author: JUSTICE GORMAN JUSTICE STOUDER,

text:
    NEW LENOX STATE BANK, as Trustee, Plaintiff-Appellant, v. THE COUNTY OF WILL et al., Defendants-Appellees.
    Third District
    No. 3—89—0646
    Opinion filed November 16, 1990.

      STOUDER, J., dissenting.
    Troha, Troha & Bednare, Ltd., and Lyman C. Tieman, of Lyman C. Tieman & Associates, both of Joliet (George P. Troha, of counsel), for appellant.
    Edward Burmila, State’s Attorney, of Joliet (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellees County of Will and Will County Planning and Zoning Commission.
    Thomas R. Wilson, of Herschbach, Tracy, Johnson, Bertani & Wilson, of Joliet (Michael J. Martin, of counsel), for appellee Yvonne Steigle.
    Michael J. Martin, of Dunn & Martin, Ltd., of Joliet, for appellee Mary A. Kelley.
   JUSTICE GORMAN

delivered the opinion of the court:

Plaintiff New Lenox State Bank, as trustee under trust number 936, filed an application for a zoning change seeking to have an 8.74-acre parcel of property in Will County rezoned from A-l (agricultural) to 1-3 (intensive industrial) with special use for an asphalt plant. The 8.74-acre parcel is at the southern edge of a larger 80-acre tract that was allowed 1-3 mining status with blasting use pursuant to a 1976 court decree. The zoning change for the 8.74 acres was recommended, with conditions, by the Will County planning staff, the Will County Zoning and Planning Commission, and the Will County Land Use and Zoning Committee. The Will County Board, however, voted 25 to 1 against the trustee’s rezoning request. The trustee filed a complaint in the circuit court of Will County requesting a declaratory judgment invalidating the zoning ordinance of the property as being arbitrary and capricious. The complaint was later amended, adding as defendants the County of Will and Mary Kelley and Yvonne Steigle, who had filed legal objections and are owners of property near the 8.74-acre parcel. The cause was heard in June 1989, and on July 25, 1989, the circuit court issued an order denying the relief sought by the trustee. The trustee’s post-trial motion was also denied. Trustee appeals. We affirm.

During the trial, the plaintiff presented several expert witnesses. Craig Hullinger testified first. Hullinger is a city planner who had worked for Will County as executive director of the Will County Regional Planning Commission from 1975 until 1977 and who had prepared the Will County land use plan and the Will County Zoning Code adopted by the county. An aerial map prepared by Hullinger shows that the proposed site is located on Plainfield-Naperville Road, approximately 3x/2 miles north of Plainfield and, consequently, sewer and water access. The parcel is currently zoned A-l with a 1976 court order allowing quarrying operations. The 8.74-acre parcel contemplated for the asphalt plant is situated at the south edge of the 80-acre parcel. Directly to the east lies 80 acres containing a farm, a house, and several farm buildings, all zoned A-l. The area to the south and east of the road is all farmland zoned A-l, and approximately 2x/2 miles south is an old quarry which has become a lake. Some residences have been built near that exhausted quarry. To the west of the site is situated the Du Page River. Immediately to the north of the site, there are a number of quarries, which are approved by court order. The first is one-half mile north and has just been recently expanded by court order. A concrete plant is located in one of these quarries.

Hullinger testified that the Will County plan, which is the long-term plan for this area, calls for open space and eventual residential use of the area. The Plainfield plan and the Wheatland Township plan agreed. Hullinger opined that the proposed asphalt plant and a quarry fit well into this plan. He indicated that when the quarry stone is exhausted, the asphalt plant will be removed and the quarry will become a lake. Residential use of the area will ensue. Hullinger testified that the use sought for the asphalt plant is temporary in nature. Hullinger further testified that 90% of the material for asphalt is comprised of stone and gravel. The nearest asphalt plant is the K-5 plant located on Route 59, approximately 10 miles north from the proposed asphalt plant. Hullinger testified that the gravel from the quarry is put into trucks and trucked north to the K-5 plant and then brought back to the area as asphalt. He opined that there is considerable savings having the asphalt plant in the area. He further testified that the population is dramatically increasing, and the area has tremendous growth and a need for an asphalt plant. It was his opinion that a quarry and asphalt plant were transitional.

