People v. Kelly

• Court: Appellate Court of Illinois
• Decided: December 11, 2009
• Docket: 1-08-1728 Rel
• Status: Published

Opinion

SIXTH DIVISION December 11, 2009

No. 1-08-1728

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) Nos. 02 CR 14952 ) ROBERT KELLY, ) Honorable ) Vincent Gaughan, Defendant, ) Judge Presiding. ) _________________________________________) ) CHICAGO SUN-TIMES, INC., TRIBUNE CO. ) and ASSOCIATED PRESS, ) ) Intervenors-Appellants. ) )

JUSTICE ROBERT E. GORDON delivered the opinion of the court:

In this appeal, members of the media claim that their first amendment right

to freedom of speech was violated. Specifically, they claim that a trial court erred:

(1) when it sealed certain pretrial proceedings and records during the criminal No. 1-08-1728

prosecution of Robert Kelly; and (2) when it issued a “Decorum Order” which

restrained the speech of the attorneys and witnesses in the R. Kelly case. The

sealed proceedings concerned mainly two topics: proposed questions for potential

jurors, and a motion by the state requesting the trial court for permission to

introduce evidence of other criminal acts by the defendant.

On April 22, 2008, the Chicago Sun-Times, Inc. (Sun-Times), the Tribune

Company (Tribune) and the Associated Press (collectively, the media intervenors)1

filed an “emergency motion” (1) to intervene in the criminal case against

defendant Kelly; (2) to obtain access to certain closed pretrial proceedings and

records; and (3) to vacate the Decorum Order. While the trial court granted their

petition to intervene, it denied their motion for access to the closed proceedings

and documents, and their motion to vacate the “Decorum Order.”

The subject of this appeal is the trial court’s order, entered May 16, 2008,

which denied their motion. The appellants are the media intervenors; and the

appellee is the State of Illinois. Robert Kelly, the defendant in the underlying

1 Although the emergency motion was filed only by the Sun-Times and the Tribune, the Associated Press must have joined the motion shortly after its filing, since an order dated April 24, 2008, refers to the motion as the motion of all three media intervenors.

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criminal case, was acquitted; and he is not a party to this appeal. Kelly was

described in an affidavit by a Tribune reporter as “a prominent entertainer,” and

this case was described as one that had “been the subject of news coverage for

years.”

For the following reasons, we affirm the trial court’s orders. We find: (1)

that a petition to intervene was the appropriate vehicle to seek access to sealed

court proceedings and records; (2) that appellate jurisdiction under Supreme Court

Rule 307 was proper to review the trial court’s order denying access; (3) that the

public interest exception to the mootness doctrine allows us to hear this appeal; (4)

that we review de novo the question of whether a presumption of access applies to

this type of proceeding, and we review for an abuse of discretion the trial court’s

balancing of competing interests and determining the appropriate parameters of

closure; (5) that the presumption of access did not apply to the pretrial proceedings

and documents at issue here; (6) that, even if the presumption did apply, the trial

court did not abuse its discretion in denying access; and (7) that the trial court did

not abuse its discretion by entering the Decorum Order.

BACKGROUND

In June 2002, the State of Illinois charged Robert Kelly with multiple counts

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of child pornography. At the heart of these charges were the State’s allegations

that defendant Kelly made a videotape of sexual acts between himself and a minor.

After close to six years of continuances, Kelly’s jury trial was scheduled to begin

on May 9, 2008. The jury trial resulted in an acquittal, when the jury found Kelly

not guilty of the charges.

(1) Procedural History

The relevant procedural history is summarized below. The closed

proceedings, the decorum order, and the order appealed from are described in

greater detail, with each topic described in its own section. In addition, there is

also a section describing the documents missing from the record.

With the jury selection set to commence on May 9, 2008, the State filed, on

April 1, a pretrial motion to allow evidence of other crimes, which was filed under

seal. On April 11, 15 and 21, the trial court held pretrial hearings, which it closed

to the public. On April 22, the media intervenors filed their motion (1) to

intervene, (2) to obtain access to the three previously closed hearings, (3) to obtain

access to the hearing scheduled for April 25, and (4) to vacate the Decorum Order.

When the parties appeared in court on April 24, both the State and the prosecution

requested time to respond to the intervenors’ motion.

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On April 24, the trial court granted the intervenors’ motion to intervene but

denied their motion for the immediate release of the transcripts of the previously

closed hearings and for the opening of the April 25 hearing. The April 24 order

also set the matter for hearing on May 8. In open court on April 24, the trial court

stated:

“If I articulated and made a factual basis out of

why the hearings were sealed, then I would be telling

you everything.

So I have to use conclusions, and one of those

would be it’s [sic] for the protection of the selection of

the jury. But I am not making any decisions on that right

now[,] on the motion.

***

Again, I can’t disclose the factual basis without

disclosing the whole thing. So it actually is because of

the proximity of jury selection, which is in about two

weeks, and the chance that this might deprive Mr. Kelly

of a fair trial. Those are the generalized basis. Again, I

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can’t make the factual basis.”

Before the motion was scheduled to be heard before the trial court, the

media intervenors filed, on April 28, an emergency motion with the Illinois

Supreme Court, entitled “Emergency Motion for Supervisory Order Pursuant to

Supreme Court Rule 383 To Unseal Court Records and Proceedings and Related

Relief.”

On May 2, defendant Kelly filed his “Objections” to the intervenors’ motion

before our supreme court. Defendant Kelly objected both to unsealing the

transcripts of the closed proceedings and to vacating the decorum order, on the

ground that these actions would endanger his right to a fair trial. Defendant Kelly

stated that the case had received “world-wide publicity,” and in support, he quoted

a front-page, Chicago Tribune article that stated: “More than 330 reporters have

expressed interest in covering the case with news agencies from as far away as

France, Japan, Australia and England indicating they’ll attend.” The article, which

was attached as an exhibit to defendant Kelly’s objections, stated that a

“[c]elebrity-obsessed culture will turn its eyes toward the R. Kelly trial next

month” and that “hordes of reporters and cameramen [are] expected to descend”

on the courthouse. Defendant Kelly also observed that the trial court was striking

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“a balance,” since it had previously denied the motions of both the defense and the

prosecution to prohibit the public from viewing the videotape in open court.

On May 5, 2008, the Illinois Supreme Court denied the intervenors’ motion

for a supervisory order. After the supreme court’s denial, defendant Kelly

renewed his objections before the trial court. On May 6, the State filed its

response, opposing the intervenors’ motion. On May 16, the trial court issued its

order denying the intervenors’ motion to obtain access and to vacate the Decorum

Order. On June 10, the media intervenors filed a notice of appeal which appealed

the May 16 order, but which did not seek an expedited appeal. This appeal

followed.

(2) Documents Missing from the Appellate Record

This appeal concerns: four closed pretrial hearings, with the first closed

hearing occurring on April 11; and certain documents, which were filed under seal

and were sought in the intervenors’ April 22 motion.

The record on appeal is missing certain documents. First, it does not

contain the documents, filed under seal, that were sought by the intervenors,

namely, the State’s other-crimes motion, its supplemental answer, or the witness

lists. Second, it does not contain the transcript of the public portion of the April 11

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hearing.2 In their brief to this court, the media intervenors stated that, on April

11, “the public was ejected from the courtroom.” Presumably, if the public was

ejected, then there had already occurred a public portion, for which we are lacking

a transcript. The April 11 transcript in the record states that it is an “excerpt.”

The missing transcript may be significant, if the trial court made findings in open

court, prior to closing the first proceeding.

During oral argument before the appellate court on October 29, 2009, the

appellate court asked the assistant State’s Attorney to list the times that the trial

court made findings concerning closure. The assistant State’s Attorney began:

“On the 11th, and it is in the record, the April 11,

2008 record at [page] 5. Prior to the April 11th closure,

the court stated, in open court, the motion filed under

seal was a matter that could affect the jury pool.”3

2 The state’s appellate brief states that proceedings were held “in open court” on April 22, when the media intervenors filed their motion to intervene and to obtain access. The record on appeal does not contain the transcript from the open April 22 proceeding. 3 Earlier in the oral argument, the assistant state’s attorney had described the trial court’s statement, as follows: “The court made a statement in that [April 11] hearing that this is closed due to the impact that it could have on the jury.”

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In the above quote, when the assistant State’s Attorney referred to a page

number in the “record.” She was not referring to the appellate record. In the

ensuing colloquy, the assistant State’s Attorney described a statement made by the

trial court on April 15 that appeared “at the record at 8”; that statement appeared

not on page 8 of the appellate record, but on page 8 of the individual transcript for

the April 15th proceeding. Similarly, when she described a statement made by the

trial court on April 24 that appeared “in the record at 10,” that statement appeared

not on page 10 of the appellate record, but on page 10 of the individual transcript

for the April 24th proceeding. Presumably then, when the assistant State’s

Attorney observed, in the above quote, that the trial court made a finding in “the

April 11, 2008 record at 5,” she was referring to page 5 of the transcript of the

open portion of the April 11th proceeding. She made this reference without

apparently realizing that this transcript had not been provided to us in the appellate

record.

(3)The Closed Proceedings and Records

As noted, the trial court closed four pretrial hearings, on: (1) April 11, 2008;

(2) April 15, 2008; (3) April 21, 2008; and (4) April 25, 2008. The first three

hearings were comprised of argument from and discussions with counsel. Only

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the last hearing, on April 25, involved a witness. As noted, the media intervenors’

April 22 motion also sought the following documents, which were filed under

seal: (1) the State’s pretrial motion to allow evidence of other crimes, filed April 1,

2008; (2) the State’s supplemental answer to discovery; and (3) both parties’

witness lists. 4

At the beginning of the excerpt of the April 11 proceeding contained in the

appellate record, the attorneys for the prosecution and the defense stated their

names for the record, and the trial court observed that the only other persons

present were “my deputies and my clerk and our court reporter and my staff

attorneys.”

The closed portion of the proceeding on April 11 concerned two topics: (1)

the State’s motion to use evidence of other crimes; and (2) proposed questions for

potential jurors. The trial court heard argument from counsel concerning the

State’s motion, and discussed jury questionnaires with counsel. As noted, neither

4 In their appellate brief, the media intervenors alleged that the lawyers for the state and the defendant met with the trial judge in chambers and without a court reporter, on several dates prior to trial. Defendant Kelly stated in his “Objections” that these meetings were merely “case management conferences” and that, with the exception of the proceedings now at issue, all “arguments, rulings and hearings on pretrial motions have occurred in open court.”

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side called witnesses or introduced evidence.

During the April 11 proceeding, the prosecutor argued that, since the

defendant had placed at issue the identity of the male depicted on the videotape,

the

State sought to introduce evidence of other uncharged acts. As part of her

argument, the prosecutor stated the names of the individuals involved in the

uncharged acts, including the name of the minor. She explained why their identity

was important to proving the charged offense, and she discussed the similarities

between the charged and uncharged acts. The prosecutor also observed that, as

part of the State’s motion, the State had submitted a chart detailing the similarities,

to show that the acts were “distinct and unusual.” Defense counsel also discussed

the acts, arguing that they were not similar. After listening to counsel’s argument,

the trial court held that the uncharged acts was admissible.

Prior to closing the courtroom on April 15, the trial court and counsel

discussed which attorneys would be representing the parties at trial. Still in open

court, the trial court observed that “today was up for additional questions for the

jury questionnaire” and for a motion that was filed under seal. In open court, the

trial court explained that the motion was filed under seal “because of the proximity

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of Mr. Kelly’s case going to trial.” Then the trial court stated that there would be

a short recess to “clear the court and do the proceedings that have to be sealed.”

