Appeal from the Circuit Court of Randolph County; the Hon.
Carl H. Becker, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Jessie Donald Sumner, incarcerated at Menard Correctional Center, appeals from the trial court's denial of his "motion" for leave to intervene in a suit brought by PJS Enterprises, the owner of the Peoria Journal Star, which is a daily newspaper of general circulation. The suit was brought against Paul Klincar, chairman of the board of the Illinois Prisoner Review Board.
On March 9, 1983, the plaintiff sought and obtained a temporary restraining order forbidding the defendant from prohibiting the presence of the plaintiff at the parole hearing of Jessie Donald Sumner, which was scheduled to be held on that day. The plaintiff had sought the temporary restraining order as a result of having learned that one of its reporters would not be allowed to attend the parole hearing of Jessie Sumner if Sumner should request that his parole hearing be closed. Plaintiff maintained that to prohibit plaintiff's attendance at the parole hearing would be a violation of the provisions of the Open Meetings Act (Ill. Rev. Stat. 1983, ch. 102, par. 41 et seq.) because "the hearing portion of the parole hearing * * * is a public meeting."
The plaintiff subsequently sought preliminary and permanent injunctive relief. Following a hearing the trial court issued a preliminary injunction on March 21, 1983, that restrained and enjoined
"the Defendant, PAUL KLINCAR, as Chairman of the Board and each of the other members of the Board of the Illinois Prisoner Review Board, and their agents and employees from doing or taking, or causing to be done or taken, any action to prohibit the Plaintiff, or any agents or employees of the Plaintiff, or other members of the news media or the general public, from being present at any parole hearing, including but not limited to the parole hearing of Jesse [sic] Donald Sumner."
The trial court found "[t]hat this Order should issue because to prohibit the attendance and presence of the Plaintiff at parole hearings would be in violation of the provisions of the Illinois Open Meetings Act."
A schedule for the submission of briefs concerning the permanent injunction called for the filing of a reply brief on June 24, 1983. On June 10, 1983, Jessie Sumner filed a "motion" for leave to intervene as a matter of right (Ill. Rev. Stat. 1983, ch. 110, par. 2-408). On the same date he filed a motion for enlargement of time in which to respond to the plaintiff's petition for injunctive relief and proposed orders. In his motion for leave to intervene Jessie Sumner set forth the procedural details of the present case and stated that "[u]pon being advised of the restraining order, [he] had refused to testify" at the parole hearing, that the temporary restraining order had bound him as well as the defendant, that "the representation of [his] interest by the parties is inadequate," and that he was entitled to intervene as a matter of right in order to represent his own interests adequately. He asked to be allowed to file an answer to the plaintiff's petition for injunctive relief.
On July 13, 1983, a hearing was held on the motion to intervene. At that time the intervenor, through his attorney, argued that his rights to a fair and proper parole hearing were affected by the action of the trial court, that his interest in the case was greater than that of the general public, and that the Attorney General, on behalf of the defendant, could not adequately represent the intervenor's interest inasmuch as "the interest of the Prisoner Review Board, which is charged with protecting the public interest
and the interest of the potential parole leader [sic], are simply not the same and cannot be represented by the Attorney General's Office especially given the fact that the Attorney General's Office represented the Prisoner Review Board when prisoners sue the Prisoner Review Board concerning irregularities or problems in their parole hearing." The intervenor stated that he should be allowed to "present his interest to the Court so that an adequate determination as to whether or not the merits of this case should allow the press to be present at his hearing." The intervenor argued further that the plaintiff, by its objections to his intervention, was asking him to relitigate the same issues in a second suit. He continued by saying:
"There are exceptions to the Open Meetings Act, and it is our position that exceptions are proper in this case. We are not in a position here to go into all the merits. There are factors we think must be brought to the Court's attention that have not as yet. There are facts that should be brought to the Court's attention concerning these type [sic] of things before we allow this sweeping type of order to bar the prisoner's rights from deciding whether or not the press should be present at their hearing. * * * It is our position that these are the exact issues that this Court needs to have before them [sic] and that the intervenor is the only one that can bring them before this Court. The facts again that point out the interest of the intervenor and the fact that the intervenor is not adequately represented by the defendant we believe are set out in the plaintiff's own affidavits where they explain that the intervenor did not want the press and refused to proceed with the press there, and we feel that there are plenty of facts to show the interest of the intervenor and he should be allowed to present the whole picture to the Court so the Court can make a formal decision in this matter."
There followed this colloquy between the trial court and counsel for the intervenor:
"THE COURT: I still am at a loss as to what Mr. Sumner wants litigated in this case. I haven't heard anything except that he wants to intervene. I would like to know what is his position here that he feels that needs to be litigated beyond what this present case in its present state would decide one way or the other.
[Counsel for the intervenor]: I understand your request, Your Honor.
THE COURT: The Open Meetings Act, I don't know if you are going to attack it on a constitutional basis or whether it is some kind of an exception. I haven't heard anything other than really that he wants to intervene. He naturally is going to be affected, and so are all the other prisoners who come before ...