Case Information
*1 Before B AUER , H AMILTON , and S CUDDER , Circuit Judges .
H AMILTON , Circuit Judge . Plainti -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 led complaints to the press at the moment of receipt by her o ce—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 lings. [1] Instead, in our court and apparently in the Supreme Court, as well, the clerks’ o ces undertake cer- tain administrative processing before a ling 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. Li leton , 414 U.S. 488, 499 (1974); Rizzo v. Goode , 423 U.S. 362, 379–80 (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 prelimi- nary injunction and order this action dismissed without prej- udice.
I. Factual & Procedural Background
CNS is a news service with hundreds of reporters and ed- itors who cover civil litigation in thousands of state and fed- eral courthouses across the country. In addition to writing and publishing articles, CNS reporters compile “New Litiga- tion Reports,” which contain summaries of newsworthy new civil complaints. Before the advent of electronic fi ling sys- tems, CNS reporters would go to clerks’ o ffi ces in courthouses and review paper copies of complaints in person. With the shift to electronic fi ling, things have become more compli- cated.
In the past, the Cook County Clerk’s O ffi ce (“Clerk’s Of- fi ce”) allowed reporters to have same-day access to newly fi led paper complaints by placing copies in a tray behind the intake counter. Electronic fi ling began in 2009, and until 2015, the Clerk’s O ffi ce would simply print out electronically fi led complaints as they were received and allow reporters to view them along with the paper complaints. In January 2015, the Clerk’s O ffi ce stopped printing electronically fi led complaints and started withholding them until administrative processing was completed and they were o cially accepted. Now, re- porters cannot view electronically fi led complaints until they are processed and posted online. This leads to delays in ac- cess.
CNS and the Clerk characterize the delays di erently. CNS contends that almost 40% of electronically led com- plaints are not accessible on the same day they are led. By contrast, the Clerk contends that 90.9% of electronically led complaints are publicly available within one business day; 94.7% within two business days; and 96.8% within three busi- ness days. Some of the delays are the result of nothing more than the normal business hours of the Clerk’s O ffi ce. If a com- plaint is fi led right before the Clerk’s O ffi ce closes for the day, it likely will not be available until the next day. Weekends also lead to longer delays. If a complaint is fi led Friday evening, it will not be available until Monday when the Clerk’s O ffi ce re- opens and has time to process it. While the delays can be framed di erently, 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 fi led complaints.
An Illinois Supreme Court order made electronic fi ling mandatory in the Cook County Circuit Court as of July 1, 2018. In advance of this e ective date, CNS contacted Clerk Brown’s o ffi ce and proposed various options that would al- low the press to obtain quicker access to electronically fi led complaints. The Clerk pushed back and explained that elec- tronically led complaints are not considered received or led 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 submi ed documents shall be considered led “if not rejected” by the Clerk’s O ce. 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 pro- cedures would remain the same.
