SIXTH DIVISION Decem ber 11, 2 009

No. 1-08- 1728

THE PEOPL E OF THE S TATE OF IL LINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Coo k Co unt y. ) v. ) Nos. 02 CR 14952 ) ROBERT KELLY, ) Honorable ) Vincent Gaughan , Defenda nt, ) Judge P residing.

)

_________________

_________________

_______) ) CHICAGO SUN-TIMES, INC., TRIBUNE CO. ) and ASSOCIATEDPRESS, ) ) Interven ors-Appe llants. ) ) JUSTI CE ROB ERT E . GOR DON de livered th e opinion of the court: In this appe al, m embe rs of the m edia claim that

their fir st am endment right to freedo m of s peech wa s violated. Specifi cally , they claim that a tri al court e rred: (1) when it sealed certain pretrial proceedings and records during the criminalNo. 1-08- 1728

1 Although the

eme rgency

motion was file d only by

the Sun-T imes and the Tribune, the Assoc iated Press mu st have j oined the m otion shortly

after it s filing, since an order dated April 24, 2008, refers to the m otion as the motion of all three media intervenor s. 2 prosecution of Robert Kelly; and (2) when it issued a “ Decorum Order ” which restrain ed the spee ch of the a ttorney s and witne sses in the R . Kelly case. T he sealed proceedings concerned mainly tw o topics: proposed questions for potential jurors, and a m otion by the state r equesting th e trial c ourt for permiss ion to introduce evidence of

other cr iminal acts by

the defen dant. On April 22, 2008, t

he Chicago Sun-Tim

es, Inc. (Sun-T imes) , the Tr ibune Compa ny (Tribune) a

nd the Assoc iated Press (colle ctively , the media inter venors) 1 filed an “ emer

gency motion ” (1) to in

tervene in the crim

inal case against defendant Kelly ; (2) to obta

in access to certain closed pretrial pr oceedings a

nd records; and (3) to vacate th e Decor um Or der. W hile the tr ial court g

ranted the ir petition to intervene, it denied th eir m otion for a ccess to th e closed pr oceedings and documents, and their motion to vacate the “ Decorum Order .” The subj ect of this appeal is t he trial c ourt’s o rder, entered Ma y 16, 2 008, which deni ed their m

otion. Th e appella

nts are the

media intervenor s; and the appelleeis the Sta

te of Illinois. Robe rt Kelly , the def endant in the

underlyingNo. 1-08- 1728

3

criminal case, w as acquitted; and he is not a party to this appeal. Kelly w as describe d in an aff

idavit by a Tribune

reporter as “a prominent enter

tainer, ” and this case w as descri

bed as one t

hat had “ been the sub

ject of news coverage for years.” For the f ollowing reasons, w e affir m the trial cour

t’s orders. W e 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 w as proper

to review

the trial court’ s order de nying a ccess; (3 ) that the public inter

est excep tion to the m

ootness doct

rine allow s us to hear

this appea l; (4) that we revie w de novo the questio n of wheth er a pre sumpti on of acce ss applies t o this type of p rocee ding , and we revie w for an abus e of di scret ion t he tri al cou rt’s balancing o f com

peting inter

ests and de termining the app ropriate param eters of closure; ( 5) that the

presum ption of ac cess did not apply t o the pretr ial proce edings and documents at issue here; (6) that, even if the presum ption did apply, the trial court did not

abuse its di scretion in denying access ; and (7) t hat the tri al court di d not abuse its discretion by entering the Decorum Or der. BACKGROUND In June 2002, the State

of Illinois charged R

obert Ke lly w ith multiple countsNo. 1-08- 1728

4

of child por

nography . At the

heart of these cha rges wer e the Sta te’s al legations that defen dant Kelly made a vide otape of se xual acts b etween himself an d a minor. After c lose to six years of c ontinuance s, Kell y’s jury trial wa s scheduled

to begin on May 9, 2008. T

he jury trial re sulted in an

acquittal , when th e jury

found Kel ly not guilty of the cha

rges. (1) Procedural History The relevant procedural history is sum marized below. T

he closed proceedin gs, the de corum order, and the order appeale d from are desc ribed in greater detail, with eac h topic desc ribed in its own secti on. In add ition, the re is also a sect ion descr ibing th e documents missi ng from the record

. With the jury selection set to com

menc e on May

9, 2008, t

he State filed, on April 1, a pretrial motion to allow evidence of other cr imes, which was f

iled under seal. On April 11, 15 and 21, the trial court held pretrial hearings, which it closed to the public . On Ap ril 22, the media intervenor s filed the ir mo tion (1) to intervene , (2) to o btain acc ess to the th ree prev iously c losed hear ings, (3) to obtain access to t he hearing schedule d for April 2 5, and (4) to vacate the Deco rum Order. When the parties a ppeared in court on A

pril 24, bo th the Stat e and the pr osecution requested time to respon d to the in tervenors ’ motion.No. 1-08- 1728

5

On April 24, the tr ial court g

ranted the

intervenor s’ motion to inter vene but denied their motion for the immediate release of the tra nscripts of

the previo usly 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 m

ade a fa ctual basi s out of why th e hearing s were s ealed, t hen I woul d be telling you everythin g. So I have to use conclu sions, and o ne of those would be it ’s [ sic ] for t

he protec tion of the s election o f the jury . But I a

m not m aking any decisions on

that right now[,] on the m otion. * * * Again, I can’t d isclose the

factual basis with out disclosing th e whole th ing. So it actually is because

of the proxi mity of jury selection, whic h is in abo ut two weeks, and the cha

nce that th is migh

t deprive M

r. Kel ly of a fair trial . Those are the g eneralized basis. Again , INo. 1-08- 1728

6 can’t make the f

actual basis.” Before the mo tion was sc heduled to be heard bef

ore the tr ial court, the media intervenor s filed, on April 28 , an emergency motion with the I llinois Supreme Court, entitled “Emergency Motion for

Supervisor

y Or der Pursu ant to Supreme Court Rule 383 To Unseal Court Rec ords and Proceedings and Related Relief.” On May 2, defen dant Kell

y file d his “ Objec tions” to the intervenor s’ m otion before ou r suprem e court. Defenda

nt Kelly objecte d both to unsealing the transcri pts of the c losed proce edings and to vacating t he decorum

order, on the ground that t

hese acti ons would en danger his right to a f air trial. Def

endant Ke lly stated that the case had received “world-w ide publicity,” and in support, he quoted a front-p age, Chi cago Tri bune artic le that sta

ted: “ More than 330 reporters have expressed interest in covering the case with news agencies from as f ar away as France, Japan, Australia and England indicating they’ ll attend.” The article, which was atta ched as an

exhibit to de fendant K

elly’ s objections, stat ed that a “[c ]elebr ity-ob sessed cult

ure will turn its ey

es towar d the R. K

elly t rial next month” and that “

hordes of r

eporters and cameram en [are] expected to descend” on the court

house. D efendant Kelly

also obser

ved that the

trial cour t was str ikingNo. 1-08- 1728

7

“a balance,”

since it ha d previously

denied themotion s of both thedefense a nd the prosecut ion to pr ohibit t he publi c from viewing th e videota pe in open court. On May 5, 2008, t

he Illinois Supreme Court de nied the int ervenors’ motion for a supe rvisory

order. After t

he suprem

e court’ s denial, defendant Kelly

renewe d his objec tions before the trial court. On May 6, the St ate file d its response, opposing the intervenor s’ m otion. On May 16 , the tri al court is sued its order den ying the intervenor s’ m otion to obtain access a nd to vacat e the De corum Order. On June 10, the m edia 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 f iled under seal and were sou ght in th e interven ors’ April 22 moti on. The rec ord on appeal is mi ssing cert ain documents. First, it do es not contain the

docum ents, fil ed under se al, that were sought by th e interve nors,

name ly, t he State’ s other-c rime s motio n, its suppl emen tal answer, or the

witness lists. Se cond, it doe s not contain the trans cript of t he public por

tion of the A

pril 11No. 1-08- 1728

2 The state ’s appe llate bri ef state s that proc eedings were held “ in open cour t” on April 22 , when th e me dia interv enors file d their m otion to inter

vene and to obtain access. The record on appeal does not contain the transcript from the open April 22 pr oceeding

.

3 Earlie r in the oral argum ent, the a ssistant sta

te’s at torney had descr

ibed the trial cour t’s stat emen

t, as fol lows: “ The cour

t made a statem ent in that [ April 11] hearing th at this is closed du e to the impact t hat it cou ld have on the jury.” 8 hearing. 2 In their brief to t his court, the m edia inter venors stat ed that, o n April 11, “the public was ejec ted from the courtroom .” Presumably , if the public was ejecte d, then there had alr eady o ccurred

a public por

tion, for which we

are lac king a transcript. The April 11 transcript in the record states that it is an “ excerpt.” The missing transcript m ay be significant, if the trial court made findings in open court, pr ior to closing the firs t proceed ing. During oral argum

ent before the appe llate cour t on October 29, 2009, the appellate court asked the assistant State’s Attorney to list the times that the trial court m ade finding s concern ing closure . The a ssistant St ate’s A ttorney began: “On the 11 th , and it is in the rec ord, the A pril 11, 2008 recor

d at [page ] 5. P rior to the April 11 th closure, the court stated, in open court, the motion filed under seal was a matter tha t could aff ect the jury pool .” 3No. 1-08- 1728

9

In the above

quote, w hen the ass istant Sta

te’s A ttorney referr ed to a page number in the “ record. ” She wa s not refe rring to the appellate record. In the ensuing coll oquy, the assista nt State’ s Attorne y desc ribed a sta teme nt mad e by the trial court on April 15 that appeared “at the record at 8”; that statem ent appeared not on page 8 o f the appe llate re cord, but on page 8 of the individual transcr ipt for the April 15 th proceeding. Sim

ilarly , when sh e describ ed a state ment m ade by the trial court on April 24 that appeared “in the record at 10,” that statem ent appeared not on page 10 of the appe llate re cord, but on page 10 of the individua

l transcr ipt for the A pril 24 th proce edin g. Pres umably th en, whe n the assis tant State ’s Attorney observed, in the above

quote, tha

t the trial court m

ade a find ing in “ the April 11, 2008 recor

d at 5,” sh e was re ferring to page 5 of t he transc ript of the open portion of t

he April 1 1 th proceeding. She m ade this re ference

without apparentl y realizing that

this transc ript had not

been provid ed to us in the appellate record. (3)The C losed Proc eedings and Records As noted, the trial

court clos ed four pretrial he arings, o n: (1) Apr il 11, 2008; (2) April 15, 2008; (3) April 21, 2008; and (4) April 25, 2008. The first three hearings w ere com

prised of a

rgument from

and discussi ons with co unsel. O nlyNo. 1-08- 1728

4 In their a ppellate b rief, t

he me dia interv enors alle ged that the lawy ers for the state a

nd the defendant m et with the trial j udge in cham

bers and w ithout a court rep orter, on severa l dates pri or to tria l. Def endant Ke lly sta

ted in his “Obj ections” t

hat these m

eetings w ere m erely

“ca se ma nagem ent confe rences”

and that, wi th the exce

ption of theproceedings now at i ssue, all “ar gument s, rulings and hearings on pretrial motions have occurred in open court.” 10 the last he aring, on April 25, involved a w itness. A s noted, th e me dia interv enors’ April 22 motion also sought the following documents, which were filed under seal: (1) the State ’s pret

rial motion to allow

evidenceof other c rime s, filed April 1, 2008; (2) the

State’ s supplem ental answ er to disco very; and (3) bot h parties’ witness li sts. 4 At the beg inning of the

excerpt o f the Apr

il 11 proce eding conta

ined in the appellate record, the attorn eys f

or the pros ecution and

the defen se stated t

heir

name s for the r

ecord, a nd the trial court observed that t he only other per sons present were “m

y deputies and my

clerk and our court reporter and my staff attorneys.” The close d portion of the proce eding on Apr il 11 conce rned two topics: (1) the State ’s m otion to use e vidence of other cr imes; and (2) pr

oposed questi ons for potential j urors. T

he trial c ourt hear

d argum ent from

counsel con cerning the State’s motion, and discussed jury questionnaires with counsel. As noted, neitherNo. 1-08- 1728

11

side calle d witnesse s or intro duced evi dence. During the

April 11 pr

oceeding, the prosecutor argue d that, sin ce 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 argum ent, the p rosecutor stated the

name s of the individuals involved in the uncharged

acts, in cluding the n ame of the m inor. She explained why th eir identi ty 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 motio n, the Sta

te had subm

itted a cha

rt detail ing the sim

ilaritie s, to show that the acts were “distinct and unusual.” Defense c ounsel also discussed the acts, arguing tha

t they were not

simil ar. Af

ter liste ning to counse l’s arg ument , the trial co urt held t hat the un charged act s was admissibl e. 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, th e trial c ourt observ ed that “ today w as up for a dditional que stions for t he jury questionnaire” and f

or a m otion that w as filed un der seal. In open cou rt, the trial cour t explaine d that the m

otion was f

iled under seal “

because of

the proxim

ityNo. 1-08- 1728

12

of Mr. K elly’ s case goin g to trial. ” Then the trial cour t stated tha

t there w ould be a short recess to “clear the court and do the proceedings that have to be sealed.” The close d hearing on

