People v. Zimmerman , 2018 IL 122261 ( 2019 )

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Date: 2019.04.29
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People v. Zimmerman, 2018 IL 122261
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KIRK P.
Court: ZIMMERMAN, Appellant (The Pantagraph et al., Appellees).
Docket No. 122261
Filed October 18, 2018
Decision Under Appeal from the Appellate Court for the Fourth District; heard in that
Review court on appeal from the Circuit Court of McLean County, the Hon.
Scott Drazewski, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on John P. Rogers and Joseph T. Bante, of Rogers, Sevastianos & Bante,
Appeal LLP, of Clayton, Missouri, for appellant.
Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for
appellees The Pantagraph, WGLT FM, and Illinois Press Association.
Lisa Madigan, Attorney General, of Springfield (David L. Franklin,
Solicitor General, and Michael M. Glick and Gopi Kashyap, Assistant
Attorneys General, of Chicago, of counsel), for the People.
Justices JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Karmeier and Justices Kilbride, Garman, Burke, and
Neville concurred in the judgment and opinion.
Justice Thomas dissented, with opinion.
OPINION
¶1 This appeal arises from an order of the circuit court of McLean County granting defendant
Kirk Zimmerman’s motion to seal his fourth and fifth motions in limine over the objection of
intervenors The Pantagraph, WGLT FM, and the Illinois Press Association. The circuit court
sealed the two motions until after jury selection, at which time it would readdress the issue.
The appellate court reversed the circuit court’s judgment and remanded for further
proceedings. 2017 IL App (4th) 170055, ¶ 20. For the reasons that follow, we reverse the
judgment of the appellate court and affirm the judgment of the circuit court.
¶2 BACKGROUND
¶3 In July 2015, defendant was charged in McLean County with the first degree murder of his
former spouse, Pamela Zimmerman, who died of gunshot wounds on November 3, 2014.
¶4 On October 17, 2016, defendant filed a motion for leave to file his fourth and fifth motions
in limine under seal and a motion to close the court proceedings on the motions. The motions
in limine sought to exclude “sensitive, private, and/or inflammatory information” about
defendant, possible witnesses, and other third parties that had been provided to him by the
State during discovery. The underlying discovery evidence sought to be excluded was
described in extensive detail in the motions themselves. Defendant asserted that due to the
“high level of media saturation regarding th[e] case” publication of the information would
violate his privacy rights and taint the jury pool.
¶5 On November 16, 2016, intervenors filed a petition to intervene and objections to
defendant’s motion to close the courtroom and to file the two motions under seal. They argued
that the right of access under the first amendment and the common law applied to defendant’s
motions in limine and any proceedings on those motions and that defendant had failed to allege
a sufficient basis to overcome the presumption of access.
¶6 Defendant responded that no presumption of access applied to the two motions or the
proceedings on those motions and that the trial court had full discretion to seal the motions and
to conduct closed hearings on them. Alternatively, defendant argued that, even if a
presumption of access applied, he had shown that closure was essential to ensure a fair trial and
to protect the privacy rights of those involved. On November 21, 2016, the trial court entered
an order granting defendant leave to file his fourth and fifth motions in limine. The order
further provided that the motions were sealed for 90 days and would not be unsealed until the
court so ordered.
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¶7 On December 22, 2016, after allowing intervenors’ petition to intervene, the trial court
held a hearing on the two motions in limine.1 At the hearing, defendant withdrew his request to
close the proceedings because the State agreed not to introduce the evidence at issue at trial.
Consequently, the only issue that remained was defendant’s request to continue to seal the
motions until a jury was impaneled.
¶8 At the hearing, the assistant state’s attorney informed the trial court:
“I take no position on whether the court continues to seal these. I will only say that
this is a little frustrating because we are not, nor did we, intend on offering these things
in our case in chief. During a big case like this, there may be any number of things the
State is aware of through an investigation that the press would never become privy of
because the State never intends on offering those things as evidence. These things fall
into that vein. *** But as to whether the court decides to seal indefinitely or not, we’ll
leave that to the court.”
