dissenting:
In my judgment the majority has incorrectly analyzed the issues before this court. As a result, it has reached the wrong conclusion. Respectfully, I dissent.
To correctly analyze the issues before this court, three questions must be asked: (1) Do the news media have a statutory right to be present during juvenile court proceedings? (2) If the news media have such a right, do courts possess the authority to impose conditions upon the exercise of that right? (3) Do courts have the authority to prohibit the news media from publishing or disclosing information obtained while a media representative was present during juvenile court proceedings? As the following discussion reveals, the answer to each of these questions is clear, requiring that the orders before us on appeal, purporting to impose restrictions upon the news media, be reversed.
I. DO THE NEWS MEDIA HAVE A STATUTORY RIGHT TO BE PRESENT DURING JUVENILE COURT PROCEEDINGS?
The cardinal rule of statutory construction is to ascertain and give meaning to the intention of the legislature. When the text of the statute being construed is clear, ancillary sources need not be consulted. In my judgment, this is such a case. Section 1 — 5(6) of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(6)) states in pertinent part the following: “The general public except for the news media and the victim shall be excluded from any hearing and ***.” The language appearing after the word “and” in no way affects or modifies the language appearing before that word. The 17 words appearing before the word “and” can mean only one thing: the news media and the victim have the right to be present at a hearing conducted under the Act.
I feel a bit awkward in making this emphatic assertion in view of the newspaper’s position in this case, conceding that it does not have “an ‘absolute right’ to be admitted to all juvenile proceedings.” It may be that the newspaper thought this position to be tactically advantageous, but as a matter of law, I believe it to be clearly wrong.
While I am sympathetic to the newspaper’s claim that it has a first amendment right of access to proceedings under the Act, this court need not pass upon that question in this case. Similarly, we need not concern ourselves with a lengthy review of what courts from other States have held regarding media access to their juvenile court proceedings. We need not concern ourselves with these subjects because the policy-making branch of our State government, the Illinois General Assembly, has already determined the policy regarding access of the news media to juvenile court proceedings: the news media may be present if they wish. This legislative judgment is in violation of no State or Federal constitutional principle and, accordingly, it must be obeyed. It is utterly inappropriate for courts which disagree with legislative judgments to frustrate those judgments by construing statutes in a fashion to achieve ends thought desirable by the courts but not intended by the legislature.
By its holding in this case, the majority has usurped legislative prerogatives by judicially amending section 1 — 5(6) of the Act to make it read, in effect, as follows: “The general public except the news media and the victim shall be excluded from any hearing unless the court for good cause shown believes they should be excluded as well.” Had the legislature intended to add the emphasized language, it could have done so.
In re Jones (1970), 46 Ill. 2d 506, 263 N.E.2d 863, is the only decision of the Illinois Supreme Court which construed this section. While the majority concedes that the Jones court reasoned the legislature intended “openness to ‘prevail throughout the [juvenile] proceedings’ ” (205 Ill. App. 3d at 489, quoting Jones, 46 Ill. 2d at 509, 263 N.E.2d at 864), that barren concession hardly conveys the feeling of emphasis on this point found in Jones.
“[I]t is clear that the legislature intended that openness should prevail throughout the proceedings. We are of the opinion that section 1 — 20(6) [the predecessor statute to section 1 — 5(6), which was being construed in Jones] serves the dual function of not only protecting a respondent’s right to a ‘public trial’ but also preserves the right of the general populace to know what is transpiring in its courts.” (Emphasis in original.) Jones, 46 Ill. 2d at 509, 263 N.E.2d at 864.
The only other case in which the supreme court has addressed section 1-20(6) is In re a Minor (1989), 127 Ill. 2d 247; 537 N.E.2d 292, in which the issue before the court was whether a newspaper which learns through ordinary reportorial techniques of the identity of a minor charged in a closed criminal proceeding may be forbidden from reporting that information once it has entered the public domain. (Minor, 127 Ill. 2d at 250, 537 N.E.2d at 293.) The court held the answer to that question was no. (Minor, 127 Ill. 2d at 250-51, 537 N.E.2d at 293.) While Minor did not directly address whether the news media have the right of access to juvenile court proceedings under section 1— 5(6) of the Act, that opinion nonetheless contains an .indication of the supreme court’s view on this subject.
In setting forth the factual circumstances in Minor in which the reporter for a local newspaper learned of the alleged delinquent’s identity from her discussions with police officers and Watseka city council members, the court stated the following:
“The next day, *** the minor was taken before the trial court to be charged in connection with the shooting. Under the mistaken impression that the courtroom was closed to the press, [the reporter] chose not to attend. During and immediately after the hearing, however, she spoke about the case with an Iroquois County juvenile probation officer, who told her what had happened at the hearing and about the minor’s family life. In the course of the conversation the probation officer, like the police chief, freely used the minor’s name.” (Emphasis added.) (Minor, 127 Ill. 2d at 252, 537 N.E.2d at 294.)