April 15 c oncerned p rima rily: questionnaires for t

he potential jurors; and the State’s reiteration of its proffer of other crim es evidence, and the defense’s anticipated response to it. Specifically, counsel and the trial court disc ussed the de fense’ s anticipa ted cross- exam ination conc erning a w itness’ attem pt to obtain m

oney f rom t he defenda

nt in excha

nge for a videotape. The State al so proffe red that th is sam e witness met with an attor ney, that she did

not tell the attorney about sex acts with the minor victim , and that she then received the rest of t he money that had b een promised to her. The closed Ap ril 21 hear ing conce rned primarily the jur y questionn aires. The defense propose d seven ques tions, such as whether the jur

ors had any “feelings” which m

ight affect their judgement in this case, concer ning “lesbian sexual ac tivity, ” or “ three-w ay sex , ma n and two w omen, ” or sex a cts by a mino r “wi th another woma

n and a m an while b eing videota ped,” or adultery , or urina

tion on anoth er person. At the closed April 25 hearing, the trial court heard from a witness, who was depicted on

the videota

pe, but w ho was not t

he min or. Bef

ore hear ing from theNo. 1-08- 1728

13

witness, de fense coun sel stated his reason s for seeki ng to clo se the heari ng. He stated, in part, “

we have a

concern t hat we a re on the e ve of jur

y sele ction and given the na

ture of the

allegatio ns which in

volve alle ged sex wi th a m inor as we ll as a thre e-way

sexual cont act that i f that ty pe of infor

matio n were l eaked [to the public] before th e trial it

would poison

the jury pool”; and t

hat voir dire questions alone woul d not “p rotect” t he defenda

nt. Def ense counse l also rem

arked tha t the front page

of that day ’s Chic ago Tribu ne containe d photographs of the def endant, the trial jud ge and oth er particip ants in th e case. On April 25, the trial court also elaborated on his reasons for closure:

“Pa rt of m y findings are the

same as what [ defense counsel] and the Sta

te has agreed with i s that the m otion for proof of other c rime s elicite d testimony conc erning the participation in different sex acts with a minor. So that is one o f the prim

ary r easons why

these proc eedings have been sealed. The others are that y ou 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 StacyNo. 1-08- 1728

14 St. Clair report ed that ove r 330 news organiza tions have shown inter

est in getting credent

ials. So certainl

y this i s a very high profil e file. And as w e speak there is someb ody fr

om an a gency , which I

will prono unce it, Agence F rance-P resse, a

Miss Mira

Oberman, who provides press service for overseas media. A lso as brought out there have been inquiries from Australia, France, Japan and t

here wa s another c ountry I forgot which one. So this has drawn international as well as nat ion al s cru tin y. With the proximity of

the jury selection happening also within two weeks it is im portant tha

t the jur y pool not be conta

minat ed or prej udiced 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 thatNo. 1-08- 1728

15

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 w as no confl ict of interest. T here wa s no crossexam ination, a

nd only t he trial c ourt exam

ined the w itness. (4) The Decorum

Order On June 22, 2007, the t

rial cour t issued an o rder that

the trial court and t

he parties to this case refer to as the “D ecorum Order. ” The order was never challenge d by the

parties t o the underl

ying cr iminal action, name ly, t

he State and defendant Kelly, or by

the witnesses, to whom the order also applied. T he order was contested only by the m otion of the media intervenors, filed alm ost a year later, on April 22 , 2008. The D eco rum Or der sta ted tha t it app lie d on ly to : (1 ) th e att orn eys “connected [with] this case a s 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 em ployee,” and “ any law enforce ment employee of any agency involved in th is case, ” and (3) “any persons subpoenaed or expected to testify[] [in] this m atter.”No. 1-08- 1728

16

The Dec orum O rder proh ibited thes e individual s from doing any

of the following acts: “(1) Release or authori ze the re lease for public dissemination of a

ny purp orted extr

ajudicia l statement of either the defendant or witnesses relating to this case; (2) Rele ase or aut

horize the

release of any documents, exhibi ts, photographs or any evidence , the admis sibility

of which m

ay hav e to be determine d by the Court; (3) Makeany st atem ent for pub lic dissem ination as to the ex istence or

possible exi stence of

any documents, exhibi ts, photographs or any evidence , the admis sibility

of which m

ay hav e to be determine d by the Court, (4) Express outside of court a n opinion or m

ake any co mm ent of publi c dissem ination as t o the weig

ht, value, or effect of any evidenceas tending t o establish guilt or innocence;No. 1-08- 1728

17 (5) [M] ake any

statem ent outside of court a s to the content, nature, substance or effe ct of any statem ents or testimony that have been given or is expected to be given in any proceeding relating to this matter; (6) Issue any st atem ent as to the

identity of any pro spe cti ve wi tne ss, or t he wi tne ss’s pro bab le t est imon y, or the effect thereof; (7) Makeany out -of-cour t statement as to the nature, source or effect of any purported evidence alleged to have been accum ulated as a

result of the investi gation o f this matter.”

(5) The Order A

ppealed F rom The media intervenors appealed from the trial court’s order, entered on May 16, 2008. T

he May 16 order is an eight-p age and det ailed order, deny ing the media intervenor ’s m otion to unsea l the trans cripts of t

he closed pr

oceedings, and to vacate the Decorum Or der. Previously, on April 24, 2008, the trial court had granted the

media intervenor s’s peti tion to inter vene, but had denied t

heir m otion for the im media te relea se of the t

ranscrip ts of the previously closed hea

rings andNo. 1-08- 1728

18

for the opening of the A

pril 25 hea

ring. The April 2 4 order, however , was not named in the in tervenors ’ notice of app eal. Since the May 16 order was issued after the f our hearings had already been held, thefocus wa s on whether the tra nscripts of

the closed

hearing sh ould remain sealed. In the Ma

y 16 ord er, the trial cour

t stated tha

t, prior to the star

t of hear ings on the Stat e’s other-crim

es mot ion, “ detailed a

nd specifi c findings w ere m ade on the recor d demo nstrating t

hat closure is essent

ial to pres erve highe r values a nd is narrowl y tail ored to ser

ve that interest.” The trial court observed that, although it sealed these findings, they were available to a review ing 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 st ated that “ closure is necessar y to protect the m

inor victim and the def

endant’ s right to a fair tri al by ensuring the j ury w ill 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 m edia cre dentials to cover the trial”; a nd (2) “the case h as been on t he front page of both major Chicago area publications num erous times in the last threeNo. 1-08- 1728

19

weeks. ” In a foo tnote, the trial cour t stated tha

t the m ajor publ ications to which it referr ed were the Chicago Sun-Ti mes a nd the Chic ago Tribu

ne, who w ere also media interven ors. The orde r stated t

hat the sea

led transc ripts woul d be made availa ble to the media intervenors after either trial or sentencing. Since the trial ended in an acquittal , the transcr ipts were made avai lable after t he trial. In the May

16 order, the trial

court cons idered va

rious alte rnatives t o sealing the transc ripts, suc h as: (1) r edacting t hen; (2) us ing pseudony

ms; ( 3) questioning potential j urors during voir dire concerning pretria l publicity ; and (4) c hanging the venue of the

trial. Howeve r, the or

der explained why

these alternative w ould not work. F irst, the

trial cour t, who w as thoroughl

y fam iliar wi th the contents of the tra ns cri pt s, f

ou nd th at “r eda cti on or u se o f ps eud on yms wo ul d re su lt in “a collectio n of unintel ligible nonsense or a c oncession of the inform

ation just ifying closure.” Second, the trial court found that neither voir dire nor a venue change could prote ct the def

endant’ s right to a fair tri al, in ligh t of (1) “ the highly prejudic ial” details of the c rime contained in the tran scripts, and (2) the “onsla ught of pre-trial publicity” generated by the “celebrity of the defendant.” The trial court found

that, if the inform

ation was release d, changin g the trial ’s loca tionNo. 1-08- 1728

20

would do nothi

ng to reduce

the result

ing prej udice, since this w as a case of “nationwide interest.” In addition, “ the likelihood of extensive jury contaminatio n” was even g reater, since the trial was schedule d to begi n 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 t he Decor um Order, entered nearly

a year before. The trial court stated that the order was an exact “ replica” of the order entere d in a high-p rofile c riminal case a gainst cel ebrity Michael J ackson ( 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 1543 0 (2007)). The media intereve nors had cl aime d that the or der consti tuted a pri or restraint upon freedom of speech . The tr

ial court h eld, fir st, that t

he order “ does not plac e any restrain ts whatsoe ver upon the

press,” since it “ governs the

conduct of the attorney s and parti es only .” Thetrial cour t observed that neither the def endant nor the State had asked for the order to be lifted. The trial court found, second, that even i f the o rder wa s a pri or res train t, it wa s need ed to prot ect th e defen dant ’s right to a fair trial, in light of the “torrent of m edia interest in this case.” On June 10, 2008, the media intervenors filed a notice of interlocutoryNo. 1-08- 1728

21

appeal, app ealing fro m the trial court ’s May 16 order. This appeal fol lowed. ANALYSIS This appe al raise s a num

ber of pre limina

ry iss ues: (1) th e appropr iate suit or motion to be brought by the press in order to obtain access to closed court proceedin gs; (2) the

propriety of appella

te juris diction unde r Suprem e Court Rule 307 (188 Ill. 2d R. 307) to review a trial c ourt’s o rder deny ing acces s; (3) the possible mootness of a denial of access, where the crim inal trial at issue has already concluded, and acce ss has since been gran

ted; and (4 ) the appr

opriate standard of review for a t rial court ’s order denying access to th e press. After d eciding the se prelim inary issues, w e ma

y proc eed to the q

uestion of whether the trial court’ s order vio lated the p ublic’s right of ac cess by closing certain p roceeding s and sealing certain records . The pub lic has three different claims to a righ t of access. People v. Pelo , 384 Ill. App . 3d 776, 78 0-81 (200 8). First, t here is a constitution al right of

access, grounded both

in the fir st

amen dment

to the federal consti tution and in t he first a rticle of our State constitution

. U.S. Const., ame nd. I (“ Congress sh all m ake no law *** abridgin g the free dom *** o f the pre ss”); Ill . Const. art. I, §4 (“ All perso ns may speak, w rite and publish f

reely ***”); Pelo , 384 Ill. App. 3d a t 780. Se cond, in a ddition to theNo. 1-08- 1728

22

constit utional right of acc ess, there is a “parallel common-law righ t of access,” recognized by the Illino is Supreme Court

. Pelo , 384 Ill. App. 3d a t 780, citing Skolnick v. Altheimer & Gra y , 191 Ill. 2d 214, 230 ( 2000). Third, the re is a statutory right of a ccess, c reated by our State legislatur

e, as par t of the Il linois Clerks of Courts Ac t. 705 IL CS 105/16 (6 ) (We st 2008); Pelo , 384 Ill. App. 3d at 781. Finally, we m

ust decide whether the trial court’s decorum order constituted an unconstit

utional pri or restraint on fre e speech.