¶9 In ruling on defendant’s request to continue to seal the motions, the trial court specifically
recognized, inter alia, “that there is a constitutional presumption of access under the First
Amendment that applies to court proceedings and records which, first, have historically been
open to the public and, second, which have a purpose and function that would be furthered by
disclosure.” After discussing first amendment considerations, the trial court concluded that
intervenors did not have a first amendment right to the motions that sought to exclude material
that had not been introduced into evidence but, rather, had been obtained by defendant from the
State in discovery.
¶ 10 Additionally, the trial court “acknowledge[d] the common law right of access to court
records.” Ultimately, in granting defendant’s request to continue to seal the two motions, the
trial court recognized, “as to those matters, which were not subject to disclosure or availability
to the public at large, *** the public’s right of access to court proceedings and records is not
absolute, and the court has supervisory authority over its own records and files and may deny
access at its discretion.”
¶ 11 On January 3, 2017, the trial court entered a written order, in pertinent part, granting the
fourth and fifth motions in limine and noting that the State had acknowledged the material
would not be introduced by the State at trial. The trial court also denied intervenors’ motion to
open the motions in limine to public inspection. The trial court ordered that the two motions
would remain sealed until after selection of a jury. At that time, the court would revisit
intervenors’ motion to unseal and would have a hearing on the same. Intervenors filed a notice
of interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016)
challenging the trial court’s order.
¶ 12 The appellate court recognized the common-law right of access to judicial records and
documents, the statutory right to review judicial records contained in section 16(6) of the
Clerks of Courts Act (705 ILCS 105/16(6) (West 2016)), and the first amendment right of
access that attaches to certain court records. 2017 IL App (4th) 170055, ¶ 10. The appellate
court concluded that the trial court erred by finding the “presumption of access” did not attach
to the motions in limine filed by defendant. Id. ¶ 18. The appellate court held that “[s]ince the
presumption did attach to the documents at issue, the next step is to determine whether the
1
No party objected to the intervention.
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presumption has been rebutted.” Id. For these reasons, the appellate court reversed the trial
court and remanded for further proceedings on intervenors’ objection to the motions being
filed under seal. Id. ¶ 20.
¶ 13 This court granted defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15,
2016).
¶ 14 ANALYSIS
¶ 15 Initially, we address the State’s contention that the trial court’s order was not the proper
subject of an interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1,
2016). The State asserts that the appellate court does not have jurisdiction to review
interlocutory orders sealing motions in criminal cases.
¶ 16 Rule 307(a)(1) provides:
“(a) Orders Appealable; Time. An appeal may be taken to the Appellate Court from
an interlocutory order of court:
(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an
injunction[.]” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2016).
¶ 17 Intervenors rely upon In re A Minor, 127 Ill. 2d 247 (1989), and Skolnick v. Altheimer &
Gray, 191 Ill. 2d 214 (2000), to support their contention that the appellate court had
jurisdiction over the appeal.
¶ 18 In In re A Minor, the trial court entered an order during the course of a juvenile proceeding
banning a newspaper from publishing the name of a minor who had been charged in
connection with a fatal shooting. In re A Minor, 127 Ill. 2d at 251. The trial court also banned
the newspaper from the courtroom during future hearings in the case unless it agreed to comply
with the order not to publish the name of the juvenile. Id. The appellate court held the order
was not injunctive in nature and dismissed the newspaper’s appeal on the grounds that the trial
court’s order was not reviewable under Rule 307(a)(1). Id. at 254. This court reversed and
explained that a court looks to the substance, not the form, of an order to determine if it is
injunctive in nature. Id. at 260-61. In finding that the appellate court erred, we held that an
order circumscribing the publication of information is reviewable under Rule 307(a)(1) as an
interlocutory injunctive order. Id. at 263.