5 When talks with the Clerk’s O ffi ce did not produce the de- sired changes, CNS brought this action in November 2017. CNS moved for a preliminary injunction prohibiting the Clerk from processing electronically fi led complaints before allow- ing press access. The motion was submi ed on the a davits, and no evidentiary hearing was held. The Clerk opposed the motion but did not dispute that a First Amendment presump- tion of access to documents led in court applies to civil com- plaints. She instead argued that the presumption does not re- quire immediate access, that the delays here are insigni cant, and that the First Amendment is not being violated. The Clerk explained that the “accept/reject” process is important be- cause if complaints were released to the press before pro- cessing, con dential information contained therein could be exposed. [3] The Clerk also explained that confusion may result 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. In- stead, Brown simply asserts that Order No. 2014-02 and the Electronic Fil- ing Standards and Principles provide that the complaints are not ‘filed’ until accepted.”); id . at *5 (“Brown contends that she is justified in with- holding e-filed complaints from the public and the press until after pro- cessing because both Order No. 2014-02 and the Electronic Filing Stand- ards and Principles provide that electronically submitted documents shall be considered filed ‘if not rejected’ by the Clerk. Order No. 2014-02 at 3; Electronic Filing Standards and Principles at 1. But as the Court has dis- cussed, Brown points to nothing that would require her to delay access to e-filed complaints until after they are processed and officially accepted.”). We read these orders differently and agree with Brown: these orders do require an “accept/reject” process before release. In any event, as we ex- plain below regarding abstention, the Illinois state courts are best situated to interpret their own orders and to decide how important the “accept/re- ject” process is to them. While this sounds like a reasonable consideration, the Clerk has pre-
sented no evidence showing how prevalent this issue is and how often the due to reporting on a complaint that was later rejected by the Clerk’s O ffi ce 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 un- der the Younger abstention doctrine. See Younger v. Harris , 401 U.S. 37 (1971). The Clerk argued that Younger abstention should apply because CNS was asking a federal court for in- junctive relief against a state o cial who was acting pursuant to a state court’s standing order (Order No. 2014-02). Accord- ing to the Clerk, the state court order requires her to perform an “accept/reject” function, whereas the federal court injunc- tion 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 pro- ceedings with which CNS’s requested injunctive relief might interfere.” The court relied on Ankenbrandt v. Richards , 504 U.S. 689, 705 (1992), to conclude that the lack of a state pro- ceeding made Younger abstention inappropriate.
Clerk’s Office catches information that should not have been included. The district court also was not “convinced that it is, in fact, the responsi- bility of the Clerk” to ensure this information is “not included in e-filings, as the Illinois Supreme Court rules pertaining to confidential and personal identity information specifically place the burden of compliance on the filing parties.” 2018 WL 318485, at *5. We agree with this latter point as a matter of law. However, we do not believe the Clerk’s Office is somehow prohibited from checking for compliance by fallible attorneys and pro se parties. 7
The district court then turned to the merits and deter- mined 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 rea- sons were insu ffi cient 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- fi led civil complaints contempora- neously with their receipt by her o ce.” 2018 WL 318485, at *7. Clerk Brown fi led 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 plainti ff must rst show that: (1) without such relief, it will su ff er irreparable harm before nal 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 Spring eld , 883 F.3d 959, 965 (7th Cir. 2018), citing Girl Scouts of Manitou Coun- cil, Inc. v. Girl Scouts of the U.S. of Am., Inc. , 549 F.3d 1079, 1086 (7th Cir. 2008). If a plainti ff makes such a showing, the court next must weigh the harm the plainti will su ff er without an injunction against the harm the defendant will su er 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 plainti 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 Coun- cil , 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 public interest, which entails taking into account any e ects on non-parties. Id. at 1086. Ultimately, the moving party bears the burden of showing that a preliminary injunction is war- ranted. Mazurek v. Armstrong , 520 U.S. 968, 972 (1997) (per cu- riam).
In reviewing the grant or denial of a preliminary injunc- tion on appeal, we examine “legal conclusions de novo, nd- ings of fact for clear error, and the balancing of harms for abuse of discretion.” Valencia , 883 F.3d at 966, citing Coronado v. Valleyview Pub. Sch. Dist. 365–U , 537 F.3d 791, 795 (7th Cir. 2008). In reviewing the district court’s decision whether to ab- stain, the underlying legal questions are subject to de novo re- view, and the ultimate decision itself is reviewed for abuse of discretion. Property & Casualty Ins. Ltd. v. Central National Ins. Co. of Omaha , 936 F.2d 319, 321 (7th Cir. 1991).
B. Right of Access
While the First Amendment does not explicitly mention a right of access to court proceedings and documents, “the courts of this country recognize a general right to inspect and copy public records and documents, including judicial rec- ords and documents.” Nixon v. Warner Communications, Inc. , 435 U.S. 589, 597 (1978). This right of access has its roots in the common law, but the Supreme Court has held that the First Amendment itself protects access to criminal trials. Richmond Newspapers, Inc. v. Virginia , 448 U.S. 555, 576–78 (1980) (plural- ity opinion). The Supreme Court has also cautioned against any “narrow, literal conception” of the First Amendment’s terms, NAACP v. Bu tt on , 371 U.S. 415, 430 (1963), and has ex- plained that
the Framers were concerned with broad princi- ples, and wrote against a background of shared values and practices. The First Amendment is thus broad enough to encompass those rights that, while not unambiguously enumerated in the very terms of the Amendment, are nonethe- less necessary to the enjoyment of other First Amendment rights.
