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Federal judge: Clerk Dorothy Brown ‘cannot end-run the First Amendment’

Dorothy Brown

Cook County Circuit Court Clerk Dorothy Brown | Sun-Times file photo

A federal judge doubled-down Tuesday on his order that Cook County Circuit Court Clerk Dorothy Brown provide public access to new electronically filed lawsuits.

U.S. District Judge Matthew Kennelly ordered Brown on Jan. 8 to provide that access within 30 days. Since then, she has signaled she will appeal his order to the 7th U.S. Circuit Court of Appeals.

In the meantime, she asked Kennelly to put his order on hold. On Tuesday, he shot down her arguments that, among other things, his order would require her to make public lawsuits that are filed under seal.

Kennelly said that’s not the case, and that’s not the issue.

“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.

The judge added: “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.”

Lawyers representing Brown have said Kennelly’s order would require “a significant upgrade” to her computer systems, and they’ve said electronically submitted records “are not officially ‘filed’” until her office determines they do not contain documents that shouldn’t be made public.

A Brown spokeswoman could not immediately be reached for comment. But later Tuesday, she filed a motion with the court of appeals, again asking to put the order on hold.