Filed 8/13/08 NO. 4-08-0136
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) McLean County JEFFREY PELO, ) Nos. 06CF581 Defendant-Appellee, ) 06CF679 and ) THE PANTAGRAPH and EDITH BRADY LUNNY, ) Honorable Intervenors-Appellants. ) Robert Freitag, ) Judge Presiding. _________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Interveners-appellants, The Pantagraph newspaper and
its reporter Edith Brady Lunny (Pantagraph), filed a petition to
intervene and gain access to an evidence deposition in a criminal
case, People v. Pelo (Nos. 06-CF-581 and 06-CF-679 (Cir. Ct.
McLean Co.)). On November 19, 2007, before the trial date in
Jeffrey Pelo's case had been set, the trial court granted
Pantagraph's petition to intervene but denied access to the
evidence deposition. Pantagraph appealed. We affirm.
I. BACKGROUND
The underlying criminal case, People v. Pelo (Nos. 06-
CF-581 and 06-CF-679), involves an accused stalker who allegedly
committed sexual assault against several different victims. Pelo
was first taken into custody for the underlying criminal case in
June 2006. A potential witness in the case, Scott Galuska,
reportedly saw a person near the residence of one of the victims. Because Galuska was scheduled to leave the country for military
service, the State moved to depose Galuska in an evidence deposi-
tion (134 Ill. 2d R. 414). The defense did not object and the
trial court entered an agreed order, sanctioning the right of the
parties to take the deposition.
In September 2007, the parties conducted Galuska's
deposition in the courthouse. The location of the deposition was
dictated by the fact that defendant Pelo, who had a right to be
present to confront and cross-examine witnesses against him, was
in custody. Following the deposition, the trial court ordered
that the original, unedited deposition videotapes would be held
in the evidence vault of the circuit clerk. The docket entry
that orders the tapes to the evidence vault references an accom-
panying written order, but the record does not contain that
order.
Pantagraph had been reporting the facts and circum-
stances surrounding the Pelo case. Pantagraph learned that
Galuska reportedly saw a person near the residence of one of the
stalking victims and that Galuska had recently been deposed.
Pantagraph filed a petition to intervene and gain access to the
unedited tapes of the Galuska deposition. In its petition to
intervene, Pantagraph argued that (1) it had a right to intervene
pursuant to section 2-408 of the Code of Civil Procedure (735
ILCS 5/2-408(b) (2006)), and (2) the Fourth District has recog-
- 2 - nized that intervention is the appropriate method for newspapers
to present access issues to the courts, citing People v. LaGrone,
361 Ill. App. 3d 532, 838 N.E.2d 142 (2005); 735 ILCS 5/2-408(b)
(West 2006) ("Upon timely application anyone may in the discre-
tion of the court be permitted to intervene in an action: (1)
when a statute confers a conditional right to intervene; or (2)
when an applicant's claim or defense and the main action have a
question of law or fact in common"). In its companion petition
to gain access to Galuska's deposition, Pantagraph cited several
federal civil cases supporting the disclosure of pretrial discov-
ery materials, citing, among others, American Telephone & Tele-
graph Co. v. Grady, 594 F.2d 594, 596 (1979), and Fed. R. Civ. P.
26(c) ("General Provisions Governing Discovery: Duty of Disclo-
sure; Protective Orders"). Pantagraph further argued that, due
to the nature of the underlying criminal case, the contents of
Galuska's deposition were potentially of vital importance to the
public.
On November 19, 2007, before a date for Pelo's criminal
trial had been set, the trial court held a hearing on Panta-
graph's petitions to intervene and gain access. The court
granted Pantagraph's petition to intervene for the purpose of
requesting access to the Galuska deposition, but it ultimately
denied Pantagraph access to the Galuska deposition. In so
finding, the court noted that the taking of an evidence deposi-
- 3 - tion in a criminal case is an unusual occurrence. The court
noted that, in these circumstances, the deposition was not a
scheduled court hearing open to the public, and no significance
should be afforded to the fact that the deposition took place in
the courthouse as a matter of convenience to defendant Pelo. As
the court stated: "It was *** a gathering of attorneys and the
parties and the witness for the taking of an evidence deposition.
The [c]ourt was not involved."
The court further stated that, in criminal cases,
evidence is not in the public realm until it has been admitted at
trial. The court cited Supreme Court Rules 415 (134 Ill. 2d R.
415) and 207 (166 Ill. 2d $. 207) for this proposition, which
govern the custody and filing of depositions and other discovery
materials:
"[The Galuska deposition] has not been admit-
ted into evidence. It has not been received
by the [c]ourt. It is simply housed in the
clerk's office because Supreme Court Rules
[415 and 207] require it to be housed there.
