In re Kelly

2020 IL App (1st) 200130

174 N.E.3d 950

447 Ill.Dec. 584

IN RE MARRIAGE OF Robert KELLY, Petitioner-Appellee,

and

Andrea Kelly, Respondent-Appellee

(Chicago Public Media, Incorporated, Intervenor-Appellant).

No. 1-20-0130

Appellate Court of Illinois, First District, FIFTH DIVISION.

June 26, 2020

Jeffrey D. Colman, Jason M. Bradford, Emma J. O'Connor, and Jay K. Simmons, of Jenner & Block LLP, of Chicago, for intervenor-appellant.

Steven A. Greenberg and Nicholas V. Burris, of Greenberg Trial Lawyers, of Chicago, for appellee.

JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 Intervenor-appellant Chicago Public Media, Inc. (WBEZ),¹ and intervenor Chicago Tribune Company (Tribune) filed a joint motion to intervene in divorce proceedings between petitioner-appellee Robert Kelly and respondent-appellee Andrea Kelly. They sought access to documents contained in a sealed court file. The court allowed them to intervene and unsealed portions of the file, but it ordered certain portions of the record to be redacted and remain sealed. WBEZ then moved to clarify or alternatively to modify the sealing order (motion to modify). The circuit court denied that motion. WBEZ now appeals, contending that the court erred in (1) sealing certain portions of the record, (2) maintaining the material under seal in response to follow-up e-mails sent to the court by a party, and (3) denying its motion to modify. The Tribune has not joined WBEZ's appeal. We reverse and remand in part with directions and dismiss in part.

¶ 2 BACKGROUND

¶ 3 In 2006, Robert filed a petition to dissolve his marriage with Andrea. In June 2013, the circuit court entered an agreed order directing that the entire court file be sealed, finding that both parties were entertainment celebrities and there was a "serious likelihood of the media culling through the record for the purpose of revealing painful, potentially scandalous, details."

¶ 4 In 2019, WBEZ and the Tribune filed a joint motion to intervene and for access to the sealed court files in Robert's divorce case. The circuit court granted WBEZ and the Tribune leave to intervene "for the limited purpose of addressing issues related to unsealing the record." The court directed that (1) the next hearing would be open to the public but limited to hearing arguments and addressing issues related to unsealing the record and (2) the "entire cause of action [would remain] under seal" until further order of court.

¶ 5 Robert and Andrea filed lists of various documents that they wanted either sealed or redacted. They both asked that the court seal, in its entirety, a document entitled "combined verified motions to change custody and to terminate and/or modify visitation and to appoint evaluator and guardian ad litem ," which Andrea filed on March 12, 2014 (the March 2014 motion). That motion is the only sealed pleading at issue in this appeal. The intervenors responded to the parties' proposed list, asked to open the upcoming hearing to the public, and requested that the circuit court clerk make the online case docket and files available to intervenors and the public.

¶ 6 Robert's and Andrea's attorneys, along with the attorney for their remaining minor child and attorneys for intervenors, were present at the beginning of the July 10, 2019, hearing on the intervenors' motion. Robert and Andrea had asked to seal the March 2014 motion in its entirety, and Andrea suggested an alternative of redacting only certain portions. Intervenors agreed to the redaction of some information but disagreed with sealing or fully redacting certain paragraphs of the March 2014 motion. The court then stated that it would allow Robert and Andrea to make their arguments regarding the redactions in camera . The court then had all parties except for Robert's and Andrea's counsel "clear the room." The transcript of this hearing then indicates that proceedings comprising approximately 31 pages of transcript were held under seal "and not a part of this record."²

¶ 7 The nonsealed portion of the transcript resumes with the circuit court announcing that proceedings would be reopened to the public. The court then explained its analysis regarding the March 2014 motion, stating in part:

"In Count 2, which is paragraphs 26 through 37, as well as the ‘wherefore’ and then paragraphs A through D it is all part of Count 2 that in its entirety will be redacted.

There is specific sensitive information in there that involves the children in this case; the relationship that the children have [with] one or both of their parents. It involves a doctor-child relationship with information about one or more of the children. That would not be made public.

And I find that in regards to all of these different paragraphs that I mentioned for both of these two documents, that revealing the information would be very detrimental to the best interest of the child and, therefore, raises a higher value and overcomes the presumption."