¶ 19 In Skolnick, the trial court entered an order requiring the parties to designate information
disclosed in discovery as confidential, and once so designated, the information could only be
disclosed to persons expressly identified in the protective order. Skolnick, 191 Ill. 2d at 221-22.
“By its terms, therefore, the order forbade the publication of certain information, or, in other
words, circumscribed the parties’ opportunity to ‘do a particular thing.’ ” Id. at 222. The
defendant appealed under Rule 307(a)(1). Id. at 221. This court rejected the plaintiffs’
argument that the appellate court lacked jurisdiction over the appeal and, as in In re A Minor,
held that a trial court’s order circumscribing public access to information is reviewable by the
appellate court as an interlocutory injunctive order under Rule 307(a)(1). Id. at 221, 223. In
reaching this determination, we reiterated that Illinois courts have construed the meaning of
“injunction” in Rule 307(a)(1) broadly and that a court looks to the substance, not the form, of
an order to determine if it is injunctive in nature. Id. at 221.
¶ 20 As the State concedes, Rule 307(a)(1) has long been the vehicle in Illinois for appellate
review of orders denying access to criminal records or proceedings. E.g., In re Gee, 2010 IL
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App (4th) 100275, ¶ 38 (holding the trial court’s order to continue to seal some documents
related to a search warrant sought in a homicide investigation was proper after finding the
appellate court had jurisdiction to entertain the media intervenors’ appeal under Rule
307(a)(1)); People v. Kelly, 397 Ill. App. 3d 232, 244-48 (2009) (holding that Rule 307(a)(1)
was the appropriate vehicle for media members to challenge a trial court’s order sealing
pretrial proceedings and records and noting that intervention has advantages over a declaratory
action, as it avoids the issues that would arise if a civil judge were required to question anew a
criminal judge’s discretionary decision to seal records or proceedings); People v. Pelo, 384 Ill.
App. 3d 776, 779-80 (2008) (holding that media outlets were authorized to file an interlocutory
appeal under Rule 307(a)(1) challenging an order denying access to an evidence deposition);
People v. LaGrone, 361 Ill. App. 3d 532, 537-38 (2005) (holding in an interlocutory appeal
filed by the media that the trial court erred by not making adequate factual findings on the
record to justify denying public access to a hearing on the defendant’s motions in limine).
¶ 21 The State has not suggested another rule or statute that would be the correct route to review
this type of order. Instead, the State urges us to refer the issue to our rules committee for
consideration of the proper vehicle for reviewing orders denying access to criminal records or
proceedings. We find that unnecessary.
¶ 22 Rule 307(a), found in this court’s civil appeals rules, provides parties a right to appeal an
interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or
modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2016). This court has already found
that this rule confers appellate jurisdiction to review such interlocutory orders circumscribing
the public access of information in both juvenile and civil cases. In re A Minor, 127 Ill. 2d at
263; Skolnick, 191 Ill. 2d at 221. No reason exists to treat interlocutory orders circumscribing
public access to documents in criminal proceedings differently. As this court instructed in In re
A Minor and Skolnick, we look to the substance of the trial court’s order. Accordingly, we find
that the order in this case circumscribing public access to documents is reviewable under Rule
307(a)(1) as an interlocutory injunctive order.2
¶ 23 Having determined that the appellate court had jurisdiction over the appeal, we now turn to
the merits of defendant’s argument.
¶ 24 First Amendment Right of Access
¶ 25 Defendant initially contends that the trial court properly granted his request to seal the two
motions in limine and that the appellate court erred by finding the motions were subject to a
right of public access under the first amendment. Similarly, the State argues that a first
amendment right of access does not attach to defendant’s motions, which contained noncrucial
evidence that had been disclosed during the discovery process and would not be admitted at
trial. Intervenors simply want us to adopt the reasoning of the appellate court.
¶ 26 The United States Supreme Court first recognized a first amendment public right to attend
criminal trials in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576 (1980). The Court
held that “[i]n guaranteeing freedoms such as those of speech and press, the First Amendment
can be read as protecting the right of everyone to attend trials so as to give meaning to those
2
We note the trial court’s order sealing the motions has no impact on the underlying criminal case,
the prosecution of which continues unimpeded. See People v. Zimmerman, 2018 IL App (4th) 170695.
