THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT KELLY, Defendant (Chicago Sun-Times, Inc., et al., Intervenors-Appellants), 397 Ill. App. 3d 232

JUSTICE ROBERT E. GORDON delivered the opinion of the court: In this appeal, members of the media claim that their first amendment right to freedom of speech was violated. Specifically, they claim that a trial court erred: (1) when it sealed certain pretrial proceedings and records during the criminal prosecution of Robert Kelly; and (2) when it issued a “Decorum Order” which restrained the speech of the attorneys and witnesses in the R. Kelly case.

The sealed proceedings concerned mainly two topics: proposed questions for potential jurors, and a motion by the state requesting the trial court for permission to introduce evidence of other criminal acts by the defendant. On April 22, 2008, the Chicago Sun-Times, Inc. (Sun-Times), the Tribune Company (Tribune) and the Associated Press (collectively, the media intervenors) filed an “emergency motion” (1) to intervene in the criminal case against defendant Kelly; (2) to obtain access to certain closed pretrial proceedings and records; and (3) to vacate the Decorum Order.

While the trial court granted their petition to intervene, it denied their motion for access to the closed proceedings and documents, and their motion to vacate the Decorum Order. The subject of this appeal is the trial court’s order, entered May 16, 2008, which denied their motion. The appellants are the media intervenors, and the appellee is the State of Illinois. Robert Kelly, the defendant in the underlying criminal case, was acquitted, and he is not a party to this appeal.

Kelly was described in an affidavit by a Tribune reporter as “a prominent entertainer,” and this case was described as one that had “been the subject of news coverage for years.” For the following reasons, we affirm the trial court’s orders.

We 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 (188 Ill. 2d R. 307) was proper to review the trial court’s order denying access; (3) that the public interest exception to the mootness doctrine allows us to hear this appeal; (4) that we review de novo the question of whether a presumption of access applies to this type of proceeding, and we review for an abuse of discretion the trial court’s balancing of competing interests and determining the appropriate parameters of closure; (5) that the presumption of access did not apply to the pretrial proceedings and documents at issue here; (6) that, even if the presumption did apply, the trial court did not abuse its discretion in denying access; and (7) that the trial court did not abuse its discretion by entering the Decorum Order.

BACKGROUND In June 2002, the State of Illinois charged Robert Kelly with multiple counts of child pornography. At the heart of these charges were the State’s allegations that defendant Kelly made a videotape of sexual acts between himself and a minor. After close to six years of continuances, Kelly’s jury trial was scheduled to begin on May 9, 2008. The jury trial resulted in an acquittal, when the jury found Kelly not guilty of the charges. 1. Procedural History The relevant procedural history is summarized below.

The closed proceedings, the Decorum Order, and the order appealed from are described in greater detail, with each topic described in its own section. In addition, there is also a

section describing the documents missing from the record. With the jury selection set to commence on May 9, 2008, the State filed, on April 1, a pretrial motion to allow evidence of other crimes, which was filed under seal. On April 11, 15 and 21, the trial court held pretrial hearings, which it closed to the public. On April 22, the media intervenors filed their motion (1) to intervene, (2) to obtain access to the three previously closed hearings, (3) to obtain access to the hearing scheduled for April 25, and (4) to vacate the Decorum Order.

When the parties appeared in court on April 24, both the State and the defendant requested time to respond to the intervenors’ motion. On April 24, the trial court granted the intervenors’ motion to intervene but denied their motion for the immediate release of the transcripts of the previously 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 made a factual basis out of why the hearings were sealed, then I would be telling you everything.

So I have to use conclusions, and one of those would be it’s [sic] for the protection of the selection of the jury. But I am not making any decisions on that right now[,] on the motion. Again, I can’t disclose the factual basis without disclosing the whole thing. So it actually is because of the proximity of jury selection, which is in about two weeks, and the chance that this might deprive Mr. Kelly of a fair trial. Those are the generalized basis.

Again, I can’t malee the factual basis.” Before the motion was scheduled to be heard before the trial court, the media intervenors filed, on April 28, an emergency motion with the Illinois Supreme Court, entitled “Emergency Motion for Supervisory Order Pursuant to Supreme Court Rule 383 To Unseal Court Records and Proceedings and Related Relief.” On May 2, defendant Kelly filed his “Objections” to the intervenors’ motion before our supreme court.

Defendant Kelly objected both to unsealing the transcripts of the closed proceedings and to vacating the Decorum Order, on the ground that these actions would endanger his right to a fair trial. Defendant Kelly stated that the case had received “world-wide publicity,” and in support, he quoted a front-page, Chicago Tribune

article that stated: “More than 330 reporters have expressed interest in covering the case with news agencies from as far away as France, Japan, Australia and England indicating they’ll attend.” The article, which was attached as an exhibit to defendant Kelly’s objections, stated that a ‘ ‘[c]elebrity-obsessed culture will turn its eyes toward the R. Kelly trial next month” and that “hordes of reporters and cameramen [are] expected to descend” on the courthouse.

Defendant Kelly also observed that the trial court was striking “a balance,” since it had previously denied the motions of both the defense and the prosecution to prohibit the public from viewing the videotape in open court. On May 5, 2008, the Illinois Supreme Court denied the intervenors’ motion for a supervisory order. After the supreme court’s denial, defendant Kelly renewed his objections before the trial court. On May 6, the State filed its response, opposing the intervenors’ motion. On May 16, the trial court issued its order denying the intervenors’ motion to obtain access and to vacate the Decorum Order.

On June 10, the media 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 filed under seal and were sought in the intervenors’ April 22 motion. The record on appeal is missing certain documents.

First, it does not contain the documents, filed under seal, that were sought by the intervenors, namely, the State’s other-crimes motion, its supplemental answer, or the witness lists. Second, it does not contain the transcript of the public portion of the April 11 hearing. In their brief to this court, the media intervenors stated that, on April 11, “the public was ejected from the courtroom.” Presumably, if the public was ejected, then there had already occurred a public portion, for which we are lacking a transcript.

The April 11 transcript in the record states that it is an “excerpt.” The missing transcript may be significant, if the trial court made findings in open court, prior to closing the first proceeding. During oral argument before the appellate court on October 29, 2009, the appellate court asked the assistant State’s Attorney to list the times that the trial court made findings concerning closure. The assistant State’s Attorney began: “On the 11th, and it is in the record, the April 11, 2008 record at [page] 5.

Prior to the April 11th closure, the court stated, in open court, the motion filed under seal was a matter that could affect the jury pool.” In the above quote, the assistant State’s Attorney referred to a page number in the “record.” She was not referring to the appellate record. In the ensuing colloquy, the assistant State’s Attorney described a statement made by the trial court on April 15 that appeared “at the record at 8”; that statement appeared not on page 8 of the appellate record, but on page 8 of the individual transcript for the April 15 proceeding.

Similarly, when she described a statement made by the trial court on April 24 that appeared “in the record at 10,” that statement appeared not on page 10 of the appellate record, but on page 10 of the individual transcript for the April 24 proceeding. Presumably then, when the assistant State’s Attorney observed, in the above quote, that the trial court made a finding in “the April 11, 2008 record at 5,” she was referring to page 5 of the transcript of the open portion of the April 11 proceeding.

She made this reference without apparently realizing that this transcript had not been provided to us in the appellate record. 3. The Closed Proceedings and Records As noted, the trial court closed four pretrial hearings on:

(1) April 11, 2008;

(2) April 15, 2008;

(3) April 21, 2008; and

(4) April 25, 2008. The first three hearings were comprised of argument from and discussions with counsel. Only the last hearing, on April 25, involved a witness. As noted, the media intervenors’ April 22 motion also sought the following documents, which were filed under seal: (1) the State’s pretrial motion to allow evidence of other crimes, filed April 1, 2008; (2) the State’s supplemental answer to discovery; and (3) both parties’ witness lists.