(1) Proc edure and (2) Jurisd iction We fin d both (1) th at a petition to inter vene was the approp riate veh icle to seek acc ess to seal ed court pr oceedings a

nd record s; and (2) t

hat appell ate juris dict ion u nder S upreme C ourt Rule 3 07 was prop er to r eview the tr ial co urt’s order denying access. In the cas e at bar, for the pur pose of obtaining acce ss to seale d court re cords and proceedings, appellants Sun-Times and Tribune filed an “ emergency motion” to i nte rve ne i n th e cri minal case aga ins t de fen dan t Kel ly Instead of filing a m

otion to inter

vene in thecriminal case , appella nts could have tried filing a separate civil action, seeking a declaratory j udgment. 735 ILCSNo. 1-08- 1728

23

5/2-701 (West 2008) (providing for actions seeking a declaratory judgm ent). In Pelo , the appe llate cour

t observed that som e jurisd ictions fin d intervent

ion to be the proper

vehicle f or the pre ss to asser

t a right of

access in a crim

inal case , while other juris diction s find tha t a separate ci vil actio n is more approp riate. Pelo , 384 Ill. App. 3d at 779- 80, citing State v. Cianci , 496 A. 2d 139, 146 ( R.I. 19 85) (holding tha

t interven tion “h as no place

in a crim inal case ,” while

also conce ding that other jurisdic tions find int ervention to be the pro per vehic le for the press to assert a right of access). The Pelo court stat ed: “ Illinois seem s 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 “seem s to be” statement, the Pelo court cite d one case : People v. LaGro ne , 361 Ill. App. 3d 532 (2005). I n LaGron e , the trial court granted the media intervenors’ petition to intervene in the crim inal case, but de nied thei r petitio n for access. LaGron e , 361 Ill. App . 3d at 533- 34. On review, the appell ate court reverse d the trial

court’ s denial of

access, but without discuss ing wheth er interven tion was th e proper veh icle. LaGron e , 361 Ill. App. 3d at 538. Neither LaGron e nor Pelo is dispositive on the issue of whether intervention is proper, since LaGron e never re ached theissue and Pelo ’s “ seem s to be” statement is far from definiti ve.No. 1-08- 1728

24

While t he partie s before u s did not brie f the issue of whether interve ntion 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 tw o issues are intertwined. If

we are going to per

mit in tervention , then we

need to als o permit some path to review. It ca nnot be that important first amendm ent issues are decided by

trial cour ts and then insulated f

rom f urther review. T

hat ma kes no

sense. LaGron e , 361 Ill. App. 3d at 538 (appellate court reversed where trial court fai led to m eet “ the rigoro us standard” require d by the first am endment to close a pr oceeding) ; A.P. , 354 Ill. App. 3d at 1003 (appellate court reversed where “the trial cour

t abused its discretio n by sea ling the entire court

files”) ; Johnson , 232 Ill. A pp. 3d at 107 5 (appella

te court reversed w

here “trial cour

t abused its discretio n by denying acces s”). We find that, in Illinois, intervention is the proper vehicle. First, we w ere not able to l ocate, a fter dili gent sear ching, any

Illinois ca se in whic h a me dia plaintiff empl oyed a

declara tory a ction to obtain access to sealed c ourt reco rds or proceedin gs. Sec ond, we d id find cas es which s eeme d to indicat e that a declarator y action was not the correct v ehicle. Pelo , 384 Ill. App. 3d a t 780 (Illinoi s “seems to” prefer int erventio n over decl aratory action s). C.f. Matchett v.No. 1-08- 1728

25

Chicago Ba

r Associa tion , 125 Ill. App. 3d 100 4, 1009 (198 4) (decla ratory action could not be u sed to forc e the Chic ago Bar A ssociation to publish its reasons for not recom

mending a judic ial candid ate). T hird, we did locate

a numb er of Ill inois cases wh ere a m

edia part y, f aced wit h the same issue, w as allowe d to intervene in both criminal and civil cases. Pelo , 384 Ill. App. 3d at 777 (affirm ing the trial court, which had “granted [the newspaper’ s] petition to intervene but denied access” to the tra nscript at issue in a c riminal case) ; LaGron e , 361 Ill. App. 3d at 533 (reve rsing the tr

ial court, which had

denied ac cess to the

media intervenor

in a criminal case ); Coy v. Washington County H ospital District , 372 Ill. App. 3d 1077 , 1077 -79 (2 007) (affir ming th e tria l cou rt whi ch had grant ed th e news paper ’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, w hich had den ied acce ss to the media inter venor in a c ivil case) ; In re Marriag e 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, b ut not least , interve ntion has adv antages f

rom a policy standpoint, over a dec laratory

action. With intervention, the judge in the criminal

trial, w ho is already fam iliar wi th the rea sons favoring or disfa voring discl osure, is the judgeNo. 1-08- 1728

5 In Cianci , the Supr

eme Court of R

hode Island

held that a

declara tory a ction was super

ior to inter

vention, be cause themedia ’s right s could be “ fully adjudica ted” in a de clarator

y action “w ithout interfering w ith or inter rupting the 26 who decide s the disc losure is sue. Pelo , 384 Ill. App. 3d a t 778, 784 ( affirm

ing the trial cour t’s reasons fo r denying acces s). By contrast, wit h a declarato ry action, a civil judg e would ha

ve to start from scratch, learning t

he pros and cons of disclos ure in a criminal case. Cianci , 496 A. 2d at 146 n.5 (the civil judge w ould review “the case a

new”). With intervention, the crim inal defendant, who has an interest in the disclosure issue, is already before the court, with counsel. By contrast, with a de clarator y action, the c riminal defen dant m ay be forced to retain counsel to intervene in the civil suit. With intervention, a media party may interven e after a criminal de fendant h as filed a motio n to clos e proceedin gs. LaGron e , 363 Ill. App. 3d at 533 (media parties w ere allowed to intervene after defendant filed a m otion to file

proffer s of eviden ce under s eal). W ith a declara tory a ction, you run the r isk of incons istent rulings, when a crim inal judge grants thedefendant ’s m otion to close proceedings, but a s ubsequent c ivil judge rules that the first amendment ri ghts of th e press requ ire their op ening. Cianci , 496 A.2d a

t 146 n.5 (a

civil cour

t in a decl aratory

action may “ question the case anew since it would not be controlled by the doctrine of the law of the case”). 5No. 1-08- 1728

criminal proceeding in any w ay.” Cianci , 496 A. 2d at 146. H owever, a civil court’s orde r of closur e or disclo sure will di rectly interfere wi th the criminal trial. 27 With intervention, the judge in the criminal trial m ay change or am end his or her interlocu tory disclos ure orders, as the needs o f the case and the eviden ce unfold s. Pelo , 384 Ill. App. 3d a

t 778 (the tr

ial court n oted that it s ruling on a ccess could change as the evidenc e unfolded) . By contrast, in a separ

ate decla ratory action, the decla ratory judgement is a final order , rather than an interlocutory

order, and thus it ca nnot adap t to the un folding and poss ibly shiftin g needs of a criminal case. Thus, ba sed on case

law and po licy c onsiderati ons, we c onclude tha t interven tion is the pro per vehicl e in the Stat e of Illino is. If intervention is the proper vehicle, then there has to be some contem plated path to rev iew. A s noted above , the fir st am endment questions a t issue are

too impor tant to insul ate them

from review. The quest

ion then bec omes w

hether the path to rev iew is throu gh Supreme Court Rule 307(a ) or some other ru le or statu te. 188 Ill. 2d

R. 307. Neither

party has suggeste d another r

ule or stat ute that w ould be a bette r path to review. The m edia inter venors bef

ore us arg ue that Rul e 307 review is pro per; and th e State argue s that it i s not, with out offeri ng an alter native.No. 1-08- 1728

28

Supreme Court Rule 307(a) provides, in releva nt part: “(a ) An appe al ma

y be ta ken to the A

ppellate C ourt from an interlo cutory

order of court: (1) grant ing, m odifying, refu sing, dissolving, or refusing to dissolve or modify an injunction;” 188 Ill. 2d R. 307(a)(1). Supreme Court Rule 307(a) (1) perm its an interlocutory appeal from a trial court order that deni es or gran ts injunct ive relie f. 188 Il l. 2d R. 307(a)(1) . Stating that this rule should be construed “broadly,” our suprem e court held that “an interlocutory order circum scribing 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 M inor , 127 Ill. 2d 247, 263 ( 1989) (“ interlocutory restraints upon publication of information are reviewable as interlocutory injunctive orders under Rul e 307(a)(1) ”). Building on the Skolnick holding, the appell ate court in A.P. held that a trial court’ s order de nying a ccess to a media intervenor

is “in the nature

of injunc tive relief, and, ther

efore, this court p ossesses the necessar y jur isdiction to entertain [an interv enor’s] interlo cutory appeal,” pursuant to Rule 30 7(a)(1). A.P. , 354 Ill.No. 1-08- 1728

6 Even though Rules 301, 304 and 307 were all amended effective February 1, 1994 (155 Ill. 2d R .301, 304 a nd 307) and e ven though the petitions f

or acces s in Reyno lds were all filed after that date, the Reyno lds opinion cited an earlier 29 App. 3d a t 990-91, c iting 188 Ill . 2d R. 30 7(a)(1) and Skolnick , 191 Ill. 2d at 221- 22. Altho ugh in other cases we did not identi fy the

basis for our appella

te jurisdic tion , we ha

ve regula rly he ard appeals from

media intervenor s seeking

access. Coy , 372 Ill. App. 3d a t 1079; LaGron e , 361 Ill. App. 3d a t 534 (“ [t]his inte rlocu tory ap peal f

ollo wed” t he tri al cou rt’s de nial of the media in terve nor’s petition fo r access ); Johnson , 232 Ill. App. 3d a t 1069. Presuma

bly, t he sourceof appellate jurisdicti on in the se other cas es was also Su preme Court Rule 3 07(a). 188 Ill. 2d

R. 307(a )(1). T he partie s do not sugges t otherwi se. W e see no reason to aba nd on th is lo ng lin e of app ell ate cas es, whi ch i s we ll -gr ou nd ed i n s up reme court jurisprudence. In response , the Sta

te relie s on this cour

t’s dec ision in People v. Reyno lds , 274 Ill. A pp. 3d 696 (1 995). In Reyno lds , the media inter venor (co incidental ly the Chicago Tribune, a s in the cas e at bar) claim ed that this court had a ppellate jurisdiction, not under Rule 307 which is at issue before this court, but under Rules 301 and 304. Reyno lds , 274 Ill. App. 3d a t 697-98, c iting 134 Ill . 2d 301, 304 and 307. 6 After ruling that appellate jurisdiction did not exist under RulesNo. 1-08- 1728

version of the rules. 134 Ill. 2 d R. 301, 304 and 307. 30 301or 304, the Reyno lds court proc eeded sua sponte to consider the possibility of jurisdicti on under R ule 307. Reyno lds , 274 Ill. App. 3d at 698. The Reyno lds court noted

that norm

ally i t would have

ordered t he partie s to brief this question , but that sinc e the m edia inter venor had m

oved to expe dite, it w ould answe r the questio n for this particula r case, withou t the benef it of briefs

. Reyno lds , 274 Ill. App. 3d at 69 8. In Reyno lds , the trial court’s order denied access to sidebar conferences during trial, but dire cted the release of all sideba

r transcr ipts at the conclusion o f the trial. Reyno lds , 274 Ill. App. 3d at 696-98. The Reyno lds court concluded that it lac ked juri sdiction under Rule 307 t o review the trial court’ s order, because the order was “minist erial and

admin istrative ,” rather than inj unctive as Rule 307 required. Reyno lds , 274 Ill. App . 3d at 698- 99. The Reyno lds court held that the order was administrative rather than injunctiv e, for t

wo reaso ns. Firs t, the tr

ial court’ s order did

not enjoin

the newspaper from publishing information that it already possessed, but instead restricted the newspap er’s access to co urt transc ripts. Reyno lds , 274 Ill. App. 3d at 699. Se cond, sinc e the orde r only “tem porarily ” lim ited that a ccess, i t was not aNo. 1-08- 1728

31

perm anent denia

l of acce ss but was a

n administrative

order pro viding “when” access woul d occur. Reyno lds , 274 Ill. App. 3d at 698, 700. The denial was tempo rary , since a ccess wa s denied only until the co nclusion of t

he trial. Reyno lds , 274 Ill. App. 3d at 698. In the case at bar, the Sta te argues that Reyno lds is sim ilar beca

use, fir st, the m

edia inter venors were not enj oined from publishing information that they already possessed; and, second, they received, at the end of t

he trial, the transc ripts of the closed pro ceedings. What the State ove rlooks is tha

t, in Reyno lds , the Chic ago Tribu ne did not even have t he opport unity to ass ert its own R ule 307 arg uments, since i ts own motion to exp edite impeded its own abi lity to be heard

. Reyno lds , 274 Ill. App. 3d at 698. The juris dictional ho lding in Reyno lds is thus lim ited to the u

nique set of facts of tha t case , which invo lved the sp ecifi c demand s creat ed by th e media’s own reque st for an e xpedited appeal. Since the time of the Reyno lds decision, this court h as held, f irst, tha t a denial of a ccess is in

junctive in nature for p urposes o f Rule 307 ju risdicti on. A.P. , 354 Ill. App . 3d at 900- 91. In addition , we ha ve regula rly permit ted appea ls from media intervenor s seeking a ccess, w hich were presum

ably m ade pursua

nt to Rule 307. Coy , 372 Ill. App. 3d a t 1079; LaGron e , 361 Ill. App. 3d a t 534;No. 1-08- 1728

32

Johnson , 232 Ill. App. 3d a t 1069. Se cond, this court has f ound that even a tempo rary

denial of access to c ourt proce edings is not mere ly adm inistrativ e, but instead ra ises im portant first am endment concer ns. In LaGron e , for ex ample , the trial cour t ordered the sealin g of a pre trial hea ring trans cript, j ust until the completion o f jury selection. LaGron e , 361 Ill. App. 3d a t 534 (“ ‘upon sel ection of the jury, the tran script of t his hearin g will be rel eased’ ”). C.f. In re A M inor , 127 Ill. 2d

at 260 (even “te mpora

ry” r estrainin g orders a

re reviewable under Rule 307(a)(1) ). The

length of denial in LaGron e was even shorter th an the length of denial in Reyno lds : in LaGron e , it was only to t he end of j ury se lection, while in contrast, in Reyno lds , it was unti l the end o f the entire trial. LaGron e , 361 Ill. App. 3d a t 534; Reyno lds , 274 Ill. App. 3d a t 698. In LaGron e , we held that even this sho rt denial o f access implicat ed important fi rst amendment concer ns. LaGron e , 361 Ill. App. 3d a t 537 (holding

that the tr

ial court f ailed to m

ake the specific factual findings nee ded to just ify e ven a short

denial). We did n ot consider this order to be merely ministerial, and we perm itted the interlocutory appeal. LaGron e , 361 Ill. App . 3d at 534. See also Kem ner v. Mo nsanto Compa ny , 112 Ill. 2d 223, 235 ( 1986) (our s uprem e court he ard a Rule 307(a)(1 ) appeal fr om a t rial cour t’s tem porary gag order , which p rohibited de fendant f romNo. 1-08- 1728

33

talking to the

press only

“ ‘ until judgm

ent is ente red’ ” ). For t

hese rea sons, wedo not find Reyno lds disposi tive of th e jurisdict ion issu e before us. In addition, the State

attem pts 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 a

t 990; Skolnick , 191 Ill. 2d at 216. H owever, the State fails to explain w

hy the n eed to rev iew closu re order s would be l ess com pelling in a criminal case than in a civil case – if any thing, the need to review would be more compelling in a criminal ca se. This court has previously stressed the importance of publi c access to cr iminal trials a s a way of ensurin g their fair ness. E.g. LaGron e , 361 Ill. App. 3d at 535 (“opening the [crim inal] process to neutral observers is an importan t means of assuri ng the fair ness of cri minal proceedi ngs’).