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explicit guarantees.” Id. at 575. Following Richmond Newspapers, the Court held that a first
amendment right of access could apply in other criminal contexts such as voir dire proceedings
(Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510-11 (1984)
(Press-Enterprise I)) and preliminary hearings (Press-Enterprise Co. v. Superior Court of
California, 478 U.S. 1, 10 (1986) (Press-Enterprise II)).
¶ 27 Thereafter, this court specifically found a public right of access to court records embodied
in the first amendment to the United States Constitution. Skolnick, 191 Ill. 2d at 231-32 (citing
Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994)). In
Skolnick, the defendant in a separate appeal had challenged the trial court’s order placing her
counterclaim under seal. Id. at 230. We ultimately found the order violated the public’s right of
access to court records under either the first amendment or common-law standard. Id. at
232-33. We also held that not all court records are subject to first amendment protection. Id. at
232.
¶ 28 The determination of whether a first amendment right of access attaches to a particular
record requires a two-step process under what is typically known as the “experience and logic
test.” Press-Enterprise II, 478 U.S. at 9-10 (1986); see also Skolnick, 191 Ill. 2d at 232. First, a
court must consider whether the document is one that has historically been open to the press
and general public (the “experience” prong). Press-Enterprise II, 478 U.S. at 8. Second, a
court must consider whether public access to the document plays a significant positive role in
the functioning of the particular judicial process in question (the “logic” prong). Id. The
Supreme Court held that “[t]hese considerations of experience and logic are, of course, related,
for history and experience shape the functioning of governmental processes.” Id. at 9. If the
test of experience and logic is met, a qualified first amendment right of public access attaches
to the material. Id.
¶ 29 But even when a first amendment right of public access attaches to a document, it is not
absolute. Id. As the Supreme Court explained, although open criminal proceedings give
assurances of fairness to both the public and the accused, there are some limited circumstances
in which the right of the accused to a fair trial might be undermined by publicity. Id. In such
cases, the trial court must determine whether the situation is such that the rights of the accused
override the qualified first amendment right of access to the proceeding or material. Id.; see
also Skolnick, 191 Ill. 2d at 232.
¶ 30 In Press-Enterprise II, the Court held:
“ ‘[T]he [first amendment] presumption may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest. The interest is to be articulated along with
findings specific enough that a reviewing court can determine whether the closure
order was properly entered.’ ” Press-Enterprise II, 478 U.S. at 9-10 (quoting
Press-Enterprise I, 464 U.S. at 510).
¶ 31 As noted, the first amendment presumption of access applies only to those documents that
satisfy the experience and logic test.
¶ 32 In this case, the “experience” prong weighs against a first amendment right of access.
Defendant’s motions sought to exclude from trial “sensitive, private, and/or inflammatory
information” about him, possible witnesses, and other third parties that had been provided to
him by the State during discovery. It is undisputed that the State does not intend to introduce
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any of the evidence contained in the motions at trial and that defendant’s fourth and fifth
motions in limine were granted by the trial court without objection by the State.
¶ 33 Intervenors fail to acknowledge that there is no tradition of access to discovery material not
yet admitted at trial. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984). Information that
surfaces during pretrial discovery may be unrelated, or only tangentially related, to the
underlying cause of action. Id. The Court instructed that “restraints placed on discovered, but
not yet admitted, information are not a restriction on a traditionally public source of
information.” Id. Whether in a civil or criminal case, discovery is “essentially a private process
because the litigants and the courts assume that the sole purpose of discovery is to assist in trial
preparation.” Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 848 (Ky. 2009).
Generally, the documents themselves contain no evidentiary value until admitted into evidence
at trial or other proceedings. Id. at 849. Public access to such material would therefore not play
a significant role in the administration of justice in the case. Id. (holding that intervenor news
organization did not have a first amendment right of access to the pretrial discovery materials
at issue in a pending criminal case).
