People v. Zimmerman

FILED

March 31, 2017

2017 IL App (4th) 170055 Carla Bender

4th District Appellate

NO. 4-17-0055 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from

Plaintiff-Appellee, ) Circuit Court of

v. ) McLean County

KIRK P. ZIMMERMAN, ) No. 15CF894

Defendant-Appellee )
(The Pantagraph, WGLT FM, and the Illinois Press ) Honorable

Association, Intervenors-Appellants). ) Scott Daniel Drazewski,

) Judge Presiding.

PRESIDING JUSTICE TURNER delivered the judgment of the court, with
opinion.
Justices Holder White and Pope concurred in the judgment and opinion.

OPINION

¶1 Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016),

intervenors—the Pantagraph, WGLT FM, and the Illinois Press Association—appeal the

McLean County circuit court’s January 3, 2017, order denying the intervenors’ request to open

for public inspection the fourth and fifth motions in limine filed under seal by criminal

defendant, Kirk P. Zimmerman. On appeal, the intervenors contend the circuit court erred by

finding the presumption of public access to judicial documents did not apply to the documents at

issue. We reverse and remand for further proceedings.

¶2 I. BACKGROUND

¶3 In this case, the supporting record is scant, and thus this court has very limited
facts. Notably, we lack the documents at issue.

¶4 According to defendant’s pleadings, the State charged him with the first degree

murder of Pamela Zimmerman, his former spouse. In October 2016, defendant filed a motion for

leave to file motions in limine under seal. The document referred to the motions at issue as his

fourth and fifth motions in limine. Defendant noted his fourth and fifth motions in limine sought

to exclude the admission of evidence that was sensitive, private, and/or inflammatory about

himself and others who may be called as witnesses or who are otherwise connected to him.

According to defendant, given the high level of media attention to his case, the evidence sought

to be excluded would taint the jury pool if it became public and his right to a fair trial depended

on the motions being sealed. Additionally, defendant noted he was prepared to provide the circuit

court with advance copies of the motions at issue for an in camera examination in the event the

court needed additional facts. Defendant also filed a motion to close the proceedings on the

motions in limine.

¶5 In November 2016, the intervenors filed a petition to intervene and objections to

defendant’s motion to close the courtroom and to file the motions in limine under seal. The

intervenors also filed a supporting memorandum of law. On November 21, 2016, defendant filed

a response to the intervenors’ petition. On that same day, the circuit court entered an order,

granting defendant leave to file his fourth and fifth motions in limine. The order further stated the

following: “Documents are filed for 90 days. The documents shall not be unsealed up to and

until the court orders the same.”

¶6 On December 22, 2016, the circuit court held the hearing on defendant’s fourth

and fifth motions in limine. An excerpt of the hearing is included in the supporting record. The

court noted at the beginning of the hearing that it had allowed the intervenors’ petition to

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intervene at an earlier court date. At the hearing, it was noted the State did not intend to raise the

matters addressed in defendant’s fourth and fifth motions in limine in its case in chief. Defendant

withdrew his motion asking to seal the courtroom, leaving the continued sealing of the fourth and

fifth motions in limine as the only remaining contested matter. Defendant requested the motions

continue to be sealed until the jury in his case was impaneled. The State took no position on the

continued sealing of the motions. After hearing the parties’ arguments, the court allowed,

without objection, defendant’s fourth and fifth motions in limine. The court further ordered the

fourth and fifth motions in limine to remain sealed until jury selection and noted any order

in limine related to those motions would also be sealed. The court reasoned the presumption of

access did not apply to the motions in limine and ended its analysis with that conclusion.

¶7 On January 3, 2017, the circuit court entered a written order, granting the fourth

and fifth motions in limine and ordering those motions to remain sealed until after the selection

of a jury.

¶8 On January 19, 2017, the intervenors filed a timely notice of appeal in sufficient

compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015). See Ill. S. Ct. R. 307(a)

(eff. Nov. 1, 2016) (providing “the appeal must be perfected within 30 days from the entry of the

interlocutory order by filing a notice of appeal designated ‘Notice of Interlocutory Appeal’

conforming substantially to the notice of appeal in other cases”). Thus, this court has jurisdiction

of this appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016). See

Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 221, 730 N.E.2d 4, 11 (2000) (noting an

interlocutory order that circumscribes the publication of information is reviewable as an

interlocutory injunctive order under Rule 307(a)(1)).

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¶9 II. ANALYSIS

¶ 10 The United States Supreme Court has recognized the existence of a common law

right of access to “ ‘judicial records and documents.’ ” Skolnick, 191 Ill. 2d at 230, 730 N.E.2d at

15 (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)). Additionally, in

Illinois, section 16(6) of the Clerks of Courts Act (705 ILCS 105/16(6) (West 2014)) provides

for the public’s right to review judicial records. See Skolnick, 191 Ill. 2d at 231, 730 N.E.2d at

16. Specifically, that provision provides, in pertinent part, the following:

“All records, dockets and books required by law to be kept by such 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 2014).