It is, therefore, this [c]ourt's opinion that
the deposition is a single piece of evidence;
that releasing it at this point would essen-
tially suggest that, that anybody who wants
to look at evidence in any criminal case
- 4 - would have a right to do so. I don't think
there is any [f]irst-[a]mendment[,] [right-
of-access] issue here because *** nothing has
occurred in open court with relation to this
deposition to this point."
However, the court added that if, at a later time, Galuski's
deposition were presented to the jury or if Galuski testified,
Pantagraph would of course be free to report on the matter at
will.
This interlocutory appeal followed. 188 Ill. 2d R.
307(a)(1) (allowing interlocutory appeal as of right in the event
of an interlocutory order of the court refusing an injunction).
Pantagraph filed an initial brief, the State filed a brief in
response, and Pantagraph filed a reply brief. Defendant-appellee
Pelo did not file a brief. As of April 8, 2008, the date
Pantagraph filed its initial appellate brief, the date for Pelo's
criminal trial still had not been set.
II. ANALYSIS
A. Jurisdiction Under Rule 307(a)(1)
Pantagraph argues that the trial court's order denying
Pantagraph access to the Galuski videotape deposition "effec-
tively enjoined" it and the public from obtaining a copy of the
tapes, thereby triggering coverage under Rule 307(a)(1). 188
Ill. 2d R. 307(a)(1). Rule 307(a)(1) allows an appeal to be
- 5 - taken to the appellate court from an interlocutory order of the
trial court "granting, modifying, refusing, dissolving, or
refusing to dissolve or modify an injunction." 188 Ill. 2d R.
307(a)(1). An injunction is a "'prohibitive, equitable remedy
issued or granted by a court at the suit of a party complainant,
directed to a party defendant in the action, or to a party made a
defendant for that purpose, forbidding the latter to do some act
*** which he is threatening or attempting to commit.'" People v.
Reynolds, 274 Ill. App. 3d 696, 698, 654 N.E.2d 535, 537 (1995),
quoting Black's Law Dictionary 705 (5th ed. 1983).
As a threshold question, the State challenges this
court's jurisdiction to consider Pantagraph's interlocutory
appeal under Rule 307(a)(1). 188 Ill. 2d R. 307(a)(1). The
question to ask in determining whether this court has jurisdic-
tion under Rule 307(a)(1) is whether the court's denial of access
can be said to be an "injunction" as defined above. To answer
this question, we must examine the merits of the case, i.e.,
whether the presumptive right of public access to judicial
proceedings and documents that have been filed with the court
applies to the Galuska evidence deposition. If the presumptive
right of access does not apply to the circumstances of this case,
then the trial court has not "enjoined" Pantagraph from accessing
what it would otherwise have a right to examine. It seems
illogical to decide a case on jurisdictional grounds if one needs
- 6 - to reach the merits of the case in order to do so. See Nelson v.
Miller, 11 Ill. 2d 378, 392, 143 N.E.2d 673, 680 (1957) (stating
it would be an unusual result to have the jurisdiction of the
court depend upon the outcome of a trial on the merits). There-
fore, we will decide this case on the merits.
We note, however, that the State also challenges
Pantagraph's jurisdiction by implying that Pantagraph should not
have intervened in a criminal case to assert a right of access to
the deposition but instead should have filed a separate civil
action, such as a complaint for declaratory judgment, to obtain
access to the evidence deposition. The State cites State v.
Cianci, 496 A.2d 139, 146 (R.I. 1985), which held that permissive
intervention "has no place in a criminal proceeding." The
State's citation to Cianci is misleading because Cianci concedes
that other jurisdictions find intervention to be the proper
vehicle for a newspaper to allege a constitutional and/or common-
law violation of its right of access to all judicial proceedings,
including depositions. Cianci, 496 A.2d at 146 ("there are
jurisdictions that have permitted newspapers to intervene in
criminal prosecutions for the limited purpose of questioning an
order of the trial court sealing depositions"). Illinois seems
to be one of those jurisdictions that takes interlocutory appeals
concerning right-of-access issues. In LaGrone, the court allowed
the press to intervene in a first-degree murder case for the
- 7 - purpose of questioning an order of the trial court denying public
access to a hearing on a motion in limine. LaGrone, 361 Ill.
App. 3d 532, 838 N.E.2d 142. When the trial court denied the
newspaper access, an interlocutory appeal followed. LaGrone, 361
Ill. App. 3d at 534, 838 N.E.2d at 145.
