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Dorothy Brown can't 'end-run' First Amendment, judge says in denying delay

Tuesday, February 13, 2018
Chicago Tribune
by Jason Meisner

A federal judge on Tuesday said Cook County Circuit Court Clerk Dorothy Brown cannot “end-run” the First Amendment by failing to provide the public with immediate access to electronically filed civil lawsuits.

In a strongly worded seven-page opinion, U.S. District Judge Matthew Kennelly let stand his order last month giving Brown 30 days to make digital copies of lawsuits accessible in real time at public access terminals in the Daley Center.



The order arose from a lawsuit filed in December by the Courthouse News Service alleging e-filed lawsuits were often not accessible to the public for a day or more. Before Brown’s office began transitioning to electronic filings in 2015, media outlets covering county courts obtained paper copies of lawsuits filed on the same day they were filed, the news service’s suit alleged.

Brown had asked Kennelly to stay his order pending her appeal to the 7th Circuit U.S. Court of Appeals, arguing in part that it would have unfairly required her to post lawsuits that were supposed to be under seal.

But Kennelly said that’s not the issue. He also said that Brown was trying to argue that her hands were tied by the system when in fact she was the one who put it together.

“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. “Brown cannot end-run the First Amendment by creating a system in which hypothetical doubt regarding whether litigants comply with rules about redaction allow her to exclude the public from access to judicial proceedings until she is good and ready to provide it.”

Kennelly also took Brown to task for trying to claim that it would be too expensive for her to comply with his order. Making the documents visible on public terminals in her own courthouses was a “rather basic computer function,” not a technological nightmare, he said.

A spokeswoman for Brown was not immediately available for comment.

The Courthouse News Service lawsuit was the latest dispute over Brown’s alleged failures to modernize the archaic filing systems in her office. Last year, the Illinois Supreme Court gave the clerk an extra six months to meet a statewide deadline to end nearly all paper filings in civil cases after Brown said her vendor wouldn't be ready by Jan. 1.

Nearly 62 percent of the county's roughly 178,000 civil filings last year were on paper. The clerk now has until June 30 to implement mandatory electronic filing in most civil cases.

jmeisner@chicagotribune.com

Twitter @jmetr22b



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