The closed hearing on April 15 concerned primarily: questionnaires for the

potential jurors; and the State’s reiteration of its proffer of other crimes evidence,

and the defense’s anticipated response to it. Specifically, counsel and the trial

court discussed the defense’s anticipated cross-examination concerning a witness’

attempt to obtain money from the defendant in exchange for a videotape. The

State also proffered that this same witness met with an attorney, that she did not

tell the attorney about sex acts with the minor victim, and that she then received

the rest of the money that had been promised to her.

The closed April 21 hearing concerned primarily the jury questionnaires.

The defense proposed seven questions, such as whether the jurors had any

“feelings” which might affect their judgement in this case, concerning “lesbian

sexual activity,” or “three-way sex, man and two women,” or sex acts by a minor

“with another woman and a man while being videotaped,” or adultery, or urination

on another person.

At the closed April 25 hearing, the trial court heard from a witness, who was

depicted on the videotape, but who was not the minor. Before hearing from the

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witness, defense counsel stated his reasons for seeking to close the hearing. He

stated, in part, “we have a concern that we are on the eve of jury selection and

given the nature of the allegations which involve alleged sex with a minor as well

as a three-way sexual contact that if that type of information were leaked [to the

public] before the trial it would poison the jury pool”; and that voir dire questions

alone would not “protect” the defendant. Defense counsel also remarked that the

front page of that day’s Chicago Tribune contained photographs of the defendant,

the trial judge and other participants in the case.

On April 25, the trial court also elaborated on his reasons for closure:

“Part of my findings are the same as what [defense

counsel] and the State has agreed with is that the motion

for proof of other crimes elicited testimony concerning

the participation in different sex acts with a minor. So

that is one of the primary reasons why these proceedings

have been sealed. The others are that you all are aware

that certainly this trial is under great public scrutiny. In

fact, the Tribune this morning, and usually I don’t read

the papers but someone pointed it out to me, Miss Stacy

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St. Clair reported that over 330 news organizations have

shown interest in getting credentials. So certainly this is

a very high profile file. And as we speak there is

somebody from an agency, which I will pronounce it,

Agence France-Presse, a Miss Mira Oberman, who

provides press service for overseas media. Also as

brought out there have been inquiries from Australia,

France, Japan and there was another country I forgot

which one. So this has drawn international as well as

national scrutiny.

With the proximity of the jury selection happening

also within two weeks it is important that the jury pool

not be contaminated or prejudiced unduly by this type of

publicity. Those are the reasons why these hearings are

sealed.”

Like the prior hearings, the April 25 hearing also concerned the jury

questionnaires; but unlike the prior hearings, this hearing also concerned

testimony by a witness. The purpose of taking the testimony was to establish that

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one of defendant’s attorneys did not have a potential conflict of interest. The trial

court asked the witness a few questions that established that she had received

money “in exchange for an item,” but that the attorney was not involved. The trial

court then ruled that there was no conflict of interest. There was no cross-

examination, and only the trial court examined the witness.

(4) The Decorum Order

On June 22, 2007, the trial court issued an order that the trial court and the

parties to this case refer to as the “Decorum Order.” The order was never

challenged by the parties to the underlying criminal action, namely, the State and

defendant Kelly, or by the witnesses, to whom the order also applied. The order

was contested only by the motion of the media intervenors, filed almost a year

later, on April 22, 2008.

The Decorum Order stated that it applied only to: (1) the attorneys

“connected [with] this case as Prosecutor or Defense Counsel,” “any other

attorney working in or with the offices of either of them,” and “their agents, staff,

or experts,” (2) “any judicial officer or court employee,” and “any law

enforcement employee of any agency involved in this case,” and (3) “any persons

subpoenaed or expected to testify[] [in] this matter.”

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The Decorum Order prohibited these individuals from doing any of the

following acts:

“(1) Release or authorize the release for public

dissemination of any purported extrajudicial statement of

either the defendant or witnesses relating to this case;

(2) Release or authorize the release of any

documents, exhibits, photographs or any evidence, the

admissibility of which may have to be determined by the

Court;

(3) Make any statement for public dissemination

as to the existence or possible existence of any

Court,

(4) Express outside of court an opinion or make

any comment of public dissemination as to the weight,

value, or effect of any evidence as tending to establish

guilt or innocence;

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(5) [M]ake any statement outside of court as to the

content, nature, substance or effect of any statements or

testimony that have been given or is expected to be given

in any proceeding relating to this matter;

(6) Issue any statement as to the identity of any

prospective witness, or the witness’s probable testimony,

or the effect thereof;

(7) Make any out-of-court statement as to the

nature, source or effect of any purported evidence

alleged to have been accumulated as a result of the

investigation of this matter.”

(5) The Order Appealed From

The media intervenors appealed from the trial court’s order, entered on May

16, 2008. The May 16 order is an eight-page and detailed order, denying the

media intervenor’s motion to unseal the transcripts of the closed proceedings, and

to vacate the Decorum Order. Previously, on April 24, 2008, the trial court had

granted the media intervenors’s petition to intervene, but had denied their motion

for the immediate release of the transcripts of the previously closed hearings and

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for the opening of the April 25 hearing. The April 24 order, however, was not

named in the intervenors’ notice of appeal.

Since the May 16 order was issued after the four hearings had already been

held, the focus was on whether the transcripts of the closed hearing should remain

sealed. In the May 16 order, the trial court stated that, prior to the start of hearings

on the State’s other-crimes motion, “detailed and specific findings were made on

the record demonstrating that closure is essential to preserve higher values and is

narrowly tailored to serve that interest.” The trial court observed that, although it

sealed these findings, they were available to a reviewing court. The trial court

stated that “the justification for closure will once again be articulated here,

exclusive of any facts which necessitate the closure at issue.”

The May 16 order stated that “closure is necessary to protect the minor

victim and the defendant’s right to a fair trial by ensuring the jury will not be

exposed to inadmissible or highly prejudicial evidence.” The trial court found that

the concern over widespread publicity in the case at bar was not speculative,

considering that (1) “over 330 reporters, both here and abroad, *** have applied

for media credentials to cover the trial”; and (2) “the case has been on the front

page of both major Chicago area publications numerous times in the last three

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weeks.” In a footnote, the trial court stated that the major publications to which it

referred were the Chicago Sun-Times and the Chicago Tribune, who were also

media intervenors.

The order stated that the sealed transcripts would be made available to the

media intervenors after either trial or sentencing. Since the trial ended in an

acquittal, the transcripts were made available after the trial.

In the May 16 order, the trial court considered various alternatives to sealing

the transcripts, such as: (1) redacting then; (2) using pseudonyms; (3) questioning

potential jurors during voir dire concerning pretrial publicity; and (4) changing the

venue of the trial. However, the order explained why these alternative would not

work. First, the trial court, who was thoroughly familiar with the contents of the

transcripts, found that “redaction or use of pseudonyms would result in “a

collection of unintelligible nonsense or a concession of the information justifying

closure.” Second, the trial court found that neither voir dire nor a venue change

could protect the defendant’s right to a fair trial, in light of (1) “the highly

prejudicial” details of the crime contained in the transcripts, and (2) the “onslaught

of pre-trial publicity” generated by the “celebrity of the defendant.” The trial

court found that, if the information was released, changing the trial’s location

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would do nothing to reduce the resulting prejudice, since this was a case of

“nationwide interest.” In addition, “the likelihood of extensive jury

contamination” was even greater, since the trial was scheduled to begin soon.

Based on these findings, the trial court found that the various possible alternatives

would not work, due to the specific facts and circumstances of this case.

In the May 16 order, the trial court also refused to vacate the Decorum

Order, entered nearly a year before. The trial court stated that the order was an

exact “replica” of the order entered in a high-profile criminal case against celebrity

Michael Jackson (People v. Jackson, No. 11336003 (2004)), and of an order that

the trial court had used in a 2007 case (People v. Luna, 02 CR 15430 (2007)). The

media interevenors had claimed that the order constituted a prior restraint upon

freedom of speech. The trial court held, first, that the order “does not place any

restraints whatsoever upon the press,” since it “governs the conduct of the

attorneys and parties only.” The trial court observed that neither the defendant nor

the State had asked for the order to be lifted. The trial court found, second, that

even if the order was a prior restraint, it was needed to protect the defendant’s

right to a fair trial, in light of the “torrent of media interest in this case.”

On June 10, 2008, the media intervenors filed a notice of interlocutory

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appeal, appealing from the trial court’s May 16 order. This appeal followed.

ANALYSIS

This appeal raises a number of preliminary issues: (1) the appropriate suit or

motion to be brought by the press in order to obtain access to closed court

proceedings; (2) the propriety of appellate jurisdiction under Supreme Court Rule

307 (188 Ill. 2d R. 307) to review a trial court’s order denying access; (3) the

possible mootness of a denial of access, where the criminal trial at issue has

already concluded, and access has since been granted; and (4) the appropriate

standard of review for a trial court’s order denying access to the press.

After deciding these preliminary issues, we may proceed to the question of

whether the trial court’s order violated the public’s right of access by closing

certain proceedings and sealing certain records. The public has three different

claims to a right of access. People v. Pelo, 384 Ill. App. 3d 776, 780-81 (2008).

First, there is a constitutional right of access, grounded both in the first

amendment to the federal constitution and in the first article of our State

constitution. U.S. Const., amend. I (“Congress shall make no law *** abridging

the freedom *** of the press”); Ill. Const. art. I, § 4 (“All persons may speak, write

and publish freely ***”); Pelo, 384 Ill. App. 3d at 780. Second, in addition to the

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constitutional right of access, there is a “parallel common-law right of access,”

recognized by the Illinois Supreme Court. Pelo, 384 Ill. App. 3d at 780, citing

Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 230 (2000). Third, there is a

statutory right of access, created by our State legislature, as part of the Illinois

Clerks of Courts Act. 705 ILCS 105/16 (6) (West 2008); Pelo, 384 Ill. App. 3d at

781.

Finally, we must decide whether the trial court’s decorum order constituted

an unconstitutional prior restraint on free speech.

(1) Procedure and (2) Jurisdiction

We find both (1) that a petition to intervene was the appropriate vehicle to

seek access to sealed court proceedings and records; and (2) that appellate

jurisdiction under Supreme Court Rule 307 was proper to review the trial court’s

order denying access.

In the case at bar, for the purpose of obtaining access to sealed court records

and proceedings, appellants Sun-Times and Tribune filed an “emergency motion”

to intervene in the criminal case against defendant Kelly

Instead of filing a motion to intervene in the criminal case, appellants could

have tried filing a separate civil action, seeking a declaratory judgment. 735 ILCS

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5/2-701 (West 2008) (providing for actions seeking a declaratory judgment). In

Pelo, the appellate court observed that some jurisdictions find intervention to be

the proper vehicle for the press to assert a right of access in a criminal case, while

other jurisdictions find that a separate civil action is more appropriate. Pelo, 384

Ill. App. 3d at 779-80, citing State v. Cianci, 496 A.2d 139, 146 (R.I. 1985)

(holding that intervention “has no place in a criminal case,” while also conceding

that other jurisdictions find intervention to be the proper vehicle for the press to

assert a right of access). The Pelo court stated: “Illinois seems to be one of those

jurisdictions that takes interlocutory appeals concerning right-of-access cases.”