At the beginning of the excerpt of the April 11 proceeding contained in the appellate record, the attorneys for the prosecution and the defense stated their names for the record, and the trial court observed that the only other persons present were “my deputies and my clerk and our court reporter and my staff attorneys.” The closed portion of the proceeding on April 11 concerned two topics: (1) the State’s motion to use evidence of other crimes; and (2) proposed questions for potential jurors. The trial court heard argument from counsel concerning the State’s motion and discussed jury questionnaires with counsel.

As noted, neither side called witnesses or introduced evidence. During the April 11 proceeding, the prosecutor argued that, since 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 argument, the prosecutor stated the names of the individuals involved in the uncharged acts, including the name of the minor. She explained why their identity 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 motion, the State had submitted a chart detailing the similarities, to show that the acts were “distinct and unusual.” Defense counsel also discussed the acts, arguing that they were not similar. After listening to counsel’s argument, the trial court held that the uncharged acts were admissible. 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, the trial court observed that “today was up for additional questions for the jury questionnaire” and for a motion that was filed under seal. In open court, the trial court explained that the motion was filed under seal “because of the proximity of Mr.

Kelly’s case going to trial.” Then the trial court stated that there would be a short recess to “clear the court and do the proceedings that have to be sealed.” The closed hearing on April 15 concerned primarily: questionnaires for the potential jurors and the State’s reiteration of its proffer of other-crimes evidence and the defense’s anticipated response to it. Specifically, counsel and the trial court discussed the defense’s anticipated cross-examination concerning a witness’s attempt to obtain money from the defendant in exchange for a videotape.

The State also proffered that this same witness met with an attorney, that she did not tell the attorney about sex acts with the minor victim, and that she then received the rest of the money that had been promised to her. The closed April 21 hearing concerned primarily the jury questionnaires.

The defense proposed seven questions, such as whether the jurors had any “feelings” which might affect their judgment in this case, concerning “lesbian sexual activity” or “three-way sex, man and two women” or sex acts by a minor “with another woman and a man while being videotaped” or adultery or urination on another person. At the closed April 25 hearing, the trial court heard from a witness, who was depicted on the videotape, but who was not the minor. Before hearing from the witness, defense counsel stated his reasons for seeking to close the hearing.

He stated, in part, “we have a concern that we are on the eve of jury selection and given the nature of the allegations which involve alleged sex with a minor as well as a three-way sexual contact that if that type of information were leaked [to the public] before the trial it would poison the jury pool”; and that voir dire questions alone would not “protect” the defendant. Defense counsel also remarked that the front page of that day’s Chicago Tribune contained photographs of the defendant, the trial judge and other participants in the case.

On April 25, the trial court also elaborated on his reasons for closure: “Part of my findings are the same as what [defense counsel] and the State has agreed with is that the motion for proof of other crimes elicited testimony concerning the participation in different sex acts with a minor. So that is one of the primary reasons why these proceedings have been sealed. The others are that you 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 Stacy St.

Clair reported that over 330 news organizations have shown interest in getting credentials. So certainly this is a very high profile file. And as we speak there is somebody from an agency, which I will pronounce it, Agence France-Presse, a Miss Mira Oberman, who provides press service for overseas media. Also as brought out there have been inquiries from Australia, France, Japan and there was another country I forgot which one. So this has drawn international as well as national scrutiny.

With the proximity of the jury selection happening also within two weeks it is important that the jury pool not be contaminated or prejudiced 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 that 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 was no conflict of interest. There was no cross-examination, and only the trial court examined the witness. 4. The Decorum Order On June 22, 2007, the trial court issued an order that the trial court and the parties to this case refer to as the Decorum Order.

The order was never challenged by the parties to the underlying criminal action, namely, the State and defendant Kelly, or by the witnesses, to whom the order also applied. The order was contested only by the motion of the media intervenors, filed almost a year later, on April 22, 2008.

The Decorum Order stated that it applied only to: (1) the attorneys “connected [with] this case as 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 employee,” and “any law enforcement employee of any agency involved in this case,” and (3) “any persons subpoenaed or expected to testify! ] [in] this matter.” The Decorum Order prohibited these individuals from doing any of the following acts: “

(1) Release or authorize the release for public dissemination of any purported extrajudicial statement of either the defendant or witnesses relating to this case;

(2) Release or authorize the release of any documents, exhibits, photographs or any evidence, the admissibility of which may have to be determined by the Court;

(3) Make any statement for public dissemination as to the existence or possible existence of any documents, exhibits, photographs or any evidence, the admissibility of which may have to be determined by the Court,

(4) Express outside of court an opinion or make any comment of public dissemination as to the weight, value, or effect of any evidence as tending to establish guilt or innocence; (5) [M]ake any statement outside of court as to the content, nature, substance or effect of any statements or testimony that have been given or is expected to be given in any proceeding relating to this matter;

(6) Issue any statement as to the identity of any prospective witness, or the witness’s probable testimony, or the effect thereof;

(7) Make any out-of-court statement as to the nature, source or effect of any purported evidence alleged to have been accumulated as a result of the investigation of this matter.” 5. The Order Appealed From The media intervenors appealed from the trial court’s order, entered on May 16, 2008. The May 16 order is an eight-page and detailed order, denying the media intervenors’ motion to unseal the transcripts of the closed proceedings, and to vacate the Decorum Order.

Previously, on April 24, 2008, the trial court had granted the media intervenors’ petition to intervene, but had denied their motion for the immediate release of the transcripts of the previously closed hearings and for the opening of the April 25 hearing. The April 24 order, however, was not named in the intervenors’ notice of appeal. Since the May 16 order was issued after the four hearings had already been held, the focus was on whether the transcripts of the closed hearing should remain sealed.

In the May 16 order, the trial court stated that, prior to the start of hearings on the State’s other-crimes motion, “detailed and specific findings were made on the record demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” The trial court observed that, although it sealed these findings, they were available to a reviewing 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 stated that “closure is necessary to protect the minor victim and the defendant’s right to a fair trial by ensuring the jury will 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 media credentials to cover the trial”; and (2) “the case has been on the front page of both major Chicago area publications numerous times in the last three weeks.” In a footnote, the trial court stated that the major publications to which it referred were the Chicago Sun-Times and the Chicago Tribune, which were also media intervenors.

The order stated that the sealed transcripts would be made available to the media intervenors after either trial or sentencing. Since the trial ended in an acquittal, the transcripts were made available after the trial. In the May 16 order, the trial court considered various alternatives to sealing the transcripts, such as: (1) redacting them; (2) using pseudonyms; (3) questioning potential jurors during voir dire concerning pretrial publicity; and (4) changing the venue of the trial. However, the order explained why these alternatives would not work.

First, the trial court, which was thoroughly familiar with the contents of the transcripts, found that “redaction or use of pseudonyms would result in a collection of unintelligible nonsense or a concession of the information justifying closure.” Second, the trial court found that neither voir dire nor a venue change could protect the defendant’s right to a fair trial, in light of (1) “the highly prejudicial” details of the crime contained in the transcripts, and (2) the “onslaught of pre-trial publicity” generated by the “celebrity of the defendant.” The trial court found that, if the information was released, changing the trial’s location would do nothing to reduce the resulting prejudice, since this was a case of “nationwide interest.” In addition, “the likelihood of extensive jury contamination” was even greater, since the trial was scheduled to begin 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 the Decorum Order, entered nearly a year before. The trial court stated that the order was an exact “replica” of the order entered in a high-profile criminal case against celebrity Michael Jackson (People v. Jackson, No. 1133603 (Cal. App. Super. January 4, 2004)), and of an order that the trial court had used in a 2007 case (People v. Luna, 02 CR 15430 (2007)).

The media interevenors had claimed that the order constituted a prior restraint upon freedom of speech. The trial court held, first, that the order “does not place any restraints whatsoever upon the press,” since it “governs the conduct of the attorneys and parties only.” The trial court observed that neither the defendant nor the State had asked for the order to be lifted.

