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In re Consensual Overhear

June 29, 2001

IN RE CONSENSUAL OVERHEAR (NORTHWEST NEWSPAPERS, INC., PETITIONER-APPELLANT; THE PEOPLE OF THE STATE OF ILLINOIS AND A PARTY TO THE OVERHEAR, RESPONDENTS).


Appeal from the Circuit Court of McHenry County. No. 99--MR--234 Honorable Michael J. Sullivan, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

UNPUBLISHED

Petitioner, Northwest Newspapers, Inc., appeals the judgment of the trial court denying its petitions to access sealed court records and to intervene. We affirm.

This matter began as an ex parte petition filed by the office of the McHenry County State's Attorney as part of an ongoing criminal investigation. On October 27, 1999, the trial court authorized the State to use an eavesdropping device to gain information regarding the alleged criminal activities of the subject of the overhear. Pursuant to section 108A--7(c) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/108A--7(c)(West 1998)), the judge sealed the application for and order granting judicial supervision of the use of the eavesdropping device.

Subsequently, on March 17, 2000, petitioner filed a petition to access the application for the overhear order, the order itself, any documents indicating the subject was notified by the issuing judge, and any related documents in the court file. In support of its petition, petitioner alleged that the matters surrounding the application for the overhear order created a conflict in the office of the McHenry County State's Attorney raising substantial questions relating to the management of the office.

Respondent, one of the parties to the overhear, filed a motion to strike the petition to disclose and argued that petitioner does not have standing under section 108A--7(c) to bring such a petition. In addition, respondent also filed a motion to close the proceedings to the public. The State also filed a motion to strike the petition to disclose, arguing that petitioner has no standing and, even if petitioner has standing, petitioner failed to show that good cause exists for unsealing the documents.

The trial court granted the motion to close the proceedings to the public until further court order. The court also denied the petition to disclose, finding that the petition to disclose and the response to the motion to strike did not allege sufficient facts or circumstances to show good cause and that petitioner lacks standing to file the petition. However, the court granted petitioner leave to file a petition to intervene.

Petitioner filed a motion to reconsider and a petition to intervene. In the motion to reconsider, petitioner argued that its petition to disclose raised sufficient grounds to state a cause of action for disclosure under section 108A--7(c) of the Code and that petitioner was entitled to a hearing on its petition. In the petition to intervene, petitioner restated the allegations set forth in its petition to disclose. Petitioner claimed that no party represented petitioner's interest, it would be bound by the orders in the action because the court had denied access to the records, the claim for access is related to the underlying cause because of the request for disclosure pursuant to section 108A--7(c) of the Code, and intervention is a proper means to allow a newspaper to seek access to court documents.

Following the parties' respective responses, the trial court denied the motion to reconsider and the petition to intervene, expressly finding no just reason for delaying enforcement or appeal of the order pursuant to Supreme Court Rule 304(a) (155 Ill. 2d 304(a)). Petitioner timely appeals.

We note that there are no appellees who have filed response briefs in the present appeal. We may not reverse summarily merely because there are no response briefs filed on appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). However, the record is simple and the claimed errors are such that we can easily decide the appeal without the aid of an appellee's brief.

Petitioner raises several arguments on appeal. Petitioner contends that the trial court erred in closing the proceedings to the public, in failing to give petitioner the opportunity to be heard, and in denying the petition to intervene. We believe that the resolution of these issues rests upon the determination of whether petitioner has standing under section 108A--7 of the Code to bring a petition for disclosure. Because the outcome involves statutory construction, our review is de novo. People v. Adams, 318 Ill. App. 3d 539, 543 (2001).

Sections 108A--7 and 108A--8 of the Code govern applications, orders, and records surrounding the use of eavesdropping devices. Section 108A--7(c) provides in relevant part:

"(c) Applications made and orders granted under this Article shall be sealed by the judge. *** Such applications and orders shall be disclosed only upon a showing of good cause ...


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