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                               Appellate Court                        Date: 2017.08.02
                                                                      14:10:41 -05'00'




                  People v. Zimmerman, 2017 IL App (4th) 170055



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            KIRK P. ZIMMERMAN, Defendant-Appellee (The Pantagraph,
                   WGLT FM, and the Illinois Press Association, Intervenors-
                   Appellants).



District & No.     Fourth District
                   Docket No. 4-17-0055



Filed              March 31, 2017



Decision Under     Appeal from the Circuit Court of McLean County No. 15-CF-894; the
Review             Hon. Scott Daniel Drazewski, Judge, presiding.



Judgment           Reversed; cause remanded with directions.



Counsel on         Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for
Appeal             appellant.

                   Jason Chambers, State’s Attorney, of Bloomington (David J.
                   Robinson, of State’s Attorneys Appellate Prosecutor’s Office, of
                   counsel), for the People.

                   John P. Rogers, of Schwartz Rogers LLP, of Clayton, Missouri, for
                   appellee Kirk P. Zimmerman.
     Panel                     PRESIDING JUSTICE TURNER delivered the judgment of the court,
                               with opinion.
                               Justices Holder White and Pope concurred in the judgment and
                               opinion.


                                                OPINION

¶1         Pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1, 2016), intervenors—the
       Pantagraph, WGLT FM, and the Illinois Press Association—appeal the McLean County
       circuit court’s January 3, 2017, order denying the intervenors’ request to open for public
       inspection the fourth and fifth motions in limine filed under seal by criminal defendant, Kirk P.
       Zimmerman. On appeal, the intervenors contend the circuit court erred by finding the
       presumption of public access to judicial documents did not apply to the documents at issue. We
       reverse and remand for further proceedings.

¶2                                          I. BACKGROUND
¶3          In this case, the supporting record is scant, and thus this court has very limited facts.
       Notably, we lack the documents at issue.
¶4          According to defendant’s pleadings, the State charged him with the first degree murder of
       Pamela Zimmerman, his former spouse. In October 2016, defendant filed a motion for leave to
       file motions in limine under seal. The document referred to the motions at issue as his fourth
       and fifth motions in limine. Defendant noted his fourth and fifth motions in limine sought to
       exclude the admission of evidence that was sensitive, private, and/or inflammatory about
       himself and others who may be called as witnesses or who are otherwise connected to him.
       According to defendant, given the high level of media attention to his case, the evidence sought
       to be excluded would taint the jury pool if it became public and his right to a fair trial depended
       on the motions being sealed. Additionally, defendant noted he was prepared to provide the
       circuit court with advance copies of the motions at issue for an in camera examination in the
       event the court needed additional facts. Defendant also filed a motion to close the proceedings
       on the motions in limine.
¶5          In November 2016, the intervenors filed a petition to intervene and objections to
       defendant’s motion to close the courtroom and to file the motions in limine under seal. The
       intervenors also filed a supporting memorandum of law. On November 21, 2016, defendant
       filed a response to the intervenors’ petition. On that same day, the circuit court entered an
       order, granting defendant leave to file his fourth and fifth motions in limine. The order further
       stated the following: “Documents are filed for 90 days. The documents shall not be unsealed
       up to and until the court orders the same.”
¶6          On December 22, 2016, the circuit court held the hearing on defendant’s fourth and fifth
       motions in limine. An excerpt of the hearing is included in the supporting record. The court
       noted at the beginning of the hearing that it had allowed the intervenors’ petition to intervene at
       an earlier court date. At the hearing, it was noted that the State did not intend to raise the
       matters addressed in defendant’s fourth and fifth motions in limine in its case in chief.
       Defendant withdrew his motion asking to seal the courtroom, leaving the continued sealing of


