2018 IL 122261 

IN THE
 

SUPREME COURT
 

OF
 

THE STATE OF ILLINOIS
 

(Docket No. 122261) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. KIRK P. ZIMMERMAN, 

Appellant (The Pantagraph et al., Appellees). 

Opinion filed October 18, 2018. 

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

Chief Justice Karmeier and Justices Kilbride, Garman, Burke, and Neville 

concurred in the judgment and opinion. 

Justice Thomas dissented, with opinion. 

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. 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. 

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¶ 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 

1

No party objected to the intervention. 

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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. 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). 

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¶ 17 Intervenors rely upon In re A Minor, 127 Ill. 2d 247 (1989), and Skolnick v. 

Altheimer & Gray, 191 Ill. 2d 214 (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. 

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. 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. 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. 

¶ 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. “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. The defendant appealed 

under Rule 307(a)(1). Id. at 221. 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. In reaching this determination, we reiterated that Illinois courts have 

construed the meaning of “injunction” in Rule 307(a)(1) broadly and that a court 

looks to the substance, not the form, of an order to determine if it is injunctive in 

nature. Id. at 221. 

¶ 20 As the State concedes, Rule 307(a)(1) has long been the vehicle in Illinois for 

appellate review of orders denying access to criminal records or proceedings. E.g. 

In re Gee, 2010 IL App (4th) 100275, ¶ 38 (holding the trial court’s order to 

continue to seal some documents related to a search warrant sought in a homicide 

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investigation was proper after finding the appellate court had jurisdiction to 

entertain the media intervenors’ appeal under Rule 307(a)(1)); People v. Kelly, 397 

Ill. App. 3d 232, 244-48 (2009) (holding that Rule 307(a)(1) was the appropriate 

vehicle for media members to challenge a trial court’s order sealing pretrial 

proceedings and records and noting that intervention has advantages over a 

declaratory action, as it avoids the issues that would arise if a civil judge were 

required to question anew a criminal judge’s discretionary decision to seal records 

or proceedings); People v. Pelo, 384 Ill. App. 776, 779-80 (2008) (holding that 

media outlets were authorized to file an interlocutory appeal under Rule 307(a)(1) 

challenging an order denying access to an evidence deposition); People v. 

LaGrone, 361 Ill. App. 3d 532, 537-38 (2005) (holding in an interlocutory appeal 

filed by the media that the trial court erred by not making adequate factual findings 

on the record to justify denying public access to a hearing on the defendant’s 

motions in limine). 

¶ 21 The State has not suggested another rule or statute that would be the correct 

route to review this type of order. Instead, the State urges us to refer the issue to our 

rules committee for consideration of the proper vehicle for reviewing orders 

denying access to criminal records or proceedings. We find that unnecessary. 

¶ 22 Rule 307(a), found in this court’s civil appeals rules, provides parties a right to 

appeal an interlocutory order “granting, modifying, refusing, dissolving, or 

refusing to dissolve or modify an injunction.” Ill. S. Ct. R. 307(a)(1) (eff. Nov. 1, 

2016). This court has already found that this rule confers appellate jurisdiction to 

review such interlocutory orders circumscribing the public access of information in 

both juvenile and civil cases. In re A Minor, 127 Ill. 2d at 263; Skolnick, 191 Ill. 2d 

at 221. No reason exists to treat interlocutory orders circumscribing public access 

to documents in criminal proceedings differently. As this court instructed in In re A 

Minor and Skolnick, we look to the substance of the trial court’s order. 

Accordingly, we find that the order in this case circumscribing public access to 

documents is reviewable under Rule 307(a)(1) as an interlocutory injunctive 

order.2 

2

We note the trial court’s order sealing the motions has no impact on the underlying criminal 

case, the prosecution of which continues unimpeded. See People v. Zimmerman, 2018 IL App (4th) 

170695. 

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¶ 23 Having determined that the appellate court had jurisdiction over the appeal, we 

now turn to the merits of defendant’s argument. 

¶ 24 First Amendment Right of Access 

¶ 25 Defendant initially contends that the trial court properly granted his request to 

seal the two motions in limine and that the appellate court erred by finding the 

motions were subject to a right of public access under the first amendment. 