Globe Newspaper Co. v. Superior Court for the County of Norfolk , 457 U.S. 596, 604 (1982) (citations omi ed).
“[A] major purpose of [the First] Amendment was to pro- tect the free discussion of governmental a airs.” Id. , quoting Mills v. Alabama , 384 U.S. 214, 218 (1966). “Free speech carries with it some freedom to listen,” so the Supreme Court has rea- soned that freedom of speech and freedom of the press “would lose much meaning if access to … the trial could … be foreclosed arbitrarily.” Richmond Newspapers , 448 U.S. at 576– 577. Press access in particular is important:
In a society in which each individual has but limited time and resources with which to ob- serve at rst hand the operations of his govern- ment, he relies necessarily upon the press … With respect to judicial proceedings in particu- lar, the function of the press serves to … bring to bear the bene fi cial e ects of public scrutiny upon the administration of justice.
Cox Broad. Corp. v. Cohn , 420 U.S. 469, 491–92 (1975).
Though the Supreme Court has not yet extended these principles from criminal proceedings, the federal courts of ap- peals have widely agreed that the First Amendment right of access extends to civil proceedings and associated records and documents. See Courthouse News Serv. v. Planet , 750 F.3d 776, 786 (9th Cir. 2014) (“ Planet I ”), citing In re Continental Illi- nois Sec. Litig. , 732 F.2d 1302, 1308 (7th Cir. 1984) ( fi nding right of access by press to litigation commi tt ee reports in share- holder derivative suits); New York Civil Liberties Union v. New York City Transit Auth. , 684 F.3d 286, 305 (2d Cir. 2012) ( nding right of access to administrative civil infraction hearings); Publicker Industries, Inc. v. Cohen , 733 F.2d 1059, 1061 (3d Cir. 1984) (“We hold that the First Amendment does secure a right of access to civil proceedings.”); Brown & Williamson Tobacco Corp. v. Federal Trade Comm’n , 710 F.2d 1165, 1177 (6th Cir. 1983) (First Amendment limits judicial discretion to seal doc- uments in civil case). The press’s right of access to civil pro- ceedings and documents ts squarely within the First Amendment’s protections.
Yet the press’s right of access to court documents is not absolute—it is quali ed. Nixon , 435 U.S. at 598; Globe Newspa- per , 457 U.S. at 606. There is a constant tension between the interest in public disclosure and privacy concerns. To deter- mine whether a right of access a aches under the First Amendment, courts use the two-part test set out in Press–En- terprise Co. v. Superior Court , 478 U.S. 1, 8 (1986) (“ Press-Enter- prise II ”). This test is generally referred to as the “experience and logic test.” It asks whether a proposed right re fl ects a 11 well-developed tradition of access to a speci fi c process and whether the right “plays a signi fi cant positive role in the func- tioning of the particular process in question.” Id. at 8. If so, a rebu tt able presumption of access applies. Id. at 9.
This is the framework for analyzing restrictions on the press’s right of access to court proceedings and documents. Here, both parties agree there is a quali fi ed right of access to civil complaints. The dispute is about timing: does the right of access a tt ach at the moment a complaint is received by the Clerk’s O ce, or does it a ach at the moment processing is completed? How long a delay in access is too long?
