People v. Zimmerman

2018 IL 122261

120 N.E.3d 918

427 Ill.Dec. 851

The PEOPLE of the State of Illinois, Appellee,

v.Kirk P. ZIMMERMAN, Appellant (The Pantagraph et al., Appellees).

Docket No. 122261

Supreme Court of Illinois.

Opinion filed October 18, 2018

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

¶ 1 This appeal arises from an order of the circuit court of McLean County granting defendant Kirk Zimmerman's motion to seal his fourth and fifth motions in limine over the objection of intervenors the Pantagraph, WGLT FM, and the Illinois Press Association. The circuit court sealed the two motions until after jury selection, at which time it would readdress the issue. The appellate court reversed the circuit court's judgment and remanded for further proceedings. 2017 IL App (4th) 170055, ¶ 20, 413 Ill.Dec. 860, 79 N.E.3d 209. For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 In July 2015, defendant was charged in McLean County with the first degree murder of his former spouse, Pamela Zimmerman, who died of gunshot wounds on November 3, 2014.

¶ 4 On October 17, 2016, defendant filed a motion for leave to file his fourth and fifth motions in limine under seal and a motion to close the court proceedings on the motions. The motions in limine sought to exclude "sensitive, private, and/or inflammatory information" about defendant, possible witnesses, and other third parties that had been provided to him by the State during discovery. The underlying discovery evidence sought to be excluded was described in extensive detail in the motions themselves. Defendant asserted that due to the "high level of media saturation regarding th[e] case" publication of the information would violate his privacy rights and taint the jury pool.

¶ 5 On November 16, 2016, intervenors filed a petition to intervene and objections to defendant's motion to close the courtroom and to file the two motions under seal. They argued that the right of access under the first amendment and the common law applied to defendant's motions in limine and any proceedings on those motions and that defendant had failed to allege a sufficient basis to overcome the presumption of access.

¶ 6 Defendant responded that no presumption of access applied to the two motions or the proceedings on those motions and that the trial court had full discretion to seal the motions and to conduct closed hearings on them. Alternatively, defendant argued that, even if a presumption of access applied, he had shown that closure was essential to ensure a fair trial and to protect the privacy rights of those involved. On November 21, 2016, the trial court entered an order granting defendant leave to file his fourth and fifth motions in limine . The order further provided that the motions were sealed for 90 days and would not be unsealed until the court so ordered.

¶ 7 On December 22, 2016, after allowing intervenors' petition to intervene, the trial court held a hearing on the two motions in limine .¹ At the hearing, defendant withdrew his request to close the proceedings because the State agreed not to introduce the evidence at issue at trial. Consequently, the only issue that remained was defendant's request to continue to seal the motions until a jury was impaneled.

¶ 8 At the hearing, the assistant state's attorney informed the trial court:

"I take no position on whether the court continues to seal these. I will only say that this is a little frustrating because we are not, nor did we, intend on offering these things in our case in chief. During a big case like this, there may be any number of things the State is aware of through an investigation that the press would never become privy of because the State never intends on offering those things as evidence. These things fall into that vein. * * * But as to whether the court decides to seal indefinitely or not, we'll leave that to the court."

¶ 9 In ruling on defendant's request to continue to seal the motions, the trial court specifically recognized, inter alia , "that there is a constitutional presumption of access under the First Amendment that applies to court proceedings and records which, first, have historically been open to the public and, second, which have a purpose and function that would be furthered by disclosure." After discussing first amendment considerations, the trial court concluded that intervenors did not have a first amendment right to the motions that sought to exclude material that had not been introduced into evidence but, rather, had been obtained by defendant from the State in discovery.

¶ 10 Additionally, the trial court "acknowledge[d] the common law right of access to court records." Ultimately, in granting defendant's request to continue to seal the two motions, the trial court recognized, "as to those matters, which were not subject to disclosure or availability to the public at large, * * * the public's right of access to court proceedings and records is not absolute, and the court has supervisory authority over its own records and files and may deny access at its discretion."

