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10/12/94 J.S. v. J.M.

October 12, 1994


Appeal from the Circuit Court of Kane County. No. 93-J-179. Honorable Roger W. Eichmeier, Richard D. Larson, Judges, Presiding.

Rehearing Denied November 10, 1994. Petition for Leave to Appeal Denied February 1, 1995.


The opinion of the court was delivered by: Mclaren

JUSTICE McLAREN delivered the opinion of the court:

The mother of J.S. brings an interlocutory appeal under Supreme Court Rule 307(a)(1) (134 Ill. 2d 307(a)(1)), seeking vacatur of an order which prohibits the parties and their attorneys from discussing the facts in the underlying action with members of the news media. We affirm.

The Department of Children and Family Services (DCFS) took protective custody of J.S. on April 28, 1993, following the mother's report to DCFS that the child had been sexually abused. She and the child's father are divorced and have been engaged in a sometimes rancorous dispute over custody of J.S. The father brought a petition in the dissolution proceedings seeking sole custody of the child.

The State filed a petition for adjudication on April 30, 1993, asking that J.S. be declared a neglected minor and made a ward of the court. A hearing was conducted on that date, after which the trial court found probable cause to believe the child was neglected or abused and ordered that the child be evaluated by physicians. The court's April 30 order also contained the gag order which is the subject of this appeal.

Following a hearing on the father's custody petition and the State's petition for adjudication, the trial court ruled on August 17, 1993, that J.S. was a neglected minor and awarded the father sole custody of J.S. The court's written order specifically found that the mother had caused the child's emotional environment to be injurious "through her obsession with proving that the minor's father * * * has sexually abused the minor. * * * Mother physically abused the minor * * * for the purpose of attempting to prove that * * * [the father] sexually abused the minor." The court also found that "the evidence establishes overwhelmingly that the father * * * did not sexually abuse" J.S.

The mother filed a motion to vacate the gag order on October 18, 1993. A hearing was conducted on the motion on February 7, 1994, after which the court denied the motion. This interlocutory appeal followed.

On appeal, the mother claims that the gag order (1) violates her constitutional right to free speech; (2) is an unnecessary injunctive restraint on speech in that less-restrictive alternatives exist; and (3) is unconstitutionally overly broad and vague. For the following reasons, we find none of these allegations availing.

The gag order in this matter is the type of injunctive order which is properly the subject of an interlocutory appeal under Supreme Court Rule 307(a)(1). (See Cummings v. Beaton & Associates, Inc. (1989), 192 Ill. App. 3d 792, 796, 139 Ill. Dec. 908, 549 N.E.2d 634.) The scope of review of an interlocutory appeal is normally limited to determining whether the circuit court abused its discretion in granting or refusing the requested interlocutory relief. ( Zurich Insurance Co. v. Raymark Industries, Inc. (1991), 213 Ill. App. 3d 591, 594, 157 Ill. Dec. 655, 572 N.E.2d 1119.) An exception to this limited scope arises when a question of Federal preemption is raised. ( People v. Kerr-McGee Chemical Corp. (1986), 142 Ill. App. 3d 1104, 1106, 97 Ill. Dec. 344, 492 N.E.2d 1003.) No such question is raised here.

In determining whether the circuit court abused its discretion, we will not compare what we might have done with what the court did. Rather, we must determine whether the circuit court "'acted arbitrarily without the employment of conscientious judgment * * * and ignored recognized principles of law so that substantial prejudice resulted.'" ( Zurich, 213 Ill. App. 3d at 594-95, quoting In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 96 Ill. Dec. 615, 491 N.E.2d 894.) Our review of the record presented to us on appeal convinces us that the trial court followed recognized principles of law relative to "prior restraints" upon speech.

It is not contested that the circuit court's gag order constitutes a prior restraint on speech, and, as such, we must closely scrutinize the trial court's decision to impose that order. A prior restraint is a "predetermined judicial prohibition restraining specified expression." ( In re A Minor (1989), 127 Ill. 2d 247, 264, 130 Ill. Dec. 225, 537 N.E.2d 292) (hereinafter Minor I.) Our supreme court in Minor I summarized the law governing prior restraints upon speech:

" prior restraint upon publication is 'the most serious and the least tolerable infringement on First Amendment rights.' [Citation.] Prior restraints are particularly suspect when they prevent timely disclosure of truthful information. * * *

Any prior restraint upon speech, while not unconstitutional per se, bears a heavy presumption against its validity. [Citation.] * * * In the context of pending judicial proceedings, a judicial order restraining speech will not be held invalid as a prior restraint if it is: (1) necessary to obviate a 'serious and imminent' threat of impending harm, which (2) cannot adequately be addressed by other, less speech-restrictive means." Minor I, 127 Ill. 2d at 264-65.

The court in Minor I held that a newspaper which learned the identity of a juvenile criminal suspect through its own reporting efforts could not, consistent with the Federal and Illinois Constitutions, be prohibited from reporting that information once it entered the public domain, "at least in the absence of a serious and imminent threat to the minor's welfare which ...

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