Pelo, 384 Ill. App. 3d at 780. In support of its “seems to be” statement, the Pelo

court cited one case: People v. LaGrone, 361 Ill. App. 3d 532 (2005). In LaGrone,

the trial court granted the media intervenors’ petition to intervene in the criminal

case, but denied their petition for access. LaGrone, 361 Ill. App. 3d at 533-34. On

review, the appellate court reversed the trial court’s denial of access, but without

discussing whether intervention was the proper vehicle. LaGrone, 361 Ill. App. 3d

at 538. Neither LaGrone nor Pelo is dispositive on the issue of whether

intervention is proper, since LaGrone never reached the issue and Pelo’s “seems to

be” statement is far from definitive.

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While the parties before us did not brief the issue of whether intervention is

proper, they did brief the issue of whether an interlocutory appeal was proper

pursuant to Supreme Court Rule 307. 188 Ill. 2d R. 307. The two issues are

intertwined. If we are going to permit intervention, then we need to also permit

some path to review. It cannot be that important first amendment issues are

decided by trial courts and then insulated from further review. That makes no

sense. LaGrone, 361 Ill. App. 3d at 538 (appellate court reversed where trial

court failed to meet “the rigorous standard” required by the first amendment to

close a proceeding); A.P., 354 Ill. App. 3d at 1003 (appellate court reversed where

“the trial court abused its discretion by sealing the entire court files”); Johnson,

232 Ill. App. 3d at 1075 (appellate court reversed where “trial court abused its

discretion by denying access”).

We find that, in Illinois, intervention is the proper vehicle. First, we were

not able to locate, after diligent searching, any Illinois case in which a media

plaintiff employed a declaratory action to obtain access to sealed court records or

proceedings. Second, we did find cases which seemed to indicate that a

declaratory action was not the correct vehicle. Pelo, 384 Ill. App. 3d at 780

(Illinois “seems to” prefer intervention over declaratory actions). C.f. Matchett v.

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Chicago Bar Association, 125 Ill. App. 3d 1004, 1009 (1984) (declaratory action

could not be used to force the Chicago Bar Association to publish its reasons for

not recommending a judicial candidate). Third, we did locate a number of Illinois

cases where a media party, faced with the same issue, was allowed to intervene in

both criminal and civil cases. Pelo, 384 Ill. App. 3d at 777 (affirming the trial

court, which had “granted [the newspaper’s] petition to intervene but denied

access” to the transcript at issue in a criminal case); LaGrone, 361 Ill. App. 3d at

533 (reversing the trial court, which had denied access to the media intervenor in a

criminal case); Coy v. Washington County Hospital District, 372 Ill. App. 3d

1077, 1077-79 (2007) (affirming the trial court which had granted the newspaper’s

petition to intervene in a civil case, but denied access to the patient names at

issue); A.P. v. M.E.E., 354 Ill. App. 3d 989, 990-91 (2004) (reversing the trial

court, which had denied access to the media intervenor in a civil case); In re

Marriage of Johnson, 232 Ill. App. 3d 1068 (1992) (reversing the trial court, which

had denied access to the media intervenors in a civil case).

Last, but not least, intervention has advantages from a policy standpoint,

over a declaratory action. With intervention, the judge in the criminal trial, who is

already familiar with the reasons favoring or disfavoring disclosure, is the judge

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who decides the disclosure issue. Pelo, 384 Ill. App. 3d at 778, 784 (affirming the

trial court’s reasons for denying access). By contrast, with a declaratory action, a

civil judge would have to start from scratch, learning the pros and cons of

disclosure in a criminal case. Cianci, 496 A.2d at 146 n.5 (the civil judge would

review “the case anew”). With intervention, the criminal defendant, who has an

interest in the disclosure issue, is already before the court, with counsel. By

contrast, with a declaratory action, the criminal defendant may be forced to retain

counsel to intervene in the civil suit. With intervention, a media party may

intervene after a criminal defendant has filed a motion to close proceedings.

LaGrone, 363 Ill. App. 3d at 533 (media parties were allowed to intervene after

defendant filed a motion to file proffers of evidence under seal). With a

declaratory action, you run the risk of inconsistent rulings, when a criminal judge

grants the defendant’s motion to close proceedings, but a subsequent civil judge

rules that the first amendment rights of the press require their opening. Cianci,

496 A.2d at 146 n.5 (a civil court in a declaratory action may “question the case

anew since it would not be controlled by the doctrine of the law of the case”).5

5 In Cianci, the Supreme Court of Rhode Island held that a declaratory action was superior to intervention, because the media’s rights could be “fully adjudicated” in a declaratory action “without interfering with or interrupting the

26 No. 1-08-1728

With intervention, the judge in the criminal trial may change or amend his or her

interlocutory disclosure orders, as the needs of the case and the evidence unfolds.

Pelo, 384 Ill. App. 3d at 778 (the trial court noted that its ruling on access could

change as the evidence unfolded). By contrast, in a separate declaratory action,

the declaratory judgement is a final order, rather than an interlocutory order, and

thus it cannot adapt to the unfolding and possibly shifting needs of a criminal case.

Thus, based on case law and policy considerations, we conclude that intervention

is the proper vehicle in the State of Illinois.

If intervention is the proper vehicle, then there has to be some contemplated

path to review. As noted above, the first amendment questions at issue are too

important to insulate them from review. The question then becomes whether the

path to review is through Supreme Court Rule 307(a) or some other rule or statute.

188 Ill. 2d R. 307. Neither party has suggested another rule or statute that would

be a better path to review. The media intervenors before us argue that Rule 307

review is proper; and the State argues that it is not, without offering an alternative.

criminal proceeding in any way.” Cianci, 496 A.2d at 146. However, a civil court’s order of closure or disclosure will directly interfere with the criminal trial.

27 No. 1-08-1728

Supreme Court Rule 307(a) provides, in relevant part:

“(a) 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;”

188 Ill. 2d R. 307(a)(1).

Supreme Court Rule 307(a) (1) permits an interlocutory appeal from a trial

court order that denies or grants injunctive relief. 188 Ill. 2d R. 307(a)(1). Stating

that this rule should be construed “broadly,” our supreme court held that “an

interlocutory order circumscribing the publication of information is reviewable as

an interlocutory injunctive order, pursuant to Rule 307(a)(1).” Skolnick, 191 Ill.

2d at 221; In re A Minor, 127 Ill. 2d 247, 263 (1989) (“interlocutory restraints

upon publication of information are reviewable as interlocutory injunctive orders

under Rule 307(a)(1)”).

Building on the Skolnick holding, the appellate court in A.P. held that a trial

court’s order denying access to a media intervenor is “in the nature of injunctive

relief, and, therefore, this court possesses the necessary jurisdiction to entertain

[an intervenor’s] interlocutory appeal,” pursuant to Rule 307(a)(1). A.P., 354 Ill.

28 No. 1-08-1728

App. 3d at 990-91, citing 188 Ill. 2d R. 307(a)(1) and Skolnick, 191 Ill. 2d at 221-

22. Although in other cases we did not identify the basis for our appellate

jurisdiction, we have regularly heard appeals from media intervenors seeking

access. Coy, 372 Ill. App. 3d at 1079; LaGrone, 361 Ill. App. 3d at 534 (“[t]his

interlocutory appeal followed” the trial court’s denial of the media intervenor’s

petition for access); Johnson, 232 Ill. App. 3d at 1069. Presumably, the source of

appellate jurisdiction in these other cases was also Supreme Court Rule 307(a).

188 Ill. 2d R. 307(a)(1). The parties do not suggest otherwise. We see no reason

to abandon this long line of appellate cases, which is well-grounded in supreme

court jurisprudence.

In response, the State relies on this court’s decision in People v. Reynolds,

274 Ill. App. 3d 696 (1995). In Reynolds, the media intervenor (coincidentally the

Chicago Tribune, as in the case at bar) claimed that this court had appellate

jurisdiction, not under Rule 307 which is at issue before this court, but under

Rules 301 and 304. Reynolds, 274 Ill. App. 3d at 697-98, citing 134 Ill. 2d 301,

304 and 307.6 After ruling that appellate jurisdiction did not exist under Rules

6 Even though Rules 301, 304 and 307 were all amended effective February 1, 1994 (155 Ill. 2d R.301, 304 and 307) and even though the petitions for access in Reynolds were all filed after that date, the Reynolds opinion cited an earlier

29 No. 1-08-1728

301or 304, the Reynolds court proceeded sua sponte to consider the possibility of

jurisdiction under Rule 307. Reynolds, 274 Ill. App. 3d at 698. The Reynolds

court noted that normally it would have ordered the parties to brief this question,

but that since the media intervenor had moved to expedite, it would answer the

question for this particular case, without the benefit of briefs. Reynolds, 274 Ill.

App. 3d at 698.

In Reynolds, the trial court’s order denied access to sidebar conferences

during trial, but directed the release of all sidebar transcripts at the conclusion of

the trial. Reynolds, 274 Ill. App. 3d at 696-98. The Reynolds court concluded

that it lacked jurisdiction under Rule 307 to review the trial court’s order, because

the order was “ministerial and administrative,” rather than injunctive as Rule 307

required. Reynolds, 274 Ill. App. 3d at 698-99.

The Reynolds court held that the order was administrative rather than

injunctive, for two reasons. First, the trial court’s order did not enjoin the

newspaper from publishing information that it already possessed, but instead

restricted the newspaper’s access to court transcripts. Reynolds, 274 Ill. App. 3d

at 699. Second, since the order only “temporarily” limited that access, it was not a

version of the rules. 134 Ill. 2d R. 301, 304 and 307.

30 No. 1-08-1728

permanent denial of access but was an administrative order providing “when”

access would occur. Reynolds, 274 Ill. App. 3d at 698, 700. The denial was

temporary, since access was denied only until the conclusion of the trial.

Reynolds, 274 Ill. App. 3d at 698. In the case at bar, the State argues that

Reynolds is similar because, first, the media intervenors were not enjoined from

publishing information that they already possessed; and, second, they received, at

the end of the trial, the transcripts of the closed proceedings.

What the State overlooks is that, in Reynolds, the Chicago Tribune did not

even have the opportunity to assert its own Rule 307 arguments, since its own

motion to expedite impeded its own ability to be heard. Reynolds, 274 Ill. App. 3d

at 698. The jurisdictional holding in Reynolds is thus limited to the unique set of

facts of that case, which involved the specific demands created by the media’s

own request for an expedited appeal.

Since the time of the Reynolds decision, this court has held, first, that a

denial of access is injunctive in nature for purposes of Rule 307 jurisdiction.

A.P., 354 Ill. App. 3d at 900-91. In addition, we have regularly permitted appeals

from media intervenors seeking access, which were presumably made pursuant to

Rule 307. Coy, 372 Ill. App. 3d at 1079; LaGrone, 361 Ill. App. 3d at 534;

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Johnson, 232 Ill. App. 3d at 1069. Second, this court has found that even a

temporary denial of access to court proceedings is not merely administrative, but

instead raises important first amendment concerns. In LaGrone, for example, the

trial court ordered the sealing of a pretrial hearing transcript, just until the

completion of jury selection. LaGrone, 361 Ill. App. 3d at 534 (“ ‘upon selection

of the jury, the transcript of this hearing will be released’ ”). C.f. In re A Minor,

127 Ill. 2d at 260 (even “temporary” restraining orders are reviewable under Rule

307(a)(1)). The length of denial in LaGrone was even shorter than the length of

denial in Reynolds: in LaGrone, it was only to the end of jury selection, while in

contrast, in Reynolds, it was until the end of the entire trial. LaGrone, 361 Ill.