While the delays appear to be minimal, we do not answer these questions here. We conclude that the state courts de- serve the rst opportunity to hear such a constitutional chal- lenge to their internal procedures. The vast majority of access precedents arise from litigation before the courts whose rec- ords are at issue. In this case, however, CNS is seeking to have one court tell another court that its level of access is not good enough. Further, many access disputes concern documents in a single case, whereas the relief sought here is far-reaching. It would apply to all civil cases led in one of the busiest county courts in the country. “Every court has supervisory power over its own records and les,” Nixon , 435 U.S. at 598, and at least at this time, we decline to impose a requirement on the state court that we do not meet ourselves, at least not yet. [5] C. Abstention
This action falls within the terms of 42 U.S.C. § 1983: plain- ti ff CNS claims that its federal constitutional rights are being violated by a person acting under color of state law. But the relief plainti seeks here directly a ects the administration of the state courts and “would run contrary to the basic princi- ples of equity, comity, and federalism.” See SKS & Associates, Inc. v. Dart , 619 F.3d 674, 676–77 (7th Cir. 2010) (a rming ab- stention in federal case seeking injunction directing manage- ment of state courts’ eviction cases). Even though abstention is the exception, not the rule, e.g., Colorado River Water Conser- vation Dist. v. United States , 424 U.S. 800, 813 (1976), a federal court “may, and often must, decline to exercise its jurisdiction where doing so would intrude upon the independence of the state courts . ” SKS & Associates , 619 F.3d at 677. As the Su- preme Court has put it, federal courts may decline to exercise jurisdiction where denying a federal forum would “clearly serve an important countervailing interest,” including “re- gard for federal-state relations.” Quackenbush v. Allstate Ins. Co. , 517 U.S. 706, 716 (1996). “This equitable decision balances the strong federal interest in having certain classes of cases, and certain federal rights, adjudicated in federal court, Nebraska Press Ass’n v. Stuart , 423 U.S. 1327, 1329 (1975) (Blackmun, J., in chambers) (staying state-court order restricting media coverage of pend- ing criminal case). Grove Fresh addressed delays on the order of months and years, not hours or even minutes. Our decision in Grove Fresh ap- proved a review process for documents that would require adversarial ex- changes lasting weeks before the sealed information would be released. Id . at 898. Grove Fresh continues to provide helpful guidance on the quali- fied right of public access to court filings. It does not, however, compel the instant access to every filing in all civil (or criminal) cases ordered by the district court here.
against the State’s interests in maintaining ‘uniformity in the treatment of an “essentially local problem.”’” Id. at 728, quot- ing New Orleans Pub. Serv., Inc. v. Council of City of New Orle- ans , 491 U.S. 350, 362 (1989).
State courts have a signi fi cant interest in running their own clerks’ o ces and se tt ing their own ling procedures— especially in a court like the Circuit Court of Cook County, where more than one million cases are led annually. When these procedures are challenged as they have been here, the state courts should be given the rst opportunity to determine precisely what level of press access is required, appropriate, and feasible in a state court. CNS has not yet sought relief in the state courts here. Proceeding straight to the federal court to resolve a dispute with a state court clerk over the timing of access con fl icts with the general principles of federalism, comity, and equity that underlie abstention. Unless and until the state courts have proven unwilling to address an alleged First Amendment violation—which we are not yet convinced exists—the federal courts should not exercise jurisdiction over the ma tt er.
1. The Abstention Doctrines The Supreme Court has recognized four principal catego- ries of abstention: Pullman , Burford , Younger , and Colorado River , named after Railroad Commission of Texas v. Pullman Co. , 312 U.S. 496 (1941); Burford v. Sun Oil Co. , 319 U.S. 315 (1943); Younger v. Harris , 401 U.S. 37 (1971); and Colorado River Water Conservation District v. United States , 424 U.S. 800 (1976). Two additional categories, O’Shea and Rizzo , can be considered ex- tensions of Younger . See O’Shea v. Li leton , 414 U.S. 488 (1974); Rizzo v. Goode , 423 U.S. 362 (1976). Younger , with its extension in O’Shea and Rizzo , is most closely applicable to the present case; however, it is not a perfect t, and we ultimately base our decision on the more general principles of federalism that underlie all of the abstention doctrines.