Similarly, the State argues that a first amendment right of access does not attach to 

defendant’s motions, which contained noncrucial evidence that had been disclosed 

during the discovery process and would not be admitted at trial. Intervenors simply 

want us to adopt the reasoning of the appellate court. 

¶ 26 The United States Supreme Court first recognized a first amendment public 

right to attend criminal trials in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 

555, 576 (1980). The Court held that “[i]n guaranteeing freedoms such as those of 

speech and press, the First Amendment can be read as protecting the right of 

everyone to attend trials so as to give meaning to those explicit guarantees.” Id. at 

575. Following Richmond Newspapers, the Court held that a first amendment right 

of access could apply in other criminal contexts such as voir dire proceedings 

(Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510-11 (1984) 

(Press-Enterprise I)) and preliminary hearings (Press-Enterprise Co. v. Superior 

Court of California, 478 U.S. 1, 10 (1986) (Press-Enterprise II)). 

¶ 27 Thereafter, this court specifically found a public right of access to court records 

embodied in the first amendment to the United States Constitution. Skolnick, 191 

Ill. 2d at 231-32 (citing Grove Fresh Distributors, Inc. v. Everfresh Juice Co., 24 

F.3d 893, 897 (7th Cir. 1994)). In Skolnick, the defendant in a separate appeal had 

challenged the trial court’s order placing her counterclaim under seal. Id. at 230. 

We ultimately found the order violated the public’s right of access to court records 

under either the first amendment or common-law standard. Id. at 232-33. We also 

held that not all court records are subject to first amendment protection. Id. at 232. 

¶ 28 The determination of whether a first amendment right of access attaches to a 

particular record requires a two-step process under what is typically known as the 

“experience and logic test.” Press-Enterprise II, 478 U.S. at 9-10 (1986); see also 

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Skolnick, 191 Ill. 2d at 232. First, a court must consider whether the document is 

one that has historically been open to the press and general public (the “experience” 

prong). Press-Enterprise II, 478 U.S. at 8. Second, a court must consider whether 

public access to the document plays a significant positive role in the functioning of 

the particular judicial process in question (the “logic” prong). Id. The Supreme 

Court held that “[t]hese considerations of experience and logic are, of course, 

related, for history and experience shape the functioning of governmental 

processes.” Id. at 9. If the test of experience and logic is met, a qualified first 

amendment right of public access attaches to the material. Id. 

¶ 29 But even when a first amendment right of public access attaches to a document, 

it is not absolute. Id. As the Supreme Court explained, although open criminal 

proceedings give assurances of fairness to both the public and the accused, there are 

some limited circumstances in which the right of the accused to a fair trial might be 

undermined by publicity. Id. In such cases, the trial court must determine whether 

the situation is such that the rights of the accused override the qualified first 

amendment right of access to the proceeding or material. Id.; see also Skolnick, 191 

Ill. 2d at 232. 

¶ 30 In Press-Enterprise II, the Court held: 

“ ‘[T]he [first amendment] presumption may be overcome only by an 

overriding interest based on findings that closure is essential to preserve higher 

values and is narrowly tailored to serve that interest. The interest is to be 

articulated along with findings specific enough that a reviewing court can 

determine whether the closure order was properly entered.’ ” Press-Enterprise 

II, 478 U.S. at 9-10 (quoting Press-Enterprise I, 464 U.S. at 510). 

¶ 31 As noted, the first amendment presumption of access applies only to those 

documents that satisfy the experience and logic test. 

¶ 32 In this case, the “experience” prong weighs against a first amendment right of 

access. Defendant’s motions sought to exclude from trial “sensitive, private, and/or 

inflammatory information” about him, possible witnesses, and other third parties 

that had been provided to him by the State during discovery. It is undisputed that 

the State does not intend to introduce any of the evidence contained in the motions 

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at trial and that defendant’s fourth and fifth motions in limine were granted by the 

trial court without objection by the State. 

¶ 33 Intervenors fail to acknowledge that there is no tradition of access to discovery 

material not yet admitted at trial. Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 

(1984). Information that surfaces during pretrial discovery may be unrelated, or 

only tangentially related, to the underlying cause of action. Id. The Court instructed 

that “restraints placed on discovered, but not yet admitted, information are not a 

restriction on a traditionally public source of information.” Id. Whether in a civil or 

criminal case, discovery is “essentially a private process because the litigants and 

the courts assume that the sole purpose of discovery is to assist in trial preparation.” 