¶ 34 The State and defendant are correct that because the material at issue in the two motions
was disclosed during the discovery process, is not otherwise publicly available, is wholly
tangential to the criminal case, and will not be admitted at trial, it is not subject to a tradition of
access.
¶ 35 Similarly, we find the “logic” prong weighs against a presumption of first amendment
access in this case.
¶ 36 Intervenors do not provide any authority to support a finding that public access to the type
of pretrial discovery at issue here would play a significant positive role in the judicial process.
The discovery process often generates a significant amount of irrelevant and unreliable
material that plays no role in the criminal proceeding and in which the public has limited
interest. As the State informed the trial court in this case, there may be any number of matters
of which the State becomes aware in the course of an investigation that are shared with a
defendant through discovery. Such material, however, generally does not become public
because there is no intention of offering it into evidence. In fact, had it not been for defendant’s
fourth and fifth motions in limine, there would be no material on file for intervenors to seek
access to, as the State has no intention of introducing it.
¶ 37 Additionally, disclosure of the discovery evidence in this case could potentially play a
negative role by exposing the public and potential jurors to irrelevant information that will not
be used to support a conviction and could taint the jury pool. “If it were otherwise and
discovery information and discovery orders were readily available to the public and the press,
the consequences to the smooth functioning of the discovery process would be severe.” United
States v. Anderson, 799 F.2d 1438, 1441 (11th Cir. 1986); see also People v. Williams, 188 Ill.
2d 365, 368 (1999) (holding the in limine order excludes inadmissible evidence and protects
the movant from whatever prejudicial impact the mere asking of the questions and the making
of the objections may have upon a jury).
¶ 38 Having found that a first amendment presumption of access does not attach to defendant’s
motions in this case, we now turn to defendant’s claim that the trial court did not abuse its
discretion by denying intervenors access to the motions under a common-law right of access.
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¶ 39 Common-Law Right of Access
¶ 40 Although the first amendment presumption of access applies only to those documents that
satisfy the experience and logic test, under the common law there is a presumption that allows
the public to inspect and copy public records and documents, including all documents filed
with the court. Skolnick, 191 Ill. 2d at 230 (citing Nixon v. Warner Communications, Inc., 435
U.S. 589, 597 (1978)). This common-law right of public access to court records is “essential to
the proper functioning of a democracy [citation] in that citizens rely on information about our
judicial system in order to form an educated and knowledgeable opinion of its functioning.” Id.
(citing Minneapolis Star & Tribune Co. v. Schumacher, 392 N.W.2d 197, 202 (Minn. 1986)).
¶ 41 The availability of court files for public scrutiny is also essential to the public’s right to
“ ‘monitor the functioning of our courts, thereby insuring quality, honesty and respect for our
legal system.’ ” Id. (quoting In re Continental Illinois Securities Litigation, 732 F.2d 1302,
1308 (7th Cir. 1984)). “When courts are open, their work is observed and understood, and
understanding leads to respect.” In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1074
(1992). The common-law right of access symbolizes the recognition “that the public interest is
best served by increasing the public’s knowledge about what is transpiring inside the judicial
process.” Skolnick, 191 Ill. 2d at 230 (quoting Newell v. Field Enterprises, Inc., 91 Ill. App. 3d
735, 748 (1980)).
¶ 42 In Illinois, the legislature has also codified this common-law right of access to judicial
records in section 16 of the Clerks of Courts Act, which provides, in pertinent part:
“All records, dockets and books required by law to be kept by [circuit court] clerks
shall be deemed public records, and shall at all times be open to inspection without fee
or reward, and all persons shall have free access for inspection and examination to such
records, docket and books, and also to all papers on file in the different clerks’ offices
and shall have the right to take memoranda and abstracts thereto.” 705 ILCS 105/16(6)
(West 2016).