App. 3d at 534; Reynolds, 274 Ill. App. 3d at 698. In LaGrone, we held that even

this short denial of access implicated important first amendment concerns.

LaGrone, 361 Ill. App. 3d at 537 (holding that the trial court failed to make the

specific factual findings needed to justify even a short denial). We did not

consider this order to be merely ministerial, and we permitted the interlocutory

appeal. LaGrone, 361 Ill. App. 3d at 534. See also Kemner v. Monsanto

Company, 112 Ill. 2d 223, 235 (1986) (our supreme court heard a Rule 307(a)(1)

appeal from a trial court’s temporary gag order, which prohibited defendant from

32 No. 1-08-1728

talking to the press only “ ‘until judgment is entered’ ”). For these reasons, we do

not find Reynolds dispositive of the jurisdiction issue before us.

In addition, the State attempts to distinguish A.P and Skolnick on the

grounds that they involved civil cases, while this appeal involves a criminal case.

A.P., 354 Ill. App. 3d at 990; Skolnick, 191 Ill. 2d at 216. However, the State fails

to explain why the need to review closure orders would be less compelling in a

criminal case than in a civil case – if anything, the need to review would be more

compelling in a criminal case. This court has previously stressed the importance

of public access to criminal trials as a way of ensuring their fairness. E.g.

LaGrone, 361 Ill. App. 3d at 535 (“opening the [criminal] process to neutral

observers is an important means of assuring the fairness of criminal proceedings’).

In sum, on the procedural and jurisdictional issues, we find that a petition to

intervene is the appropriate vehicle in Illinois for the media to seek access to

closed court proceedings; that there must be some mechanism to review the

important first amendment concerns raised by these petitions; that a line of

appellate cases appears to have found Rule 307 to be the appropriate vehicle for

review; and that we see no reason to depart from this line of precedent.

33 No. 1-08-1728

(3) Mootness

We find that the issues in this appeal are not moot, because they fall within

the public interest exception to the mootness doctrine.

(a) Parties’ Arguments

The State argues that the issues before this court are moot, since the media

intervenors now have the transcripts to the previously closed hearings, and since

the effect of the Decorum Order ceased when the underlying criminal suit

concluded. Both sides acknowledge that, after the jury acquitted defendant

Kelley, the trial court released the transcripts of the four closed hearings. The

State claims that both the release of the transcripts and the conclusion of the

underlying criminal trial make this appeal moot and require us to dismiss it.

In response, the media intervenors argue that mootness is not a bar to this

appeal, because the facts of this case fall within two separate exceptions to the

mootness doctrine: (1) the “public interest” exception; and (2) the “capable of

repetition yet evading review” exception. In re A Minor, 127 Ill. 2d at 257-58.

In reply, the State claims that the public interest exception does not apply,

because the exact issues will not recur. The State argues that the exact issues will

not recur, since: (1) defendant Kelly is not subject to retrial; (2) the media

34 No. 1-08-1728

intervenors do not dispute the applicable legal rules, but only the way in which the

applicable rules were applied to the facts of this case; and (3) the facts of this case

were unusual since they included a media celebrity, alleged sexual activity, and a

minor. The State claims that the “evading review” exception also does not apply,

where the media intervenors failed to seek an expedited appeal.

(b) The Public Interest Exception

As a general rule, Illinois appellate courts will not review moot cases. In re

Barbara H., 183 Ill. 2d 482, 491 (1998). A case on appeal becomes moot, when

“ ‘the issues involved in the trial court no longer exist,’ ” and it is “impossible for

the appellate court to grant the complaining party effectual relief.” In re A Minor,

127 Ill. 3d at 255; In re Barbara H., 183 Ill. 2d at 490-91 (consideration of the

issues will not affect the result and “a decision on the merits cannot result in

appropriate relief to the prevailing party”). The goal of the rule is for courts to

avoid hearing cases where the parties no longer have “ ‘a personal stake in the

outcome.’ ” In re A Minor, 127 Ill. 3d at 255, quoting People ex. rel. Black v.

Duke, 96 Ill. 2d 273, 276-77 (1983), quoting Baker v. Carr, 369 U.S. 186, 204, 7

L.Ed. 2d 663, 678, 82 S.Ct. 691, 703 (1962). Without a personal stake, parties

lack the incentive to “sharpen[]” their arguments or to illustrate the issues with the

35 No. 1-08-1728

“concrete” facts of their problems; and reviewing courts depend on the parties’

sharp and concrete presentation for the fullest “illumination” of the issues. In re A

Minor, 127 Ill. 3d at 255, quoting Black, 96 Ill. 2d at 276-77, quoting Baker, 369

U.S. at 204, 7 L.Ed. 2d at 678, 82 S.Ct. at 703.

As with almost every rule, there are exceptions. Two exceptions to the

mootness doctrine include (1) the “ ‘capable of repetition yet evading review’ ”

exception; and (2) the public interest exception. In re A Minor, 127 Ill. 3d at 257-

58.

To receive the benefit of the “ ‘capable of repetition yet evading review’ ”

exception, the complainant must “demonstrate that (1) the challenged action is in

its duration too short to be fully litigated prior to its cessation and (2) there is a

reasonable expectation that the same complaining party would be subjected to the

same action again.” In re Barbara H., 183 Ill. 2d at 491, quoting without quotation

marks, In re A Minor, 127 Ill. 2d at 258. Since we find, as discussed below, that

the public interest exception applies, we do not consider the “‘ capable of

repetition yet evading review’ ”exception.

The criteria for the public interest exception are well established and not in

dispute. “ ‘In order to fall into the public interest exception (1) the question must

36 No. 1-08-1728

be of a public nature; (2) an authoritative determination of the question must be

desirable for the purpose of guiding public officers; and (3) the question must be

likely to recur.’ ” Filliung v. Adams, 387 Ill. App. 3d 40, 56 (2008), quoting

Brown v. Duncan, 361 Ill. App. 3d 125, 134 (2005). Applying these criteria to

the facts before us, we find that the public interest exception allows us to hear this

appeal.

First, the question is of a public nature, since it involves when the substance

of pretrial hearings and their supporting records should be made public.

Reviewing this first criterion, our supreme court held that a newspaper’s “interest

in the publication of newsworthy information” is an issue of “surpassing public

concern.” In re A Minor, 127 Ill. 2d at 257. The appellate court in LaGrone was

faced with a case – like we are now – in which the trial court denied media access

to a pretrial hearing, and the State claimed on appeal that the question was moot.

LaGrone, 361 Ill. App. 3d at 533-34. The LaGrone court held that the question

was one of “great public interest,” even though the press in that case was denied

access to the transcript only until the close of jury selection. LaGrone, 361 Ill.

App. 3d at 534-35. If the denial of access for such a short duration qualified as “a

question of great public interest,” then so does a denial of access that lasted until

37 No. 1-08-1728

the conclusion of trial. 7 Thus, we find that the first criterion is satisfied.

Second, the determination of this question will guide trial judges, who are

public officers. The State claims that our determination will not guide trial

judges, since the media intervenors are not seeking new rules or standards, but

rather are challenging only the way in which well-established rules and standards

were applied to the facts of this case.

It has never been the case that appellants must seek new rules or standards

in order to utilize the public interest exception, and the State does not cite a case to

that effect. Illustrating the proper way to apply existing rules to a particular fact

pattern also provides guidance to trial judges who must apply those rules, not in a

vacuum or to some idealized set of examples, but to ever-changing fact patterns. In

LaGrone, for example, the appellate court found that the public interest exception

applied, even though the media intervenors were not seeking new rules or

standards, but were simply challenging the way in which the trial court had

applied those rules and standards to the facts of that case. LaGrone, 361 Ill. App.

3d at 532 (“[w]e agree with the intervenors that the trial court’s specific findings

7 In addition, the State in the case at bar concedes in its brief to this court that “it is true that press access to criminal proceedings is generally a question of a public nature.”

38 No. 1-08-1728

do not constitute a sufficient basis for closure” under existing rules and standards).

As the appellate court did in LaGrone, we find that guidance about the proper

application of existing rules does satisfy the second criterion.

In addition, neither LaGrone, nor any of the other cases cited by the parties,

involved as famous a criminal defendant as the Kelly case did. Illinois trial courts

will benefit from appellate guidance concerning the way to handle celebrity cases.

In the case at bar, the trial court turned for guidance to the California criminal case

against the now deceased celebrity, Michael Jackson. People v. Jackson, No.

1133603 (Superior Ct. Cal. 2004). It is time to provide Illinois trial courts with

guidance based on Illinois cases and rules. For all these reasons, we find the

second criterion satisfied.

Although the State claims that none of the public interest criteria are met,

their arguments target the third criterion: the likely recurrence of the question at

issue. The State argues that the question will not recur since (1) defendant Kelly

is not subject to retrial; and (2) the facts of this case were unusual since they

included a media celebrity and alleged sexual activity with a minor.

If defendant Kelly was subject to retrial, then the question would not be

moot, because presumably the trial court would still have not released the

39 No. 1-08-1728

transcripts and the bar to access would be a continuing one. However, appellate

courts have found that the public interest exception applies, without requiring a

retrial to be on the horizon. LaGrone, 361 Ill. App. 3d at 535. C.f. In re A Minor,

127 Ill. 2d at 258-59 (“we do not agree that appellant must demonstrate that” the

law will “be applied in precisely the same circumstances or for precisely the same

reasons, for the “capable of repetition, yet evading review” exception to apply).

Thus, the lack of a potential retrial in the case at bar does not bar the application of

the public interest exception.

In addition, while the facts of every case are unique in certain ways,

illustrating the proper way to apply the law to those facts still provides guidance to

trial judges. The case at bar required the trial court, in a high profile case, to

balance the public’s right to know, against both the defendant’s right to a fair trial

and the court’s desire to protect an alleged victim of then minor age.

Unfortunately, this type of balancing is likely to recur in future cases. See

LaGrone, 361 Ill. App. 3d at 535 (“balancing the right of the defendant to a fair

trial against the public right of access” in a case where defendant boyfriend was

accused of drowning his girlfriend’s three young children); Pelo, 384 Ill. App. 3d

at 777 (balancing rights in a case against “an accused stalker who allegedly

40 No. 1-08-1728

committed sexual assault against several different victims”); In re A Minor, 127

Ill. 2d at 251 (balancing rights where a minor was “arrested in connection with a

fatal shooting”). See also Kemner v. Monsanto Co., 112 Ill. 2d 223, 244 (1986)

(observing that the trial court had to “achieve the delicate balance between the

desirability of free discussion and the necessity for fair adjudication, free from

interruption of its processes”). Thus, we find the third criteria is also satisfied.

For the foregoing reasons, we hold that the criteria for the public interest

exception are satisfied, and thus the mootness doctrine is not a bar to our review of

this appeal.

(4) Standard of Review

Our last preliminary issue is to determine the appropriate standard of review

for a trial court’s denial of access to the press.

The media intervenors claim that de novo is the appropriate standard of

review for the trial court’s ultimate decision to deny access. They cite People v.