B. On the Merits: No Right of Access
The first amendment embodies a right of access to court
records and criminal proceedings. Skolnick v. Altheimer & Gray,
191 Ill. 2d 214, 231-32, 730 N.E.2d 4, 16 (2000) (regarding court
records in general); LaGrone, 361 Ill. App. 3d at 535, 838 N.E.2d
at 145 (regarding criminal proceedings). This constitutional
right presumes the public's right to inspect court records that
have "'historically been open to the [press and] public'" and the
disclosure of which would further the court proceeding in the
case at hand. Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 16,
quoting United States v. Corbitt, 879 F. 2d 224, 228 (7th Cir.
1989) (bracketed words eclipsed in Skolnick but appearing in
Corbitt). The presumption can be rebutted by demonstrating that
suppression of the public record is necessary to protect a higher
value and is narrowly tailored to serve that interest. Skolnick,
191 Ill. 2d at 232, 730 N.E.2d at 16.
In addition to the constitutional right of access, a
parallel common-law right of access has developed. Skolnick, 191
Ill. 2d at 230, 730 N.E.2d at 15. Under common law, a presump-
- 8 - tion exists in favor of allowing the public to inspect and copy
public records and documents, including judicial records and
documents. Skolnick, 191 Ill. 2d at 230, 730 N.E.2d at 15. The
right of access to court records enables the public to monitor
the functioning of the courts, thereby ensuring quality, honesty,
and respect for our legal system. Skolnick, 191 Ill. 2d at 230,
730 N.E.2d at 16. However, the public's right of access is not
absolute, and the court has the supervisory power over its own
records and files to deny access at its discretion where the
court files may become a vehicle for improper purposes.
Skolnick, 191 Ill. 2d at 231, 730 N.E.2d at 16.
Finally, the Illinois legislature has codified the
public's right of access as follows:
"All records, dockets[,] and books required
by law to be kept by such clerks shall be
deemed public records, and shall at all times
be open to inspection without fee or reward,
and all persons shall have free access for
inspection and examination to such records,
dockets[,] and books, and also to all papers
on file in different clerks' offices and
shall have the right to take memoranda and
abstracts thereto." 705 ILCS 105/16(6) (West
2006).
- 9 - It does not seem to us that the evidence deposition at
issue here is a "judicial record" or part of the "criminal
proceeding itself" to which the public has a constitutional,
common-law, or statutory right of access. As stated by the trial
court, the unedited evidence deposition at issue here has not
been submitted into evidence and has not been played in open
court.
The taking of an evidence deposition in a criminal
trial is an unusual occurrence. Rule 414 governs the taking of
evidence depositions in a criminal case:
"If it appears to the court in which a
criminal charge is pending that the deposi-
tion of any person other than the defendant
is necessary for the preservation of relevant
testimony because of the substantial possi-
bility it would be unavailable at the time of
hearing or trial, the court may, upon motion
and notice to both parties and their counsel,
order the taking of such person's deposition
under oral examination or written questions
for use as evidence at a hearing or trial."
134 Ill. 2d R. 414(a).
An evidence deposition in a criminal case shall be taken in
accordance with the rules of taking an evidence deposition in a
- 10 - civil case. 134 Ill. 2d R. 414(b). The defendant and defense
counsel have the right to confront and cross-examine any witness
whose deposition is taken. 134 Ill. 2d R. 414(e). The Federal
Rules of Criminal Procedure contain nearly an identical rule for
the taking of evidence depositions in a criminal case. See Fed.
R. Crim. P. 15.
Although we have found no published Illinois case that
has ruled on whether a right of access attaches to evidence
depositions in a criminal case before the deposition has been
introduced at hearing or at trial, several federal jurisdictions
relying on Rule 15 hold that there is no right of access under
such circumstances. Fed. R. Crim. P. 15. Some courts have held
that the right of access never attaches to the videotape of the
evidence deposition itself, that the media cannot copy or broad-
cast it, and that the media, which has no right over and above
that of the general public, may only have access to the evidence
deposition at the time and in the manner it was delivered to the
jury in the courtroom. See In re Application of American Broad-
casting Cos., 537 F. Supp. 1168, 1170-72 (D.C. Cir. 1982) (where
Jodie Foster moved to prevent public access to her evidence
deposition in a criminal prosecution against John Hinckley, Jr.,
the court held that the recording of the deposition was not
encompassed by the common-law right of access to judicial records
and that broadcasters could not copy the recording of the deposi-
- 11 - tion); United States v. McDougal, 103 F.3d 651, 652 (8th Cir.