¶ 43 This court has held, however, that the common-law right of access to judicial records is not
absolute. Skolnick, 191 Ill. 2d at 231. We have recognized that “[e]very court has supervisory
power over its own records and files, and access [may be] denied where court files might[ ]
become a vehicle for improper purposes.” Id. (quoting Nixon, 435 U.S. at 598). Consequently,
“whether court records in a particular case are opened to public scrutiny rests with the trial
court’s discretion, which must take into consideration all facts and circumstances unique to
that case.” Id. For purposes of review, the trial court must provide findings on the record
specific enough for a reviewing court to consider whether closure of the records was proper.
¶ 44 The trial court in this case did not abuse its discretion by allowing defendant’s two motions
in limine to remain sealed until after a jury is impaneled. In denying intervenors’ request to
immediately access the documents, the trial court specifically recognized the common-law
right of public access to all documents filed with the court. The trial court also recognized that
this right is not absolute, that the evidence at issue in the two motions was not publicly
available, and that the court possesses supervisory authority over its own records and files and
may deny access at its discretion.
¶ 45 The trial court was familiar with the history of the case and the serious charges against
defendant, as well as the publicity that this case has already received and will likely continue to
receive in the future. The trial court was also aware that the State does not intend to introduce
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into evidence any of the tangential matters referred to in the motions in limine, which the court
granted without objection.
¶ 46 A thorough review of the hearing on intervenors’ request to unseal the motions reveals that
the trial court attempted to strike a careful balance among competing interests. The trial court
recognized the common-law right of access to court records, as well as defendant’s right to a
fair trial, which might be undermined by publicity of discovery material that will not be
admitted at trial. The court’s order was also of a limited duration. After a jury is seated in this
case, the trial court has agreed to revisit the issue to determine whether it would be proper to
allow public access to the motions at that time.
¶ 47 Finally, the State suggests that this court should remand to the trial court for the limited
purpose of determining whether defendant has overcome the common-law presumption of
access to court records. We find that unnecessary. The trial court has already done what the
State requests. We find no need to remand for the trial court to elaborate further on its ruling.
¶ 48 CONCLUSION
¶ 49 For the foregoing reasons, the judgment of the appellate court is reversed, and the
judgment of the circuit court is affirmed.
¶ 50 Appellate court judgment reversed.
¶ 51 Circuit court judgment affirmed.
¶ 52 JUSTICE THOMAS, dissenting:
¶ 53 I respectfully disagree with the majority’s conclusion that this court’s rules presently
provide for the interlocutory appeal filed in this case.
¶ 54 The issue here is whether Rule 307(a) confers appellate jurisdiction to review an
interlocutory order sealing certain pleadings in a criminal case. The majority reasons that,
because “[t]his court has already found that this rule confers appellate jurisdiction to review
such interlocutory orders circumscribing the public access of information in both juvenile and
civil cases,” “[n]o reason exists to treat interlocutory orders circumscribing public access to
documents in criminal proceedings differently.” Supra ¶ 22. In fact, a very good reason exists
for doing exactly that, namely, that our rules state explicitly that Rule 307(a) does not apply to
criminal cases.
¶ 55 In this court’s rules, “separate articles contain the rules applicable to civil proceedings
(articles II and III) and those applicable to criminal proceedings (articles IV and VI).” Ill. S. Ct.
R. 1, Committee Comments (rev. July 1, 1971). Rule 307(a) is set forth in article III of this
court’s rules. Article III is titled “Civil Appeals Rules,” which means that, by definition, Rule
307(a) is a “civil appeal rule.” Ill. S. Ct. Rs. art. III. This matters because the case before us is
not a civil case. Rather, it is a criminal case. As such, this case is governed not by the rules set
forth in article III but rather by those set forth in article VI, which is titled “Appeals in Criminal
Cases, Post-Conviction Cases, & Juvenile Court Proceedings.” Ill. S. Ct. Rs. art. VI. Among
the rules set forth in article VI is Illinois Supreme Court Rule 612 (eff. July 1, 2017), which is
titled “Procedural Matters Which Are Governed by Civil Appeals Rules.” As its title suggests,
Rule 612 enumerates which “civil appeals rules apply to criminal appeals insofar as
appropriate.” Ill. S. Ct. R. 612(b) (eff. July 1, 2017). The ensuing list identifies 23 “civil appeal
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rules” that apply in whole or in part to criminal appeals. Quite notably, Rule 307(a) is not
among them. In other words, in the course of drafting Rule 612, this court already had occasion
to consider whether Rule 307(a) applies to criminal appeals. Rule 307(a)’s exclusion from the
list set forth in Rule 612 clearly reflects the court’s conclusion that it does not, and that
conclusion should control the jurisdictional analysis in this case.