Rivera, 227 Ill. 2d 1 (2007), which applied a bifurcated standard of review to a

constitutional issue, though not a first amendment one. Rivera, 227 Ill. 2d at 4-5,

11 (issue concerned whether defense counsel had used peremptory challenges to

41 No. 1-08-1728

strike women from the jury). Under the Rivera standard, a reviewing court will

not disturb a trial court’s factual findings unless they are against the manifest

weight of the evidence. Rivera, 227 Ill. 2d at 11. However, under the Rivera

standard, the reviewing court will consider de novo the trial court’s “ultimate”

decision, made by applying the law to the trial court’s factual findings. Rivera,

227 Ill. 2d at 12.

The media intervenors ask us to reject the abuse of discretion standard

utilized by the appellate court in A.P. . In A.P., this court utilized an abuse of

discretion standard to review whether a trial court had properly denied a motion by

a media intervenor (Chicago Tribune) to unseal court records. A.P., 354 Ill. App.

3d at 994. The A.P. court held that “abuse of discretion” was the appropriate

standard, “regardless of whether a purported right of access is based on the

common law or the first amendment.” A.P., 354 Ill. App. 3d at 994. The A.P.

case concerned an asset division agreement made by the well-known Pritzker

family which affected its minor children. A.P., 354 Ill. App. 3d at 990. Thus, the

A.P. case, like the case at bar, involved: a media intervenor, sealed court records,

a celebrity name, and minors. In the case at bar, the media intervenors do not

attempt to distinguish A.P., except to say that it is a civil case, while the case at

42 No. 1-08-1728

bar is criminal. However, they offer no explanation why this difference leads to a

different standard of review.

The State agrees with the media intervenors that the Rivera standard of

review applies to the first amendment claim. Rivera, 227 Ill. 2d at 11. However,

the State claims that the common law and statutory claims require a lesser standard

of review, namely abuse of discretion; and the State cites in support In re Johnson,

232 Ill. App. 3d 1068 (1992).

However, in Johnson, the appellate court found that the abuse of discretion

standard applied “[u]nder either a common law or first amendment analysis.”

Johnson, 232 Ill. App. 3d at 1075. In Johnson, the appellate court held that a trial

court had abused its discretion, when the trial court had denied a motion by a

media intervenor for access to sealed court transcripts and records. Johnson, 232

Ill. App. 3d at 1075. Like the case at bar, the Johnson case involved: a media

intervenor; sealed court transcripts and records; a denial of access by the trial

court; and claims under both the first amendment and the common law, as well as

under the Clerk of the Courts Act. Johnson, 232 Ill. App. at 1071-73.

In essence, the State claims that we should follow the part of the Johnson

holding that applied an “abuse of discretion” standard to common law claims, but

43 No. 1-08-1728

that we should reject the second part of that same holding that applied the same

standard to first amendment claims. The State offers no rationale for splitting the

holding in half, except to say that we should do it that way

In sum, the parties appear to agree that the Rivera standard of review applies

to the first amendment claim, but differ concerning the appropriate standard for

the common law and statutory claims. Neither party offers us a basis to reject this

court’s prior holding in A.P. ; or the Illinois Supreme Court’s similar holding in

Skolnick, upon which A.P. is based; or either part of the Johnson holding. A.P.,

354 Ill. App. 3d at 994, citing Skolnick, 191 Ill. 2d at 231-33; Johnson, 232 Ill.

App. 3d at 1075 (“[u]nder either a common law or first amendment analysis”)

(b) Case Law

Both parties appear to agree that de novo review is required for the

“ultimate” decision of the first amendment claim, and cite in support a case that

has nothing whatsoever to do with the first amendment. Rivera, 227 Ill. 2d at 11.

The question for us, however, is not what standard of review we would

devise if we were writing on a clean slate; the question for us is what standard of

review does our precedent require us to follow. In several prior cases, both the

Illinois Supreme and Appellate Courts have applied an abuse of discretion

44 No. 1-08-1728

standard to first amendment claims, as well as to statutory and common law

claims, seeking disclosure or access. For example, in Skolnick, our supreme court

stated that “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.” Skolnick, 191 Ill. 2d at 231. Our supreme

court made clear that this standard applied to both the first amendment and

common law claims before it, when it held: “regardless of whether we proceed

under a common law or a first amendment analysis, we reach the same conclusion:

the trial court abused its discretion.” Skolnick, 191 Ill. 2d at 233.8 Accord A.P.,

354 Ill. App. 3d at 994 (“An order denying a motion to unseal a court file or

document is reviewed for an abuse of discretion, regardless of whether a purported

right of access is based on the common law or the first amendment.”); Johnson,

232 Ill. App. 3d at 1075 (“Under either a common law or first amendment

analysis, we find the trial court abused its discretion by denying access to the court

8 In a footnote, our supreme court observed in Skolnick that at least one commentator had stated that the abuse of discretion standard applied to common law claims, but not to first amendment claims. However, our supreme court apparently rejected this position when it held, under both a first amendment and common law analysis, that the trial court “abused its discretion.” Skolnick, 191 Ill. 2d at 232 n.2, 233, citing D. Lee, Sealed Documents, Closed Hearings, and the Public’s Right to Know, 81 B.J. 456, 457 (1993).

45 No. 1-08-1728

records and transcripts in the two proceedings.”). See also Coy v. Washington

County Hospital District, 372 Ill. App. 3d at 1080 (“An order denying a motion to

unseal a court file or document is reviewed for an abuse of discretion.”). C.f.

Zielke v. Wagner, 291 Ill. App. 3d 1037, 1040 (1997) (“Where a protective order

is challenged on appeal as an unconstitutional ‘prior restraint,’ the trial court’s

decision on the matter will not be disturbed on review absent an abuse of

discretion.”).

A distinction between our case and the prior cases is that the prior cases

were civil, while our case is criminal. In criminal cases involving denial of media

access, the reviewing courts decided the first amendment issues without specifying

the standard of review. For example, in Pelo, which is a criminal case, the

appellate court discussed the first amendment right of access in one paragraph, and

then discussed the common law right of access in a separate paragraph. Pelo, 384

Ill. App. 3d at 780-81. In the common law paragraph, the appellate court

identified abuse of discretion as the correct standard of review, but without stating

whether it also applied to the first amendment claim. Pelo, 384 Ill. App. 3d at 780-

81. See also LaGrone, 361 Ill. App. 3d at 537 (holding that “the trial court failed

to make specific factual findings” justifying closure, without stating whether it

46 No. 1-08-1728

was applying a de novo or abuse of discretion standard).

We do not find the civil/criminal distinction to be controlling. In civil cases

as in criminal cases, the parties have a right to a fair trial, guaranteed by the due

process clauses, of the fifth and fourteenth amendments of the United States

constitution, and the press has a right of access. U.S. Const., amend. V (no person

shall “be deprived of life, liberty, or property without due process of law”), U.S.

Const., amend. XIV (no state shall “deprive any person of life, liberty, or property

without due process of law”); Skolnick, 191 Ill. 2d at 231-32 (in this civil case,

our supreme court recognized that the public had a right of access “embodied in

the first amendment”). In criminal cases, the defendant also has a constitutional

right to a public trial. U.S. Const., amend VI (“In all criminal prosecutions, the

accused shall enjoy the right to a *** public trial ***). However, in both criminal

and civil cases, the trial court is charged with the duty of balancing competing

rights and achieving the correct balance. We see no reason to apply an abuse of

discretion to civil cases and then apply a different standard in criminal cases. C.f.

People v. Cooper, 365 Ill. App. 3d 278, 282 (2006) (applied an abuse of discretion

standard to question of whether trial court violated defendant’s sixth amendment

right to a public trial when it excluded certain spectators).

47 No. 1-08-1728

In the case at bar, the trial court had to determine, first, whether the

presumption of public access applied to this particular type of court record or

proceeding. E.g., Pelo, 384 Ill. App. 3d at 783-84 (presumption of access did not

apply to evidence deposition that had not yet been entered into evidence in a

criminal case). This is a purely legal question, and we review purely legal

questions de novo. Willeford v. Toys “R” Us-Delaware, Inc., 385 Ill. App. 3d

265, 272 (2006) (although protective orders are ordinarily reviewed for abuse of

discretion, a de novo standard applied to a preceding, purely legal issue).

However, after the trial court found that the presumption applied, it had to

determine whether the presumption was rebutted by other concerns. Skolnick, 191

Ill. 2d at 232 (“presumption can be rebutted”); Coy, 372 Ill. App. 3d at 1080; A.P.,

354 Ill App. 3d at 995; Johnson, 232 Ill. App. 3d at 1075. In order to close the

court proceeding, the trial court was required to make specific findings that

rebutted the presumption and thus justified the closure. Skolnick, 191 Ill. 2d at 233

(“trial court neglected to state why it ordered” sealing of document); LaGrone,

361 Ill. App. 3d at 537 (“trial court failed to make specific factual findings”); A.P.,

354 Ill. App. 3d at 996 (trial court sealed court files “without making specific

findings”); Johnson, 232 Ill. App. 3d at 1075 (trial court’s order must contain

48 No. 1-08-1728

“specific factual findings” in order to justify denying access). To the extent that

these findings involved findings of fact, we owe deference, as an appellate court

traditionally owes to a trial court’s factual findings. Rivera, 227 Ill. 2d at 11;

People v. Johnson, 385 Ill. App. 3d 585, 590 (2008).

In deciding to deny access to certain proceedings and records for a certain

length of time, the trial court had to craft a careful and delicate balance among

competing interests. LaGrone, 361 Ill. App. 3d at 535 (“balancing the right of the

defendant to a fair trial against the public right of access to criminal proceedings”)

Coy, 372 Ill. App. 3d at 1082 (“balancing this compelling interest [of victim

privacy] against the public’s right of access” in a civil case); Waller, 467 U.S. at

44, 104 S.Ct. at 2215, 92 L.Ed. 2d at 38 (“the balance of interests must be struck

with special care”). The trial court had “to take into consideration all facts and

circumstances unique to that case” and decide the appropriate parameters of

closure, namely for what proceedings and for how long. Skolnick, 191 Ill. 2d at

231; A.P., 354 Ill. App. 3d at 1002 (trial court erred by sealing the entire court file;

case was remanded so trial court could determine which document required

sealing, since “the determination regarding sealing a particular document *** is

properly left to the trial court in the first instance”). To this balancing of interests

49 No. 1-08-1728

and determination of parameters, we apply an abuse of discretion standard, as

required by the supreme court and appellate court cases that we have discussed

above.

(5) Presumption of Access

Next, we must determine whether the presumption of access applied to the

court proceedings and records at issue. If the presumption did not apply, our

analysis ends there. If the presumption did apply, then we must examine the

propriety of the trial court’s denial of access.

The constitutional presumption applies to court proceedings and records (1)

which have been historically open to the public; and (2) which have a purpose and

function that would be furthered by disclosure. Skolnick, 191 Ill. 2d at 232; Pelo,

384 Ill. App. 3d 780; Press-Enterprise Co. v. Superior Court of California, 478

U.S. 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed. 2d 1, 10 (1986) (Press-Enterprise II)

(“whether the place and process have historically been open to the press and

general public” and “whether public access plays a significant positive role in the

functioning of the particular process in question”). Although the presumptions

under common law and state statutory law have different sources, our supreme

court has held that they are “parallel” to the first amendment presumption and thus

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has analyzed the three presumptions together. Skolnick, 191 Ill. 2d at 231-33. We

will do the same.

In the case at bar, the trial court closed four pretrial hearings, on (1) April

11, 2008; (2) April 15, 2008; (3) April 21, 2008; and (4) April 25, 2008. In

addition, the following documents were filed under seal: (1) the State’s pretrial

motion to allow evidence of other crimes; (2) the State’s supplemental answer to

discovery; and (3) both parties’ witness lists.

