People v. Zimmerman

2018 IL 122261

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 122261)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KIRK P. ZIMMERMAN,
Appellant (The Pantagraph et al., Appellees).

Opinion filed October 18, 2018.

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
1
No party objected to the intervention.

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 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
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).

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¶ 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 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

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 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. 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

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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¶ 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 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

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 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 any of the evidence contained in the motions

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 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

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 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.

¶ 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

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 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 empaneled. 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.

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¶ 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 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.

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¶ 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 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

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 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

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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
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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