United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY UNITED STATES DISTRICT JUDGE.
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
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
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
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.
the Circuit Court was selected to participate in
Illinois's electronic filing pilot program in 2009, it
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. See Def.'s Resp. to Pl.'s
Mot. for Prelim. Inj. (Def.'s Resp.) at 3.
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.
received a written response from Brown in June 2017. The
response, which was signed by the Clerk's general counsel
Kelly Smeltzer, stated that e-filed 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.
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 the issuance of a preliminary injunction are
met in this case.
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).
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 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").
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- 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 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. . .
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). As the Seventh Circuit has explained,
"[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 well-established,
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