Appeal from the Circuit Court of Cook County. Honorable Fred G. Suria, Judge Presiding.
As Corrected August 25, 1995.
The Honorable Justice Cahill delivered the opinion of the court: O'brien S. J., concurs. Hoffman, P.j., dissents.
The opinion of the court was delivered by: Cahill
JUSTICE CAHILL delivered the opinion of the court:
We address an appeal by Chicago Tribune Company from an order entered by the trial court in this criminal trial. We dismissed an earlier appeal for lack of jurisdiction in an order dated July 19, 1995. We dismiss this appeal for lack of jurisdiction as well.
On June 28, 1995, the Tribune filed a "Petition for Access to Sidebar and In-Chambers Conferences" in this case. It requested access to "all recordings and transcripts of any sidebar conferences conducted at trial." (emphasis added.) The trial court ruled that it would allow the Tribune access to all sidebar conferences at the end of the trial, but then entered a written order that in form appeared to be a final and appealable order under Supreme Court Rule 304(a).
The Tribune appealed and we declined jurisdiction holding in part: "taken literally, the order merely denied a pretrial motion for blanket access to the transcripts of all sidebar conferences which might take place during the course of the trial. * * * that decision cannot be fully and finally made until the content of the sidebar conference is known and the defendant has had the opportunity to assert his rights. An order that purports to finally determine the rights of a party to a controversy, which at the same time effectively forecloses the right of another party before it can be asserted, cannot be a final order." Reynolds, No. 95-2260.
After we issued our first order, the Tribune filed, in the circuit court, a motion for reconsideration of the July 5, 1995, order and for access to transcripts of sidebar conferences held on July 25, 1995. The court held a hearing and denied the motion on July 26, 1995. The court then entered an order which states:
"1. Tribune's motion for access to transcripts of sidebar conferences of July 25, 1995, is hereby denied;
2. The court reporter is hereby ordered to not release transcripts of the two sidebar conferences conducted on the record prior to the court's lunchbreak on the morning of July 25, 1995."
The Tribune filed a notice of appeal on July 27, 1995. It also filed a motion to expedite the appeal, which we granted.
As with the order under review in the first appeal, we are required to examine the substance of the order before us, not just its form, and determine independently of the trial court or the parties whether we have jurisdiction. Kinkin v. Marchesi (1991), 213 Ill. App. 3d 176, 571 N.E.2d 501, 156 Ill. Dec. 717.
The Tribune contends, as it contended in its first appeal, that this court now has jurisdiction under Supreme Court Rule 304, or in the alternative, under Rules 301 and 303 "pursuant to the collateral order doctrine as articulated in Cohen v. Beneficial Industrial Loan Corporation (1949), 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221." We rejected each basis for jurisdiction in our order dismissing the first appeal. We reject them here for the reason set out below. We also reject the Tribune's statement made in its brief that this court "suggested Tribune seek access to a particular sidebar transcript, the denial of which would constitute a final order that would confer jurisdiction." Our order of July 19, 1995, contains no such suggestion or conclusion.
The order under review--and the serious constitutional issues properly raised in the Tribune's brief--cannot be lifted out of the context in which the order arose. The trial court, in an oral ruling on July 5, 1995, made it perfectly clear that all sidebar transcripts would be released to the media at the end of the trial. This ruling sharpens our focus: the issue is not one of presumption of access, but when access--in conformity with First Amendment principles the Tribune relies upon in its brief--should be allowed. The trial court has resolved the issue of access in favor of the Tribune by holding that the transcripts will be released to them at the end of the trial. The order of July 26, 1995, was, in our view, a ministerial and administrative implementation of the court's previous oral ruling. The order was drafted by Tribune with language to support a characterization of finality (see 134 Ill. 2d R. 304), but, as we have noted, we have the duty to examine the substance as well as the form. When the record of everything the trial court carefully ...