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       the fourth and fifth motions in limine as the only remaining contested matter. Defendant
       requested the motions continue to be sealed until the jury in his case was impaneled. The State
       took no position on the continued sealing of the motions. After hearing the parties’ arguments,
       the court allowed, without objection, defendant’s fourth and fifth motions in limine. The court
       further ordered the fourth and fifth motions in limine to remain sealed until jury selection and
       noted any order in limine related to those motions would also be sealed. The court reasoned
       that the presumption of access did not apply to the motions in limine and ended its analysis
       with that conclusion.
¶7         On January 3, 2017, the circuit court entered a written order, granting the fourth and fifth
       motions in limine and ordering those motions to remain sealed until after the selection of a
       jury.
¶8         On January 19, 2017, the intervenors filed a timely notice of appeal in sufficient
       compliance with Illinois Supreme Court Rule 303 (eff. Jan. 1, 2015). See Ill. S. Ct. R. 307(a)
       (eff. Nov. 1, 2016) (providing “the appeal must be perfected within 30 days from the entry of
       the interlocutory order by filing a notice of appeal designated ‘Notice of Interlocutory Appeal’
       conforming substantially to the notice of appeal in other cases”). Thus, this court has
       jurisdiction of this appeal pursuant to Illinois Supreme Court Rule 307(a)(1) (eff. Nov. 1,
       2016). See Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 221, 730 N.E.2d 4, 11 (2000) (noting
       an interlocutory order that circumscribes the publication of information is reviewable as an
       interlocutory injunctive order under Rule 307(a)(1)).

¶9                                              II. ANALYSIS
¶ 10        The United States Supreme Court has recognized the existence of a common law right of
       access to “ ‘judicial records and documents.’ ” Skolnick, 191 Ill. 2d at 230, 730 N.E.2d at 15
       (quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)). Additionally, in
       Illinois, section 16(6) of the Clerks of Courts Act (705 ILCS 105/16(6) (West 2014)) provides
       for the public’s right to review judicial records. See Skolnick, 191 Ill. 2d at 231, 730 N.E.2d at
       16. Specifically, that provision provides, in pertinent part, the following:
                “All records, dockets and books required by law to be kept by such clerks shall be
                deemed public records, and shall at all times be open to inspection without fee or
                reward, and all persons shall have free access for inspection and examination to such
                records, docket and books, and also to all papers on file in the different clerks’ offices
                and shall have the right to take memoranda and abstracts thereto.” 705 ILCS 105/16(6)
                (West 2014).
       Moreover, embedded in the first amendment to the United States Constitution (U.S. Const.,
       amend. I) is a right of access to court records. Skolnick, 191 Ill. 2d at 231-32, 730 N.E.2d at 16.
       “The first amendment right presumes a right to inspect court records which have ‘historically
       been open to the public’ and disclosure of which would further the court proceeding at issue.”
       Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 16 (quoting United States v. Corbitt, 879 F.2d 224,
       228 (7th Cir. 1989)). However, under all three sources of the right to access court records, the
       right is not absolute. Skolnick, 191 Ill. 2d at 231-32, 730 N.E.2d at 16. In recognizing the
       common law right to access, the Supreme Court noted “[e]very court has supervisory power
       over its own records and files, and access [may be] denied where court files might *** become
       a vehicle for improper purposes.” Nixon, 435 U.S. at 598. As to the constitutional right to
       access, our supreme court has noted the presumption of access can be rebutted by