Moreover, embedded in the first amendment to the United States Constitution (U.S. Const.

amend. I) is a right of access to court records. Skolnick, 191 Ill. 2d at 231-32, 730 N.E.2d at 16.

“The first amendment right presumes a right to inspect court records which have ‘historically

been open to the public’ and disclosure of which would further the court proceeding at issue.”

Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 16 (quoting United States v. Corbitt, 879 F.2d 224,

228 (7th Cir. 1989)). However, under all three sources of the right to access court records, the

right is not absolute. Skolnick, 191 Ill. 2d at 231-32, 730 N.E.2d at 16. In recognizing the

common law right to access, the Supreme Court noted “[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.” Nixon, 435 U.S. at 598. As to the constitutional right to access,

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our supreme court has noted the presumption of access can be rebutted by demonstrating

“suppression is ‘essential to preserve higher values and is narrowly tailored to serve that

interest.’ ” Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 16 (quoting Grove Fresh Distributors, Inc.

v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994), superseded on other grounds by Fed. R.

Civ. P. 5. Additionally, the first amendment right of access does not attach unless it passes the

tests of experience and logic. Press-Enterprise Co. v. Superior Court of California for the

County of Riverside, 478 U.S. 1, 9 (1986) (Press II). The experience test examines whether

“there has been a tradition of accessibility” to that kind of proceeding, and the logic test

examines whether “public access plays a significant positive role in the functioning of the

particular process in question.” Press II, 478 U.S. at 8, 10.

¶ 11 We begin our analysis by determining whether the presumption of access applied

to defendant’s fourth and fifth motions in limine. In re Gee, 2010 IL App (4th) 100275, ¶ 26, 956

N.E.2d 460. That determination presents a purely legal question, and thus our review is de novo.

People v. Kelly, 397 Ill. App. 3d 232, 255, 921 N.E.2d 333, 354 (2009). If we find the

presumption does not apply, then our analysis ends there. Gee, 2010 IL App (4th) 100275, ¶ 26,

956 N.E.2d 460. If the presumption does apply, then we examine the propriety of the circuit

court's denial of access. Gee, 2010 IL App (4th) 100275, ¶ 26, 956 N.E.2d 460. In this case, the

circuit court found the presumption did not apply and ended its analysis there. On appeal, the

intervenors assert the circuit court erred by finding the presumption did not attach to defendant’s

fourth and fifth motions in limine.

¶ 12 In Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 17, our supreme court found that,

whether it proceeded under the common law or constitutional standards, the counterclaim in that

case became part of the court file once the circuit court granted leave to file it, and at that time,

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the presumption of the right of public access attached to the counterclaim. Moreover, this court

has held, “the right of access extends to the documents filed with the court.” In re Marriage of

Johnson, 232 Ill. App. 3d 1068, 1074, 598 N.E.2d 406, 410 (1992). We explained our holding as

follows: “Once documents are filed with the court, they lose their private nature and become part

of the court file and ‘public component[s]’ of the judicial proceeding [citation] to which the right

of access attaches. This right also applies to transcripts of hearings as they are records of trial

court proceedings.” Johnson, 232 Ill. App. 3d at 1074, 598 N.E.2d at 410. However, this court

emphasized the right did not extend to a settlement document because it was never submitted to

the court, despite the fact the terms of the agreement were discussed at a hearing for which the

transcript was subject to the presumption. Johnson, 232 Ill. App. 3d at 1074, 598 N.E.2d at 410.

¶ 13 In the context of criminal cases, in People v. LaGrone, 361 Ill. App. 3d 532, 534­

35, 838 N.E.2d 142, 145 (2005), we addressed whether the circuit court erred by closing the

pretrial hearings on the defendant's motions in limine to suppress (1) the statements of two of the

victims and (2) evidence of certain character attributes of the defendant. This court concluded the

circuit court's specific findings did not constitute a sufficient basis for closure of the pretrial

hearings and reversed the circuit court’s judgment. LaGrone, 361 Ill. App. 3d at 536, 838 N.E.2d

at 146. While this court did not expressly address whether the presumption of access attached,

we still find the case is instructive on the issue, as it is indicative of the public nature of motions

in limine.