The trial court found, second, that even if the order was a prior restraint, it was needed to protect the defendant’s right to a fair trial, in light of the “torrent of media interest in this case.” On June 10, 2008, the media intervenors filed a notice of interlocutory appeal, appealing from the trial court’s May 16 order. This appeal followed.

ANALYSIS This appeal raises a number of preliminary issues: (1) the appropriate suit or motion to be brought by the press in order to obtain access to closed court proceedings; (2) the propriety of appellate jurisdiction under Supreme Court Rule 307 (188 Ill. 2d R. 307) to review a trial court’s order denying access; (3) the possible mootness of a denial of access, where the criminal trial at issue has already concluded and access has since been granted; and (4) the appropriate standard of review for a trial court’s order denying access to the press.

After deciding these preliminary issues, we may proceed to the question of whether the trial court’s order violated the public’s right of access by closing certain proceedings and sealing certain records. The public has three different claims to a right of access. People v. Pelo, 384 Ill. App. 3d 776, 780-81 (2008). First, there is a constitutional right of access, grounded both in the first amendment to the federal constitution and in the first

article of our state constitution. U.S. Const., amend. I (“Congress shall make no law *** abridging the freedom *** of the press”); Ill. Const. 1970, art. I, §4 (“All persons may speak, write and publish freely ***”); Pelo, 384 Ill. App. 3d at 780. Second, in addition to the constitutional right of access, there is a “parallel common-law right of access,” recognized by the Illinois Supreme Court. Pelo, 384 Ill. App. 3d at 780, citing Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 230 (2000).

Third, there is a statutory right of access, created by our state legislature, as part of the Illinois Clerks of Courts Act (705 ILCS 105/16 (6) (West 2008)). Pelo, 384 Ill. App. 3d at 781. Finally, we must decide whether the trial court’s Decorum Order constituted an unconstitutional prior restraint on free speech. 1. Procedure and 2. Jurisdiction We find both (1) that a petition to intervene was the appropriate vehicle to seek access to sealed court proceedings and records; and (2) that appellate jurisdiction under Supreme Court Rule 307 was proper to review the trial court’s order denying access.

In the case at bar, for the purpose of obtaining access to sealed court records and proceedings, appellants Sun-Times and Tribune filed an “emergency motion” to intervene in the criminal case against defendant Kelly. Instead of filing a motion to intervene in the criminal case, appellants could have tried filing a separate civil action, seeking a declaratory judgment. 735 ILCS 5/2—701 (West 2008) (providing for actions seeking a declaratory judgment).

In Pelo, the appellate court observed that some jurisdictions find intervention to be the proper vehicle for the press to assert a right of access in a criminal case, while other jurisdictions find that a separate civil action is more appropriate. Pelo, 384 Ill. App. 3d at 779-80, citing State v. Cianci, 496 A.2d 139, 146 (R.I. 1985) (holding that intervention “has no place in a criminal [case],” while also conceding that other jurisdictions find intervention to be the proper vehicle for the press to assert a right of access).

The Pelo court stated: “Illinois seems to be one of those jurisdictions that takes interlocutory appeals concerning right-of-access [cases].” (Emphasis added.) Pelo, 384 Ill. App. 3d at 780. In support of its “seems to be” statement, the Pelo court cited one case: People v. LaGrone, 361 Ill. App. 3d 532 (2005). In LaGrone, the trial court granted the media intervenors’ petition to intervene in the criminal case, but denied their petition for access. LaGrone, 361 Ill. App. 3d at 533-34.

On review, the appellate court reversed the trial court’s denial of access, hut without discussing whether intervention was the proper vehicle. LaGrone, 361 Ill. App. 3d at 538. Neither LaGrone nor Pelo is dispositive on the issue of whether intervention is proper, since LaGrone never reached the issue and Pelo's “seems to be” statement is far from definitive. While the parties before us did not brief the issue of whether intervention 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 two issues are intertwined.

If we are going to permit intervention, then we need to also permit some path to review. It cannot be that important first amendment issues are decided by trial courts and then insulated from further review. That makes no sense. LaGrone, 361 Ill. App. 3d at 538 (appellate court reversed where trial court failed to meet “the rigorous standard” required by the first amendment to close a proceeding); A.P. v. M.E.E., 354 Ill. App. 3d 989, 1003 (2004) (appellate court reversed where “the trial court abused its discretion by sealing the entire court file”); In re Marriage of Johnson, 232 Ill.

App. 3d 1068, 1075 (1992) (appellate court reversed where “trial court abused its discretion by denying access”). We find that, in Illinois, intervention is the proper vehicle. First, we were not able to locate, after diligent searching, any Illinois case in which a media plaintiff employed a declaratory action to obtain access to sealed court records or proceedings. Second, we did find cases which seemed to indicate that a declaratory action was not the correct vehicle. Pelo, 384 Ill. App. 3d at 780 (Illinois “seems to” prefer intervention over declaratory actions). Cf. Matchett v. Chicago Bar Ass’n, 125 Ill.

App. 3d 1004, 1009 (1984) (declaratory action could not he used to force the Chicago Bar Association to publish its reasons for not recommending a judicial candidate). Third, we did locate a number of Illinois cases where a media party, faced with the same issue, was allowed to intervene in both criminal and civil cases. Pelo, 384 Ill. App. 3d at 777 (affirming the trial court, which had “granted [the newspaper’s] petition to intervene but denied access” to the transcript at issue in a criminal case); LaGrone, 361 Ill.

App. 3d at 533 (reversing the trial court, which had denied access to the media intervenor in a criminal case); Coy v. Washington County Hospital District, 372 Ill. App. 3d 1077, 1077-79 (2007) (affirming the trial court, which had granted the newspaper’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, which had denied access to the media intervenor in a civil case); In re Marriage 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, but not least, intervention has advantages from a policy standpoint, over a declaratory action. With intervention, the judge in the criminal trial, who is already familiar with the reasons favoring or disfavoring disclosure, is the judge who decides the disclosure issue. Pelo, 384 Ill. App. 3d at 778, 784 (affirming the trial court’s reasons for denying access).

By contrast, with a declaratory action, a civil judge would have to start from scratch, learning the pros and cons of disclosure in a criminal case. Cianci, 496 A.2d at 146 n.5 (the civil judge would review “the case anew”). With intervention, the criminal defendant, who has an interest in the disclosure issue, is already before the court, with counsel. By contrast, with a declaratory action, the criminal defendant may be forced to retain counsel to intervene in the civil suit. With intervention, a media party may intervene after a criminal defendant has filed a motion to close proceedings. LaGrone, 363 Ill.

App. 3d at 533 (media parties were allowed to intervene after defendant filed a motion to file proffers of evidence under seal). With a declaratory action, you run the risk of inconsistent rulings, when a criminal judge grants the defendant’s motion to close proceedings, but a subsequent civil judge rules that the first amendment rights of the press require their opening. Cianci, 496 A.2d at 146 n.5 (a civil court in a declaratory action may “question the case anew since it would not be controlled by the doctrine of the law of the case”).

With intervention, the judge in the criminal trial may change or amend his or her interlocutory disclosure orders, as the needs of the case and the evidence unfolds. Pelo, 384 Ill. App. 3d at 778 (the trial court noted that its ruling on access could change as the evidence unfolded). By contrast, in a separate declaratory action, the declaratory judgment is a final order, rather than an interlocutory order, and thus it cannot adapt to the unfolding and possibly shifting needs of a criminal case.

Thus, based on case law and policy considerations, we conclude that intervention is the proper vehicle in the State of Illinois. If intervention is the proper vehicle, then there has to be some contemplated path to review. As noted above, the first amendment questions at issue are too important to insulate them from review. The question then becomes whether the path to review is through Supreme Court Rule 307(

a) or some other rule or statute. 188 Ill. 2d R. 307. Neither party has suggested another rule or statute that would be a better path to review. The media intervenors before us argue that Rule 307 review is proper; and the State argues that it is not, without offering an alternative. Supreme Court Rule 307(

a) provides, in relevant part: “(

a) An appeal may be taken to the Appellate Court from an interlocutory order of court: (1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[J” 188 Ill. 2d R. 307(a)(1). Supreme Court Rule 307(a)(1) permits an interlocutory appeal from a trial court order that denies or grants injunctive relief. 188 Ill. 2d R. 307(a)(1).