The emphasized language from the above quotation is a strong indication that the supreme court believes that the courtroom in which the juvenile proceedings in Minor were taking place was open to the press.
II. DO THE TRIAL COURTS HAVE THE AUTHORITY TO IMPOSE CONDITIONS ON NEWS MEDIA ACCESS TO JUVENILE PROCEEDINGS?
The majority states that “[i]n our view, the language of section 1— 5(6) suggests the legislature intended to give trial courts control over persons admitted to juvenile court hearings.” (205 Ill. App. 3d at 489-90.) In support of this conclusion, the majority cites section 1 — 8(C) of the Act, which concerns the confidentiality of court records. (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 8(C).) In my judgment, this section not only fails to support the majority opinion, but in fact undermines it.
Section 1 — 8(C) of the Act demonstrates that the legislature is fully capable of distinguishing between the general public on the one hand and the news media on the other in according special rights to the news media which the general public does not possess. That section provides that juvenile court records “shall not be made available to the general public” but may be inspected by the news media upon general or special order of the court.
Citing section 1 — 8(C) of the Act, the majority states the following: “Allowing the press unfettered access to court hearings where confidential records are generated would render this provision meaningless.” (205 Ill. App. 3d at 490.) Section 2 — 22(2) of the Act states that dispositional reports prepared for juvenile delinquency hearings — the equivalent of presentence reports used in sentencing hearings for adults — shall not be disclosed “without the express approval of the court pursuant to an in camera hearing.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 22(2).) Section 5 — 3—4(b)(7) of the Unified Code of Corrections (Code) similarly provides that presentence reports shall be opened for inspection to noncourt personnel “only as ordered by the court.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—4(b)(7).) A comparison of section 2 — 22(2) of the Act with section 5 — 3—4(b)(7) of the Code thus reveals that in sentencing hearings regarding both juvenile delinquents and adult criminal defendants, the presentence reports are not to be disclosed, absent a court order. Yet I am confident the majority would not hold that the news media may be denied access or given only restricted access to sentencing hearings in felony cases based upon a claim that “[allowing the press unfettered access to [sentencing] hearings where confidential records are generated would render [the confidentiality statute] meaningless.”
The legislature is perfectly capable of saying what it means regarding the sensitive subjects of protection of juveniles and news media access to juvenile court proceedings. Thus, when the legislature in section 1 — 5(6) of the Act provides for the right of the news media to be present and does not provide for any authority in the trial courts to limit or restrict news media access in any way, this legislative judgment should be respected. The only way to avoid concluding that the legislature meant what it said is somehow to decide that the legislature overlooked the concerns expressed by the majority as to the evils that would befall the juvenile court system if news media access were unlimited. Such a claim is simply untenable in view of the great detail set forth in section 1 — 8 of the Act regarding the confidentiality and accessibility of juvenile court records.
The trial court’s claim that it needs “advance application” by the media whenever the media wished to attend juvenile court proceedings in order to “prevent any delay in the proceedings” is without merit. This claim is in no way connected to the legitimate needs of trial judges to have the discretion to determine the best way to conduct juvenile proceedings. In the hundreds of appeals to this court from proceedings under the Act, no problem has ever been shown in having persons seeking admission to such proceedings identify themselves so that the trial judge might determine whether their presence was appropriate. This record is devoid of any basis to conclude that establishing a procedure to identify such persons is necessary or desirable, much less the requirement of a formal written application for admission. By suggesting such a procedure, the majority is proposing a cure for no known disease.
III. DO COURTS HAVE THE AUTHORITY TO PROHIBIT THE NEWS MEDIA FROM PUBLISHING OR DISCLOSING INFORMATION OBTAINED WHILE A NEWS MEDIA REPRESENTATIVE WAS PRESENT DURING JUVENILE COURT PROCEEDINGS?
In my judgment, this third question is the easiest of the three to answer, and I do so with an emphatic, “No.”
The last sentence of section 1 — 5(6) of the Act states the following: “However, the court may, for the minor’s protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor’s identity.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(6).) In this provision, the legislature has authorized the imposition of restrictions on persons present during proceedings under the Act, such as attorneys or the members of a juvenile’s family, but in doing so, the legislature must be presumed to have intended not to act in violation of the United States Constitution. In my judgment, to hold this provision applicable to the news media would be to violate the first amendment; therefore, this statute must be construed so that the courts are not given authority to impose restrictions upon publication or disclosure by the news media of matters learned by having news media representatives present in the courtroom.
“[T]he first amendment strips the State of the power to proscribe the publication of information which has already been lawfully revealed and which has been obtained by lawful means.” (Minor, 127 Ill. 2d at 268, 537 N.E.2d at 301.)
As discussed in part I of this dissent, the news media have the right to be present during juvenile court proceedings; accordingly, anything learned through their presence has, by definition, been lawfully revealed to them and “obtained by lawful means.” Any court orders purporting to limit the use of information obtained through media presence would be an improper effort to impose a prior restraint upon the freedom of the press and would be in violation of the United States Constitution.
For the reasons stated, the orders on appeal should be reversed in their entirety.