¶ 56 The majority, of course, reaches the opposite conclusion. However, the majority reaches
this conclusion without ever mentioning, let alone discussing or analyzing, Rule 612. Again,
one of the central questions in this case is whether a particular civil appeal rule applies in this,
a criminal case. At a bare minimum, the court’s analysis of that question should at some point
contend with the fact that this court has drafted a rule specifically enumerating which civil
appeal rules apply in criminal cases, as presumably that rule has something to say. By the same
token, if the majority’s omission of Rule 612 from its analysis reflects the fact that Rule 612
truly has nothing to say on this question, then I am left wondering why we even bothered to
draft Rule 612 in the first place. If Rule 612 is not relevant here, it is not relevant anywhere.
¶ 57 Compounding this problem is the fact that the two decisions anchoring the majority’s
jurisdictional analysis do not speak to the question raised in this case. The issue in this case is
whether Rule 307(a) applies to criminal cases. Neither In re A Minor nor Skolnick in any way
addresses the types of cases to which Rule 307(a) applies. Rather, both cases address the types
of orders to which Rule 307(a) applies. More specifically, the issue in both In re A Minor and
Skolnick was whether interlocutory restraints on the publication of information should be
treated as injunctions for purposes of Rule 307(a). See In re A Minor, 127 Ill. 2d at 260-63;
Skolnick, 191 Ill. 2d at 221-22. And while both courts answered that question in the affirmative
and therefore found that appellate jurisdiction was present, neither court considered whether
the case before it fell into the category of cases to which Rule 307(a) applies. Thus, it is
begging the question to say, as the majority does, that In re A Minor and Skolnick settle the
matter at hand, as neither case even discusses the question they are deemed to answer.
¶ 58 All of that said, I am perfectly open to the possibility that interlocutory restraints on the
publication of information should be reviewable immediately in criminal cases and that our
rules should be amended to make that policy manifest. In other words, my quarrel is not with
the rule that the majority fashions in this case. Rather, my quarrel is with the majority treating
our rules as if they already embodied this policy, which clearly they do not. Again, Rule 612
specifically enumerates the civil appeal rules that apply to criminal cases, and Rule 307(a) is
conspicuously absent from the list. Unless and until that changes, I would hold that
interlocutory restraints on the publication of information are not immediately reviewable in
criminal cases. To hold otherwise is to undermine both the authority and the necessity of this
court’s rulemaking power.
¶ 59 Accordingly, I respectfully dissent. In doing so, I express no opinion on whether
defendant’s two motions in limine fall within either the first amendment or the common-law
right of public access. That being said, I would point out only that, contrary to the majority’s
suggestion that intervenors are seeking such things as “discovery material not yet admitted at
trial,” “pretrial discovery,” and “irrelevant and unreliable material that plays no role in the
criminal proceeding” (supra ¶¶ 33, 36), in fact intervenors are seeking only the two motions
in limine that defendant himself filed with the court and thereby made part of the official court
record. To be sure, these motions purportedly identify and describe with precision the types of
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raw discovery material about which the majority rightly expresses concern, and that is
unfortunate. But that reality does not mean that the motions themselves are raw discovery
material, and I object to the majority analyzing the public access question as if seeking access
to the former is indistinguishable from seeking access to the latter.
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