In sum , on the pr

ocedural and juri sdictional issues, w e find that a petition to intervene is the appr

opriate vehicle in Il linois for t he me dia to seek

access t o closed cour

t proceed ings; that th ere m

ust be some me chanism

to review

the impor tant firs t amendment

concerns raised by

these peti tions; that a

line of appellate cases app ears to ha

ve found Rul e 307 to be th e appropr iate vehic le for review; and that we see no reason to d epart from this l ine of preced ent.No. 1-08- 1728

34 (3) Mootne ss We fin d that the is sues in this a ppeal are not moo t, becau se they

fall wit hin the public interest exception to the mootness doctrine. (a) Par ties’ A rguments The Sta te argues that the is sues before this cour t are m oot, since the m edia intervenors now have the transcripts to the previously closed hearings, and since the effe ct of the D ecorum Order c eased wh en the under lying c riminal suit concluded. Both sides acknowle dge that, after th e jury acquitted defendant Kelley , the tri al court released t he transc ripts of the

four close d hearings. The State cl aims that both the release of the tra nscripts a nd the concl

usion of the underlying crim

inal tria l make

this appea l moot a

nd require

us to dism

iss it. In response , the media inter venors ar gue that m

ootness is not

a bar to th is appeal, because t

he facts of this cas e fall w ithin two se parate e xceptions to the mootne ss doctrine : (1) the “ public inter

est” exce ption; and ( 2) the “ capable o f repetitio n yet evading review” excep tion. In re A M inor , 127 Ill. 2d at 257-58. In re ply, t he St ate c lai ms th at t he p ubl ic i nte rest exc ept ion doe s no t ap ply, because t he exact i ssues will

not recur . The S tate argu es that the exact issu es will not recur , since: (1) defendant Kel ly is not subject to retrial; (2) themediaNo. 1-08- 1728

35

intervenor s do not dispute the applic able legal rules, but only the way in which th e applicable

rules were applie d to the fac ts of this c ase; and ( 3) the fa cts of this case

were unu sual sincethey included a m edia cele brity, alleged se xual activ ity, and a mino r. Th e Sta te cl aims t hat the “evad ing revi ew” e xce pti on a lso doe s no t ap ply, where the media in tervenors failed to s eek an exped ited appe al. (b) The Public Int erest E xception As a general ru le, Illino is appell ate courts will not rev iew moot cases. In re Barbara H. , 183 Ill. 2d 482, 491 ( 1998). A case on appeal beco mes m oot, whe n “ ‘ the issues involved in the trial cour t no longer e xist,’ ” and it is “ impossi ble for the appellate court to grant the complaining party effe ctual relief.” In re A M inor , 127 Ill. 3d

at 255; In re Barbara H. , 183 Ill. 2d at 490-91 ( considera tion of the issues wil l not affe ct the re sult and “ a decision on the m erits ca nnot result in appropria te relie f to the prevailing pa rty”) . The goa

l of the rule is for c ourts to avoid hear

ing cases w

here the p arties no l onger have “ ‘ a persona l stake in t

he outcome.’ ” In re A M inor , 127 Ill. 3d at 255, q uoting People ex . rel. Black v. Duke , 96 Ill. 2d 273, 276- 77 (1983), quoting Baker v. Carr , 369 U.S. 186, 2 04, 7 L.Ed. 2d 663, 67 8, 82 S.Ct. 691 , 703 (196 2). Without a personal stake, parties lack the in centive to “shar pen[]” their ar gument s or to illust

rate the issues wit

h theNo. 1-08- 1728

36

“conc rete” f

acts of the ir problem s; and revi ewing cour ts depend on t

he partie s’ sharp and concrete pre sentatio n for the ful lest “illuminatio n” of the is sues. In re A Minor , 127 Ill. 3d at 255, q uoting 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 r

ule, ther e are ex ceptions. Two exc eptions to the mootne ss do ctrin e incl ude (1 ) the “ ‘cap able o f repet itio n yet eva ding revie w’ ” exceptio n; and (2) t he publi c interest exceptio n. In re A M inor , 127 Ill. 3d at 257- 58. To rece ive th e bene fit of the “ ‘capa ble o f repet itio n yet eva ding revie w’ ” exception, the com

plainant m

ust “demonstr

ate that ( 1) the challenged ac tion is in its duratio n too short to be fully litigated p rior to its cessation and (2) there is a reasonabl e expecta

tion that the

same compl aining part

y woul d be subje cted to the same action again.” In re Barbara H. , 183 Ill. 2d at 491, q uoting witho ut quotation marks, In re A M inor , 127 Ill. 2d at 258. Since we find, as discussed below, that the public interest e xception applies, w e do not consi der the “ ‘ capa ble of repetitio n yet evading review’ ”except ion. The cri teria fo r the publicinterest exception a re well establishe d and not in dispute. “

‘In ord er to fal l into the publ ic intere st excepti on (1) the q uestion m ustNo. 1-08- 1728

37

be of a publ ic nature ; (2) an a uthoritati ve determ

ination of t

he question m

ust be desirable for the pur

pose of guiding public off icers; a nd (3) the q

uestion m ust be likely to recur.’ ” Fil li un g v . Ad ams , 387 Ill. App. 3d 40, 56 (2008), quoting Brown v. Duncan , 361 Ill. App. 3d 125 , 134 (2005) . Apply ing these c riteria

to the facts before us , we find that the p ublic inter est excep tion allow s us to hear this appeal. First, the question is of a public nature, since it involves when the substance of pretrial hearings and their s upporti ng records should be made public. Reviewing this firs t criter ion, our sup reme

court held

that a new spaper’ s “int erest in the public ation of ne wsworth y infor matio n” is an issu e of “ surpassing p ublic concern.” In re A M inor , 127 Ill. 2d at 257. T he appella

te court in LaGron e was faced w ith a case

– like weare now – in which t he trial c ourt denied

media access to a pretria l hearing, an d the State c laimed on appe al that th e questio n was moot. LaGron e , 361 Ill. App. 3d at 533-34. The LaGron e court held that the que stion was one of “great public interest,” even though the press in that case was denied access to t he transcri pt only unti l the clos e of jury selectio n. LaGron e , 361 Ill. App . 3d at 5 34 -35 . If

th e de ni al o f ac ces s fo r su ch a sh ort du rat io n q ual ifi ed a s “a question of g

reat publi c interes t,” then s o does a deni al of acc ess that la sted untilNo. 1-08- 1728

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 crim inal proceedings is generally a question of a public nature.” 38 the concl usion o f trial. 7 Thus, w e find that the first criteri on is satisf

ied. Second, the determination of this question will guide trial judges, who are public officers. The State claim s that our determination will not guide trial judges, since the m

edia inter venors are not seeking new rul es or stand ards, but rather a re challenging only

the way in which w ell-esta

blished rule s and standa

rds were applied to the facts of this cas e. It has never been the

case that appellant s must s eek new r ules or sta

ndards in order to utilize the

public inte rest exce

ption, and t

he State does not cit e a caseto that effect. Illustrating the proper way to apply existing rules to a particular fact pattern also provides guidance t o trial j udges who m ust apply those rule s, not in a vacuum or to some idealize d set of examples, but to ever-changing fact patterns. In LaGron e , for ex ample , the appe llate cour t found that

the public interest e xception applied, even though t

he me dia interv enors we re not see king new r ules or standards, but were simply challenging the way in which the trial court had applied t hose rule s and stan dards to t he facts of t hat case. LaGron e , 361 Ill. App. 3d at 532 (“ [w]e

agree w ith the intervenors tha t the trial court’ s specificfindingsNo. 1-08- 1728

39

do not co nstitut e a sufficien t basis fo r closure” u nder exis ting rul es and stan dards). As the app ellate c ourt did in LaGron e , we find that guidance about the proper applicati on of exis ting rul es does sat isfy the secon d criterio n. In addition, neither LaGrone, nor any of the othe r cases c ited by the partie s, involved as famous a criminal def endant as the Kelly

case did. Illinois tr

ial courts will benefi t from appellate guidance concernin g the way to hand le celebrit y cases. In the cas e at bar, the trial court turn ed for guid ance to the Califor nia crim inal case against t he now deceas ed celebrit y, Michael Jacks on. People v. Jackson , No. 1133603 (Superior Ct. Cal. 2004 ). It is timeto provide I llinois tria l courts w ith guidance ba sed on Illin ois cases a nd rules. For all t

hese rea sons, wefind the second cri terion sat isfied. Although the

State cl aims that none of the public interest c riteria are m et, their arguments target the third criterion: the likely r ecurrence of the question at issue. The State argues tha t the questi on will not r

ecur sinc e (1) def

endant Ke lly 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 m inor. If defe ndant Kel ly wa s subject to retrial, then the

question w ould not be moot, because p resum ably th e trial c ourt would still have n ot releas ed theNo. 1-08- 1728

40

transcri pts and the b ar to acc ess would be a continuing

one. How ever, a

ppellate courts have

found that t

he public int erest exc eption appli es, wit hout requir

ing a retrial to b e on the ho rizon. LaGron e , 361 Ill. App . 3d at 535. C.f. In re A M inor , 127 Ill. 2d

at 258-59 ( “we

do not agre e that appe llant m ust dem onstrate t

hat” the law wil l “be app li ed i n p rec is ely t he s ame c irc ums tan ces or f or p rec is ely t he s ame reasons, fo r the “capable of re petitio n, yet evading review” excep tion to ap ply). Thus, the lack of a potential r

etrial in the case at bar doe s not bar the applicati on of the publ ic interes t exceptio n. In addition, while the

facts of every case are unique in c ertain w ays, illustrating the prope r way to apply the law t o those fac ts still prov ides guidanc e to trial j udges. The case a

t bar req uired the t

rial cour t, in a high

profile c ase, to balance the public’s right to know, against both the defendant’s right to a fair trial and the co urt’s desire t o protect a n alleged victim of then minor age. Unfortunately, this type of balancing is likely to recur in future cases. See LaGron e , 361 Ill. App. 3d a t 535 (“ balancing t

he right of

the defen dant to a fa

ir trial against the public right of access” in a case where defendant boyfriend w as accused of

drowning hi s girlfri end’s thr ee you ng children

); Pelo , 384 Ill. App. 3d at 777 (bal ancing righ

ts in a cas e against “ an accuse d stalker w ho allegedl

yNo. 1-08- 1728

41

comm itted sexual assault against seve ral diff erent vic tims” ); In re A M inor , 127 Ill. 2d a t 251 (bala

ncing rightswhere a

minor was “ arreste d in connect ion with a fatal shoo ting”). See also Kem ner v. Mo nsanto Co. , 112 Ill. 2d 223, 244 ( 1986) (observing

that the tr

ial court h ad to “ achieve t he delica te balanc e between the desirabil ity of

free dis cussion and t

he necess ity fo r fair a djudicat ion, fre e from interruption of its pr

ocesses”) . Thus, we find t he third cr

iteria isalso satisf

ied. For the f oregoing re asons, w e hold that t he criter ia for the public inte rest exception a

re satisf ied, and t hus the mootness doct

rine is not a

bar to our review o f this appeal

. (4) Standard of Review Our last preliminary

issue is to determine the appropriate standard of review for a tri al court’ s denial of access t o the press