Stating that this rule should be construed “broadly,” our supreme court held that “an interlocutory order circumscribing 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 Minor, 127 Ill. 2d 247, 263 (1989) (“interlocutory restraints upon publication of information are reviewable as interlocutory injunctive orders under Rule 307(a)(1)”).

Building on the Skolnick holding, the appellate court in A.P. held that a trial court’s order denying access to a media intervenor is “in the nature of injunctive relief, and, therefore, this court possesses the necessary jurisdiction to entertain [an intervenor’s] interlocutory appeal,” pursuant to Rule 307(a)(1). A.P., 354 Ill. App. 3d at 990-91, citing 188 Ill. 2d R. 307(a)(1), and Skolnick, 191 Ill. 2d at 221-22. Although in other cases we did not identify the basis for our appellate jurisdiction, we have regularly heard appeals from media intervenors seeking access. Coy, 372 Ill.

App. 3d at 1079; LaGrone, 361 Ill. App. 3d at 534 (“[t]his interlocutory appeal followed” the trial court’s denial of the media intervenor’s petition for access); Johnson, 232 Ill. App. 3d at 1069. Presumably, the source of appellate jurisdiction in these other cases was also Supreme Court Rule 307(a). 188 Ill. 2d R. 307(a)(1). The parties do not suggest otherwise. We see no reason to abandon this long line of appellate cases, which is well-grounded in supreme court jurisprudence. In response, the State relies on this court’s decision in People v. Reynolds, 274 Ill. App. 3d 696 (1995).

In Reynolds, the media intervenor (coincidentally the Chicago Tribune, as in the case at bar) claimed that this court had appellate jurisdiction, not under Rule 307 which is at issue before this court, but under Rules 301 and 304. Reynolds, 274 Ill. App. 3d at 697-98, citing 134 Ill. 2d Rs. 301, 304, 307. After ruling that appellate jurisdiction did not exist under Rules 301 or 304, the Reynolds court proceeded sua sponte to consider the possibility of jurisdiction under Rule 307. Reynolds, 274 Ill. App. 3d at 698.

The Reynolds court noted that normally it would have ordered the parties to brief this question, but that since the media intervenor had moved to expedite, it would answer the question for this particular case, without the benefit of briefs. Reynolds, 274 Ill. App. 3d at 698. In Reynolds, the trial court’s order denied access to sidebar conferences during trial, but directed the release of all sidebar transcripts at the conclusion of the trial. Reynolds, 274 Ill. App. 3d at 696-98.

The Reynolds court concluded that it lacked jurisdiction under Rule 307 to review the trial court’s order, because the order was “ministerial and administrative,” rather than injunctive as Rule 307 required. Reynolds, 274 Ill. App. 3d at 699. The Reynolds court held that the order was administrative rather than injunctive, for two reasons. First, the trial court’s order did not enjoin the newspaper from publishing information that it already possessed, but instead restricted the newspaper’s access to court transcripts. Reynolds, 274 Ill. App. 3d at 699.

Second, since the order only “temporarily” limited that access, it was not a permanent denial of access but was an administrative order providing “when” access would occur. Reynolds, 274 Ill. App. 3d at 698, 700. The denial was temporary, since access was denied only until the conclusion of the trial. Reynolds, 274 Ill. App. 3d at 698. In the case at bar, the State argues that Reynolds is similar because, first, the media intervenors were not enjoined from publishing information that they already possessed; and, second, they received, at the end of the trial, the transcripts of the closed proceedings.

What the State overlooks is that, in Reynolds, the Chicago Tribune did not even have the opportunity to assert its own Rule 307 arguments, since its own motion to expedite impeded its own ability to be heard. Reynolds, 274 Ill. App. 3d at 698. The jurisdictional holding in Reynolds is thus limited to the unique set of facts of that case, which involved the specific demands created by the media’s own request for an expedited appeal. Since the time of the Reynolds decision, this court has held, first, that a denial of access is injunctive in nature for purposes of Rule 307 jurisdiction. A.P., 354 Ill.

App. 3d at 990-91. In addition, we have regularly permitted appeals from media intervenors seeking access, which were presumably made pursuant to Rule 307. Coy, 372 Ill. App. 3d at 1079; LaGrone, 361 Ill. App. 3d at 534; Johnson, 232 Ill. App. 3d at 1069. Second, this court has found that even a temporary denial of access to court proceedings is not merely administrative, but instead raises important first amendment concerns. In LaGrone, for example, the trial court ordered the sealing of a pretrial hearing transcript, just until the completion of jury selection. LaGrone, 361 Ill.

App. 3d at 534 (“ ‘upon selection of the jury, the transcript of this hearing will be released’ ”). Cf. In re A Minor, 127 Ill. 2d at 260 (even “temporary” restraining orders are reviewable under Rule 307(a)(1)). The length of denial in LaGrone was even shorter than the length of denial in Reynolds: in LaGrone, it was only to the end of jury selection, while in contrast, in Reynolds, it was until the end of the entire trial. LaGrone, 361 Ill. App. 3d at 534; Reynolds, 274 Ill. App. 3d at 698. In LaGrone, we held that even this short denial of access implicated important first amendment concerns. LaGrone, 361 Ill.

App. 3d at 537 (holding that the trial court failed to make the specific factual findings needed to justify even a short denial). We did not consider this order to be merely ministerial, and we permitted the interlocutory appeal. LaGrone, 361 Ill. App. 3d at 534. See also Kemner v. Monsanto Co., 112 Ill. 2d 223, 235 (1986) (our supreme court heard a Rule 307(a)(1) appeal from a trial court’s temporary gag order, which prohibited defendant from talking to the press only “ ‘until judgment is entered’ ”). For these reasons, we do not find Reynolds dispositive of the jurisdiction issue before us.

In addition, the State attempts 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 at 990; Skolnick, 191 Ill. 2d at 216. However, the State fails to explain why the need to review closure orders would be less compelling in a criminal case than in a civil case—if anything, the need to review would be more compelling in a criminal case. This court has previously stressed the importance of public access to criminal trials as a way of ensuring their fairness. E.g., LaGrone, 361 Ill.

App. 3d at 535 (“opening the [criminal] process to neutral observers is an important means of assuring the fairness of criminal proceedings”). In sum, on the procedural and jurisdictional issues, we find that a petition to intervene is the appropriate vehicle in Illinois for the media to seek access to closed court proceedings; that there must be some mechanism to review the important first amendment concerns raised by these petitions; that a line of appellate cases appears to have found Rule 307 to be the appropriate vehicle for review; and that we see no reason to depart from this line of precedent. 3.

Mootness We find that the issues in this appeal are not moot, because they fall within the public interest exception to the mootness doctrine. a. Parties’ Arguments The State argues that the issues before this court are moot, since the media intervenors now have the transcripts to the previously closed hearings, and since the effect of the Decorum Order ceased when the underlying criminal suit concluded. Both sides acknowledge that, after the jury acquitted defendant Kelley, the trial court released the transcripts of the four closed hearings.

The State claims that both the release of the transcripts and the conclusion of the underlying criminal trial make this appeal moot and require us to dismiss it. In response, the media intervenors argue that mootness is not a bar to this appeal, because the facts of this case fall within two separate exceptions to the mootness doctrine: (1) the “public interest” exception; and (2) the “capable of repetition yet evading review” exception. In re A Minor, 127 Ill. 2d at 257-58. In reply, the State claims that the public interest exception does not apply, because the exact issues will not recur.

