Courthouse News Serv. v. Brown

• Decision Date: 13 November 2018
• Docket Number: No. 18-1230,18-1230
• Citation: 908 F.3d 1063
• Parties: COURTHOUSE NEWS SERVICE, Plaintiff-Appellee, v. Dorothy BROWN, in her official capacity as Clerk of the Circuit Court of Cook County, Illinois, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

908 F.3d 1063

COURTHOUSE NEWS SERVICE, Plaintiff-Appellee,

v.Dorothy BROWN, in her official capacity as Clerk of the Circuit Court of Cook County, Illinois, Defendant-Appellant.

No. 18-1230

United States Court of Appeals, Seventh Circuit.

Argued September 14, 2018

Decided November 13, 2018

Donald A. Cole, Attorney, Brian A. Sher, Attorney, BRYAN CAVE LEIGHTON PAISNER LLP, Chicago, IL, Rachel Elizabeth Matteo-Boehm, Attorney, BRYAN CAVE LEIGHTON PAISNER LLP, San Francisco, CA, for Plaintiff-Appellee.

Paul A. Castiglione, Attorney, OFFICE OF THE COOK COUNTY STATE'S ATTORNEY, Chicago, IL, for Defendant-Appellant.

Robert A. Naeve, Attorney, JONES DAY, Irvine, CA, KatieLynn Boyd Townsend, Attorney, Caitlin Veronica Vogus, Attorney, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, DC, for Amicus Curiae.

Before Bauer, Hamilton, and Scudder, Circuit Judges.

Hamilton, Circuit Judge.

Plaintiff-appellee Courthouse News Service ("CNS") seeks injunctive relief under 42 U.S.C. § 1983, arguing that the First Amendment requires Dorothy Brown, Clerk of the Circuit Court of Cook County, Illinois, to release newly filed complaints to the press at the moment of receipt by her office—not after processing. Neither the Court of Appeals for the Seventh Circuit nor the Supreme Court of the United States provides the press with this sort of instant access to court filings.¹ Instead, in our court and apparently in the Supreme Court, as well, the clerks' offices undertake certain administrative processing before a filing is made publicly available, giving our practices a similarity to the practices in state court challenged in this case. That fact would make it unusual, and perhaps even hypocritical, for us to order a state court clerk to provide such instant access on the basis of the same Constitution that applies to federal courts. Adhering to the principles of equity, comity, and federalism, we conclude that the district court should have abstained from exercising jurisdiction over this case. See O'Shea v. Littleton , 414 U.S. 488, 499, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) ; Rizzo v. Goode , 423 U.S. 362, 379–80, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976) ; SKS & Associates, Inc. v. Dart , 619 F.3d 674, 678–80 (7th Cir. 2010). We therefore reverse the district court's order granting a preliminary injunction and order this action dismissed without prejudice.

I. Factual & Procedural Background

CNS is a news service with hundreds of reporters and editors who cover civil litigation in thousands of state and federal courthouses across the country. In addition to writing and publishing articles, CNS reporters compile "New Litigation Reports," which contain summaries of newsworthy new civil complaints. Before the advent of electronic filing systems, CNS reporters would go to clerks' offices in courthouses and review paper copies of complaints in person. With the shift to electronic filing, things have become more complicated.

In the past, the Cook County Clerk's Office ("Clerk's Office") allowed reporters to have same-day access to newly filed paper complaints by placing copies in a tray behind the intake counter. Electronic filing began in 2009, and until 2015, the Clerk's Office would simply print out electronically filed complaints as they were received and allow reporters to view them along with the paper complaints. In January 2015, the Clerk's Office stopped printing electronically filed complaints and started withholding them until administrative processing was completed and they were officially accepted. Now, reporters cannot view electronically filed complaints until they are processed and posted online. This leads to delays in access.

CNS and the Clerk characterize the delays differently. CNS contends that almost 40% of electronically filed complaints are not accessible on the same day they are filed. By contrast, the Clerk contends that 90.9% of electronically filed complaints are publicly available within one business day; 94.7% within two business days; and 96.8% within three business days. Some of the delays are the result of nothing more than the normal business hours of the Clerk's Office. If a complaint is filed right before the Clerk's Office closes for the day, it likely will not be available until the next day. Weekends also lead to longer delays. If a complaint is filed Friday evening, it will not be available until Monday when the Clerk's Office re-opens and has time to process it. While the delays can be framed differently, the parties seem to agree that the thrust of this dispute concerns CNS's displeasure with a delay of no more than one business day in access to the vast majority of electronically filed complaints.