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       demonstrating “suppression is ‘essential to preserve higher values and is narrowly tailored to
       serve that interest.’ ” Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 16 (quoting Grove Fresh
       Distributors, Inc. v. Everfresh Juice Co., 24 F.3d 893, 897 (7th Cir. 1994), superseded on other
       grounds by Fed. R. Civ. P. 5). Additionally, the first amendment right of access does not attach
       unless it passes the tests of experience and logic. Press-Enterprise Co. v. Superior Court, 478
       U.S. 1, 9 (1986) (Press II). The experience test examines whether “there has been a tradition of
       accessibility” to that kind of proceeding, and the logic test examines whether “public access
       plays a significant positive role in the functioning of the particular process in question.”
       Press II, 478 U.S. at 8, 10.
¶ 11       We begin our analysis by determining whether the presumption of access applied to
       defendant’s fourth and fifth motions in limine. In re Gee, 2010 IL App (4th) 100275, ¶ 26, 956
       N.E.2d 460. That determination presents a purely legal question, and thus our review is
       de novo. People v. Kelly, 397 Ill. App. 3d 232, 255, 921 N.E.2d 333, 354 (2009). If we find the
       presumption does not apply, then our analysis ends there. Gee, 2010 IL App (4th) 100275,
       ¶ 26, 956 N.E.2d 460. If the presumption does apply, then we examine the propriety of the
       circuit court's denial of access. Gee, 2010 IL App (4th) 100275, ¶ 26, 956 N.E.2d 460. In this
       case, the circuit court found the presumption did not apply and ended its analysis there. On
       appeal, the intervenors assert the circuit court erred by finding the presumption did not attach
       to defendant’s fourth and fifth motions in limine.
¶ 12       In Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 17, our supreme court found that, whether it
       proceeded under the common law or constitutional standards, the counterclaim in that case
       became part of the court file once the circuit court granted leave to file it, and at that time, the
       presumption of the right of public access attached to the counterclaim. Moreover, this court has
       held, “the right of access extends to the documents filed with the court.” In re Marriage of
       Johnson, 232 Ill. App. 3d 1068, 1074, 598 N.E.2d 406, 410 (1992). We explained our holding
       as follows: “Once documents are filed with the court, they lose their private nature and become
       part of the court file and ‘public component[s]’ of the judicial proceeding [citation] to which
       the right of access attaches. This right also applies to transcripts of hearings as they are records
       of trial court proceedings.” Johnson, 232 Ill. App. 3d at 1074, 598 N.E.2d at 410. However,
       this court emphasized the right did not extend to a settlement document because it was never
       submitted to the court, despite the fact the terms of the agreement were discussed at a hearing
       for which the transcript was subject to the presumption. Johnson, 232 Ill. App. 3d at 1074, 598
       N.E.2d at 410.
¶ 13       In the context of criminal cases, in People v. LaGrone, 361 Ill. App. 3d 532, 534-35, 838
       N.E.2d 142, 145 (2005), we addressed whether the circuit court erred by closing the pretrial
       hearings on the defendant's motions in limine to suppress (1) the statements of two of the
       victims and (2) evidence of certain character attributes of the defendant. This court concluded
       the circuit court's specific findings did not constitute a sufficient basis for closure of the pretrial
       hearings and reversed the circuit court’s judgment. LaGrone, 361 Ill. App. 3d at 536, 838
       N.E.2d at 146. While this court did not expressly address whether the presumption of access
       attached, we still find the case is instructive on the issue, as it is indicative of the public nature
       of motions in limine.
¶ 14       Next, in People v. Pelo, 384 Ill. App. 3d 776, 781, 894 N.E.2d 415, 419 (2008), this court
       held an unedited evidence deposition, which had neither been submitted into evidence nor
       played in open court, was not “a ‘judicial record’ or part of the ‘criminal proceeding itself’ to