Courier-Journal, Inc. v. McDonald-Burkman, 298 S.W.3d 846, 848 (Ky. 2009). 

Generally, the documents themselves contain no evidentiary value until admitted 

into evidence at trial or other proceedings. Id. at 849. Public access to such material 

would therefore not play a significant role in the administration of justice in the 

case. Id. (holding that intervenor news organization did not have a first amendment 

right of access to the pretrial discovery materials at issue in a pending criminal 

case). 

¶ 34 The State and defendant are correct that because the material at issue in the two 

motions was disclosed during the discovery process, is not otherwise publicly 

available, is wholly tangential to the criminal case, and will not be admitted at trial, 

it is not subject to a tradition of access. 

¶ 35 Similarly, we find the “logic” prong weighs against a presumption of first 

amendment access in this case. 

¶ 36 Intervenors do not provide any authority to support a finding that public access 

to the type of pretrial discovery at issue here would play a significant positive role 

in the judicial process. The discovery process often generates a significant amount 

of irrelevant and unreliable material that plays no role in the criminal proceeding 

and in which the public has limited interest. As the State informed the trial court in 

this case, there may be any number of matters of which the State becomes aware in 

the course of an investigation that are shared with a defendant through discovery. 

Such material, however, generally does not become public because there is no 

intention of offering it into evidence. In fact, had it not been for defendant’s fourth 

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and fifth motions in limine, there would be no material on file for intervenors to 

seek access to, as the State has no intention of introducing it. 

¶ 37 Additionally, disclosure of the discovery evidence in this case could potentially 

play a negative role by exposing the public and potential jurors to irrelevant 

information that will not be used to support a conviction and could taint the jury 

pool. “If it were otherwise and discovery information and discovery orders were 

readily available to the public and the press, the consequences to the smooth 

functioning of the discovery process would be severe.” United States v. Anderson, 

799 F.2d 1438, 1441 (11th Cir. 1986); see also People v. Williams, 188 Ill. 2d 365, 

368 (1999) (holding the in limine order excludes inadmissible evidence and 

protects the movant from whatever prejudicial impact the mere asking of the 

questions and the making of the objections may have upon a jury). 

¶ 38 Having found that a first amendment presumption of access does not attach to 

defendant’s motions in this case, we now turn to defendant’s claim that the trial 

court did not abuse its discretion by denying intervenors access to the motions 

under a common-law right of access. 

¶ 39 Common-Law Right of Access 

¶ 40 Although the first amendment presumption of access applies only to those 

documents that satisfy the experience and logic test, under the common law there is 

a presumption that allows the public to inspect and copy public records and 

documents, including all documents filed with the court. Skolnick, 191 Ill. 2d at 230 

(citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)). This 

common-law right of public access to court records is “essential to the proper 

functioning of a democracy [citation] in that citizens rely on information about our 

judicial system in order to form an educated and knowledgeable opinion of its 

functioning.” Id. (citing Minneapolis Star & Tribune Co. v. Schumacher, 392 

N.W.2d 197, 202 (Minn. 1986)). 

¶ 41 The availability of court files for public scrutiny is also essential to the public’s 

right to “ ‘monitor the functioning of our courts, thereby insuring quality, honesty 

and respect for our legal system.’ ” Id. (quoting In re Continental Illinois Securities 

Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984)). “When courts are open, their work 

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is observed and understood, and understanding leads to respect.” In re Marriage of 

Johnson, 232 Ill. App. 3d 1068, 1074 (1992). The common-law right of access 

symbolizes the recognition “that the public interest is best served by increasing the 

public’s knowledge about what is transpiring inside the judicial process.” Skolnick, 

191 Ill. 2d at 230 (quoting Newell v. Field Enterprises, Inc., 91 Ill. App. 3d 735, 

748 (1980)). 

