COURTHOUSE NEWS SERVICE v. DOROTHY BROWN, in her official capacity as Clerk of the Circuit Court of Cook County, Illinois
No. 18-1230
United States Court of Appeals For the Seventh Circuit
November 13, 2018
ARGUED SEPTEMBER 14, 2018
No. 17-CV-7933 — Matthew F. Kennelly, Judge.
Before BAUER, HAMILTON, and SCUDDER, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff-appellee Courthouse News Service (“CNS”) seeks injunctive relief under
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 comрlaints 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 thеm 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
An Illinois Suрreme 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 Eleсtronic 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.
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 (1992), to conclude that the lack of a state proceeding made Younger abstention inappropriate.
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
In reviewing the grant or denial of a preliminary injunction on appeal, we examine “legal conclusions de novo, findings 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 abstain, the underlying legal questions are subject to de novo review, 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 genеral right to inspect and copy public records and documents, including judicial records 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
the Framers were concerned with broad principles, 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 nonetheless necessary to thе enjoyment of other First Amendment rights.
Globe Newspaper Co. v. Superior Court for the County of Norfolk, 457 U.S. 596, 604 (1982) (citations omitted).
“[A] major purpose of [the First] Amendment was to protect the free discussion of governmental affairs.” 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 reasoned 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 observe at first hand the operations of his government, he relies necessarily upon the press ... With respect to judicial proceedings in particular, the function of the press serves to ... bring
to bear the beneficial effects 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 appeals 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 Illinois Sec. Litig., 732 F.2d 1302, 1308 (7th Cir. 1984) (finding right of access by press to litigation committee reports in shareholder derivative suits); New York Civil Liberties Union v. New York City Transit Auth., 684 F.3d 286, 305 (2d Cir. 2012) (finding 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 documents in civil case). The press‘s right of access to civil proceedings and documents fits squarely within the First Amendment‘s protections.
Yet the press‘s right of access to court documents is not absolute—it is qualified. Nixon, 435 U.S. at 598; Globe Newspaper, 457 U.S. at 606. There is a constant tension between the interest in public disclosure and privacy concerns. To determine whether a right of access attaches under the First Amendment, courts use the two-part test set out in Press–Enterprise Co. v. Superior Court, 478 U.S. 1, 8 (1986) (“Press-Enterprise II”). This test is generally referred to as the “experience and logic test.” It asks whether a proposed right reflects a
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 qualified right of access to civil complaints. The dispute is about timing: does the right of access attach at the moment a complaint is rеceived by the Clerk‘s Office, or does it attach 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 deserve the first opportunity to hear such a constitutional challenge to their internal procedures. The vast majority of access precedents arise from litigation before the courts whose records are at issue. In this case, however, CNS is seeking to have one court tell another court that its level of acсess 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 filed in one of the busiest county courts in the country. “Every court has supervisory power over its own records and files,” 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
This action falls within the terms of
State courts have a significant interest in running their own clerks’ offices and setting their own filing procedures—especially in a court like the Circuit Court of Cook County, where more than one million cases are filed annually. When these procedures аre challenged as they have been here, the state courts should be given the first 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 conflicts 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 yеt convinced exists—the federal courts should not exercise jurisdiction over the matter.
1. The Abstention Doctrines
The Supreme Court has recognized four principal categories 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 extensions of Younger. See O‘Shea v. Littleton, 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
Younger abstention ordinarily requires federal courts to refrain 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 constitutional grounds. See 401 U.S. at 40–41. The Supreme Court has extended the doctrine to civil proceedings in limited circumstances, beginning with Huffman 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 federal suit filed by a party that is the target of state court or administrative proceedings in which the state‘s interests are so important that exercise of federal judicial power over those proceedings would disregard the comity between the states and federal government. See Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 13 (1987) (requirement for the posting of bond pending appeal); Middlesex County Ethics Committee v. Garden State Bar Ass‘n, 457 U.S. 423, 432–34 (1982) (attorney disciplinary proceedings); Trainor v. Hernandez, 431 U.S. 434, 444 (1977) (civil proceedings seeking return of welfare рayments wrongfully received); Juidice v. Vail, 430 U.S. 327, 335–36 & n.12 (1977) (civil contempt proceedings); Huffman, 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 suspension proceedings before state administrative board).