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       which the public has a constitutional, common-law, or statutory right of access.” Moreover, in
       Gee, 2010 IL App (4th) 100275, ¶ 36, 956 N.E.2d 460, we held the right of access did not
       apply to an affidavit supporting a search warrant and the inventory and return of search
       warrant. This court explained that the warrant application process had historically not been
       open to the public and was an extension of the criminal investigation itself. Thus, it was
       entitled to the same confidentiality accorded other aspects of the criminal investigation. Gee,
       2010 IL App (4th) 100275, ¶ 36, 956 N.E.2d 460.
¶ 15        In Kelly, 397 Ill. App. 3d at 236-37, 921 N.E.2d at 339-40, the appellants challenged the
       circuit court’s closure of four pretrial hearings and its filing under seal of the State's pretrial
       motion to allow evidence of other crimes, the State’s supplemental answer to discovery, and
       both parties’ witness lists. Applying our decision in Pelo and the United States Supreme
       Court’s decision in Waller v. Georgia, 467 U.S. 39, 47 (1984), the First District found the
       presumption of access did not attach to the challenged documents and related hearings. Kelly,
       397 Ill. App. 3d at 259, 921 N.E.2d at 358. The Kelly court explained as follows: “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.” Kelly, 397 Ill. App. 3d at 259, 921 N.E.2d at 358. Moreover, “the hearings at
       issue bore no resemblance to the hearing in Waller, where the presumption of access applied.”
       Kelly, 397 Ill. App. 3d at 259, 921 N.E.2d at 358. The Kelly court further found “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.” Kelly, 397 Ill. App. 3d at
       259, 921 N.E.2d at 358.
¶ 16        In this case, the intervenors are seeking to examine defendant’s fourth and fifth motions
       in limine. As in Skolnick, once the circuit court granted defendant leave to file the two legal
       documents, they became court records. See Skolnick, 191 Ill. 2d at 232, 730 N.E.2d at 17.
       Moreover, in criminal cases, the purpose of a motion in limine is both to (1) “determine prior to
       trial what, if any, evidence ought to be admitted at trial” and (2) “establish whether any such
       evidence that would ordinarily be admissible is inadmissible because of improper police
       proceedings.” People v. DeJesus, 163 Ill. App. 3d 530, 532, 516 N.E.2d 801, 802 (1987). Thus,
       unlike the search warrant documents in Gee, motions in limine are generally related to the
       criminal trial proceedings and not the criminal investigation, which has historically been
       private. Additionally, we disagree with the Kelly court’s suggestion that motions in limine and
       their related hearings have traditionally not been accessible to the public. Despite the fact
       motions in limine address potential evidence for trial, they are contained in the general
       criminal case file and in the general record on appeal. The hearings on such motions are
       generally not closed. Further, we find Kelly’s reliance on our decision in Pelo was misplaced,
       as that case addressed an evidence deposition, which had not yet been presented at trial, and
       not a legal document filed with the court that mentioned the evidence deposition. Accordingly,
       we find the motions in limine pass the experience test.
¶ 17        As to the logic test, we find access to motions in limine plays a significant positive role in
       the functioning of the criminal justice process. Sometimes, such motions expose improper
       police action, as noted in DeJesus, or attorney conduct (i.e., discovery violations). Moreover,
       public access to evidentiary decisionmaking “ ‘enhances both the basic fairness of the criminal
       trial and the appearance of fairness so essential to public confidence in the system.’ ” Press II,


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       478 U.S. at 9 (quoting Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 508 (1984)
       (Press I)). Additionally, just as “suppression hearings often are as important as the trial itself”
       (Waller, 467 U.S. at 46), motions in limine can also be critical to the course of a criminal trial.
       Thus, we find motions in limine also pass the logic test.
¶ 18        Accordingly, we find the presumption of access attaches to motions in limine filed with the
       court in criminal proceedings. In this case, when the circuit court granted defendant leave to
       file his fourth and fifth motions in limine, the presumption of access attached. See Skolnick,
       191 Ill. 2d at 232, 730 N.E.2d at 17. Thus, the circuit court erred by finding the presumption
       did not attach to the documents at issue. Since the presumption did attach to the documents at
       issue, the next step is to determine whether the presumption has been rebutted. The circuit
       court did not address that issue, and thus we remand the cause to the circuit court for further
       proceedings on the intervenors’ objection to defendant’s fourth and fifth motions in limine
       being under seal.

¶ 19                                      III. CONCLUSION
¶ 20       For the reasons stated, we reverse the McLean County circuit court’s judgment ordering
       defendant’s fourth and fifth motions in limine to remain sealed and remand the case for further
       proceedings.

¶ 21      Reversed; cause remanded with directions.




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