This issue, of the presumption’s applicability to pretrial criminal

proceedings, has arguably arisen, in two prior Illinois Appellate Court cases: (1)

Pelo and (2) LaGrone. Compare Pelo, 384 Ill. App. 3d at 783-84 (presumption of

access did not apply to pretrial deposition that had not yet been entered into

evidence in the criminal trial), with LaGrone, 361 Ill. App. 3d at 536 (presumption

applied to pretrial hearing to determine admissibility of certain statements in a

criminal trial). Compare Northwest Newspapers v. People, 323 Ill. App. 3d 236,

242 (2001) (presumption did not apply to court proceedings authorizing a wiretap)

with Waller v. Georgia, 467 U.S. 39, 47, 104 S.Ct. 2210, 2216, 81 L.Ed. 2d 31, 39

(1984) (presumption of a public trial under 6th amendment applied to a hearing to

determine admissibility of wiretap evidence). See also A.P., 354 Ill. App. 3d at

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998 (presumption applied to a civil proceeding concerning a family’s asset

distribution); In re Johnson, 232 Ill. App. 3d at 1074 (presumption applied to

certain documents but not others in a civil case).

First, the Pelo case concerned a criminal defendant who was accused of

stalking and sexually assaulting several victims. Pelo, 384 Ill. App. 3d at 777.

Since a potential witness was scheduled to leave the country for military service,

the parties deposed him at the courthouse. Pelo, 384 Ill. App. 3d at 777. A

newspaper, which had been reporting about the case, filed a petition to intervene

and to gain access to the videotape of the deposition. Pelo, 384 Ill. App. 3d at

777. The appellate court held that no presumption attached under the first

amendment, the common law or the applicable Illinois statute (705 ILCS

105/16(6) (West 2006)). Pelo, 384 Ill. App. 3d at 780-81, 783-84. No

presumption of access attached until, and if, the videotape was introduced into

evidence and thus became part of the judicial record. Pelo, 384 Ill. App. 3d at

782-83.

Second, the LaGrone case concerned a boyfriend accused of murder when

his girlfriend’s three children drowned, after her vehicle sank into a lake.

LaGrone, 361 Ill. App. 3d at 533. The defendant moved to bar certain hearsay

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statements of one of the murder victims, and to bar certain evidence concerning

his “character attributes”; and to close the hearing on these two motions.

LaGrone, 361 Ill. App. 3d at 533. The Associated Press and two newspapers

petitioned to intervene and to obtain access to the hearing. LaGrone, 361 Ill. App.

3d at 533. Although the trial court directed the closure of the hearing, it ruled that,

“ ‘upon selection of the jury, the transcript of this hearing will be released.’ ”

LaGrone, 361 Ill. App. 3d at 533. In LaGrone, the appellate court never

considered whether the presumption applied. We have no way of knowing if this

issue was conceded by the parties. Skipping over the question of whether the

presumption applied and jumping to the question of whether the trial court

appropriately balanced the presumption against other concerns, the appellate court

held that the trial court failed to make the specific findings needed to rebut the

presumption. LaGrone, 361 Ill. App. 3d at 537. As a result, the LaGrone case

provides little guidance to us in determining whether the presumption applies.

The United States Supreme Court’s opinion in Waller in instructive,

because it also concerned a pretrial criminal proceeding. Although Waller

concerned the defendant’s sixth amendment right to a public trial, the United

States Supreme Court held that the same analysis applied. Waller, 467 U.S. at 47,

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104 S.Ct. at 2216, 81 L.Ed. 2d at 39; Press-Enterprise II, 478 U.S. at 7, 106 S.Ct.

at 2739, 92 L.Ed. 2d at 9. Thus, whether a court is determining the propriety of

closure under either the first or the sixth amendments, the analysis is the same.

In Waller, the United States Supreme Court held that the presumption

attached to a hearing to determine the admissibility of wiretap evidence. Waller,

467 U.S. at 43, 104 S.Ct. at 2214, 81 L.Ed. 2d at 36. The State had moved to close

the hearing, on the ground that it would involve persons who were indicted but not

yet on trial. Waller, 467 U.S. at 42, 104 S.Ct. at 2213, 81 L.Ed. 2d at 35-36. Over

the defendant’s objection, the trial court had closed the hearing, which lasted 7

days. Waller, 467 U.S. at 42, 104 S.Ct. at 2213, 81 L.Ed. 2d at 36; see also Press-

Enterprise II, 478 U.S. at 12, 106 S.Ct. at 2742, 92 L.Ed. 2d at 12 (presumption

applied to preliminary hearing that lasted 41days, including both fact and

scientific witnesses, who were subject to vigorous cross-examination). The

Supreme Court held that the presumption applied to a suppression hearing,

reasoning that, first, in many cases, a suppression hearing will be, in effect, the

only trial if the defendant subsequently pleads guilty pursuant to a plea bargain;

second, that a suppression hearing often resembles a bench trial, with testimony by

witnesses, arguments by counsel, and determinations by the trial court; and third,

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that the need for a public hearing is “particularly strong” when the issue is

suppression pursuant to the fourth amendment, since the public has “a strong

interest in exposing substantial allegations of police conduct to the salutary effects

of public scrutiny.” Waller, 467 U.S. at 47, 104 S.Ct. at 2215-16, 81 L.Ed.2d at

39.

None of the United States Supreme Court’s reasons apply here. First, in

the case at bar, the defendant did not plead guilty and a full trial was held.

Second, the hearings at issue bore absolutely no resemblance to the proceeding in

Waller. In contrast to the Waller proceeding which resembled a full-scale bench

trial, the hearings at issue concerned primarily argument by counsel, with a few

questions asked by the trial court itself, to one witness, on a very limited issue.

Waller, 467 U.S. at 47, 104 S.Ct. at 2215-16, 81 L.Ed.2d at 39; see also Press-

Enterprise II, 478 U.S. at 7 and 12, 106 S.Ct. at 2740 and 2742, 92 L.Ed. 2d at 9

and 12 (presumption of access applied to a California preliminary hearing since it

“functions much like a full-scale trial”). Third, in the case at bar, the hearings did

not concern allegations of police misconduct, which carry a “particularly strong”

need for public scrutiny. Waller, 467 U.S. at 47, 104 S.Ct. At 2216, 81 L.Ed.2d at

55 No. 1-08-1728

Applying Pelo and Waller to the proceedings and records before us, we find

that the presumption did not attach to the hearings, to the State’s motion

concerning potential evidence, to the State’s discovery, or to the parties’ witness

lists. 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. Pelo, 384

Ill. App. 3d at 782-83. As already discussed, the hearings at issue bore no

resemblance to the hearing in Waller, where the presumption of access applied.

Waller, 467 U.S. at 43, 104 S.Ct. at 2214, 81 L.Ed. 2d at 36.

In addition, we find that the subject matter of these proceedings are not ones

that have been historically open to the public or which have a purpose and

function that would be furthered by disclosure. Skolnick, 191 Ill. 2d at 232; Pelo,

384 Ill. App. 3d 780; Press-Enterprise II, 478 U.S. at 8, 106 S.Ct. at 2740, 92

L.Ed. 2d at 10. The proceedings at issue here concerned primarily: (1)

questionnaires for potential jurors; and (2) the State’s other crimes evidence.

First, the media intervenors have not cited a case for the proposition that

juror questionnaires have historically been made public, prior to their use. The

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questioning and selection of jurors has historically been open to the public. Press-

Enterprise v. Superior Court of California (Press-Enterprise I), 464 U.S. 501, 505,

104 S.Ct. 819, 821, 78 L.Ed. 2d 629, 635 (1984) (presumption of access applies to

voir dire questioning and selection of jurors). However, we have not been

presented with a case that the presumption applies to counsel’s argument

concerning what questions those jurors should be asked. C.f. Richmond

Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.23, 100 S.Ct. 2814, 2839, 65

L.Ed. 2d 973, 1004 (1980) (Brennan, J., concurring) (“when engaging in

interchanges at the bench, the trial judge is not required to allow public or press

intrusion upon the huddle”); Reynolds, 274 Ill. App. 3d at 698 (“a denial of

contemporaneous access to sidebar conferences” is not appealable). Making the

questions public to the very pool from which the jurors are about to drawn would

completely undermine their function, of eliciting honest and unrehearsed

responses from the potential jurors. Press-Enterprise I, 464 U.S. at 511 n.9, 104

S.Ct. at 825 n.9, 78 L.Ed. 2d at 639 n.9 (purpose of questioning potential jurors is

“to ensure a fair impartial jury”).

Second, the States’ other crimes evidence has historically not been

accessible to the public prior to its introduction at trial. Pelo, 384 Ill. App. 3d at

57 No. 1-08-1728

782-83 (potential evidence does not carry a presumption of access until its use in

court). In addition, the function of the hearing could be undermined, if the public

and potential jurors received access to the information, even if the trial court ruled

that the state was not entitled to use it. Although the Unites States Supreme Court

held that this reason did not “automatically” justify refusing access specifically in

the case of fourth amendment suppression hearings or California preliminary

hearings, it found that public access to an admissibility hearing posed “special

risks of unfairness,” where publicity could undermine “the whole purpose of such

a hearing” which is “to screen out unreliable or illegally obtained evidence.”

Press-Enterprise II, 478 U.S. at 14-15, 106 S.Ct. at 2743, 92 L.Ed. 2d at 14.

For these reasons, we find that the presumption of access did not apply.

(6) Trial Court’s Findings

Even if we were to find that the presumption of access applied to these

pretrial proceedings and related documents, we could not find that the trial court

abused its discretion in balancing the competing interests at stake here and crafting

appropriate parameters.

A holding that the presumption applies is only one step in the analysis. The

presumption provides only a qualified right of access. Press-Enterprise II, 478

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U.S. at 9, 106 S.Ct. at 2740, 106 S.Ct. at 10 (“even when a right of access attaches,

it is not absolute;” it is a “qualified” right). That right still must be balanced

against competing interests, such as the defendant’s right to a fair trial and the

privacy right of a victim, who was both an alleged sex crime victim (Press-

Enterprise II, 478 U.S. at 10 n. 2, 106 S.Ct. at 2741 n.2, 106 S.Ct. at 11n.2 (“The

protection of victims of sex crimes from the trauma and embarrassment of public

scrutiny may justify closing certain aspects of a criminal proceeding.”)) and a

minor at the time of the alleged acts. A.P., 354 Ill. App. 3d at 998 (a trial court

must exercise “great care” when faced with a media petition for access in a case

involving a minor).

If the presumption applies to a certain type of proceeding or record, the trial

court cannot close this type of proceeding or record, unless it makes specific

findings demonstrating that closure is essential to preserve higher values and is

narrowly tailored to serve those values. Press-Enterprise II, 478 U.S. at 13-14,

106 S.Ct. at 2743, 92 L.Ed. 2d at 13-14; Press-Enterprise I, 464 U.S. at 510, 104

S.Ct. at 824, 78 L.Ed. 2d at 638. If the value asserted is the defendant’s right to a

fair trial, then the trial court’s findings must demonstrate, first, that there is a

substantial probability that defendant’s trial will be prejudiced by publicity that

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closure will prevent; and second, that reasonable alternatives to closure cannot

adequately protect the defendant’s fair trial rights. Press-Enterprise II, 478 U.S.

at 13-14, 106 S.Ct. at 2743, 92 L.Ed. 2d at 13-14.

