federal trial courts in Chicago traditionally granted journalists access to new civil actions as soon as they crossed the clerk’s counter. That tradition continued with electronic filing, where new filings now become public the moment they are received.

The same was true in Cook County, where the state court clerk put new filings in a plastic tray for review by the press as soon as they crossed the counter.

With the transition to modern technology, however, press access took a step backwards in Cook County.

The state court clerk, Dorothy Brown, began withholding the new complaints while her staff “processed” the cases.  Processing requires a series of administrative steps that regularly delay access to the new filings for a day or two.

Joined by the Chicago Tribune, The New York Times and The Associated Press, Courthouse News challenged the clerk’s withholding policy. The press corps won that challenge late last year.

In a strong opinion enjoining Brown’s withholding policy, U.S. District Judge William Kennelly wrote, “The Seventh Circuit has repeatedly observed that, where a First Amendment right of access is found, such access should be ‘immediate and contemporaneous.’”

He cited the landmark First Amendment ruling in Grove Fresh v. Everfresh Juice, a 1994 decision by U.S. Circuit Judge William Bauer.

But Bauer, appointed by President Gerald Ford, remained entirely silent on the panel that heard arguments in September in the current case of Courthouse News v. Brown.

He was joined on the panel by U.S. Circuit Judge Michael Scudder, a Trump appointee, and U.S. Circuit Judge David Hamilton, an Obama appointee. Hamilton wrote the 21-page opinion published Tuesday that distinguished the circuit’s precedent and ruled against the press corps.

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 cases ordered by the district court here,” wrote Hamilton.

He said Illinois courts are best positioned to craft a remedy to balance state courts’ need to guarantee the media’s First Amendment right to 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,” Hamilton wrote. “The claims here are not suitable for resolution in federal court at this time.”

He added, “CNS is free to pursue a remedy in the state courts.”

Scudder concurred with the opinion despite his apparent emphatic agreement with oral arguments against abstention, the doctrine used by Hamilton to reject jurisdiction.

Bauer also concurred in the opinion that gutted his landmark First Amendment ruling.

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