¶ 42 In Illinois, the legislature has also codified this common-law right of access to 

judicial records in section 16 of the Clerks of Courts Act, which provides, in 

pertinent part: 

“All records, dockets and books required by law to be kept by [circuit court] 

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, docket and books, and also to all 

papers on file in the different clerks’ offices and shall have the right to take 

memoranda and abstracts thereto.” 705 ILCS 105/16(6) (West 2016). 

¶ 43 This court has held, however, that the common-law right of access to judicial 

records is not absolute. Skolnick, 191 Ill. 2d at 231. We have recognized that 

“[e]very court has supervisory power over its own records and files, and access 

[may be] denied where court files might[ ] become a vehicle for improper 

purposes.” Id. (quoting Nixon, 435 U.S. at 598). Consequently, “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.” Id. For purposes of review, the trial court must provide findings on the 

record specific enough for a reviewing court to consider whether closure of the 

records was proper. 

¶ 44 The trial court in this case did not abuse its discretion by allowing defendant’s 

two motions in limine to remain sealed until after a jury is empaneled. In denying 

intervenors’ request to immediately access the documents, the trial court 

specifically recognized the common-law right of public access to all documents 

filed with the court. The trial court also recognized that this right is not absolute, 

that the evidence at issue in the two motions was not publicly available, and that the 

court possesses supervisory authority over its own records and files and may deny 

access at its discretion. 

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¶ 45 The trial court was familiar with the history of the case and the serious charges 

against defendant, as well as the publicity that this case has already received and 

will likely continue to receive in the future. The trial court was also aware that the 

State does not intend to introduce into evidence any of the tangential matters 

referred to in the motions in limine, which the court granted without objection. 

¶ 46 A thorough review of the hearing on intervenors’ request to unseal the motions 

reveals that the trial court attempted to strike a careful balance among competing 

interests. The trial court recognized the common-law right of access to court 

records, as well as defendant’s right to a fair trial, which might be undermined by 

publicity of discovery material that will not be admitted at trial. The court’s order 

was also of a limited duration. After a jury is seated in this case, the trial court has 

agreed to revisit the issue to determine whether it would be proper to allow public 

access to the motions at that time. 

¶ 47 Finally, the State suggests that this court should remand to the trial court for the 

limited purpose of determining whether defendant has overcome the common-law 

presumption of access to court records. We find that unnecessary. The trial court 

has already done what the State requests. We find no need to remand for the trial 

court to elaborate further on its ruling. 

¶ 48 CONCLUSION 

¶ 49 For the foregoing reasons, the judgment of the appellate court is reversed, and 

the judgment of the circuit court is affirmed. 

¶ 50 Appellate court judgment reversed. 

¶ 51 Circuit court judgment affirmed. 

¶ 52 JUSTICE THOMAS, dissenting: 

¶ 53 I respectfully disagree with the majority’s conclusion that this court’s rules 

presently provide for the interlocutory appeal filed in this case. 

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¶ 54 The issue here is whether Rule 307(a) confers appellate jurisdiction to review 

an interlocutory order sealing certain pleadings in a criminal case. The majority 

reasons that, because “[t]his court has already found that this rule confers appellate 

jurisdiction to review such interlocutory orders circumscribing the public access of 

information in both juvenile and civil cases,” “[n]o reason exists to treat 

interlocutory orders circumscribing public access to documents in criminal 

proceedings differently.” Supra ¶ 22. In fact, a very good reason exists for doing 

exactly that, namely, that our rules state explicitly that Rule 307(a) does not apply 

to criminal cases. 

¶ 55 In this court’s rules, “separate articles contain the rules applicable to civil 

proceedings (articles II and III) and those applicable to criminal proceedings 

(articles IV and VI).” Ill. S. Ct. R. 1, Committee Comments (rev. July 1, 1971). 

Rule 307(a) is set forth in article III of this court’s rules. Article III is titled “Civil 

Appeals Rules,” which means that, by definition, Rule 307(a) is a “civil appeal 

rule.” Ill. S. Ct. Rs. Art. III. This matters because the case before us is not a civil 

case. Rather, it is a criminal case. As such, this case is governed not by the rules set 

forth in article III but rather by those set forth in article VI, which is titled “Appeals 

in Criminal Cases, Post-Conviction Cases, & Juvenile Court Proceedings.” Ill. S. 