The State argues that the exact issues will not recur, since: (1) defendant Kelly is not subject to retrial; (2) the media intervenors do not dispute the applicable legal rules, but only the way in which the applicable rules were applied to the facts of this case; and (3) the facts of this case were unusual since they included a media celebrity, alleged sexual activity, and a minor. The State claims that the “evading review” exception also does not apply, where the media intervenors failed to seek an expedited appeal. b.

The Public Interest Exception As a general rule, Illinois appellate courts will not review moot cases. In re Barbara H., 183 Ill. 2d 482, 491 (1998). A case on appeal becomes moot, when “ ‘the issues involved in the trial court no longer exist,’ ” and it is “impossible for the appellate court to grant the complaining party effectual relief.” In re A Minor, 127 Ill. 2d at 255, quoting La Salle National Bank v.

City of Chicago, 3 Ill. 2d 375, 378-79 (1954); In re Barbara H., 183 Ill. 2d at 490-91 (consideration of the issues will not affect the result and “a decision on the merits cannot result in appropriate relief to the prevailing party”). The goal of the rule is for courts to avoid hearing cases where the parties no longer have “ ‘ “[a] personal stake in the outcome.” ’ ” In re A Minor, 127 Ill. 2d at 255, quoting People ex rel. Black v. Dukes, 96 Ill. 2d 273, 276-77 (1983), quoting Baker v. Carr, 369 U.S. 186, 204, 7 L. Ed. 2d 663, 678, 82 S. Ct. 691, 703 (1962).

Without a personal stake, parties lack the incentive to “sharpen[ ]” their arguments or to illustrate the issues with the “concrete” facts of their problems; and reviewing courts depend on the parties’ sharp and concrete presentation for the fullest “illumination” of the issues. In re A Minor, 127 Ill. 2d at 255, quoting 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 rule, there are exceptions.

Two exceptions to the mootness doctrine include (1) the “ ‘ “capable of repetition, yet evading review” ’ ” exception; and (2) the public interest exception. In re A Minor, 127 Ill. 2d at 258, quoting Madison Park Bank v. Zagel, 91 Ill. 2d 231, 236 (1982), quoting Sosna v. Iowa, 419 U.S. 393, 399-400, 42 L. Ed. 2d 532, 540, 95 S. Ct. 553, 557 (1975).

To receive the benefit of the “ ‘capable of repetition yet evading review’ ” exception, the complainant must “demonstrate that: (1) the challenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again.” In re Barbara H., 183 Ill. 2d at 491, quoting without quotation marks, In re A Minor, 127 Ill. 2d at 258. Since we find, as discussed below, that the public interest exception applies, we do not consider the “capable of repetition yet evading review” exception.

The criteria for the public interest exception are well established and not in dispute. “ ‘In order to fall into the public interest exception (1) the question must be of a public nature; (2) an authoritative determination of the question must be desirable for the purpose of guiding public officers; and (3) the question must be likely to recur.’ ” Filliung v. Adams, 387 Ill. App. 3d 40, 56 (2008), quoting Brown v. Duncan, 361 Ill. App. 3d 125, 134 (2005). Applying these criteria to the facts before us, we find that the public interest exception allows us to hear this appeal.

First, the question is of a public nature, since it involves when the substance of pretrial hearings and their supporting records should be made public. Reviewing this first criterion, our supreme court held that a newspaper’s “interest in the publication of newsworthy information” is an issue of “surpassing public concern.” In re A Minor, 127 Ill. 2d at 257. The appellate court in LaGrone was faced with a case—like we are now—in which the trial court denied media access to a pretrial hearing, and the State claimed on appeal that the question was moot. LaGrone, 361 Ill. App. 3d at 533-34.

The LaGrone court held that the question was one of “great public interest,” even though the press in that case was denied access to the transcript only until the close of jury selection. LaGrone, 361 Ill. App. 3d at 534-35. If the denial of access for such a short duration qualified as “a question of great public interest,” then so does a denial of access that lasted until the conclusion of trial. Thus, we find that the first criterion is satisfied. Second, the determination of this question will guide trial judges, who are public officers.

The State claims that our determination will not guide trial judges, since the media intervenors are not seeking new rules or standards, but rather are challenging only the way in which well-established rules and standards were applied to the facts of this case. It has never been the case that appellants must seek new rules or standards in order to utilize the public interest exception, and the State does not cite a case to that effect.

Illustrating the proper way to apply existing rules to a particular fact pattern also provides guidance to trial judges who must apply those rules, not in a vacuum or to some idealized set of examples, but to ever-changing fact patterns. In LaGrone, for example, the appellate court found that the public interest exception applied, even though the media intervenors were not seeking new rules or standards, but were simply challenging the way in which the trial court had applied those rules and standards to the facts of that case. LaGrone, 361 Ill.

App. 3d at 536 (“[w]e agree with the intervenors that the trial court’s specific findings do not constitute a sufficient basis for closure” under existing rules and standards). As the appellate court did in LaGrone, we find that guidance about the proper application of existing rules does satisfy the second criterion. In addition, neither LaGrone nor any of the other cases cited by the parties involved as famous a criminal defendant as the Kelly case did. Illinois trial courts will benefit from appellate guidance concerning the way to handle celebrity cases.

In the case at bar, the trial court turned for guidance to the California criminal case against the now deceased celebrity, Michael Jackson. People v. Jackson, No. 1133603 (Cal. App. Super. January 4, 2004). It is time to provide Illinois trial courts with guidance based on Illinois cases and rules. For all these reasons, we find the second criterion satisfied. Although the State claims that none of the public interest criteria are met, then arguments target the third criterion: the likely recurrence of the question at issue.

The State argues that the question will not recur since (1) defendant Kelly 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 minor. If defendant Kelly was subject to retrial, then the question would not be moot, because presumably the trial court would still have not released the transcripts and the bar to access would be a continuing one. However, appellate courts have found that the public interest exception applies, without requiring a retrial to be on the horizon. LaGrone, 361 Ill. App. 3d at 535. Cf.

In re A Minor, 127 Ill. 2d at 258-59 (“we do not agree that appellant must demonstrate that” the law will “be applied in precisely the same circumstances or for precisely the same reasons,” for the “capable of repetition, yet evading review” exception to apply). Thus, the lack of a potential retrial in the case at bar does not bar the application of the public interest exception. In addition, while the facts of every case are unique in certain ways, illustrating the proper way to apply the law to those facts still provides guidance to trial judges.

The case at bar required the trial court, in a high profile case, to balance the public’s right to know, against both the defendant’s right to a fair trial and the court’s desire to protect an alleged victim of then minor age. Unfortunately, this type of balancing is likely to recur in future cases. See LaGrone, 361 Ill. App. 3d at 535 (“balancing the right of the defendant to a fair trial against the public right of access” in a case where defendant boyfriend was accused of drowning his girlfriend’s three young children); Pelo, 384 Ill.

App. 3d at 777 (balancing rights in a case against “an accused stalker who allegedly committed sexual assault against several different victims”); In re A Minor, 127 Ill. 2d at 251 (balancing rights where a minor was “[arrested] in connection with a fatal shooting”). See also Kemner v. Monsanto Co., 112 Ill. 2d 223, 244 (1986) (observing that the trial court had to “achieve the delicate balance between the desirability of free discussion and the necessity for fair adjudication, free from interruption of its processes”). Thus, we find the third criterion is also satisfied.

For the foregoing reasons, we hold that the criteria for the public interest exception are satisfied, and thus the mootness doctrine is not a bar to our review of this appeal. 4. Standard of Review Our last preliminary issue is to determine the appropriate standard of review for a trial court’s denial of access to the press. a. Parties’ Arguments The media intervenors claim that de novo is the appropriate standard of review for the trial court’s ultimate decision to deny access. They cite People v.

Rivera, 227 Ill. 2d 1 (2007), which applied a bifurcated standard of review to a constitutional issue, though not a first amendment one. Rivera, 227 Ill. 2d at 4-5, 11 (issue concerned whether defense counsel had used peremptory challenges to strike women from the jury). Under the Rivera standard, a reviewing court will not disturb a trial court’s factual findings unless they are against the manifest weight of the evidence. Rivera, 227 Ill. 2d at 11.