The court then rejected intervenors' request to immediately open the entire case file. Instead, the court stated that its order would unseal the record except for the documents it specified. The court added that it would allow the circuit clerk 30 days to make the redacted documents available. Finally, in response to WBEZ's counsel's question, the court confirmed that any document "that wasn't listed [in the court's revised sealing order] will be available on [the next] Monday."

¶ 8 On the same day, the circuit court issued a written order granting WBEZ and the Tribune leave to intervene and unsealing the entire court file with certain exceptions. The order stated:

"The Clerk's office will allow immediate public access to the court file, with the exception of the redacted and/or sealed documents. The Clerk's office is allowed 30 days, until August 12, 2019, to redact/seal the specific documents listed in Exhibit A, attached and incorporated into this Judgment."

The court order further allowed public access "to the entire court file, including the redacted documents and noting the sealed documents" beginning on August 13, 2019. Exhibit A to the court's order, which was an extensive spreadsheet, directed the circuit clerk to redact the following parts of the March 2014 motion: "the entirety of Count II [entitled ‘Modify Visitation’], including paragraphs 26-37 and A-D." The court stated that, as to the sealed material, the best interests of the parties' children outweighed the public's right of access.

¶ 9 The clerk of the circuit court of Cook County did not precisely follow the court's sealing and redaction order. The clerk placed material in the public file that the court had ordered to be sealed. WBEZ discovered this error when it reviewed the public file. This discovery precipitated further disputes among the parties.

¶ 10 On October 1, 2019, Andrea's attorney e-mailed the circuit court judge and included the intervenors as additional recipients. The e-mail stated that Andrea's attorney had just received a call from WBEZ indicating that it intended to report on information obtained from "an inadvertently unredacted or unsealed version of" Andrea's March 2014 motion. The e-mail further stated that a WBEZ reporter informed Andrea's attorney that (1) there were both "substantially redacted" and "completely unredacted" versions on the public docket and (2) WBEZ intended to "run the story this afternoon." Andrea's attorney stated that she would contact the circuit clerk's office but wanted to get the trial judge "involved" as soon as possible.

¶ 11 Within one hour, the judge responded that she was not in court because she was observing a religious holiday, but she stated that her "redaction/seal order is very specific" and that she did not expect "anyone, including the Clerk's office or WBEZ," to violate it. About one hour after the judge's response, WBEZ's attorney e-mailed the parties to indicate that WBEZ would not file a story on this matter that day and suggested it would file a motion to resolve the dispute.

¶ 12 After the parties exchanged further e-mails, on October 4, 2019, the trial judge e-mailed this response:

"Let me reiterate—I do not expect ANYONE or ANY ENTITY to violate my court order, which was distributed to all parties including intervenors, both electronically and handed in printed format to their attorney. WBEZ has been well aware of my restrictions on documents, as they were part of the Intervenors who received my court order."

The judge's e-mail was sent to all parties, including WBEZ's attorney.

¶ 13 The following evening, WBEZ's attorney sent a lengthy e-mail to the judge and parties, declaring that (1) it was not subject to any injunction prohibiting it from publishing what was found in a public record and (2) the court never enjoined WBEZ from doing anything, as "[t]here is not a word in the order that enjoins WBEZ from publishing any information."

¶ 14 On October 29, 2019, WBEZ filed a motion to clarify or modify the circuit court's July 2019 order. WBEZ asked the court to clarify that the July 2019 order "does not restrict or enjoin WBEZ from publishing any news story." In the alternative, WBEZ asked that, if the order was intended to restrict WBEZ's publication of "any news stories," WBEZ asked that the court modify the order to "lift that restriction and to make it clear that neither WBEZ nor any other news organization is restricted from exercising their [constitutional] rights * * * to publish information obtained from the public record (and from counsel for a party) about the underlying domestic relations case."

¶ 15 On December 19, 2019, the circuit court held a hearing on WBEZ's motion. Counsel for WBEZ argued there was no "clear and definite prohibition in the order" against publication and that, once the information fell into the public domain, the publication of that information could not be restrained.

¶ 16 Following arguments, the court denied WBEZ's motion. The court stated that there was "no doubt" that...