. (a) Par ties’ A rguments The m edia inter

venors claim tha

t de novo is the appr

opriate st andard of review for the trial court’s ultim ate decision to deny access. They cite People v. Rivera , 227 Ill. 2d 1 (2007), which app lied a bifu rcated st andard of

review to a constit utional issue, tho ugh not a first amendment one

. Rivera , 227 Ill. 2d at 4-5, 11 (issue c oncerned w

hether de fense cou

nsel had use d perem

ptory c hallenges toNo. 1-08- 1728

42

strike women from

the jury). U

nder the Riverastandard, a review ing court w ill not disturb a

trial cour t’s fac tual findin gs unless the y are against the

manif est weight of t he eviden ce. Rivera , 227 Ill. 2d at 11. However, under the Rivera standard, the reviewing court will consider de novo the trial court’s “ultim ate” decision , made by applying the la w to the tria l court’s fact ual findi ngs. Rivera , 227 Ill. 2d at 12. The media intervenors ask us to reject the a buse of discretion standard utilized by

the appell ate court

in A.P. . In A.P. , this cour t utilized a

n abuse of discretio n standard to review whether a trial c ourt had properly denied a m

otion by a media interven or (Chicago Tribune) to unseal cou rt records. A.P. , 354 Ill. App. 3d at 994. The A.P. court held that “ abuse of di scretion” was the a ppropriate standard, “re gardless of

whether a purporte d right of a ccess is ba sed on the

comm on 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 i ts minor child ren. A.P. , 354 Ill. App. 3d a t 990. Thu s, the A.P. case, l ike the ca se at bar , involved: a me dia interv enor, se aled cour t records , a celebr ity nam e, and m inors. In the case

at bar, the m edia inter

venors do not attem pt to distingui sh A.P. , except to say that it is a civil case, w hile the case atNo. 1-08- 1728

43

bar is cr iminal. How ever, th ey off er no expla

nation why

this difference le ads to a different s tandard o f review. The State agrees with the m edia intervenors that the Riverastandard o f review appl ies to the first amendment claim. Rivera , 227 Ill. 2d at 11. However, the State claims that the com mon law and statutory cla ims require a lesser standard of review , nam ely a

buse of disc retion; an d the State cites in support In re Johns on , 232 Ill. App . 3d 1068 ( 1992). Howeve r, in Johnson , the appe llate cour t found that

the abuse o f discret

ion standard applied “[u]nder either a common law or fir st amendment analysis.” Johnson , 232 Ill. App. 3d a t 1075. In Johnson , the appellate court held that a trial

cou rt h ad a bus ed i ts d isc reti on, when the tri al co urt had den ied a moti on b y a media interven or for access to sealed co urt transc ripts 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 amendm ent and the common law , as well as under the Clerk of the Courts Act. Johnson , 232 Ill. App . at 1071-7 3. In essence, the State claim s that we should follow the part of the Johnson holding that a

pplied an “ abuse of di scretion” standard t o comm

on law cla

ims, butNo. 1-08- 1728

44

th at w e sh ou ld rej ect th e se con d p art of t hat same ho ld in g t hat app li ed t he s ame standard t o first am

endment claim s. The S tate off ers no rat ionale 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 Riverastandard of review applies to the fir st am endment claim , but diff er conce rning the a

ppropriate

standard f

or the com mon la w and stat

utory c laims . Neith er party offers u s a basis to rejec t this court’ s prior hold

ing in A.P. ; or the Il linois Supreme Court’ s simi lar holding in Skolnick , upon whic h A.P. is based; or either part of the Johnson holding

. A.P. , 354 Ill. A pp. 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 parti es appear

to agree that de novo review is require d for the “ultimate”

decision of the first amendm ent claim, and cite in support a case that has noth ing whats oever to do with the firs t amendment. Rivera , 227 Ill. 2d at 11. The question for us, however , is not w hat standar

d of revie w we w ould devise if w e werewriting on a clean s late; the question for us is what standard of review does our pre cedent re quire us to f ollow. I n several prior ca ses, both t

he Illinois Su

prem e and Appe llate Cour ts have appl ied an abuse

of discre tionNo. 1-08- 1728

8 In a footno te, our su

prem e court obs erved in Skolnick that at le ast one comm entator ha d stated tha

t the abuse

of discre tion standar

d applied to comm

on law claims, but not to first amendment claim s. However, our suprem e court apparentl y rej ected this position when it held, u nder both a first am

endment and comm on law analysis, that the trial court “ abused its discretion.” Skolnick , 191 Ill. 2d at 23 2 n.2, 233, ci ting D. Lee, Sealed D ocuments, Close d Hearin gs, and the Public’ s Right to K

now , 81 B.J. 456, 4 57 (1993 ).

45 standard to first amendment claims, as well as to statutory and comm on law claim s, seekin g disclosure or acce ss. For e xampl e, in Skolnick , our supreme court stated tha t “w hether co urt recor

ds in a part

icular ca se are opened to public scrutiny rests wi th the trial court’ s discreti on which m ust take int o considera

tion all fa cts and circumstances unique to that case.” Skolnick , 19 1 Il l. 2 d at 23 1. O ur s up reme court m ade clea

r that this standard a

pplied to both

the first ame ndment

and

comm on law claims before it, w hen it held: “regardless of whether we pr oceed under a co mmon law or a first am endment analy sis, we reach the same conclusion: the trial court abused its discretion.” Skolnick , 191 Ill. 2d at 233. 8 Accord A.P. , 354 Ill. A pp. 3d at 994 (“A

n order de nying a

motion to unseal a

court fil e or document is reviewed for an abuse of discretion, regar dless of whether a purported right of ac cess is bas ed on the co mmon law or t he first a mendm ent.”); Johnson , 232 Ill. A pp. 3d at 107 5 (“U

nder either a com

mon la w or fir st am endment analysis, we find the trial court abused its discretion by deny ing access to the courtNo. 1-08- 1728

46

records a nd transcr

ipts in the tw o proceedings.”). See also Coy v. Washing ton County Hospital District , 372 Ill. App. 3d a t 1080 (“An order

denyin g a mot

ion to unseal a co urt file or d ocument is revi ewed for an abu se of discr etion.”). C.f. Zielke v. Wagner , 291 Ill. App. 3d 1037, 1040 (1997) (“Wher e a protective order is ch allen ged o n app eal as an un cons titu tion al ‘pri or res train t,’ the trial court ’s decision on t

he ma tter wil l not be distu

rbed on re view absent an abuse of discretion.”). A distinction between our case and the prior cases is that the prior cases were civil, whi le our case i s criminal. In crim inal case s involving de nial of media access, the revie wing court s decided t he first a mendm ent issues without speci fying the standar

d of revie w. For

exam ple, in Pelo , which i s a crim inal case , the appellate court disc ussed the f

irst amendment right of access in on e paragraph, and then dis cussed th e common law right of acc ess in a sep arate paragra ph. Pelo , 384 Ill. App. 3d at 780-81. In the comm on law paragraph, the appellate court identifie d abuse of d

iscretion as the cor

rect sta ndard of review, but without stating whether it al so appli ed to the fi rst amendment claim. Pelo , 384 Ill. App. 3d a t 780- 81. See also LaGron e , 361 Ill. App. 3d at 537 (holding that “the trial court failed to make specifi c factual findings” justify ing closure , without

stating wh ether itNo. 1-08- 1728

47

was applying a de novo or abuse of discretio n standar d). We do not find the civil/criminal distinction to be controlling. In civil cases as in crim inal case s, the par

ties have a

right to a f

air trial, guara

nteed by the due process clauses, of the fifth and fourteenth amendments of the United States constitution , and the p ress has a right of a ccess. U.S. Const., amen d. V (no p erson shall “be deprived of life, liberty , or property without due process of law”), U.S. Const., amen d. XIV

(no state shall “ deprive a ny per son of life , libert

y, or property without due

process of

law”); Skolnick , 191 Ill. 2d at 231-32 (in this civil case, our suprem

e court recognized

that the pub lic had a r

ight of acc ess “ embodi ed in the first amendm ent”). In criminal ca ses, the defendant also has a constitutional right to a pu

blic tria l. U.S . Const. , am end VI ( “In all crim inal prose cutions, t

he accused shall enjoy the right to a *** public trial ***). However, in both crim inal and civil c ases, the

trial cour t is charge d with the d

uty of balancing c ompeting rights and a chieving the

correct balance. We see

no reason t o apply

an abuse of discretio n to civil cases and t hen apply a di fferent stan dard in cri minal cases. C.f. People v. Cooper , 365 Ill. App. 3d 278 , 282 (2006) (applied a n abuse of d

iscretion standard t o question of

whether trial cour t violated d efendant’ s sixth amendment right to a public t rial when it excluded certain sp ectators).No. 1-08- 1728

48

In the cas e at bar, the trial court had t o determ

ine, fir st, whet

her the presum ption of publi c access applied to t his partic ular ty

pe of cour

t record or proceedin g. E.g. , Pelo , 384 Ill. App. 3d a t 783-84 (presump tion of acc ess did not apply t o evidence

deposition th at had not yet been en tered into evidencein a criminal case). T

his is a purely legal question, and we review purely legal questions de novo . Willeford v. Toy s “R” Us-De laware, Inc. , 385 Ill. App. 3d 265, 272 (20 06) (altho ugh protect ive order s are ordi

narily reviewe d for abuse

of discretion, a de novo standard applied to a preceding, purely legal issue). Howeve r, after the trial court fou nd that the p resum

ption applie d, it had to determine wheth er the presu mption was rebu tted by other c oncerns. Skolnick , 191 Ill. 2d a t 232 (“ presum ption can be

rebutted” ); Coy , 372 Ill. App. 3d a t 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 spec ific findings that rebutted the presumpti on and th us justifi ed the clos ure. Skolnick , 191 Ill. 2d at 233 (“tr ial court n eglected

to state w

hy it or dered” se aling of document ); LaGron e , 361 Ill. A pp. 3d at 537 (“tr

ial court f ailed to m

ake speci fic fac tual findin gs”); A.P. , 354 Ill. A pp. 3d at 996 (trial c ourt seale d court fil es “without m aking speci fic findings”) ; Johnson , 232 Ill. App. 3d a t 1075 (trial court’ s order m ust containNo. 1-08- 1728

49

“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 traditio nally owes to a t rial court ’s factual fin dings. Rivera , 227 Ill. 2d at 11; People v. Johnson , 385 Ill. App . 3d 585, 59 0 (2008). In deciding

to deny access t o certain

proceedings and rec ords for a certain length of time, the trial

court had t o craft a

careful and delica

te balanc e am ong competing in terests. LaGron e , 361 Ill. App. 3d a t 535 (“ balancing t

he right of

the defendant to a fair trial against the public right of access to criminal proceedings”) Coy , 37 2 Il l. A pp . 3d at 1 08 2 (“b ala nci ng th is comp ell in g i nt ere st [of vi cti m privacy ] again st the public ’s right of acce ss” in a ci vil 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 spec ial care ”). The trial c ourt had “ to take into considera

tion all fa cts and circum stances uni que to that c ase” and d ecide the appropria

te param eters of closure, na mely for what proceedi ngs and fo r how long

. Skolnick , 191 Ill. 2d at 231; A.P. , 354 Ill. App. 3d at 1002 (trial court erred by sea ling the entire court file;

case was rema

nded so trial court could determine which document required sealing, since “the deter

minat ion regar ding sealing

a partic ular docum

ent *** is properly left to the

trial cour t in the fir st instance ”). To this balanc ing of inter estsNo. 1-08- 1728

50

and determination of param eters, we apply an abuse of discretion standard, as required by the supreme court and appellate court cases that we have discussed above. (5) Pre sumpti on of Acc ess Next, w e must

determ ine wheth er the presump tion of acc ess applie d to the court proc eedings and

records a t issue. I f the pre sumpti on did not appl y, our analy sis ends the re. If

the presum

ption did appl

y, then we m

ust exam ine the propriety of t he trial cou rt’s denial o f access. The constitutional presump tion applies to court pr oceedings a

nd record s (1) which have

been histor

ically open to the p ublic; and ( 2) which h ave a purp ose and function that would be furthered by disclosu re. Skolnick , 191 Ill. 2d at 232; Pelo , 384 Ill. A pp. 3d 780; Press-E

nterprise Co. v. S uperior C ourt of California , 478 U.S. 1, 8, 106 S.Ct. 2735, 2740, 92 L.Ed. 2d 1, 10 (1986) (Press-Enterprise II) (“w hether the

place and

process ha

ve historic ally be en open to the press and general p ublic” and “whe ther publicaccess pl ays a significa nt positive r

ole in the functioning

of the par

ticular pr ocess in que stion”). Although the presum ptions

un der commo n l aw a nd st ate st atu to ry la w ha ve d iff ere nt so urc es, ou r su pre me court has h eld that they are “par allel” to the first

ame ndment

presum ption and thusNo. 1-08- 1728

51

has analyzed th e three presu mptions tog ether. Skolnick , 191 I ll. 2d at 231 -33. We will do the same. In the cas e at bar, the trial court clos ed four pretrial he arings, o n (1) Apr il 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 e vidence of other cr imes; (2) the S tate’s supplem ental answ er to discover y; and (3) both parties’ witn ess lists