However, under the Rivera standard, the reviewing court will consider de novo the trial court’s “ultimate” decision, made by applying the law to the trial court’s factual findings. Rivera, 227 Ill. 2d at 12. The media intervenors ask us to reject the abuse of discretion standard utilized by the appellate court in A.P. In A.P., this court utilized an abuse of discretion standard to review whether a trial court had properly denied a motion by a media intervenor (Chicago Tribune) to unseal court records. A.P., 354 Ill. App. 3d at 994.

The A.P. court held that “abuse of discretion” was the appropriate standard, “regardless of whether a purported right of access is based on the common 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 its minor children. A.P., 354 Ill. App. 3d at 990. Thus, the A.P. case, like the case at bar, involved: a media intervenor, sealed court records, a celebrity name, and minors.

In the case at bar, the media intervenors do not attempt to distinguish A.P., except to say that it is a civil case, while the case at bar is criminal. However, they offer no explanation why this difference leads to a different standard of review. The State agrees with the media intervenors that the Rivera standard of review applies to the first amendment claim. Rivera, 227 Ill. 2d at 11. However, the State claims that the common law and statutory claims require a lesser standard of review, namely abuse of discretion; and the State cites in support In re Marriage of Johnson, 232 Ill. App. 3d 1068 (1992).

However, in Johnson, the appellate court found that the abuse of discretion standard applied “[u]nder either a common law or first amendment analysis.” Johnson, 232 Ill. App. 3d at 1075. In Johnson, the appellate court held that a trial court had abused its discretion, when the trial court had denied a motion by a media intervenor for access to sealed court transcripts 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 amendment and the common law, as well as under the Clerks of the Courts Act. Johnson, 232 Ill. App. 3d at 1071-73. In essence, the State claims that we should follow the part of the Johnson holding that applied an “abuse of discretion” standard to common law claims, but that we should reject the second part of that same holding that applied the same standard to first amendment claims.

The State offers no rationale 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 Rivera standard of review applies to the first amendment claim, but differ concerning the appropriate standard for the common law and statutory claims. Neither party offers us a basis to reject this court’s prior holding in A.P., or the Illinois Supreme Court’s similar holding in Skolnick, upon which A.P. is based, or either part of the Johnson holding. A.P., 354 Ill. App. 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 parties appear to agree that de novo review is required for the “ultimate” decision of the first amendment claim, and cite in support a case that has nothing whatsoever to do with the first amendment. Rivera, 227 Ill. 2d at 11. The question for us, however, is not what standard of review we would devise if we were writing on a clean slate; the question for us is what standard of review does our precedent require us to follow.

In several prior cases, both the Illinois Supreme and Appellate Courts have applied an abuse of discretion standard to first amendment claims, as well as to statutory and common law claims, seeking disclosure or access. For example, in Skolnick, our supreme court stated that “whether court records in a particular case are opened to public scrutiny rests with the trial court’s discretion, which must take into consideration all facts and circumstances unique to that case.” Skolnick, 191 Ill. 2d at 231.

Our supreme court made clear that this standard applied to both the first amendment and common law claims before it, when it held: “regardless of whether we proceed under a common law or a first amendment analysis, we reach the same conclusion: the trial court abused its discretion.” Skolnick, 191 Ill. 2d at 233. Accord A.P., 354 Ill. App. 3d at 994 (“An order denying a motion to unseal a court file or document is reviewed for an abuse of discretion, regardless of whether a purported right of access is based on the common law or the first amendment”); Johnson, 232 Ill.

App. 3d at 1075 (“Under either a common law or first amendment analysis, we find the trial court abused its discretion by denying access to the court records and transcripts in the two proceedings”). See also Coy v. Washington County Hospital District, 372 Ill. App. 3d at 1080 (“ ‘An order denying a motion to unseal a court file or document is reviewed for an abuse of discretion’ ”), quoting A.P. v. M.E.E., 354 Ill. App. 3d at 994. Cf. Zielke v. Wagner, 291 Ill.

App. 3d 1037, 1040 (1997) (“Where a protective order is challenged on appeal as an unconstitutional ‘prior restraint,’ the trial court’s decision on the matter will not be disturbed on review absent an abuse of discretion”). A distinction between our case and the prior cases is that the prior cases were civil, while our case is criminal. In criminal cases involving denial of media access, the reviewing courts decided the first amendment issues without specifying the standard of review.

For example, in Pelo, which is a criminal case, the appellate court discussed the first amendment right of access in one paragraph, and then discussed the common law right of access in a separate paragraph. Pelo, 384 Ill. App. 3d at 780-81. In the common law paragraph, the appellate court identified abuse of discretion as the correct standard of review, but without stating whether it also applied to the first amendment claim. Pelo, 384 Ill. App. 3d at 780-81. See also LaGrone, 361 Ill.

App. 3d at 537 (holding that “the trial court failed to make specific factual findings” justifying closure, without stating whether it was applying a de novo or abuse of discretion standard). We do not find the civil/criminal distinction to be controlling. In civil cases as in criminal cases, the parties have a right to a fair trial, guaranteed by the due process clauses of the fifth and fourteenth amendments of the United States Constitution, and the press has a right of access. U.S. Const., amend. V (no person shall “be deprived of life, liberty, or property, without due process of law”); U.S. Const., amend.

XIV (no state shall “deprive any person of life, liberty, or property without due process of law”); Skolnick, 191 Ill. 2d at 231-32 (in this civil case, our supreme court recognized that the public had a right of access “embodied in the first amendment”). In criminal cases, the defendant also has a constitutional right to a public trial. U.S. Const., amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a *** public trial ***”). However, in both criminal and civil cases, the trial court is charged with the duty of balancing competing rights and achieving the correct balance.

We see no reason to apply an abuse of discretion to civil cases and then apply a different standard in criminal cases. Cf. People v. Cooper, 365 Ill. App. 3d 278, 282 (2006) (applied an abuse of discretion standard to question of whether trial court violated defendant’s sixth amendment right to a public trial when it excluded certain spectators). In the case at bar, the trial court had to determine, first, whether the presumption of public access applied to this particular type of court record or proceeding. E.g., Pelo, 384 Ill.

App. 3d at 783-84 (presumption of access did not apply to evidence deposition that had not yet been entered into evidence in a criminal case). This is a purely legal question, and we review purely legal questions de novo. Willeford v. Toys “R” Us-Delaware, Inc., 385 Ill. App. 3d 265, 272-73 (2008) (although protective orders are ordinarily reviewed for abuse of discretion, a de novo standard applied to a preceding, purely legal issue). However, after the trial court found that the presumption applied, it had to determine whether the presumption was rebutted by other concerns.

Skolnick, 191 Ill. 2d at 232 (“presumption can be rebutted”); Coy, 372 Ill. App. 3d at 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 specific findings that rebutted the presumption and thus justified the closure. Skolnick, 191 Ill. 2d at 233 (“trial court neglected to state why it ordered” sealing of document); LaGrone, 361 Ill. App. 3d at 537 (“trial court failed to make specific factual findings”); A.P., 354 Ill.

App. 3d at 996 (trial court sealed court files “without making specific findings”); Johnson, 232 Ill. App. 3d at 1075 (trial court’s order must contain “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 traditionally owes to a trial court’s factual findings. Rivera, 227 Ill. 2d at 11; People v. Johnson, 385 Ill. App. 3d 585, 590 (2008).

In deciding to deny access to certain proceedings and records for a certain length of time, the trial court had to craft a careful and delicate balance among competing interests. LaGrone, 361 Ill. App. 3d at 535 (“balancing the right of the defendant to a fair trial against the public right of access to criminal proceedings”); Coy, 372 Ill. App. 3d at 1082 (“balancing this compelling interest [of victim privacy] against the public’s right of access” in a civil case); Waller v. Georgia, 467 U.S. 39, 45, 81 L. Ed. 2d 35, 38, 104 S. Ct. 2210, 2215 (1984) (“the balance of interests must be struck with special care”).