¶ 14 Next, in People v. Pelo, 384 Ill. App. 3d 776, 781, 894 N.E.2d 415, 419 (2008),

this court held an unedited evidence deposition, which had neither been submitted into evidence

nor played in open court, was not “a ‘judicial record’ or part of the ‘criminal proceeding itself’ to

which the public has a constitutional, common-law, or statutory right of access.” Moreover, in

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Gee, 2010 IL App (4th) 100275, ¶ 36, 956 N.E.2d 460, we held the right of access did not apply

to an affidavit supporting a search warrant and the inventory and return of search warrant. This

court explained the warrant application process had historically not been open to the public and

was an extension of the criminal investigation itself. Thus, it was entitled to the same

confidentiality accorded other aspects of the criminal investigation. Gee, 2010 IL App (4th)

100275, ¶ 36, 956 N.E.2d 460.

¶ 15 In Kelly, 397 Ill. App. 3d at 236-37, 921 N.E.2d at 339-40, the appellants

challenged the circuit court’s closure of four pretrial hearings and its filing under seal of the

State's pretrial motion to allow evidence of other crimes, the State's supplemental answer to

discovery, and both parties’ witness lists. Applying our decision in Pelo and the United States

Supreme Court’s decision in Waller v. Georgia, 467 U.S. 39, 47 (1984), the First District found

the presumption of access did not attach to the challenged documents and related hearings. Kelly,

397 Ill. App. 3d at 259, 921 N.E.2d at 358. The Kelly court explained as follows: “As in Pelo, the

media intervenors did not have a right to a potential exhibit that had not yet been introduced into

evidence; similarly, in the case at bar, the media intervenors did not have a right to discovery,

other-crimes evidence, or a list of witnesses because none of it had been introduced into

evidence.” Kelly, 397 Ill. App. 3d at 259, 921 N.E.2d at 358. Moreover, “the hearings at issue

bore no resemblance to the hearing in Waller, where the presumption of access applied.”

Kelly, 397 Ill. App. 3d at 259, 921 N.E.2d at 358. The Kelly court further found “the subject

matter of these proceedings is not one that has been historically open to the public or which have

a purpose and function that would be furthered by disclosure.” Kelly, 397 Ill. App. 3d at 259, 921

N.E.2d at 358.

¶ 16 In this case, the intervenors are seeking to examine defendant’s fourth and fifth

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motions in limine. As in Skolnick, once the circuit court granted defendant leave to file the two

legal documents, they became court records. See Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 17.

Moreover, in criminal cases, the purpose of a motion in limine is both to (1) “determine prior to

trial what, if any, evidence ought to be admitted at trial” and (2) “establish whether any such

evidence that would ordinarily be admissible is inadmissible because of improper police

proceedings.” People v. DeJesus, 163 Ill. App. 3d 530, 532, 516 N.E.2d 801, 802 (1987). Thus,

unlike the search warrant documents in Gee, motions in limine are generally related to the

criminal trial proceedings and not the criminal investigation, which has historically been private.

Additionally, we disagree with the Kelly court’s suggestion motions in limine and their related

hearings have traditionally not been accessible to the public. Despite the fact motions in limine

address potential evidence for trial, they are contained in the general criminal case file and in the

general record on appeal. The hearings on such motions are generally not closed. Further, we

find Kelly’s reliance on our decision in Pelo was misplaced, as that case addressed an evidence

deposition, which had not yet been presented at trial, and not a legal document filed with the

court that mentioned the evidence deposition. Accordingly, we find the motions in limine pass

the experience test.

¶ 17 As to the logic test, we find access to motions in limine plays a significant

positive role in the functioning of the criminal justice process. Sometimes, such motions expose

improper police action, as noted in DeJesus, or attorney conduct (i.e., discovery violations).

Moreover, public access to evidentiary decision making “ ‘enhances both the basic fairness of

the criminal trial and the appearance of fairness so essential to public confidence in the

system,’ ” Press II, 478 U.S. at 9 (quoting Press-Enterprise Co. v. Superior Court of California,

Riverside County, 464 U.S. 501, 508 (1984) (Press I)). Additionally, just as “suppression

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hearings often are as important as the trial itself” (Waller, 467 U.S. at 46), motions in limine can

also be critical to the course of a criminal trial. Thus, we find motions in limine also pass the

logic test.

¶ 18 Accordingly, we find the presumption of access attaches to motions in limine filed

with the court in criminal proceedings. In this case, when the circuit court granted defendant

leave to file his fourth and fifth motions in limine, the presumption of access attached. See

Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 17. Thus, the circuit court erred by finding the

presumption did not attach to the documents at issue. Since the presumption did attach to the

documents at issue, the next step is to determine whether the presumption has been rebutted. The

circuit court did not address that issue, and thus we remand the cause to the circuit court for

further proceedings on the intervenors’ objection to defendant’s fourth and fifth motions

in limine being under seal.

¶ 19 III. CONCLUSION

¶ 20 For the reasons stated, we reverse the McLean County circuit court’s judgment

ordering defendant’s fourth and fifth motions in limine to remain sealed and remand the case for

further proceedings.

¶ 21 Reversed; cause remanded with directions.

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