(a) Trial Court’s Declaration of Reasons

In the case at bar, the trial court articulated its reasons both in writing and

orally in court. On April 11, in open court, the trial court apparently made a

statement that it was closing the proceeding due to the proximity of jury selection

and the impact that it could have on potential jurors. On April 15, in open court,

the trial court stated that the State’s motion had been filed under seal “because of

the proximity of Mr. Kelly’s case going to trial.” On April 24, in open court, the

trial court explained that it could not “disclose the factual basis” for closure

without compromising the very interest that the closed proceeding sought to

protect. However, the trial court did state that “the generalized basis” was “the

proximity of jury selection, which is in about two weeks, and the chance that this

might deprive Mr. Kelly of a fair trial.” On April 25, during the first closed

hearing after the intervenors’ motion, the trial court elaborated on its reasons,

which it had mentioned briefly, in open court the day before. Then, after the state

and the defendant received time to respond, as they had both requested, the trial

60 No. 1-08-1728

court issued on May 16, 2008, a detailed, public, 8-page order that explained the

need for closure.

The media intervenors criticize the trial court for failing to make a formal

declaration of reasons, prior to closing the first proceeding on April 11. However,

from the record before us, we cannot tell whether the trial court did, or did not,

make findings before closing the proceeding. The record on appeal contains only

an excerpt from the April 11 proceeding. The appellants failed to provide us with

the transcript of the open portion of the April 11 proceeding, which would have

revealed whether the trial court did, or did not, make a formal declaration of

reasons before it cleared the public and the press from the courtroom.

The burden is on the appellant to provide a reviewing court with a complete

record. “It is well settled that any doubts arising from the incompleteness of the

record will be resolved against the appellant, as it is the burden of the appellant to

provide a sufficiently complete record to support at claim of error.” Poliszcuk v.

Winkler, 387 Ill. App. 3d 474, 494 (2008), citing Trusero Corp. v. Ernst & Young

L.L.P., 376 Ill. App. 3d 218, 225 (2007).

Even if the transcript of the open proceedings did not contain a formal

declaration of reasons, we cannot fault the trial judge. It is absurd to expect a trial

61 No. 1-08-1728

court to issue a formal declaration, when the parties did not object to closure,

when the media had not yet filed a motion objecting to closure, and when the

presumption of access did not even apply to that proceeding.

In addition, the reasons for closure are obvious from the record. The

purpose of requiring a trial court to make findings is to facilitate appellate review.

Press-Enterprise II, 478 U.S. at 9-10, 106 S.Ct. at 2741, 92 L.Ed. 2d at 11 (the

findings must be “specific enough that a reviewing court can determine” the

propriety of closure); A.P., 354 Ill. App. 3d at 997 (“[a]dequate findings relieve

the appellate courts of having to grope through the record”). Although we require

a trial court to make specific factual findings to justify closing a proceeding, a

reviewing court may affirm the closure even if the trial court failed to make a

“formal declaration” of findings, if the reasons are both obvious from the record

and sufficient to justify closure. People v. Holveck, 141 Ill. 2d 84, 100 (1990);

A.P., 354 Ill. App. 3d at 997 (after holding that the trial court’s findings were not

sufficiently “specific,” we conducted “[o]ur own review” of the record).

In the case at bar, we find both that the trial court articulated its reasons

orally in court and in writing; and that the reasons are also obvious from the

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(b) Trial Court’s Balancing of Interests

Even if the presumption of access applied, we could not find that the trial

court abused its discretion in balancing the competing interests, in light of the

unique facts and circumstances of this case.

First, this is a case where the defendant asserted his right to a fair trial,

claiming that opening these particular proceedings would violate that right. The

defendant asserted his right in briefs filed both before our supreme court and

before the trial court. Thus, the defendant’s sixth amendment right to a public trial

was not at issue; and if the trial court had opened the proceedings, it would have

had to do so over the defendant’s voiced concerns for his constitutional right to a

fair trial. Waller, 467 U.S. at 47 and 46 n.6, 104 S.Ct. at 2216 and 2216 n.6, 81

L.Ed. 2d at 39 and 39 n.6 (noting the need for defendant to object to closure to

trigger an analysis of his sixth amendment right to a public trial, and the

difficulties of closing a proceeding over defendant’s objection). This court is

confident that if defendant Kelly had been convicted, we would be presented with

an allegation by the defendant that a media-circus atmosphere precluded him from

receiving a fair trial. Waller, 467 U.S. at 46, 104 S.Ct. at 2215, 81 L.Ed. 2d at 38

(“[t]he central aim of a criminal proceeding is to try the accused fairly”); Press-

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Enterprise I, 464 U.S. at 508, 104 S.Ct. at 823, 78 L.Ed. 2d at 637 (“No right ranks

higher than the right of the accused to a fair trial.”)

Second, this is a case described by the media intervenors themselves as

attracting media “hordes.” In a newspaper article attached as an exhibit to

defendant Kelly’s objections, one of the intervenors wrote that “[c]elebrity-

obsessed culture will turn its eyes toward the R. Kelly trial next month” and that

“hordes of reporters and cameramen [are] expected to descend” on the courthouse.

The front-page article also stated: “More than 330 reporters have expressed

interest in covering the case with news agencies from as far away as France, Japan,

Australia and England indicating they’ll attend.” Thus, the intense coverage of

this case by the media is an undisputed fact. Nebraska Press Assn. v. Stuart, 427

U.S. 539, 562, 96 S.Ct. 2791, 2804, 49 L.Ed. 683, 699 (1976) (to assess “the

probable extent of publicity,” the trial court properly relied on “newspapers

demonstrating that the crime had already drawn intensive news coverage”).

Third, this case concerned an alleged sex crime victim, who was also a

minor at the time of the alleged crime. Protecting the privacy interests of both sex

crime victims and minors is a paramount concern of the courts. Concerning sex

crime victims, the United States Supreme Court has stated, “[t]he protection of

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victims of sex crimes from the trauma and embarrassment of public scrutiny may

justify closing certain aspects of a criminal proceeding.” Press-Enterprise II, 478

U.S. at 10 n.2, 106 S.Ct. at 274 n.2, 92 L.Ed. 2d at 11 n.2. Concerning minors,

this court has stated that a trial court must exercise “great care” when faced with a

media petition for access in a case involving a minor. A.P., 354 Ill. App. 3d at

998. The minor is entitled to the court’s “tenderest consideration.” A.P., 354 Ill.

App. 3d at 998. In the case at bar, where the minor was alleged to have

participated in three-way sex, lesbian sex and other various sex acts, the trial court

was justly concerned with protecting the alleged victim, who was a minor at the

time of the acts.

Fourth, the trial court’s attempt to strike a careful balance was evident, not

only from the concerns that it expressed several times in court and in writing on

this subject, but also from the fact that it had previously denied the motions of

both the defense and the prosecution to prohibit the public from viewing the

videotape in open court.

Fifth, the trial court considered several alternatives to closure. A trial court

may resort to closure only if “reasonable alternatives to closure cannot adequately

protect the defendant’s fair trial rights.” Press-Enterprise II, 478 U.S. at 14, 106

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S.Ct. At 2743, 92 L.Ed. 2d at 14; Press-Enterprise I, 464 U.S. at 511, 104 S.Ct. at

825, 78 L.Ed. 2d at 639 (“[a]bsent consideration of alternatives to closure, the trial

court could not constitutionally close the voir dire”). In the case at bar, the trial

court considered the alternatives of: (1) redacting; (2) using a pseudonym; (3)

questioning potential jurors during voir dire; and (4) changing the venue of trial.

Nebraska Press, 427 U.S. at 563-64, 96 S.Ct. at 2805, 49 L.Ed. at 700 (discussing

alternatives such as changing venue and voir dire). Rejecting these alternatives,

the trial court explained that redaction and use of pseudonyms would result in “a

collection of unintelligible nonsense,” and that neither voir dire questions nor a

venue change could protect the defendant’s right to a fair trial, in light of the

highly prejudicial details of the crime, the onslaught of pretrial publicity, the

national and international media attention, and the proximity of jury selection.

Although “voir dire is the preferred method for guarding against the effects of

pretrial publicity,” we have recognized that there are “circumstances” where voir

dire cannot remove the taint. LaGrone, 361 Ill. App. 3d at 537; Press-Enterprise

II, 478 U.S. at 15, 106 S.Ct. at 2743, 92 L.Ed. 2d at 14 (normally, voir dire can

“identify those jurors whose prior knowledge of the case would disable them from

rendering an impartial verdict”).. These “rare cases” occur when there has been

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media saturation, as the trial court found in the case at bar. See LaGrone, 361 Ill.

App. 3d at 537.

In addition, the trial court’s findings in the case at bar share little

resemblance with the findings in LaGrone, which the appellate court found to be

inadequate. In LaGrone, the trial court failed to “provide[] this [appellate] court

with sufficient factual material”; and the trial court made “no mention of

alternatives to closure other than to state that there were none.” LaGrone, 361 Ill.

App. 3d at 536-37. By contrast, in the case at bar, the trial court did provide us

with factual material, such as the fact that over 330 reporters had applied for

media credential to cover this case, and that the case had been on the front page of

both major Chicago newspapers, numerous times in just the prior three weeks.

Also, in the case at bar, the trial court carefully considered several different

alternatives to closure and explained why each one would not work in the unique

circumstances of this case. Thus, the findings in the case at bar share little

resemblance with the inadequate findings in LaGrone.

For these reasons, we find that, even if the presumption applied, the trial

court did not abuse its discretion in striking a balance among the competing

interests of the defendant’s right to a fair trial, the public’s right of access, and the

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privacy right belonging to the victim as both a minor and an alleged sex crime

victim. We make our analysis based on the unique facts of this case,

acknowledging the rights of the media to free speech and to provide a free press.

(7) Decorum Order

The media intervenors challenge the Decorum Order as a prior restraint on

free speech. Kenner v. Monsanto Co., 112 Ill. 2d 223, 246 (1986). Like the

closed proceedings and records, the Decorum Order raises several preliminary

issues that we must decide, before reaching the substantive issue of prior restraint.

(a) Preliminary Issues

The preliminary issues are: (1) standing; (2) jurisdiction under Supreme

Court Rule 307; and (3) the public interest exception to the mootness doctrine.

First, the issue of standing was raised at the oral argument of this appeal,

with respect to the Decorum Order. Standing is not an issue in this case. Standing

is an affirmative defense which, if not raised by the opposing party, is waived.

The Illinois Supreme Court held in Skolnick – which was a right of access case

like the case at bar -- that “standing is an affirmative defense” which is waived if

not raised. Skolnick, 191 Ill. 2d at 237; Raintree Homes, Inc. v. Village of Long

Grove, 209 Ill. 2d 248 (2006) (“Lack of standing is an affirmative matter that may

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be raised as a ground for dismissal under a section 2-619 motion to dismiss.”).

The supreme court in Skolnick seemed to be critical of the appellate court for

raising this issue, seemingly sua sponte. Skolnick, 191 Ill. 2d at 237. In the case

at bar, since the issue was not raised, either at the trial level or in the appellate

briefs, it was waived for purposes of this appeal.

