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Circuit clerk gets stay on e-filing order

Friday, February 16, 2018
Chicago Daily Law Bulletin
by Jordyn Reiland

On Tuesday, a federal judge doubled down on his position that Cook County Circuit Clerk Dorothy A. Brown had to make all electronically filed court documents immediately available.

One day later, the 7th U.S. Circuit Court of Appeals put a halt on that judge’s order until Brown’s issues with the mandate were addressed at the appellate level.

The decision comes in the midst of a lawsuit filed by Courthouse News Service against Brown’s office. The suit alleges the circuit clerk’s office has withheld e-filed civil complaints from the press and public until after the documents have been processed and officially “accepted” for filing.

Brown asked U.S. District Judge Matthew F. Kennelly for a stay on his order until the appellate court sorted the issue out, but that was denied Tuesday.

Kennelly granted the news service a preliminary injunction Jan. 8 that gave Brown’s office 30 days to create a system where the media can gain immediate access to newly e-filed lawsuits.

Kennelly, in his written decision, said he found her arguments in favor of a stay “forfeited” or “unsupported.”

“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,” Kennelly wrote in his order.

Brown then went to the appellate court the same day and asked them for a hold on Kennelly’s order.

Brown, in her motion for a stay, argued that Kennelly should not have heard any First Amendment challenge because he does not have authority to hear this type of case, citing Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971).

The U.S. Supreme Court decision held that federal courts should not interfere with state courts, except in very limited circumstances.

Brown argued that without a stay she would be “irreparably injured in that she has been given conflicting directives from the [s]tate and federal courts regarding the processing of electronically filed complaints.”

According to in-office statistics, Brown says she provides access to 90.9 percent of newly filed complaints within one business day from the date they are filed.

The Daily Law Bulletin is among the press outlets that receive newly filed complaints from the circuit clerk’s office, but it is not party to the lawsuit.

Brown said in a news release that she was “heartened” by the appellate court’s decision.

“I am very cognizant of the First Amendment interests at the center of this lawsuit, and I am fully aware that the [c]lerk’s [o]ffice must abide by the rules of the Illinois Supreme Court and the order of the [c]hief [j]udge,” she said in a news release.

The stay will remain in effect until further order by the 7th Circuit.

Brown is represented by Assistant State’s Attorneys Paul S. Castiglione, Margaret S. Zilligen and Oscar S. Kpota.

Courthouse News Service is represented by Brian A. Sher and Donald A. Cole of Bryan Cave LLP.

They could not be reached for comment.

The case is Courthouse News Service v. Dorothy Brown, 1:17-cv-07933.

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