Younger abstention ordinarily requires federal courts to re- frain from exercising jurisdiction over federal constitutional claims that seek to interfere with or interrupt ongoing state proceedings. FreeEats.com, Inc. v. Indiana , 502 F.3d 590, 595 (7th Cir. 2007). Younger abstention originally required federal courts to abstain when a criminal defendant seeks a federal injunction to block his state court prosecution on federal con- stitutional grounds. See 401 U.S. at 40–41. The Supreme Court has extended the doctrine to civil proceedings in limited cir- cumstances, beginning with Hu man v. Pursue, Ltd. , 420 U.S. 592, 603–04 (1975). As we noted in SKS & Associates :
The civil brand of Younger extends only to a fed- eral suit led by a party that is the target of state court or administrative proceedings in which the state’s interests are so important that exer- cise of federal judicial power over those pro- ceedings would disregard the comity between the states and federal government. See Pennzoil Co. v. Texaco, Inc. , 481 U.S. 1, 13 (1987) (require- ment for the posting of bond pending appeal); Middlesex County Ethics Commi tt ee v. Garden State Bar Ass’n , 457 U.S. 423, 432–34 (1982) (a orney disciplinary proceedings); Trainor v. Hernandez , 431 U.S. 434, 444 (1977) (civil proceedings seek- ing return of welfare payments wrongfully re- ceived); Juidice v. Vail , 430 U.S. 327, 335–36 & n.12 (1977) (civil contempt proceedings); Hu - man , 420 U.S. at 604 (state court action to close adult theater); Majors v. Engelbrecht , 149 F.3d 709, 712–13 (7th Cir. 1998) (nursing license sus- pension proceedings before state administrative board).
619 F.3d at 678.
The situation here is not a traditional Younger scenario: there is no individual, ongoing state proceeding that plainti ff s seek to enjoin. As a result, the district court found Younger ab- stention speci fi cally inapplicable. It is true that in Ankenbrandt v. Richards , the Supreme Court stated: “Absent any pending proceeding in state tribunals, therefore, application by the lower courts of Younger abstention was clearly erroneous.” 504 U.S. 689, 705 (1992) (emphasis in original). We have also explained that a “paramount concern” in whether to abstain under Younger is that “the judicial or judicial in nature state proceedings must be on-going.” Barichello v. McDonald , 98 F.3d 948, 955 (7th Cir. 1996). While this case does not fi t neatly into the Younger doctrine, it ts be tt er into the Supreme Court’s extension of the Younger principles in O’Shea and Rizzo .
In O’Shea , plainti ff s led a federal lawsuit asserting that a municipal court system was intentionally discriminating against African Americans in se ing bail and in sentencing. 414 U.S. at 491–92. The district court dismissed the case, but this court reversed, holding that if plainti s proved their alle- gations, the district court should fashion appropriate injunc- tive relief to prevent the state court judges from depriving others of their constitutional rights in the future. Id. at 492–93. The Supreme Court granted certiorari and reversed this court, nding that the claims were not ripe because there was an in- su cient probability that the plainti s would be brought before the municipal courts again on criminal charges. Id. at 495–99. The Court also found that even if the claims were ripe, the principles of Younger should lead the federal courts to ab- stain. The Court reasoned that comity and federalism “pre- clude[d] equitable intervention” because the plainti ff s sought “an injunction aimed at controlling or preventing the occur- rence of speci c events that might take place in the course of future state criminal trials.” Id. at 499–500. The Court cau- tioned against injunctions that would lead to “an ongoing fed- eral audit of state criminal proceedings which would indi- rectly accomplish the kind of interference that Younger v. Har- ris … and related cases sought to prevent.” Id. at 500.