Second, as previously discussed, Supreme Court Rule 307 permits an appeal

from “an interlocutory order of [a trial] court *** refusing to dissolve or modify an

injunction.” 188 Ill. 2d R. 307(a)(1).9 In the case at bar, the Decorum Order

enjoined the parties’ attorneys and witnesses from speaking on certain topics. The

trial court’s May 16 order “refus[ed] to dissolve or modify” this injunction, as

Supreme Court Rule 307 requires. Thus, the language of Rule 307 permits this

appeal. Kenner, 112 Ill. 2d at 235, 242 (an interlocutory appeal from a “ ‘gag’ ”

order was permitted “[p]ursuant to Rule 307"); In re J.S., a Minor, 267 Ill. App. 3d

145, 147 (1994) (a “gag order” directed to the parties and their attorneys “is

properly the subject of an interlocutory appeal under Supreme Court Rule

9 This court has previously defined the term “injunction,” in Rule 307(a), as a prohibitive, equitable remedy that forbids a party from doing some act that he or she is threatening or attempting to commit. Pelo, 384 Ill. App. 3d at 779, quoting Reynolds, 274 Ill. App. 3d at 698, quoting Black’s Law Dictionary, 705 (5th ed. 1983).

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307(a)(1)”). See also Skolnick, 191 Ill. 2d at 221-22 (an order prohibiting a party

from disseminating information was properly reviewed under Rule 307). While

the Decorum Order did not purport to enjoin the media intervenors, the issue of

standing was waived, as discussed above. See also J.S., 267 Ill. App. 3d at 152

(“the gag order constitutes an indirect restraint on the press”); Gentile v. Nevada,

501 U.S. 1030, 1056, 111 S.Ct. 2720, 2735, 115 L.Ed. 2d 889, 911 (1991)

(“[b]ecause attorneys participate in the criminal justice system and are trained in

its complexities, they hold unique qualifications as a source of information about

pending cases *** [upon which] the press and public rely”).

Third, like the closed proceedings and records, the Decorum Order also

qualifies for the public interest exception to the mootness doctrine. As previously

stated, the public interest exception requires: (1) a question of “ ‘a public nature’

”; (2) the need for a determination to “ ‘guide[] public officers’ ”: and (3) a

question that is “ ‘likely to recur’.” Filliung, 387 Ill. App. 3d at 56, quoting

Brown, 361 Ill. App. 3d at 134. First, the Decorum Order involves a question of

“a public nature,” since it concerns when and if certain information will become

“public.” Second and third, there is a need to guide “public officers,” i.e., trial

judges; and the question will certainly recur, since the trial court has used this

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same Decorum Order before and presumably will continue to use it, until and

unless we, the reviewing court, say not to use it again. In its May 16 order, the

trial court observed that “this same decorum order was used during the trial of

People v. Luna, (02CR 15430) *** which was covered extensively by” the same

media intervenors. The Luna case was a case of local notoriety, that involved

murders at a “Brown’s Chicken” restaurant. Thus, not only did this same

Decorum Order recur, it recurred against these same media intervenors. For these

reasons, we find that the public interest exception permits us to hear an appeal,

from the portion of the May 16 order that concerned the Decorum Order.

On the preliminary issues, we find that: (1) any objections to standing were

waived; (2) we have jurisdiction under Supreme Court Rule 307; and (3) the

public interest exception applies. Thus, we may proceed to the substantive issue

concerning the Decorum Order, which is whether it constituted an unconstitutional

prior restraint on freedom of speech.

(b) Prior Restraint

The media intervenors claim that the Decorum Order was an

unconstitutional “prior restraint on [the] freedom of speech” of the parties’

attorneys. Kenner, 112 Ill. 2d at 246 ; J.S., 267 Ill. App. 3d at 148 (“A prior

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restraint is a ‘predetermined judicial prohibition restraining specified expression’

”). Although the Decorum Order was also directed at the parties’ witnesses, the

appellate briefs of the media intervenors discuss only the restraint of the attorneys’

speech. Thus, we will limit our analysis to that topic as well.

The media intervenors claim that this prior restraint was unconstitutional,

because the trial court failed to make findings to justify it. Kenner, 112 Ill. 2d at

244. In Kenner, the Illinois Supreme Court held, before a trial court could restrain

attorneys from making extrajudicial comments “about a pending civil trial,” it had

to make “specific findings” that the attorneys’ “conduct pose[d] a clear and

present danger or a serious and imminent threat to the fairness and integrity of the

trial.” (emphasis in original). Kenner, 112 Ill. 2d at 244. After Kenner, the Illinois

Supreme Court redrafted the rule governing attorney conduct and pretrial

publicity, in order to clarify, in advance, what subjects would pose this “serious

and imminent threat to the fairness of the proceeding.” 188 Ill. 2d R. 3.6.

The trial court’s Decorum Order tracks closely, in substance if not in

language, to Rule 3.6 (b) of the Illinois Rules of Professional Conduct. 188 Ill. 2d

R. 3.6. The Rules of Professional Conduct comprise Article VIII of the Illinois

Supreme Court Rules; and they govern the conduct of attorneys in Illinois courts.

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“Violation of these rules is grounds for discipline.” 134 Ill. 2d Art. 7, Preamble.

Rule 3.6 governs the conduct of Illinois attorneys with respect to “trial

publicity.” 188 Ill. 2d R. 3.6. In the case at bar, none of the parties have argued

that we should find Rule 3.6 unconstitutional.10 In fact, both sides cite Rule 3.6 in

support of their arguments, with the media intervenors arguing that the Decorum

Order was broader than Rule 3.6 and the state arguing that it was not. Thus, to the

extent that the Decorum Order tracks Rule 3.6(b), it is proper.

Subsection (b) of Rule 3.6 provides a list of subjects that should not be

discussed outside of court, because their discussion “would pose a serious and

imminent threat to the fairness” of a jury proceeding. 188 Ill. 2d R. 3.6 (b).

Subsection (b) provides in full:

10 In 1991, the United States Supreme Court found unconstitutional Nevada’s trial publicity rule. Gentile v. State Bar of Nevada, 501 U.S. 1030, 115 L.Ed. 2d 888, 111 S.Ct. 2720 (1991) (plurality opinion). After the Gentile opinion, the American Bar Association and a number of states redrafted their trial publicity rules. Alberto Bernabe-Riefkohl, Silence Is Golden: The New Illinois Rules on Attorney Extrajudicial Speech, 33 Loy. U. Chi. L. J. 323, 326 (2002). The Illinois Supreme Court adopted in 1999 the version, which is quoted below. 188 Ill. 2d R. 3.6. A group of Illinois state prosecutors then challenged the rule in federal court, claiming that it violated the first amendment. Devine v. Robinson, 131 F.Supp. 963, 964 (2001). The federal district court dismissed the suit on the ground that plaintiffs had failed to show “an immediate threat of injury.” Devine, 131 F.Supp. at 968. The federal court also found that Rule 3.6 “may be fairly interpreted in a manner that complies with the First Amendment.” Devine, 131 F.Supp. at 969.

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“(b) There are certain subjects which would pose a

serious and imminent threat to the fairness of a

proceeding, particularly when they refer to a civil matter

triable to a jury or a criminal matter. These subjects

relate to:

(1) the character, credibility, reputation or

criminal record of a party, suspect in a criminal

investigation or witness, or the identity of a witness, or

the expected testimony of a party or witness;

(2) in a criminal case, the possibility of a

plea of guilty to the offense or the existence or contents

of a confession, admission, or statement given by a

defendant or suspect or that person’s failure to make a

statement;

(3) the performance or results of any

examination or test or the failure of a person to submit to

an examination or test, or the nature of physical evidence

expected to be presented;

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(4) any opinion as to the guilt or innocence

of a defendant or suspect in a criminal case;

(5) information that the lawyer knows or

reasonably should know is likely to be inadmissible as

evidence in a trial; or

(6) the fact that a defendant has been

charged with a crime, unless there is included therein a

statement explaining that the charge is merely an

accusation and that the defendant is presumed innocent

unless proven guilty.” 188 Ill. 2d R. 3.6 (b).

Effective January 1, 1010, the Illinois Supreme Court removed subsection

(b) from the text of the rule and moved it, almost verbatim, to the Committee

Comments that accompany the rule. This change has no effect on our analysis

since subsection (b), as quoted above, was in effect in 2008, at the time of the

Kelly trial.

A section by section comparison of the Decorum Order with Rule 3.6(b)

shows their similarity. The first section of the Decorum Order prohibited the

dissemination of any “extrajudicial statement” of the defendant or witnesses. This

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section is similar to Rule 3.6(b)(2) which concerns the dissemination of a

“statement given by a defendant or suspect.” and to Rule 3.6(b)(1) which concerns

the release of a witness’s identity or “expected testimony.”

The second and third sections of the Decorum Order concerned the release

or discussion of exhibits whose admissibility the trial court had yet to determine.

These sections correspond to Rule 3.6(b)(5), which concern “information” that a

lawyer “reasonably should know is likely to be inadmissible as evidence in a

trial.”

The fourth section of the Decorum Order concerned expressing an opinion

about guilt or innocence. This section is similar to Rule 3.6(b)(4) which

concerned “any opinion as to the guilt or innocence of a defendant or suspect in a

criminal case.”

The fifth section of the Decorum Order concerned testimony that was

“given or is expected to be given in any proceeding relating to this matter.” This

section is similar, in part, to Rule 3.6(b)(1), which concerns “the expected

testimony of a party or witness.” This section is different, in that it also concerns

testimony that was already “given” at trial

The sixth section concerns the “identity of any prospective witness, or the

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witness’s probable testimony.” This section is similar to Rule 3.6(b)(1), which

concerns a witness’ “identity” and “expected testimony.”

The seventh section concerns “the nature” of “any purported evidence

alleged to have been accumulated as a result of the investigation of this matter.”

This section is similar to Rule 3.6(b)(3) which concerns “the nature of physical

evidence to be presented.”

Thus, with the exception of testimony already “given” at trial, the substance

of the Decorum Order tracked Rule 3.6. The media intervenors offer no

explanation of how they were prejudiced by a lack of attorney statements

describing trial testimony, which was already given and made public. We cannot

find a first amendment violation based on that section alone. Zielke, 291 Ill. App.

3d at 103-104 (appellants “are unable to articulate any prejudice that they have

suffered” from the alleged prior restraint on speech).

For these reasons, we find that the trial court’s Decorum Order was not an

abuse of discretion by the trial court. J.S., 267 Ill. App. 3d at 148 (“In determining

whether the circuit court abused its discretion” in restraining the speech of parties

and their attorneys, “we will not compare what we might have done with what the

[trial] court did.”); see also Zielke, 291 Ill. App. 3d at 1040 (“[w]here a protective

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order is challenged on appeal as an unconstitutional ‘prior restraint’, the trial

court’s decision on the matter will not be disturbed on review absent an abuse of

discretion.”); Skolnick, 190 Ill. 2d at 224. However, in the future, it may be the

better practice for Illinois trial courts simply to use the exact language of Rule

3.6(b) when drafting a Decorum Order, if they felt one was needed.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s orders. We find: (1)

that a petition to intervene was the appropriate vehicle to seek access to sealed

court proceedings and records; (2) that appellate jurisdiction under Supreme Court

Rule 307 was proper to review the trial court’s order denying access and

confirming the Decorum Order; (3) that the public interest exception to the

mootness doctrine allowed us to hear this appeal; (4) that we review de novo the

question of whether a presumption of access applied to this type of proceeding,

and we review for an abuse of discretion the trial court’s balancing of competing

interests and determining the appropriate parameters of closure; (5) that the

presumption of access did not apply to the pretrial proceedings and documents at

issue here; (6) that, even if the presumption did apply, the trial court did not abuse

its discretion; and (7) that the

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Decorum Order was not an abuse of discretion.

Affirmed.

J. GORDON and McBRIDE, JJ., concur.