¶ 11 On January 3, 2017, the trial court entered a written order, in pertinent part, granting the fourth and fifth motions in limine and noting that the State had acknowledged the material would not be introduced by the State at trial. The trial court also denied intervenors' motion to open the motions in limine to public inspection. The trial court ordered that the two motions would remain sealed until after selection of a jury. At that time, the court would revisit intervenors' motion to unseal and would have a hearing on the same. Intervenors filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016) challenging the trial court's order.

¶ 12 The appellate court recognized the common-law right of access to judicial records and documents, the statutory right to review judicial records contained in section 16(6) of the Clerks of Courts Act ( 705 ILCS 105/16(6) (West 2016) ), and the first amendment right of access that attaches to certain court records. 2017 IL App (4th) 170055, ¶ 10, 413 Ill.Dec. 860, 79 N.E.3d 209. The appellate court concluded that the trial court erred by finding the "presumption of access" did not attach to the motions in limine filed by defendant. Id. ¶ 18. The appellate court held that "[s]ince the presumption did attach to the documents at issue, the next step is to determine whether the presumption has been rebutted." Id. For these reasons, the appellate court reversed the trial court and remanded for further proceedings on intervenors' objection to the motions being filed under seal. Id. ¶ 20.

¶ 13 This court granted defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016).

¶ 14 ANALYSIS

¶ 15 Initially, we address the State's contention that the trial court's order was not the proper subject of an interlocutory appeal under Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016). The State asserts that the appellate court does not have jurisdiction to review interlocutory orders sealing motions in criminal cases.

¶ 16 Rule 307(a)(1) provides:

"(a) Orders Appealable; Time. 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[.]" Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 2016).

¶ 17 Intervenors rely upon In re A Minor , 127 Ill.2d 247, 130 Ill.Dec. 225, 537 N.E.2d 292 (1989), and Skolnick v. Altheimer & Gray , 191 Ill.2d 214, 246 Ill.Dec. 324, 730 N.E.2d 4 (2000), to support their contention that the appellate court had jurisdiction over the appeal.

¶ 18 In In re A Minor , the trial court entered an order during the course of a juvenile proceeding banning a newspaper from publishing the name of a minor who had been charged in connection with a fatal shooting. In re A Minor , 127 Ill.2d at 251, 130 Ill.Dec. 225, 537 N.E.2d 292. The trial court also banned the newspaper from the courtroom during future hearings in the case unless it agreed to comply with the order not to publish the name of the juvenile. Id. The appellate court held the order was not injunctive in nature and dismissed the newspaper's appeal on the grounds that the trial court's order was not reviewable under Rule 307(a)(1). Id. at 254, 130 Ill.Dec. 225, 537 N.E.2d 292. This court reversed and explained that a court looks to the substance, not the form, of an order to determine if it is injunctive in nature. Id. at 260-61, 130 Ill.Dec. 225, 537 N.E.2d 292. In finding that the appellate court erred, we held that an order circumscribing the publication of information is reviewable under Rule 307(a)(1) as an interlocutory injunctive order. Id. at 263, 130 Ill.Dec. 225, 537 N.E.2d 292.

¶ 19 In Skolnick , the trial court entered an order requiring the parties to designate information disclosed in discovery as confidential, and once so designated, the information could only be disclosed to persons expressly identified in the protective order. Skolnick , 191 Ill.2d at 221-22, 246 Ill.Dec. 324, 730 N.E.2d 4. "By its terms, therefore, the order forbade the publication of certain information, or, in other words, circumscribed the parties opportunity to ‘do a particular thing.’ " Id. at 222, 246 Ill.Dec. 324, 730 N.E.2d 4. The defendant appealed under Rule 307(a)(1). Id. at 221, 246 Ill.Dec. 324, 730 N.E.2d 4. This court rejected the plaintiffs' argument that the appellate court lacked jurisdiction over the appeal and, as in In re A Minor , held that a trial court's order circumscribing public access to information is reviewable by the appellate court as an interlocutory injunctive order under Rule 307(a)(1). Id. at 221, 223, 246 Ill.Dec. 324, 730 N.E.2d 4. In reaching this determination, we reiterated that Illinois courts have construed the meaning of "injunction" in Rule 307(a)(1) broadly and...