. This issue, of the presumption’s applicability to pretr ial criminal proceedin gs, has ar

guably arisen, in two pri or Illinois Appellat e Court ca ses: (1) Pelo and (2) LaGron e . Compare Pelo , 384 Ill. App. 3d a t 783-84 (presump tion of access di d not apply

to pretri al depositi on that had no t yet b een enter ed into evidence in the crim

inal tria l), wit

h LaGron e , 361 Ill. App. 3d a t 536 (pres umption applied to pr

etrial he aring to de termine adm issibility of certa in statem ents in a criminal trial). Com

pare Northwe st Newsp apers v. People , 323 Ill. App. 3d 236 , 242 (2001) (

presum ption did not a

pply to c ourt proce edings autho rizing a w iretap) with Walle r v. Ge orgia , 467 U. S. 39, 47 , 104 S.C t. 2210, 22 16, 81 L. Ed. 2d 31, 39 (1984) (presumption of a public trial under 6 th ame ndment applied to a

hearing to determ ine adm issibility of wire tap evidenc e). Se e also A.P. , 354 Ill. App. 3d atNo. 1-08- 1728

52

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

); In re Johns on , 232 Ill. App. 3d a t 1074 (pre sumpti on applied to certain do cuments but n ot others in a civil c ase). First, the Pelo case conc erned a c riminal defen dant who w as accuse d of stalkin g and sexu ally assaulti ng several victims. Pelo , 384 Ill. App . 3d at 777. Since a potential witness was scheduled to leave the country for m ilitary service, the partie s deposed him at the court house. Pelo , 384 Ill. App . 3d at 777. A newspape r, whic h had been reporting ab out the cas e, file d a petition to interve ne and to gai n access to the video tape of the deposit ion. Pelo , 384 Ill. App. 3d at 777. The appellate court held

that no pre sumpti on attache d under the first amendm ent, the common law or the applicable Illinois statute (705 ILCS 105/16 (6) (West 2006 )). Pelo , 384 Ill. App . 3d at 780- 81, 783-8 4. No presum ption of ac cess atta ched until, and if, t he videotap e was intr

oduced into evidence an d thus be came part of the jud icial record

. Pelo , 384 Ill. App. 3d at 782-83. Second, the LaGron e case concerned a boyfriend accused of m urder when his girlf riend’s thre e children drowned, afte r her vehicl e sank int o a lake. LaGron e , 361 Ill. App. 3d at 533. The defendant moved to bar certain hearsayNo. 1-08- 1728

53

statem ents of oneof the m urder vic tims, and to bar c ertain ev idence co ncerning his “character att ributes”; and to clo se the heari ng on the se two motions

. LaGron e , 361 Ill. App. 3d at 533. The Associated Press and two new spapers petitio ned to in tervene and to obtain access to th e hearing. LaGron e , 361 Ill. App. 3d at 533. A lthough the tr ial court d

irected t he closure

of the hea

ring, it r uled that, “ ‘upon selection of the jury , the transcript of this hearing will be released.’ ” LaGron e , 361 Ill. App. 3d a t 533. In LaGron e , the appellate court never considere d whether

the presum

ption applie d. We

have no wa

y of kno wing if thi s issue was conceded b y the pa rties. S kipping over

the questio n of wheth er 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 th e trial c ourt faile d to ma ke the spec ific findings needed t o rebut the presumption

. LaGron e , 361 Ill. App. 3d at 537. As a result, the LaGron e case provides little gu idance to us in dete rmining wheth er the presu mption appli es. The Unit ed States Supreme Court’ s opinion in Waller in instructive, because i t also conc erned a pr etrial c riminal proce eding. A lthough Waller concerned the defendant’s sixth amendment right to a public trial, the United States Sup reme Court held t hat the same anal ysis applied

. Waller , 467 U. S. at 47,No. 1-08- 1728

54

104 S.Ct. at 2216, 81 L.Ed. 2d at 39; Press-E nterprise II, 478 U .S. at

7, 106 S. Ct. at 2739, 92 L .Ed. 2d

at 9. Thus, whet

her a cour

t is deter mining the propri ety of closure u nder eithe r the first o r the sixt h amendments, the ana lysis is the s ame. In Waller , the Uni ted State s Suprem e Court he ld that the p resum ption attached t o a hearing to determine th e admissibili ty of wiretap evi dence. Waller , 467 U.S. at 43, 104 S .Ct. a t 2214, 81 L .Ed. 2d

at 36. The State had mo ved to close the hearing, on the gr

ound that it w ould involve persons who w ere indic ted but not yet on trial. Waller , 467 U.S. at 42, 104 S.Ct. a t 2213, 81 L.Ed. 2d at 35-36. Over the defen dant’s ob

jection, the trial

court had c losed the he aring, w hich laste d 7 days. Waller , 467 U. S. at 42, 104 S.Ct. at 2213, 81 L.Ed. 2d at 36; see also PressEnterpr ise II, 478 U .S. at

12, 106 S. Ct. at 274 2, 92 L. Ed. 2d at 12 (presum

ption applied to pr

elimi nary h earing tha

t lasted 41d ays, including bot h fact and scientifi c witness es, who w ere subj ect to vigor ous cross-e xamin ation). The Supreme Court he ld that the p resum ption applie d to a suppre ssion heari ng, reasoning t

hat, fir st, in many ca ses, a suppression he aring wil l be, in e ffect, the only tr ial if the defendant

subsequentl

y plea ds guilty

pursuant to a plea bar

gain; second, th at a suppre ssion heari ng often re sembl es a bench trial, with testim

ony by witnesse s, argum

ents by counsel, and deter

minat ions by t he trial c ourt; and th ird,No. 1-08- 1728

55

that the ne ed for a p ublic hear ing is “ particula rly st rong” whe n the issue i s suppression pursuant to t he fourth a

mendm ent, sinc e the publichas “ a strong interest in exposing subs tantial al legations of police con duct to the s alutary effect s of public scrutiny.” Waller , 467 U.S. at 47, 104 S.Ct. a t 2215-16, 81 L.Ed.2d at 39. None of t

he United States S uprem e Court’ s reasons a pply he re. Fir st, in the case at b ar, the defend ant did n ot plead g uilty and a ful l trial was he ld. Second, the hearings at issuebore absol utely n o resem

blance to t

he procee ding 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 questio ns asked b y the trial cour t itself, to one witnes s, on a very limited is sue. Waller , 467 U. S. at 47, 104 S.Ct. at 2215-16, 81 L.E d.2d at 39; see also PressEnterpr ise II, 478 U .S. at

7 and 12, 106 S.Ct. at 2740 and 27 42, 92 L. Ed. 2d at 9 and 12 (pre sumpti on of acce ss applied t o a Calif ornia pre limina

ry hea ring sinceit “func tions m

uch like a f

ull-scale trial”) . Third , in the c ase at bar , the hea rings did not concer

n allegati ons of police

misc onduct, w

hich carr y a “ particula rly st rong” need for pu blic scrut iny. Waller , 467 U.S. at 47, 104 S.Ct. A t 2216, 81 L.Ed.2d at 39.No. 1-08- 1728

56

Apply ing Pelo and Waller to the proc eedings and

records b efore us, we find that the presump tion did not at tach to the

hearings, to the Sta

te’s m otion concernin g potential evidence, to the Sta te’s dis covery , or to the

parties’ witness lists. A s in Pelo , the media inter venors did no t have a r

ight to a potential exhibi t that had not yet be en introduc ed into evidence; sim ilarly , in the c ase at bar , the media intervenors did not have a right to discovery, other crim es’ evidence, or a list of wit nesses, bec ause none of it had b een introd uced into evidence. Pelo , 384 Ill. App. 3d at 782- 83. As al ready discussed, the heari

ngs at issuebore no

resem blance to t

he hearin g in Waller , where the pres umption of acce ss appli ed. Waller , 467 U.S. at 43, 1 04 S.Ct. at 22 14, 81 L.Ed. 2d a t 36. In addition, we find that the subject matter of these proce edings are not ones that have b een histor

ically open to the p ublic or w

hich have a

purpose and function that would be furthered by disclosu re. Skolnick , 191 Ill. 2d at 232; Pelo , 384 Ill. A pp. 3d 780; Press-E

nterpriseII, 478 U .S. at

8, 106 S. Ct. at 274 0, 92 L.Ed. 2d at 10. T

he procee dings at issue

here conc erned primari ly: (1 ) questio nnaires fo r potenti al jurors; an d (2) the Sta te’s other cri mes evidence. First, the media intervenors have not cited a case for the pr oposition that juror que stionnaire s have histor ically been m ade public, prior to the ir use. T heNo. 1-08- 1728

57

questio ning and selection of jurors has historic ally been open to the pub lic. PressEnterpr ise v. Sup erior Cou

rt of Cal ifornia

( Press-E nterprise I), 464 U .S. 501, 505, 104 S.Ct. 819, 821, 7 8 L.Ed. 2d 629, 635 ( 1984) (pre sumpti on of acce ss applies t o voir dire questioning and selection of jurors). However, we have not been presente d with a c ase that th e presum ption applie s to counsel’ s argum ent concernin g what ques tions th ose jurors s hould b e asked. C.f. Richm ond Newspa pers, In c. v. V irginia , 448 U. S. 555, 5 98 n.23, 10 0 S.Ct. 2814, 2839, 65 L.Ed. 2d 973, 1004 ( 1980) (Brennan, J. , concur ring) (“ when engaging in intercha nges at the

bench, th e trial j udge is not required to allow publi c or press intrusion upon

the huddle” ); Reyno lds , 274 Ill. App. 3d a t 698 (“ a denial of contem poraneous a ccess to si debar conf erences ” is not appe alable). Making the que sti ons pub lic to t he v ery pool from which the

jurors a re about to drawn w ould completely underm

ine their function, of eliciting honest and unrehearsed response s from the poten tial jurors

. Press-E nterprise I, 464 U. S. at 511 n .9, 104 S.Ct. at 825 n.9, 78 L.E d. 2d at 639 n.9 (purpo se of quest ioning potenti al juror s is “to ensure a fair im

partial jury”). Second, the States’ other crimes evidence has historically not been accessibl e to the pu blic prio r to its in troducti on at trial

. Pelo , 384 Ill. App. 3d atNo. 1-08- 1728

58

782-83 (potential evidence does not carry a presum ption of ac cess until i ts use in court). In additio n, the fun ction of the hearing c ould be under

mined , if the p ublic and potential jurors received access to the information, even if the tr ial court ruled that the state was not entitled to use it. Although the Unites States Supreme Court held that th is reason d

id not “ autom atically

” justif y ref using acce ss specifi cally

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-E nterprise II, 478 U .S. at

14-15, 106 S .Ct. a

t 2743, 92 L .Ed. 2d

at 14. For the se re aso ns, we fi nd t hat the pres umpt ion of ac ces s di d no t ap ply.

(6) Tri al Court’ s Findings Even if w e wereto find that the presum

ption of ac cess appli ed to these pretrial proceedings and related documents, we could not find that the trial court abused its di scretion in balancing the com peting inter

ests at sta ke here a nd crafting appropri ate parameters. A holding tha

t the presu

mption applies is o nly onestep in the analy sis. The presumption provides only a qualifi ed right o f access. Press-E nterprise II, 478No. 1-08- 1728

59

U.S. at 9, 106 S. Ct. at 274 0, 106 S. Ct. at 10 (“e ven when a right of a ccess att aches, it is not absolute;” it is a “qualified” right). That right still must be balanced against com

peting inter

ests, suc h as the def

endant’ s right to a fair tri al and the pri vac y rig ht of a vi cti m, wh o wa s b ot h an all ege d s ex c rime vi cti m ( PressEnterpr ise II, 478 U .S. at 10 n. 2, 106 S.Ct. at 2741 n.2, 106 S.Ct. at 11n.2 ( “The protection

of victim s of sex cr

imes from

the traum

a and em barrassm ent of publi c scrutiny may justify closing ce rtain aspe cts of a c riminal proce eding.”) ) and a minor at the time of th e alleged act s. A.P. , 354 Ill. App. 3d at 998 (a trial court must e xercise “ great ca

re” whe n faced w ith a m edia petit ion for ac cess in a c ase involving a minor). If the presumption applies to a certain type of pr oceeding or record, the trial court can not close th is type

of proce eding or re cord, unle ss it m akes spec ific findings dem

onstrating t

hat closure is essent

ial to pres erve highe r values a nd is narrowly tailo red to serv e those val ues. Press-E nterpriseII, 478 U .S. at

13-14, 106 S.Ct. at 2743, 92 L.Ed. 2d at 13-14; Press-E nterprise I, 464 U. S. at 510, 104 S.Ct. at 824, 78 L .Ed. 2d

at 638. I f the value

asserted is the def endant’ s right to a fair tri al, then t

he trial c ourt’s f

indings m ust dem onstrate, first, t

hat there is a substantial probability that defendant’s trial will be prejudiced by publicity thatNo. 1-08- 1728

60

closure w ill preven

t; and seco nd, that reasonable alternat ives to clos ure cannot adequatel y protect the d efendant’s fai r trial righ ts. Press-E nterprise II, 478 U.S. at 13-14, 106 S.Ct. at 2743, 92 L.Ed. 2d at 13-14.