1996) (where media organizations appealed from the denial of
their applications to access a recording of President Clinton's
deposition testimony, the court held that, as a matter of law,
the videotape itself was not a judicial record to which the right
of public access attached). Even more liberal interpretations of
the right to access have not allowed the media access to a taped
evidence deposition with all the copyrights that typically come
with the right of access until after the video deposition has
been shown to the jury. See In re Application of CBS, Inc., 828
F.2d 958, 959-60 (2d Cir. 1987) (reasoning that the press had a
right to attend open court and view the videotape for itself).
The facts in McDougal provide a useful illustration.
In McDougal, the President's evidence deposition was taken, and
the court gave the parties and the media 30 days to file briefs
as to how the deposition would be used at trial. McDougal, 103
F.3d at 653. During the 30-day period, counsel for the parties
reviewed the transcript of the entire deposition and agreed to
edit certain portions. McDougal, 103 F.3d at 653. The tran-
script and the videotape were edited accordingly, and the edited
version of the deposition was played to the jury in open court.
McDougal, 103 F.3d at 653. The courtroom was filled to capacity,
and the media had an opportunity to view the video at that time.
The edited written transcripts of the deposition were admitted
- 12 - into evidence, made part of the record, and released to the
public after trial. McDougal, 103 F.3d at 653. The video itself
was never entered into evidence, and the right of access to the
video itself never attached. McDougal, 103 F.3d at 656.
As in McDougal, it is still possible that the deposi-
tion at issue here may be edited before any form of it is entered
into evidence and/or read to the jury. Rule 414 provides that
the evidence deposition may be used as evidence, but does not
provide that it automatically attains the status of evidence and
is part of the judicial record just by being taken. 134 Ill. 2d
R. 414. A judge was not present when witness Galuski's evidence
deposition took place. Galuski may have made inadmissible
statements in the deposition that will be excluded if and when
the State seeks to admit some or all of the deposition.
The cases cited by Pantagraph do not change our deter-
mination. In United States v. Berger, 990 F. Supp 1051 (C.D.
Ill. 1997), reversed and remanded by In re Associated Press, 162
F.3d 503 (7th Cir. 1998), the court considered the media's right
to access the Illinois Governor's evidence deposition, which was
taken in camera during the middle of the trial. There, the
underlying criminal case involved a defendant charged with 16
counts of mail fraud. Berger, 990 F. Supp. at 1052. Due to
extenuating circumstances after the trial had already begun,
including an ill juror and the Governor's travel schedule, the
- 13 - parties agreed that the Governor's testimony would be taken by
video deposition and played to the jury at the appropriate time
in the trial. Berger, 990 F. Supp. at 1052. The newspapers
moved for access to the Governor's deposition before it had been
played to the jury. Berger, 990 F. Supp. at 1052. The court
held the newspapers could not view the videotape until the jury
did, noting that early release of the deposition could prejudice
the defendant's right to a fair trial where the jury had not been
sequestered, especially if the defendant decided not to offer the
deposition as evidence at trial after all. Berger, 990 F. Supp.
at 1053-54.
Pantagraph contends Berger indicates that the right of
access applies to an evidence deposition before it is played at
trial and that the only reason the Berger court did not allow
access was due to the potential for prejudice. We disagree. The
Berger court noted that other jurisdictions have held that the
common-law right of access does not extend to a videotaped
deposition. Berger, 990 F. Supp. at 1054 n.3. It seems as
though the Berger court found the question of prejudice to be the
easier way to refute the newspaper's petition for access, but it
did not rule one way or the other whether the right of access
actually attached. Berger, 990 F. Supp. at 1054. Moreover,
Berger is distinguishable because the videotaped deposition in
that case was taken in camera, whereas the deposition in the
- 14 - instant case had no judicial supervision whatsoever.
The remainder of the cases that Pantagraph cites in
support of the proposition that a right of access exists are
slightly off point, as they are civil cases that do not involve
the media's right to intervene and gain access to evidence
depositions in criminal cases. See, for example, American
Telephone, 594 F.2d at 595 (concerning modification of a protec-
tive order so that nonparty litigating similar issues against the
defendant in a separate case could have retroactive access to
discovered documents for purposes of economy); Fed. R. Civ. P.
26(c) ("General Provisions Governing Discovery: Duty of Disclo-
sure; Protective Orders").
Because the right of access has not attached to the
Galuski evidence deposition, the trial court did not err in
denying Pantagraph access to the videotaped deposition.
III. CONCLUSION
For the aforementioned reasons, we affirm the trial
court's order.
Affirmed.
McCULLOUGH and KNECHT, JJ., concur.
- 15 -