In re No Name

JUSTICE HEIPLE,

dissenting:

I disagree that this court is without jurisdiction to entertain the instant appeal pursuant to Supreme Court Rule 307(a)(1). Rule 307(a)(1) provides in relevant part that an appeal may be taken from an interlocutory order “granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction.” The purpose of the rule is to permit the interlocutory review of a court’s equitable discretion to prevent its abuse. Whether an order is properly characterized as an injunction subject to interlocutory review is determined by its substance rather than its form. (Bohn Aluminum & Brass Co. v. Barker (1973), 55 Ill. 2d 177.) An injunction has been defined as follows:

“[A] judicial process, by which a party is required to do a particular thing, or to refrain from doing a particular thing, according to the exigency of the writ, the most common sort of which operate as a restraint upon the party in the exercise of his real or supposed rights.” JFS v. ABMJ (1983), 120 Ill. App. 3d 261, 262, citing Wangelin v. Goe (1869), 50 Ill. 459, 463.

The circuit court’s order of January 28, 1987, can be viewed as nothing less than injunctive in nature. It operated as a restraint upon the Journal in the exercise of its first amendment rights. When the Journal disregarded the order, the circuit court entered a second order banning the Journal from future hearings in the proceedings. The judge stated that the second order was entered as an alternative to contempt proceedings. The order of January 28, 1987, restricting the Journal’s rights, and the second order effectively holding the Journal in contempt of court should be viewed as being subject to interlocutory review. Such was the ruling of the Fourth District under similar factual circumstances in In re M.B. (1985), 137 Ill. App. 3d 992, which the majority chooses to disregard, and the First District in American Re-Insurance Co. v. MGIC Investment Corp. (1979), 73 Ill. App. 3d 316.

The orders of the circuit court went beyond the court’s administrative power to control the proceedings and protect a party before the court. If a danger to the juvenile existed, reasonable means could have been found to protect him without infringing upon the first amendment right of the Journal to publish truthful information that had previously entered the public domain. Oklahoma Publishing Co. v. District Court (1977), 430 U.S. 308, 51 L. Ed. 2d 355, 97 S. Ct. 1045.

In Oklahoma Publishing, the Supreme Court considered the constitutionality of an order enjoining members;of the news media from publishing the name of an 11-year-old child, despite the fact that the name had already been publicly disclosed. The Supreme Court held that the order was unconstitutional and that the first and fourteenth amendments would not permit a State court to prohibit the publication of information obtained at court proceedings which were open to the public. The court cited as precedent its decision in Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 43 L. Ed. 2d 328, 95 S. Ct. 1029, where it held that a State could not impose sanctions on the publication of a name released to the public in official court records. Finally, the court noted that there was no evidence that the news media obtained the information unlawfully, or even without the State’s implicit approval, where the name of the juvenile was publicly revealed in connection with the prosecution of the crime.

Similarly, in the instant case, the Journal did not learn the name of the juvenile unlawfully. Rather, it learned the name through the course of investigative reporting and through conversations with the chief of police, city council members, and the juvenile’s probation officer. The name of the juvenile was used as if it was common knowledge. Thus, the name was publicly revealed in connection with the prosecution of the crime and the newspaper should not be banned from further publishing it. Yet, the circuit court prohibited the Journal from publishing the name and exercised contempt-like power when the Journal did publish it. The action of the court was not only injunctive in nature, but unconstitutional as well.