An Illinois Supreme Court order made electronic filing mandatory in the Cook County Circuit Court as of July 1, 2018. In advance of this effective date, CNS contacted Clerk Brown's office and proposed various options that would allow the press to obtain quicker access to electronically filed complaints. The Clerk pushed back and explained that electronically filed complaints are not considered received or filed until they have been processed and accepted. She pointed to Cook County Circuit Court General Administrative Order No. 2014-02 ("Order No. 2014-02") and the Illinois Supreme Court's Electronic Filing Standards and Principles ("Illinois Standards"), which both state that electronically submitted documents shall be considered filed "if not rejected" by the Clerk's Office. The Clerk interprets these orders as mandating an "accept/reject" process before complaints are released to the press.² The Clerk informed CNS that the policies and procedures would remain the same.

When talks with the Clerk's Office did not produce the desired changes, CNS brought this action in November 2017. CNS moved for a preliminary injunction prohibiting the Clerk from processing electronically filed complaints before allowing press access. The motion was submitted on the affidavits, and no evidentiary hearing was held. The Clerk opposed the motion but did not dispute that a First Amendment presumption of access to documents filed in court applies to civil complaints. She instead argued that the presumption does not require immediate access, that the delays here are insignificant, and that the First Amendment is not being violated. The Clerk explained that the "accept/reject" process is important because if complaints were released to the press before processing, confidential information contained therein could be exposed.³ The Clerk also explained that confusion may result due to reporting on a complaint that was later rejected by the Clerk's Office for failure to comply with court rules.

Apart from the merits of the case, the Clerk argued that federal courts should abstain from adjudicating this case under the Younger abstention doctrine. See Younger v. Harris , 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The Clerk argued that Younger abstention should apply because CNS was asking a federal court for injunctive relief against a state official who was acting pursuant to a state court's standing order (Order No. 2014-02). According to the Clerk, the state court order requires her to perform an "accept/reject" function, whereas the federal court injunction being sought by CNS would require immediate release. She argued that she would be unable to comply with both.

The district court granted CNS's motion for a preliminary injunction on January 8, 2018. The court rejected the Clerk's abstention arguments, reasoning that Younger abstention did not apply because there were "no ongoing state judicial proceedings with which CNS's requested injunctive relief might interfere." The court relied on Ankenbrandt v. Richards , 504 U.S. 689, 705, 112 S.Ct. 2206, 119 L.Ed.2d 468 (1992), to conclude that the lack of a state proceeding made Younger abstention inappropriate.

The district court then turned to the merits and determined that a First Amendment right of access applies and that Seventh Circuit precedent requires that access be "immediate and contemporaneous." 2018 WL 318485, at *3, citing Grove Fresh Distributors , Inc. v. Everfresh Juice Co. , 24 F.3d 893, 897 (7th Cir. 1994), and In re Associated Press , 162 F.3d 503, 506 (7th Cir. 1998). In the district court's view, the Clerk's stated reasons were insufficient to justify the delays in access, so that the delays violate the Constitution. The district court ordered the Clerk to implement within thirty days "a system that will provide access to newly e-filed civil complaints contemporaneously with their receipt by her office." 2018 WL 318485, at *7. Clerk Brown filed a notice of appeal and a motion to stay the preliminary injunction pending appeal. The district court denied that motion, but this court then granted a stay.⁴

II. Analysis

A. Standard of Review

To obtain a preliminary injunction, a plaintiff must first show that: (1) without such relief, it will suffer irreparable harm before final resolution of its claims; (2) traditional legal remedies would be inadequate; and (3) it has some likelihood of success on the merits. E.g., Valencia v. City of Springfield , 883 F.3d 959, 965 (7th Cir. 2018), citing Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S. of Am., Inc. , 549 F.3d 1079, 1086 (7th Cir. 2008). If a plaintiff makes such a showing, the court next must weigh the harm the plaintiff will suffer without an injunction against the harm the defendant will suffer with one. See Ty, Inc. v. Jones Group, Inc. , 237 F.3d 891, 895 (7th Cir. 2001). This assessment is made on a sliding scale: "The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weigh in his favor." Girl Scouts of Manitou Council , 549 F.3d at 1086, quoting Roland Machinery Co. v. Dresser Industries, Inc. , 749 F.2d 380, 387 (7th Cir. 1984). Finally, the court must ask whether the preliminary injunction is in the...