(a) Tr ial Court’ s Declar

ation of Re asons In the cas e at bar, the trial court ar ticulated its reason s both in wr

iting and orally in court. On April 11, in open court, the trial c ourt apparently made a statem ent that it was closing the proce eding due to t he proxim

ity of jury selection and the im

pact that i t could have

on potential

jurors. On Apri l 15, in ope n court, the trial court stat ed that the

State’ s motio n had been f iled under seal “

because of the proxim

ity of Mr. Ke lly’ s case goin g to trial. ” On Apr il 24, in open court, t

he trial court explained that it could not “disclose the factual basis” for closure without compromising the very interest that the closed proc eeding sought to protect. Howeve r, the tr

ial court d

id state tha

t “the generali zed basis”

was “the proximity of

jury selection , which i s in about tw o weeks, and the cha nce that th is might deprive Mr. Kelly

of a fair trial.” On April 25, during the first closed hearing a fter theintervenor s’ m otion, the trial cour t elabora ted on its re asons, which it had ment

ioned brief

ly, in open court

the day before. Then, a fter thestate and the defendant received time to respond, as they had both requested, the trialNo. 1-08- 1728

61

court issue d on May

16, 2008, a

detailed, public, 8- page order that explained the need for closure. The media intervenors criticize the trial c ourt for failing to make a formal declaration of reasons, prior to closing the first proceeding on April 11. However, from the recor d before u s, we c annot tell w hether the

trial cour t did, or di d not, make findings bef

ore closin g the proce eding. The recor d on appeal contains onl

y

an excer pt from the April 11 procee ding. The

appellant s failed t o provide us with the transc ript of the

open portion

of the Apr

il 11 proce eding, w

hich would h ave reveale d whether

the trial court did, or did not, make a formal declar

ation of reasons b efore it clear ed the pub lic and th e press from the co urtroom. The burden is on the appellant to p rovide a reviewing court wit h a com plete record. “It

is well se ttled that a

ny doubts arising fr

om the incom pleteness of the record w ill be res olved again st the appe llant, as it is the bur den of the a

ppellant to provide a sufficiently complete r ecord to support at claim of error.” Poliszcuk v. Winkler , 387 Ill. App. 3d 474 , 494 (2008) , citing Trusero Corp. v. Ernst & Y oung L.L.P. , 376 Ill. App . 3d 218, 22 5 (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 trialNo. 1-08- 1728

62

court to issue a formal declaration, when the parties did not object to closure, when the m

edia had not

yet f iled a motion obje cting to clo sure, an d when the presumption of access di d not even apply to that proceedin g. In addition, the reas ons for clo sure are obvious from

the recor d. The purpose o f requirin g a trial cou rt to make findi ngs is to facilitate appellate review. Press-E nterprise II, 478 U .S. at

9-10, 106 S .Ct. a

t 2741, 92 L .Ed. 2d

at 11 (the findings m

ust be “ specific enough that a reviewi ng court ca

n determ ine” the propriety of closure ); A.P. , 354 Ill. App. 3d a t 997 (“ [a]de quate findi

ngs reliev e the appellate courts of having to grope through the record”). Although we require a trial cour t to make specifi c factual fin dings to justify closin g a proceedi ng, a reviewing court may

affirm the closure even if the trial c ourt failed to make a “form al declaration” of findings, if the reasons are both obvious from the record and suffic ient to jus tify closure. People v. Holveck , 141 Ill. 2d 84, 100 (1990); A.P. , 354 Ill. App. 3d a

t 997 (after holding tha

t the trial court’ s findings w ere not sufficien tly “specific,” we cond ucted “[o]ur own rev iew” of the reco rd). In the cas e at bar, we find bo th that the t rial cour t articul ated its reasons orally in court an d in writing; and that the reaso ns are al so obvious fr om the record.No. 1-08- 1728

63 (b) Tri al Court’ s Balancing of Inter ests Even if the presumption of access applied, we c ould not find that the trial court abuse d its discre tion in bala ncing the c ompeting intere sts, in ligh t of the unique fa cts and cir cumstances of t his case. First, t his is a ca se where

the defen dant asser

ted his righ

t to a fair trial, claim ing that open ing these pa rticular proceedings would vio late that right. T he defendant asserted his right in b riefs fi led both bef ore our supr

eme 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 cour t had opened

the proce edings, it

would have had to do so over the def endant’ s voiced con cerns for his constitut

ional right

to a fair trial. Waller , 467 U. S. at 47 a nd 46 n.6, 1 04 S.Ct. at 2216 and 22 16 n.6, 81 L.Ed. 2d at 39 and 3 9 n.6 (noting the need for defe ndant to obj ect to clos ure to trigger a n analy sis of his six

th amendment

right to a p ublic trial, and the difficult ies of clos ing a proce eding ov er defendan t’s objection ). This cour t is confident t

hat if def endant Ke lly had

been convic ted, we

would be pr

esented w ith an allega tion by t he defenda

nt that a m

edia-cir cus atm osphere 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 crim inal proce eding is to tr

y the a ccused fa

irly” ); Press-No. 1-08- 1728

64

Enterpr ise 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 m edia intervenors themselves as attracti ng med ia “h ordes.”In a new spaper ar ticle att ached as a

n exhibit to def end ant Kell y’s ob

ject ion s, o ne o f th e in terv eno rs wr ote tha t “[c]e leb rit yobsessed culture will turn its eyes toward the R. Kelly trial next month” and that “hordes of repo rters and cameramen [are] exp ected to de scend” on the courth ouse. The front-page article also stated: “More than 330 reporters have expressed interest in covering t

he case w ith news agencies f rom a s far aw ay as France, Japan, Australi a and Engl and indicat ing they ’ll att end.” Thus, the in tense cove rage of this case b y the media is an und isputed fact. Nebraska Press Assn. v. Stuart , 427 U.S. 539, 562, 9 6 S.Ct. 2791, 2804, 49 L.E d. 683, 699 (1976) (to assess “ the probable extent of publicity,” the trial court properly re lied on “newspapers demonstrating that the crime had alr eady drawn intensive news coverage”). Third, t his case c oncerned a

n alleged s ex crime victim , who wa s also a minor at the time

of the alleged crime. P rotecting the privacy interests of both sex crime victim s and minors is a param ount concern of the courts. Concerning sex crim e victim s, the U

nited Stat es Suprem

e Court ha s stated, “[t] he protec tion ofNo. 1-08- 1728

65

victims of sex crim es from the trauma and embarrassment of public scrutiny may justify closing certain aspects of a crim inal proceeding.” Press-E nterpriseII, 478 U.S. at 10 n.2, 106 S.Ct. at 274 n.2, 92 L.E d. 2d at 11 n .2. Conc erning m inors, this court h as stated t

hat a trial court m

ust exerc ise “ great ca

re” whe n faced w ith a media petitio n for access i n a case inv olving 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 a t 998. In t

he case a t bar, w here the m

inor was a

lleged to ha

ve participated in three-way sex, lesbian sex and other various sex acts, the trial c ourt was jus tly con cerned w ith protec ting the all eged victi m, w ho was a m

inor at the time of the act s. Fourth, t he trial c ourt’s a

ttemp t to strike a caref

ul balance

was evident, not only fr om the concerns that it expr

essed seve ral times in court and in writing on this subje ct, but al so from the fact that it had previously

denied themotion s of both the def

ense and the

prosecuti on to prohibit

the public f

rom vi ewing the videotape in open court

. Fifth, the trial court considered several alternatives to closure. A trial court may resort to closure onl

y if “ reasonabl e alterna

tives to clo sure cann ot adequate ly protect the defendant’s fair trial rights.” Press-E nterprise II, 478 U .S. at

14, 106No. 1-08- 1728

66

S.Ct. At 2743, 92 L.Ed. 2d at 14; Press-E nterprise 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 consi dered thealternat ives of: ( 1) redac ting; (2) us ing a pseudony m; (3 ) questioning po tential j urors during voir dire ; and (4) ch anging t he venue o f trial. Nebraska Press , 427 U. S. at 563- 64, 96 S. Ct. at 280 5, 49 L. Ed. at 7 00 (discussing alternat ives such a s changing venue and voir dire ). Rej ecting the se alter natives, th e tr ial cou rt e xp lai ned th at r eda cti on and us e of ps eud on yms wo ul d re su lt in “a collection of unintelligible nonsense,” and that neither voir dire questions nor a venue chan ge could pro tect the de fendant’ s right to a fair tri al, in ligh t of the highly pr ejudicia l details of

the crim e, the ons laught of pretrial pub licity , the national and intern ational media a ttentio n, and the p roximity of jury selectio n. Although “

voir dire is the pre ferred metho d for guar ding against

the effe cts of pretrial publicity,” we have recognized that there a re “circum stances” where voir dire cannot remove t he taint. LaGron e , 361 Ill. App. 3d a t 537; Press-E

nterprise II, 478 U.S. at 15 , 106 S.Ct. at 27 43, 92 L.Ed. 2d a t 14 (normally, voir dire can “iden tify t hose juro rs whose p rior know ledge of th e case w ould disable them from rendering an impartial verdict”).. These “rare cases” occur when there has beenNo. 1-08- 1728

67

media saturation, as the trial court found in the case at bar. See LaGron e , 361 Ill. App. 3d at 53 7. In addition, the trial

court’ s findings in the case a t bar share little

resem blance w ith the find

ings in LaGron e , which t he appella

te court f ound to be inadequate . In LaGron e , the trial court failed to “provide[] this [appellate] court with suff icient fa ctual material” ; and the tr ial court m

ade “no men

tion of alternatives to closure other than to state that there were none.” LaGron e , 361 Ill. App. 3d a t 536-37. B y contr

ast, in the case at b ar, the trial cour t did provide

us with fac tual m aterial, such as the fact tha t over 330 reporters had applie d for media credenti al to cover

this case, and that the

case had b een on the f

ront page of both major Chicag o newspape rs, numerous ti mes in just the p rior three week s. Also, in t he case a t bar, th e trial c ourt care fully considere d several different alternat ives to clos ure and ex

plained w hy eac h one would n ot work in t he unique circum stances of

this case. Thus, the

findings in t

he case a t bar share little

resem blance w ith the inad equate findings in LaGron e . For these reasons, we find that, even if the presum ption applied, the trial court did not

abuse its di scretion in striking a balance a

mong the compe ting interests of the def

endant’ s right to a fair tri al, the pu blic’s r ight of acc ess, and t

heNo. 1-08- 1728

68

pri vac y rig ht bel on gi ng to th e vi cti m as b ot h a mi no r an d an all ege d s ex c rime victim. We

make our analy sis based on the unique facts of this case, acknowle dging the ri ghts of the m edia to free speec h and to provi de a fre e press. (7) Decorum O rder The m edia inter

venors challenge theDecorum Order a s a prior r

estraint o n free speech. Kenner v . Monsanto Co. , 112 Ill. 2d 223, 246 ( 1986). L ike the closed proceedings and records, the Decorum Or der raises several preliminary issues t hat we must decid e, before reachi ng the su bstanti ve issue o f prior rest raint. (a) Preliminary

Issues The pre li min ary i ss ues are : (1 ) st and in g; (2) jur is di cti on un der Sup reme Court Rule 307; and (3) the public interest exception to the mootness doctrine. First, t he issue of

standing w as raised

at the oral argum ent of this a ppeal, with resp ect to the Decorum Order. Standing is not an issuein this case . Standin g is an affirmativ e defense whi ch, if not rai sed by the opp osing p arty, is waived. The Illinois Suprem

e Court he ld in Skolnick – which w as a right of acces s case like the ca se at bar

-- that “ standing is a

n affirm ative def ense” wh ich is waived if not raised

. Skolnick , 191 Ill. 2d at 237; Raintree Home s, Inc. v. Village of Long Grove , 209 Ill. 2d 248 (2006) (“Lack of standing is an affirm ative matter that mayNo. 1-08- 1728