Ct. Rs. Art. VI. Among the rules set forth in article VI is Illinois Supreme Court 

Rule 612 (eff. July 1, 2017), which is titled “Procedural Matters Which Are 

Governed by Civil Appeals Rules.” As its title suggests, Rule 612 enumerates 

which “civil appeals rules apply to criminal appeals insofar as appropriate.” Ill. S. 

Ct. R. 612(b) (eff. July 1, 2017). The ensuing list identifies 23 “civil appeal rules” 

that apply in whole or in part to criminal appeals. Quite notably, Rule 307(a) is not 

among them. In other words, in the course of drafting Rule 612, this court already 

had occasion to consider whether Rule 307(a) applies to criminal appeals. Rule 

307(a)’s exclusion from the list set forth in Rule 612 clearly reflects the court’s 

conclusion that it does not, and that conclusion should control the jurisdictional 

analysis in this case. 

¶ 56 The majority, of course, reaches the opposite conclusion. However, the 

majority reaches this conclusion without ever mentioning, let alone discussing or 

analyzing, Rule 612. Again, one of the central questions in this case is whether a 

particular civil appeal rule applies in this, a criminal case. At a bare minimum, the 

court’s analysis of that question should at some point contend with the fact that this 

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court has drafted a rule specifically enumerating which civil appeal rules apply in 

criminal cases, as presumably that rule has something to say. By the same token, if 

the majority’s omission of Rule 612 from its analysis reflects the fact that Rule 612 

truly has nothing to say on this question, then I am left wondering why we even 

bothered to draft Rule 612 in the first place. If Rule 612 is not relevant here, it is not 

relevant anywhere. 

¶ 57 Compounding this problem is the fact that the two decisions anchoring the 

majority’s jurisdictional analysis do not speak to the question raised in this case. 

The issue in this case is whether Rule 307(a) applies to criminal cases. Neither In re 

A Minor nor Skolnick in any way addresses the types of cases to which Rule 307(a) 

applies. Rather, both cases address the types of orders to which Rule 307(a) 

applies. More specifically, the issue in both In re A Minor and Skolnick was 

whether interlocutory restraints on the publication of information should be treated 

as injunctions for purposes of Rule 307(a). See In re A Minor, 127 Ill. 2d at 260-63; 

Skolnick, 191 Ill. 2d at 221-22. And while both courts answered that question in the 

affirmative and therefore found that appellate jurisdiction was present, neither 

court considered whether the case before it fell into the category of cases to which 

Rule 307(a) applies. Thus, it is begging the question to say, as the majority does, 

that In re A Minor and Skolnick settle the matter at hand, as neither case even 

discusses the question they are deemed to answer. 

¶ 58 All of that said, I am perfectly open to the possibility that interlocutory 

restraints on the publication of information should be reviewable immediately in 

criminal cases and that our rules should be amended to make that policy manifest. 

In other words, my quarrel is not with the rule that the majority fashions in this 

case. Rather, my quarrel is with the majority treating our rules as if they already 

embodied this policy, which clearly they do not. Again, Rule 612 specifically 

enumerates the civil appeal rules that apply to criminal cases, and Rule 307(a) is 

conspicuously absent from the list. Unless and until that changes, I would hold that 

interlocutory restraints on the publication of information are not immediately 

reviewable in criminal cases. To hold otherwise is to undermine both the authority 

and the necessity of this court’s rulemaking power. 

¶ 59 Accordingly, I respectfully dissent. In doing so, I express no opinion on 

whether defendant’s two motions in limine fall within either the first amendment or 

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the common-law right of public access. That being said, I would point out only that, 

contrary to the majority’s suggestion that intervenors are seeking such things as 

“discovery material not yet admitted at trial,” “pretrial discovery,” and “irrelevant 

and unreliable material that plays no role in the criminal proceeding” (supra ¶¶ 33, 

36), in fact intervenors are seeking only the two motions in limine that defendant 

himself filed with the court and thereby made part of the official court record. To be 

sure, these motions purportedly identify and describe with precision the types of 

raw discovery material about which the majority rightly expresses concern, and that 

is unfortunate. But that reality does not mean that the motions themselves are raw 

discovery material, and I object to the majority analyzing the public access question 

as if seeking access to the former is indistinguishable from seeking access to the 

latter. 

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