In Rizzo , the Supreme Court further extended the princi- ples of Younger to limit federal court review of local executive actions. In that case, the plainti s alleged a pa tt ern of uncon- stitutional police mistreatment of minority civilians in Phila- delphia. 423 U.S. at 366. The Third Circuit a ffi rmed the district court’s injunction requiring city o cials to come up with a “comprehensive program” for dealing with civilian com- plaints pursuant to the court’s detailed guidelines. Id. at 364– 66, 369–70. In reversing the injunction, the Supreme Court ex- plained that the “District Court’s injunctive order here, signif- icantly revising the internal procedures of the Philadelphia police department, was indisputably a sharp limitation on the department’s latitude in the dispatch of its own internal af- fairs.” Id. at 379 (quotation marks omi ed). The Court rea- soned:
When a plainti seeks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with the well-es- tablished rule that the Government has traditionally been granted the widest latitude in the dispatch of its own internal a ff airs. * * * When the frame of reference moves from a unitary court system, governed by the princi- ples just stated, to a system of federal courts rep- resenting the Nation, subsisting side by side with 50 state judicial, legislative, and executive branches, appropriate consideration must be given to principles of federalism in determining the availability and scope of equitable relief.
Id. at 378–79 (internal citations and quotation marks omi ed). The Court noted that “federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be pre- served between federal equitable power and State administra- tion of its own law.’” Id. at 378, citing Stefanelli v. Minard , 342 U.S. 117, 120 (1951).
While the district court’s order in the present case does not map exactly on the orders in O’Shea and Rizzo , it would also impose a signi cant limit on the state courts and their clerk in managing the state courts’ own a ff airs. Against the backdrop of Younger , O’Shea , and Rizzo , we nd that CNS’s request for federal intrusion at this stage of the dispute between CNS and the Clerk calls for abstention.
2. Abstention Principles: Equity, Federalism, and Comity The situation here is quite similar to SKS & Associates , where we applied the principles of Younger and declined to exercise jurisdiction over a Section 1983 action against the Chief Judge and the Sheri of Cook County. 619 F.3d at 676. In that case, the Sheri was subject to a general order issued by the Chief Judge that directed him not to carry out residential evictions during a two-and-a-half-week period in December and during periods of extreme cold weather. Id. The plainti , a residential property manager, sought a federal injunction against the Sheri to speed up the eviction pro- cesses in state court. Id.
In declining to exercise jurisdiction, we explained that it is important for federal courts to have ‘‘a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a con- tinuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.’’ Id. , citing New Orleans Public Service , 491 U.S. at 364, citing in turn Younger , 401 U.S. at 44. We concluded that it was not appro- priate for the federal courts, in the face of these principles of equity, comity, and federalism, to undertake the requested su- pervision of state court operations. SKS & Associates , 619 F.3d at 682.
Despite SKS & Associates not being a typical Younger sce- nario, we pointed out that the Supreme Court characterized the holding of Younger as “far-from-novel” because it rested primarily on the ‘‘even more vital consideration’’ of comity. Id. at 678 (citations omi ed). ‘‘Cooperation and comity, not competition and con fl ict, are essential to the federal design,’’ and Younger abstention ‘‘reinforces our federal scheme.’’ Kow- alski v. Tesmer , 543 U.S. 125, 133 (2004), citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586 (1999). Abstention in the present case tracks these general principles upon which all of the abstention doctrines are based. The level of intrusion CNS seeks from the federal court into the state court’s operations is simply too high, at least before the state courts have had a chance to consider the constitutional issue.
Underlying Younger abstention is a deeper principle of comity: the assumption that state courts are co-equal to the federal courts and are fully capable of respecting and protect- ing CNS’s substantial First Amendment rights. As the Su- preme Court underscored in Younger , the Constitution estab- lished
a system in which there is sensitivity to the le- gitimate interests of both State and National Governments, and in which the National Gov- ernment, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.
401 U.S. at 44.
This principle of comity takes on special force when fed- eral courts are asked to decide how state courts should con- duct their business. The Illinois courts are best positioned to interpret their own orders, which are at the center of this case, and to craft an informed and proper balance between the state courts’ legitimate institutional needs and the public’s and the media’s substantial First Amendment interest in timely access to court lings. It is particularly appropriate for the federal courts to step back in the rst instance as the state courts con- tinue to transition to electronic ling and, like many courts around the country, are working through the associated im- plementation challenges and resource limitations. The claims here are not suitable for resolution in federal court at this time. CNS is free to pursue a remedy in the state courts.