The trial court had “[t]o take into consideration all facts and circumstances unique to that case” and decide the appropriate parameters of closure, namely, for what proceedings and for how long. Skolnick, 191 Ill. 2d at 231; A.P., 354 Ill. App. 3d at 1002 (trial court erred by sealing the entire court file; case was remanded so trial court could determine which document required sealing, since “[t]he determination regarding sealing a particular document *** is properly left to the trial court in the first instance”).

To this balancing of interests and determination of parameters, we apply an abuse of discretion standard, as required by the supreme court and appellate court cases that we have discussed above. 5. Presumption of Access Next, we must determine whether the presumption of access applied to the court proceedings and records at issue. If the presumption did not apply, our analysis ends there. If the presumption did apply, then we must examine the propriety of the trial court’s denial of access.

The constitutional presumption applies to court proceedings and records (1) which have been historically open to the public; and (2) which have a purpose and function that would be furthered by disclosure. Skolnick, 191 Ill. 2d at 232; Pelo, 384 Ill. App. 3d at 780; Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1, 8, 92 L. Ed. 2d 1, 10, 106 S. Ct. 2735, 2740 (1986) (Press-Enterprise II) (“whether the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question”).

Although the presumptions under common law and state statutory law have different sources, our supreme court has held that they are “parallel” to the first amendment presumption and thus has analyzed the three presumptions together. Skolnick, 191 Ill. 2d at 231-33. We will do the same. In the case at bar, the trial court closed four pretrial hearings, on

(1) April 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 evidence of other crimes; (2) the State’s supplemental answer to discovery; and (3) both parties’ witness lists. This issue, of the presumption’s applicability to pretrial criminal proceedings, has arguably arisen, in two prior Illinois Appellate Court cases:

(1) Pelo and

(2) LaGrone. Compare Pelo, 384 Ill. App. 3d at 783-84 (presumption of access did not apply to pretrial deposition that had not yet been entered into evidence in the criminal trial), with LaGrone, 361 Ill. App. 3d at 536 (presumption applied to pretrial hearing to determine admissibility of certain statements in a criminal trial). Compare In re Consensual Overhear, 323 Ill. App. 3d 236, 242 (2001) (presumption did not apply to court proceedings authorizing a wiretap), with Waller v. Georgia, 467 U.S. 39, 47, 81 L. Ed. 2d 31, 39, 104 S.

Ct. 2210, 2216 (1984) (presumption of a public trial under sixth amendment applied to a hearing to determine admissibility of wiretap evidence). See also A.P., 354 Ill. App. 3d at 998 (presumption applied to a civil proceeding concerning a family’s asset distribution); In re Johnson, 232 Ill. App. 3d at 1074 (presumption applied to certain documents but not others in a civil case). First, the Pelo case concerned a criminal defendant who was accused of stalking and sexually assaulting several victims. Pelo, 384 Ill. App. 3d at 777.

Since a potential witness was scheduled to leave the country for military service, the parties deposed him at the courthouse. Pelo, 384 Ill. App. 3d at 777. A newspaper, which had been reporting about the case, filed a petition to intervene and to gain access to the videotape of the deposition. Pelo, 384 Ill. App. 3d at 777. The appellate court held that no presumption attached under the first amendment, the common law or the applicable Illinois statute (705 ILCS 105/16(6) (West 2006)). Pelo, 384 Ill. App. 3d at 780-81, 783-84.

No presumption of access attached until, and if, the videotape was introduced into evidence and thus became part of the judicial record. Pelo, 384 Ill. App. 3d at 782-83. Second, the LaGrone case concerned a boyfriend accused of murder when his girlfriend’s three children drowned, after her vehicle sank into a lake. LaGrone, 361 Ill. App. 3d at 533. The defendant moved to bar certain hearsay statements of one of the murder victims and to bar certain evidence concerning his “character attributes” and to close the hearing on these two motions. LaGrone, 361 Ill. App. 3d at 533.

The Associated Press and two newspapers petitioned to intervene and to obtain access to the hearing. LaGrone, 361 Ill. App. 3d at 533. Although the trial court directed the closure of the hearing, it ruled that, “ ‘upon selection of the jury, the transcript of this hearing will be released.’ ” LaGrone, 361 Ill. App. 3d at 534. In LaGrone, the appellate court never considered whether the presumption applied. We have no way of knowing if this issue was conceded by the parties.

Skipping over the question of whether 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 the trial court failed to make the specific findings needed to rebut the presumption. LaGrone, 361 Ill. App. 3d at 537. As a result, the LaGrone case provides little guidance to us in determining whether the presumption applies. The United States Supreme Court’s opinion in Waller is instructive, because it also concerned a pretrial criminal proceeding.

Although Waller concerned the defendant’s sixth amendment right to a public trial, the United States Supreme Court held that the same analysis applied. Waller, 467 U.S. at 47, 81 L. Ed. 2d at 39, 104 S. Ct. at 2216; Press-Enterprise II, 478 U.S. at 7, 92 L. Ed. 2d at 9, 106 S. Ct. at 2739. Thus, whether a court is determining the propriety of closure under either the first or the sixth amendments, the analysis is the same. In Waller, the United States Supreme Court held that the presumption attached to a hearing to determine the admissibility of wiretap evidence. Waller, 467 U.S. at 43, 81 L. Ed. 2d at 36, 104 S.

Ct. at 2214. The State had moved to close the hearing, on the ground that it would involve persons who were indicted but not yet on trial. Waller, 467 U.S. at 42, 81 L. Ed. 2d at 35-36, 104 S. Ct. at 2213. Over the defendant’s objection, the trial court had closed the hearing, which lasted seven days. Waller, 467 U.S. at 42, 81 L. Ed. 2d at 36, 104 S. Ct. at 2213; see also Press-Enterprise II, 478 U.S. at 12, 92 L. Ed. 2d at 12, 106 S. Ct. at 2742 (presumption applied to preliminary hearing that lasted 41 days, including both fact and scientific witnesses, who were subject to vigorous cross-examination).

The Supreme Court held that the presumption applied to a suppression hearing, reasoning that, first, in many cases, a suppression hearing will be, in effect, the only trial if the defendant subsequently pleads guilty pursuant to a plea bargain; second, that a suppression hearing often resembles a bench trial, with testimony by witnesses, arguments by counsel, and determinations by the trial court; and third, that the need for a public hearing is “particularly strong” when the issue is suppression pursuant to the fourth amendment, since the public has “a strong interest in exposing substantial allegations of police misconduct to the salutary effects of public scrutiny.” Waller, 467 U.S. at 47, 81 L.

Ed. 2d at 39, 104 S. Ct. at 2215-16. None of the United States Supreme Court’s reasons apply here. First, in the case at bar, the defendant did not plead guilty and a full trial was held. Second, the hearings at issue bore absolutely no resemblance to the proceeding 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 questions asked by the trial court itself, to one witness, on a very limited issue. Waller, 467 U.S. at 47, 81 L. Ed. 2d at 39, 104 S.

Ct. at 2215-16; see also Press-Enterprise II, 478 U.S. at 7, 12, 92 L. Ed. 2d at 9, 12, 106 S. Ct. at 2740, 2742 (presumption of access applied to a California preliminary hearing since it “functions much like a full-scale trial”). Third, in the case at bar, the hearings did not concern allegations of police misconduct, which carry a “particularly strong” need for public scrutiny. Waller, 467 U.S. at 47, 81 L. Ed. 2d at 39, 104 S. Ct. at 2216.