The situation here is not a traditional Younger scenario: there is no individual, ongoing state proceeding that plaintiffs seek to enjoin. As a result, the district court found Younger abstention specifically 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. at 705 (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 fit neatly into the Younger doctrine, it fits better into the Supreme Court‘s extension of the Younger principles in O‘Shea and Rizzo.
In O‘Shea, plaintiffs filed а federal lawsuit asserting that a municipal court system was intentionally discriminating against African Americans in setting bail and in sentencing. 414 U.S. at 491–92. The district court dismissed the case, but this court reversed, holding that if plaintiffs proved their allegations, the district court should fashion appropriate injunctive 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, finding that the claims were not ripe because there was an insufficient probability that the plaintiffs would be brought
In Rizzo, the Supreme Court further extended the principles of Younger to limit federal court review of local executive actions. In that case, the plaintiffs alleged a pattern of unconstitutional police mistreatment of minority civilians in Philadelphia. 423 U.S. at 366. The Third Circuit affirmed the district court‘s injunction requiring city officials to come up with a “comprehensive program” for dealing with civilian complaints pursuant to the court‘s detailed guidelines. Id. at 364–66, 369–70. In reversing the injunction, the Supreme Court explained that the “District Court‘s injunctive order here, significantly 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 affairs.” Id. at 379 (quotation marks omitted). The Court reasoned:
When a plaintiff seеks to enjoin the activity of a government agency, even within a unitary court system, his case must contend with the well-established rule that the Government has
traditionally been granted the widest latitude in the dispatch of its own internal affairs. * * * When the frame of reference moves from a unitary court system, governed by the principles just stated, to a system of federal courts representing 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 сitations and quotation marks omitted). The Court noted that “federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration 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 significant limit on the state courts and their clerk in managing the state courts’ own affairs. Against the backdrop of Younger, O‘Shea, and Rizzo, we find 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 jurisdiсtion over a Section 1983 action against the Chief Judge and the Sheriff of Cook County. 619 F.3d at 676. In that case, the Sheriff was subject to a general order issued by the Chief Judge that directed him not to carry out
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 continuance 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 appropriate for the federal courts, in the face of these principles of equity, comity, and federalism, to undertake the requested supervision of state court operations. SKS & Associates, 619 F.3d at 682.
Despite SKS & Associates not being a typical Younger scenario, 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 omitted). “Cooperation and comity, not competition and conflict, are essential to the federal design,” and Younger abstention “reinforces our federal scheme.” Kowalski 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
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 protecting CNS‘s substantial First Amendment rights. As the Supreme Court underscored in Younger, the Constitution established
a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, 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.
This principle of comity takes on sрecial force when federal courts are asked to decide how state courts should conduct 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 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. The claims
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 issues presented by this case may be adjudicated on the merits in federal court, where they belong.” Id. In declining to abstain under O‘Shea, the Ninth Circuit explained that an injunction 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 finding” rather than an impermissible “ongoing monitoring of the substance of state proceedings.” Id. (citations omitted). 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 colleagues in the Ninth Circuit. If the state сourt clerk refuses or fails to comply with the federal court‘s injunction or complies only partially, the federal court‘s involvement would certainly continue as it oversees the implementation of its order. Further, we have no doubt CNS would attempt to use a different decision in this case to force the hand of other state courts that do not provide immediate press access to court filings. This would likely lead to subsequent litigation in the federal courts. We want to avoid a situation in which the
The district court‘s order granting a preliminary injunction is REVERSED, and the case is REMANDED with instructions to dismiss this action without prejudice.
HAMILTON
CIRCUIT JUDGE