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U.S. appeals judges: Go fight over lawsuits with Dorothy Brown in state court

Dorothy Brown in the Sun-Times newsroom Friday, Nov. 2, 2018. | Rich Hein/Sun-Times

Dorothy Brown. | Rich Hein/Sun-Times

Nearly a year after a federal judge ordered Cook County Circuit Court Clerk Dorothy Brown to speed up access to new, electronically filed lawsuits, Brown has won a partial victory in the appellate courts.

A three-judge panel ruled Tuesday afternoon that the judge who handed down the first order, U.S. District Judge Matthew Kennelly, shouldn’t have let himself be pulled into the controversy. Rather, it said the fight belongs in the state courts.

Therefore, the 7th U.S. Circuit Court of Appeals reversed a preliminary injunction Kennelly handed down early this year, and it ordered the lawsuit that generated it dismissed.

“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,” Appellate Judge David Hamilton wrote in the 21-page opinion. “When these procedures are 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.”

Hamilton also said the lawsuit seeks a kind of instant access that neither the appellate court nor the U.S. Supreme Court provides.

“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,” Hamilton wrote.

A Brown spokeswoman did not immediately respond to messages seeking comment.

Kennelly handed down his ruling after Courthouse News Service complained in a lawsuit that Brown’s office only makes electronically filed complaints available to the press on a delayed basis, after processing and official acceptance.

In January, Kennelly gave Brown 30 days to speed things up, writing that, “Brown has not explained why she cannot implement any of the measures other state and federal courts have taken to provide access to e-filed complaints.”

Brown balked and appealed, and the 7th Circuit put Kennelly’s order on hold back in February.

On Tuesday, the appellate court said Courthouse News “is free to pursue a remedy in the state courts.”