9 This court has previously defined the term “ injunction,” in Rule 307(a), as a prohibiti ve, equit able rem edy tha t forbids a

party from doing som e act tha

t he or she is thr eatening or attempting to commit. Pelo , 384 Ill. App. 3d a t 779, quotin g Reyno lds , 274 Ill. App. 3d at 698, quoting Black’s Law Dic tionary, 705 (5 th ed. 1983). 69 be raised as a ground fo r dismissal un der a sectio n 2-619 motio n to dismiss .”). The supre me c ourt in Skolnick seem ed to be cr itical of the appell ate court

for rais ing thi s is sue , see ming ly sua sponte

. Skolnick , 191 Ill. 2d at 237. I n the case at bar, since the i ssue was n ot raised, either a t the trial level or in the appe llate briefs, it was w aived for

purposes of

this appea l. 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 partie s’ attor

neys a nd witnesse s from

speaking on c ertain top ics. Th e trial court’s May 16 order “ refus[ed] to dissolve or modify ” this injunction, as Supreme Court Rule 307 requi res. Thus, the la

nguage of R

ule 307 perm

its this appeal. Kenner , 112 I ll. 2d at 235 , 242 ( an in terlo cuto ry appea l from a “ ‘gag ’ ” order wa s perm

itted “ [p]urs uant to Rule

307"); In re J. S., a M inor , 267 Ill. App. 3d 145, 147 (19 94) (a “ gag order ” directe d to the par

ties and the ir attorneys “ is properly the subje ct of an int erlocutor y appe al under S uprem e Court RuleNo. 1-08- 1728

70

307(a)(1) ”). Se e also Skolnick , 191 Ill. 2d at 221-22 ( an order p rohibiting a party from disseminating inf

orma tion was pr

operly reviewe d under Rule

307). W hile the Deco rum O rder did no t purport to enjoin the media intervenor s, the issu e of standing wa s waived, as discusse d above. S ee also J.S. , 267 Ill. App. 3d a t 152 (“the gag order

constitute s an indire ct restraint on the p ress”); Gentile v . Nevad a , 501 U.S. 1030, 1056, 111 S.Ct. 2720, 2735, 115 L.E d. 2d 889, 9 11 (1991) (“[ b]eca use attorn eys pa

rticipate in the criminal

justice system and are t rained in its com plexities, they ho ld unique qua lificati ons as a sour ce of inf orma tion about pending cases *** [upon which] the press and public rely”). Third, l ike the clo sed proce edings and records, the Dec orum O rder also qualifies for the pub lic interest excep tion to the m ootness doct

rine. A s 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 a t 56, quoting Brown , 361 Ill. App. 3d a t 134. Fir st, the D ecorum Order involves a que stion of “a pu bl ic n atu re, ” si nce it c on cer ns whe n an d i f ce rta in in for mati on wil l b eco me “public.” Second and third, there is a need to guide “ public officers,” i.e., trial judges; a nd the questi on will ce rtainly recur, since the t

rial cour t has used th isNo. 1-08- 1728

71

same Decorum Order b efore an d presumably w ill continue to use it, until and unless we , the re viewing c ourt, say not to use it again. I

n its May 16 order, the trial cour t observed that “ this sam e decorum order w as used duri

ng the trial of People v. Luna , (0 2CR 15 43 0) * ** whi ch w as c ov ere d ex ten si vel y by” th e sa me media intervenors. The Luna case was a case of local notoriety, that involved murd ers at a “Bro wn’ s Ch ick en” res tau ran t. T hu s, n ot on ly d id th is same Decorum Order r ecur, it recurred against these sam e me dia interv enors. F or these reasons, we find t

hat the publi c interes t exceptio n permits us to hea r an appeal, from the portion of the May 16 order that concerned the Decorum Or der. On the preliminary

issues, we find that: (1) any objections to standing were waived; ( 2) we hav e jurisd iction under

Supreme Court Rule 307; and ( 3) the public inter

est excep tion applies . Thus, we m ay pro ceed to the substantive

issue concerning the Decorum Order, which is whether it constituted an unconstitutional prior res traint on f

reedom of speech

. (b) Prio r Restraint The media intervenors claim that the Decorum Order

was an unconstituti onal “

prior res traint on [ the] fr

eedom of speech ” of the pa

rties’ attorneys. Kenner , 112 Ill. 2d at 246 ; J.S. , 267 Ill. App. 3d a t 148 (“A priorNo. 1-08- 1728

72

restrain t is a ‘p redeter

mined judicia l prohibition

restrai ning specif

ied expre ssion’ ”). Although the D ecorum Order w as also directed at the partie s’ witn esses, th e appellate briefs of the m edia inter

venors disc uss only the restr aint of the

attorney s’ speech. Thus , we will limit our an alysis to tha t topic as well. The m edia inter

venors claim tha

t this prior

restraint was unc onstitutiona l, because th e trial cour t failed to make findings to justify it. Kenner , 112 Ill. 2d at 244. In Kenner , the Ill inois Supre me C ourt held, before a trial cour t could res train attorneys from

making extrajudicial com ments “ about a pending civil trial,” it had to make “sp ecifi c find ings ” that the at torn eys’ “condu ct po se[d] a clear and present da

nger or a serious and

imm inent thre at to the f

airness a nd integrit

y of th e trial .” (emphasis in o riginal). Kenner , 112 Ill. 2d at 244. After Kenner , the Ill inois Supreme Court redrafted the rule governing attorney conduct and pretrial publicity , in order

to clarif y, in advance, what subj ects woul d pose this “ serious and imminent threat to the fairn ess of the p roceeding .” 188 Ill. 2d R. 3.6. The trial court’ s Decoru

m Or der trac ks closely , in substa nce if not i

n language, to Rule 3. 6 (b) of the Illinois Rules of Pr

ofessional

Conduct. 188 Ill. 2d R. 3.6. The Rule s of Prof essional C onduct com

prise Ar ticle VI II of theIllinois Supreme Court Ru les; and t hey govern th e conduct of attorne ys in Illinoi s courts.No. 1-08- 1728

10 In 19 91, th e Unit ed Sta tes Su preme Co urt fo und u ncon stit utio nal Ne vada’s trial pub licity rule. Gentile v . StateBar of N evada , 501 U. S. 1030, 115 L.E d. 2d 888, 111 S.Ct. 2720 (1 991) (plu rality opini on). After the Gentileopinion, the Ame rican Ba

r Associa tion and a num

ber of sta tes redra fted their

trial publi city rules. Albert o Bernabe-Ri efkohl, Silence I s Golden: T he New Illinois Rules on Attorney Extrajudicial Spee ch , 33 Loy . U. C hi. L. J. 323, 32 6 (2002). The Illinois Supreme Court adopted in 1999 the version, which is quoted below. 188 Ill. 2d R. 3.6. A group of Il linois state prosecutor s then chal lenged the rule in fe deral cou rt, claiming that it violat ed the first amendment. Devine v. Robinson , 131 F.S upp. 963, 964 (2001). The federal district court dismissed the suit on the ground that plaintiffs had failed to show “an im mediate threat of injury .” Devine , 131 F.S upp. at 968. The federal court also found tha t Rule 3.6 “may be fairly

interpre ted in a manner that com

plies with the First Amendment.” Devine , 131 F.Supp . at 969.

73 “Violation of t hese rules is groun ds for dis cipline.” 1 34 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 ca se at bar, none of the parties have argued that we sh ould find Rul e 3.6 uncon stitutional. 10 In fact, both sides c ite Rule 3. 6 in support of t

heir argu ments , with the

media intervenor s arguing tha

t the Dec orum Order w as broade r than Rule 3.6 and the

state ar guing that it was not. Thus, to the extent th at the Decoru m Order tracks Rule 3 .6(b), it is p roper. Subsection

(b) of Rule 3.6 pro vides a list of subje cts that sho uld not be discussed ou

tside of co urt, bec ause their discussion “

would pose a

serious an d imminent threat to the fairnes s” of a jury proceed ing. 188 Il l. 2d R. 3.6 (b)

. Subsection

(b) provid es in full:No. 1-08- 1728

74 “(b) There a

re 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 t o a jury

or a crim inal m atter. These sub

jects relate t o: (1) the c haracte r, cre dibility , reputa tion or criminal record of a party , suspect in a criminal investigati on or witne ss, or the identity of a witn ess, or the expec ted testim

ony of a party or witnes s; (2) in a criminal case, the possibility of a plea of gui lty to t

he offens e or the e xistence or contents of a c onf ess ion , admi ssi on, or s tat ement giv en b y a defendant or suspect or that person’s failure to make a statem ent; (3) the pe rformance or results of a ny

exam ination or t est or the failure of a perso n to submit to an examination or test, or the nature of phy sical evidence expected to be presented;No. 1-08- 1728

75 (4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case;

(5) infor matio n that the la

wyer 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 w ith a crim

e, unless there is included the rein a statement explaining that the charge is mere ly an accusati on and that t

he defenda

nt is presum

ed innocent unless p roven gui lty.” 188 Ill. 2d R. 3.6 (b). Effec tive Januar

y 1, 10 10, the Il linois Supreme Court rem oved subsec tion (b) from the text of

the rule a

nd move d it, alm

ost verbatim , to the Comm ittee Comm ents that a ccom

pany th e rule. This chan ge has no ef fect on our

analy sis since subse ction (b), as quoted a bove, wa s in effe ct in 2008, at the tim e of the Kelly trial. A section by sec tion com

parison of the Deco rum O rder wi th Rule 3. 6(b) shows their

simil arity . The f

irst section of the D ecorum Order p rohibited t

he dissemination of a

ny “ extraj udicial sta

teme nt” of the defendant or witnes ses. Th isNo. 1-08- 1728

76

section is similar to Rule 3.6(b)(2) which concerns the dissem ination of a “stat emen t given by

a defenda

nt or suspec t.” and toRule 3.6( b)(1) wh ich conce rns the release of a witness’s identity or “ expected testimony.” The seco nd and third sections of the Dec orum O rder conc erned therelease or discus sion of ex hibits wh ose admissib ility the tria l court had yet to determine. These se ctions cor

respond to R

ule 3.6(b) (5), w

hich conce rn “inform ation” tha t a lawy er “ reasonabl

y should know is like ly to be inadm issible as evidence in a trial.” The four

th section o f the De corum Order c oncerned e xpressing a n opinion about guilt or innocence. This section is similar to Rule 3.6(b)(4) which

concerne d “any

opinion as to the guilt or innocence

of a defendant or susp ect in a criminal case.” The fifth section of the Decorum O rder concerned testimony that was “give n or is expe cted to be g iven in any proceeding relatin g to this matter.” This section is similar, in part, to Rule 3.6(b)(1), which concerns “the expected testim ony of a

party or witnes s.” Thi s section is different, in that it also conc erns testimony that was alr

eady “ given” at trial The sixth s ection conc erns the “ identity of any prospecti ve witnes s, or theNo. 1-08- 1728

77

witness’s probable testimony. ” This section is similar to Rule 3.6(b)(1), w hich concerns a wi tness’ “identit y” and “expected tes timony.” 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 De corum

Order t racked R ule 3.6. The m edia inter

venors off

er no explanatio n of how they we re prej udiced by a lack of attorney statem ents describing

trial tes timony , which w as alrea dy give n and m ade public. We ca nnot find a first amendment violati on based o n that sect ion alon e. Zielke , 291 Ill. App. 3d at 103-104 (appella

nts “a re unableto articul ate any prejudi ce that they have suffered” from the alleged prior re straint on speech). For these reasons, we find that the trial court’s Dec orum Order wa s not an abuse of d iscretion by the trial cou rt. J.S. , 267 Ill. App. 3d a t 148 (“ In determ

ining whether the circuit court abused its discretion” in restraining the speech of parties and their a

ttorney s, “ we will

not com pare wha t we m ight have don e with w

hat the [trial] court did. ”); see also Zielke , 291 Ill. App. 3d a t 1040 (“ [w]here a prot ectiveNo. 1-08- 1728

78

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

the m atter w ill not be dis turbed on review ab sent an abus e of discretio n.”); Skolnick , 190 Ill. 2d at 224. H owever, in the futur e, it may be the better practice f

or Illinois trial cour

ts sim ply to us e the exac t language of Rule 3.6(b) when d rafting a Deco rum Order, if they felt on e was needed. CONCLUSION For the f oregoing re asons, w e affir m the trial cour

t’s orders. W e 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 w as proper

to review

the trial court’ s order de nying a ccess and confirm ing the De corum

Order; (3) that t

he public int erest exc eption to the mootness do ctrine allo wed us to he ar this app eal; (4) tha t we review de novo the question of w

hether a p resum

ption of ac cess appli ed to this ty pe of proc eeding, and we review for

an abuse of

discretio n the trial

court’ s balancing

of com peting interests and deter

mining the appropr

iate para mete rs of closu

re; (5) t hat the presumption of access did not apply to the pretrial proceedings and documents at issue here ; (6) that , even if the presum

ption did appl

y, the trial cour t did not abuse its discre tion; and (7 ) that theNo. 1-08- 1728

79

Decorum Order w as not an ab use of disc retion. Affirm ed. J. GORDON a

nd McBRIDE, JJ., concur.