We acknowledge that the Ninth Circuit in Courthouse News Service v. Planet , a case nearly identical to this one, came to the opposite conclusion regarding abstention. 750 F.3d 776, 793 (9th Cir. 2014). The court there explained that CNS’s claims “raise novel and important First Amendment questions that the federal courts ought to decide” and reversed the district court’s decision to abstain “so that the First Amendment is- sues presented by this case may be adjudicated on the merits in federal court, where they belong.” Id. In declining to ab- stain under O’Shea , the Ninth Circuit explained that an injunc- tion would not lead to continuous oversight of the state courts by the federal court. Id. at 791. The Ninth Circuit thought there would be no “ongoing federal audit” and that the “remedy that CNS seeks is more akin to [a] bright-line nding” rather than an impermissible “ongoing monitoring of the substance of state proceedings.” Id. (citations omi tt ed). Thus, the Ninth Circuit concluded, the First Amendment interests at stake outweighed what it thought would be minimal interference in the state’s administration of its judicial system.
On this point, we respectfully disagree with our col- leagues in the Ninth Circuit. If the state court clerk refuses or fails to comply with the federal court’s injunction or complies only partially, the federal court’s involvement would cer- tainly continue as it oversees the implementation of its order. Further, we have no doubt CNS would a empt to use a dif- ferent decision in this case to force the hand of other state courts that do not provide immediate press access to court l- ings. This would likely lead to subsequent litigation in the federal courts. We want to avoid a situation in which the 21 federal courts are dictating in the rst instance how state court clerks manage their ling procedures and the timing of press access. We also want to avoid the problems that federal over- sight and intrusion of this sort might cause. [6]
In sum, the district court erred by exercising jurisdiction and issuing a preliminary injunction. Initial adjudication of this dispute in the federal court would run contrary to the considerations of equity, comity, and federalism as detailed in SKS & Associates and the Supreme Court abstention deci- sions on which SKS & Associates was based. This temporal ac- cess dispute with a state court clerk should be heard rst in the state courts.
The district court’s order granting a preliminary injunc- tion is REVERSED, and the case is REMANDED with instruc- tions to dismiss this action without prejudice.
[1] This court’s Electronic Case Filing Procedures provide: “A brief, ap- pendix and petition for rehearing (and any answer filed thereto) will be considered timely once it is submitted to the court’s electronic filing sys- tem. It will be considered filed on the court’s docket only after a review for compliance with applicable rules, acceptance by the Clerk, and issu- ance of a Notice of Docket Activity.” Available at http://www.ca7.uscourts.gov/ecf/ECFprocedures.htm. The Supreme Court’s Guidelines for the Submission of Documents to the Supreme Court’s Electronic Filing System provide: “Filings that initi- ate a new case at the Supreme Court will be posted on the Court’s website only after the Clerk’s Office has received and reviewed the paper version of the filing, determined that it should be accepted for filing, and assigned a case number.” Available at https://www.supremecourt.gov/filin- gandrules/ElectronicFilingGuidelines.pdf.
[2] The district court did not interpret these orders as mandating an “ac- cept/reject” process before release. See Courthouse News Service v. Brown , No. 17 C 7933, 2018 WL 318485, at *3 (N.D. Ill. Jan. 8, 2018) (“Brown points to nothing in Order No. 2014-02 or in the Electronic Filing Standards and
[4] This court received helpful amicus briefs from the Judicial Council of California in support of Clerk Brown and the Reporters Committee for Freedom of the Press in support of CNS.
[5] We recognize that the district court here concluded that “immediate and contemporaneous” access was required by our decision in Grove Fresh Distributors, Inc. v. Everfresh Juice Co. , 24 F.3d 893, 897 (7th Cir. 1994), which used that language. We said that the “newsworthiness of a particular story is often fleeting,” and that “each passing day may constitute a separate and cognizable infringement of the First Amendment.” Id ., quoting
[6] Because this opinion creates a circuit conflict on the abstention issue, we circulated it to all judges in active service. See 7th Cir. R. 40(e). No judge in active service requested to hear the case en banc .