Applying Pelo and Waller to the proceedings and records before us, we find that the presumption did not attach to the hearings, to the State’s motion concerning potential evidence, to the State’s discovery, or to the parties’ witness lists. As in Pelo, the media intervenors did not have a right to a potential exhibit that had not yet been introduced into evidence; similarly, in the case at bar, the media intervenors did not have a right to discovery, other-crimes evidence, or a list of witnesses, because none of it had been introduced into evidence. Pelo, 384 Ill. App. 3d at 782-83.

As already discussed, the hearings at issue bore no resemblance to the hearing in Waller, where the presumption of access applied. Waller, 467 U.S. at 43, 81 L. Ed. 2d at 36, 104 S. Ct. at 2214. In addition, we find that the subject matter of these proceedings is not one that has been historically open to the public or which have a purpose and function that would be furthered by disclosure. Skolnick, 191 Ill. 2d at 232; Pelo, 384 Ill. App. 3d 780; Press-Enterprise II, 478 U.S. at 8, 92 L. Ed. 2d at 10, 106 S. Ct. at 2740.

The proceedings at issue here concerned primarily: (1) questionnaires for potential jurors; and (2) the State’s other-crimes evidence. First, the media intervenors have not cited a case for the proposition that juror questionnaires have historically been made public prior to their use. The questioning and selection of jurors have historically been open to the public. Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 505, 78 L. Ed. 2d 629, 635, 104 S. Ct. 819, 821 (1984) (Press-Enterprise I) (presumption of access applies to voir dire questioning and selection of jurors).

However, we have not been presented with a case that the presumption applies to counsel’s argument concerning what questions those jurors should be asked. Cf. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 598 n.23, 65 L. Ed. 2d 973, 1004 n.23, 100 S. Ct. 2814, 2839 n.23 (1980) (Brennan, J., concurring, joined by Marshall, J.) (“when engaging in interchanges at the bench, the trial judge is not required to allow public or press intrusion upon the huddle”); Reynolds, 274 Ill. App. 3d at 698 (“a denial of contemporaneous access to sidebar conferences” is not appealable).

Making the questions public to the very pool from which the jurors are about to be drawn would completely undermine their function, of eliciting honest and unrehearsed responses from the potential jurors. Press-Enterprise I, 464 U.S. at 51 n.9, 78 L. Ed. 2d at 638 n.9, 104 S. Ct. at 824 n.9 (purpose of questioning potential jurors is “to ensure a fair impartial jury”). Second, the State’s other-crimes evidence has historically not been accessible to the public prior to its introduction at trial. Pelo, 384 Ill. App. 3d at 782-83 (potential evidence does not carry a presumption of access until its use in court).

In addition, the function of the hearing could be undermined if the public and potential jurors received access to the information, even if the trial court ruled that the State was not entitled to use it.

Although the Unites States Supreme Court held that this reason did not “automatically” justify refusing access specifically 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 hearings’ ” which is “ ‘to screen out unreliable or illegally obtained evidence.’ ” Press-Enterprise II, 478 U.S. at 14-15, 92 L. Ed. 2d at 14, 106 S. Ct. at 2743, quoting Gannett Co. v. DePasquale, 443 U.S. 368, 61 L. Ed. 2d 608, 99 S.

Ct. 2898 (1979). For these reasons, we find that the presumption of access did not apply. 6. Trial Court’s Findings Even if we were to find that the presumption of access applied to these pretrial proceedings and related documents, we could not find that the trial court abused its discretion in balancing the competing interests at stake here and crafting appropriate parameters. A holding that the presumption applies is only one step in the analysis. The presumption provides only a qualified right of access. Press-Enterprise II, 478 U.S. at 9, 92 L. Ed. 2d at 10, 106 S.

Ct. at 2740 (“even when a right of access attaches, it is not absolute”; it is a “qualified” right). That right still must be balanced against competing interests, such as the defendant’s right to a fair trial and the privacy right of a victim who was both an alleged sex crime victim (Press-Enterprise II, 478 U.S. at 10 n.2, 92 L. Ed. 2d at 11 n.2, 106 S. Ct. at 2741 n.2 (“The protection of victims of sex crimes from the trauma and embarrassment of public scrutiny may justify closing certain aspects of a criminal proceeding”)) and a minor at the time of the alleged acts (A.P., 354 Ill.

App. 3d at 998 (a trial court must exercise “great care” when faced with a media petition for access in a case involving a minor)). If the presumption applies to a certain type of proceeding or record, the trial court cannot close this type of proceeding or record, unless it makes specific findings demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve those values. Press-Enterprise II, 478 U.S. at 13-14, 92 L. Ed. 2d at 13-14, 106 S. Ct. at 2743; Press-Enterprise I, 464 U.S. at 510, 78 L. Ed. 2d at 638, 104 S. Ct. at 824.

If the value asserted is the defendant’s right to a fair trial, then the trial court’s findings must demonstrate, first, that there is a substantial probability that defendant’s trial will be prejudiced by publicity that closure will prevent; and second, that reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights. Press-Enterprise II, 478 U.S. at 14, 92 L. Ed. 2d at 13-14, 106 S. Ct. at 2743. a. Trial Court’s Declaration of Reasons In the case at bar, the trial court articulated its reasons both in writing and orally in court.

On April 11, in open court, the trial court apparently made a statement that it was closing the proceeding due to the proximity of jury selection and the impact that it could have on potential jurors. On April 15, in open court, the trial court stated that the State’s motion had been filed under seal “because of the proximity of Mr. Kelly’s case going to trial.” On April 24, in open court, the trial court explained that it could not “disclose the factual basis” for closure without compromising the very interest that the closed proceeding sought to protect.

However, the trial court did state that “the generalized basis” was “the proximity of jury selection, which is in about two weeks, and the chance that this might deprive Mr. Kelly of a fair trial.” On April 25, during the first closed hearing after the intervenors’ motion, the trial court elaborated on its reasons, which it had mentioned briefly, in open court the day before. Then, after the State and the defendant received time to respond, as they had both requested, the trial court issued on May 16, 2008, a detailed, public, eight-page order that explained the need for closure.

The media intervenors criticize the trial court for failing to make a formal declaration of reasons, prior to closing the first proceeding on April 11. However, from the record before us, we cannot tell whether the trial court did, or did not, make findings before closing the proceeding. The record on appeal contains only an excerpt from the April 11 proceeding.

The appellants failed to provide us with the transcript of the open portion of the April 11 proceeding, which would have revealed whether the trial court did, or did not, make a formal declaration of reasons before it cleared the public and the press from the courtroom. The burden is on the appellant to provide a reviewing court with a complete record. “It is well settled that any doubts arising from the incompleteness of the record will be resolved against the appellant, as it is the burden of the appellant to provide a sufficiently complete record to support a claim of error.” Poliszczuk v. Winkler, 387 Ill.

App. 3d 474, 494 (2008), citing Truserv Corp. v. Ernst & Young LLP, 376 Ill. App. 3d 218, 225 (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 trial court to issue a formal declaration, when the parties did not object to closure, when the media had not yet filed a motion objecting to closure and when the presumption of access did not even apply to that proceeding. In addition, the reasons for closure are obvious from the record.

The purpose of requiring a trial court to make findings is to facilitate appellate review. Press-Enterprise II, 478 U.S. at 9-10, 92 L. Ed. 2d at 11, 106 S. Ct. at 2741 (the findings must be “specific enough that a reviewing court can determine” the propriety of closure); A.P., 354 Ill. App. 3d at 997 (“[a]dequate findings relieve the appellate courts of having to grope through the record”).

Although we require a trial court to make specific factual findings to justify closing a proceeding, a reviewing court may affirm the closure even if the trial court failed to make a “formal declaration” of findings, if the reasons are both obvious from the record and sufficient to justify closure. People v. Holveck, 141 Ill. 2d 84, 100 (1990); A.P., 354 Ill. App. 3d at 997 (after holding that the trial court’s findings were not sufficiently “specific,” we conducted “[o]ur own review” of the record).

In the case at bar, we find both that the trial court articulated its reasons orally in court and in writing; and that the reasons are also obvious from the record. b. Tri

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