Hullinger testified that from a planning viewpoint, a quarry with blasting is worse and more intense than an asphalt plant. He testified that the asphalt plant would not be detrimental to the health and welfare of the people and would not have an impact on the area or hurt property values. He further indicated that the proposed site was an ideal site for an asphalt plant and did not conflict with the Will County plan, the Plainfield plan, the Wheatland Township plan, and all the other plans which he had helped to adopt for the area in 1975. This asphalt plant was an interim use, and the land would eventually develop into open space, residential space, and the asphalt plant would disappear.

William McCann, a real estate appraiser/consultant for 32 years and a licensed real estate broker, testified next. His qualifications were stipulated to. He had appraised the property seven or eight years previously for the owner for a transaction wherein the owner gifted the property to his children. The two primary uses in the area at that time were agriculture and quarry, with mining, and there were two quarries north of the site. McCann reported that one quarry recently was approved for expansion to the north of the site. McCann testified that there are various pockets of farm buildings and residential areas. To the southwest across the Du Page River, there are plans for a subdivision and some light industry. McCann opined that quarries turning into open space and lakes increase the property values and their attractiveness. He defined the highest and best use as the greatest net return to the owner over a period of time and considered the need and demand and the compatibility of the use with the area. McCann added that the most important factor was the impact on the value of other property due to the asphalt plant. He opined that the asphalt plant was very appropriate, and it fulfilled all the criteria of highest and best use.

As to location, McCann testified that the parcel is located within one of the most rapidly growing districts in Will County. McCann indicated that the area is somewhat underdeveloped and that an asphalt plant enhances the value and marketability of that property. He further opined that it is not in any way detrimental to the surrounding property values. The highest and best use is for an asphalt plant, and it is a natural adjunct to the ongoing mining operation. McCann further opined that the asphalt plant operation would be less intensive than the quarry operation existing now and the quarry operation existing to the north of the property.

On cross-examination McCann stated that the value of farmland in the area was $2,000 to $3,000 an acre, but that as industrial land it would be worth approximately $20,000 to $30,000 an acre. The value of the property for residential purposes would be somewhat higher. McCann indicated that the land surrounding the parcel in question is currently used for agricultural use and in the future would be developed residentially. Since 1978, there have been very minor changes in the immediate area. McCann stated that the market is already accepting residential usage near quarrying by virtue of the fact that a very expensive residential area had been planned and approved on the west side of the Du Page River advancing toward the quarries.

The owner of the beneficial interest of the land trust, Edward E Heil, testified next. He is chief executive officer of the American Environmental Construction Company. He has experience in quarries and construction. He purchased the land in 1978, and the quarry situated on the 80-acre parcel has been in operation for 20 years. Heil testified that an asphalt plant in the area could save the users and consumers of asphalt $4 to $8 a ton. He indicated that there is a need because the area is expanding residentially, commercially, and industrially very quickly. Heil indicated that without competition there are not enough plants in the immediate area to service the area. He opined that truck traffic would be reduced substantially as asphalt could be made on site. Heil stated that it would be a portable plant and would exist there for probably 7 to 20 years, the expected life of the quarry on the 80-acre parcel. It would be moved when the quarry is exhausted. He had agreed to all of the conditions of the planning staff. Heil further indicated that the plant is a state-of-the-art plant that meets current environmental standards.

Gary Papke, a real estate consultant and urban planner, testified next. Papke testified that he had done surveys for asphalt plants in the area in 1984 and had updated those surveys for the metropolitan .area of Chicago, including this area. According to Papke, asphalt plants located near residential areas in his studies and surveys do not cause significant problems and he had encountered very few complaints about such operations.

John Weitendorf, a registered broker and appraiser in Will County, testified next. His qualifications were stipulated to. Weitendorf indicated that the 448-acre parcel across the river from the quarry was just rezoned residential, which indicated to him that an asphalt plant or quarry would not hurt future development of residential areas, which is the plan for the area. Plainfield-Naperville Road would enjoy some of the same growth as Route 59 north from Plainfield. It would be industrial and commercial along the road with residential in the back. Weitendorf commented that the area is growing quickly, and that the logical place for an asphalt plant is in a quarry, where 75% of the material for asphalt comes from stone, 20% from sand, and 5% from petroleum. Because of the development, farmland around this area would enjoy a tremendous increase in value. The highest and best use is that use which will support the highest selling price of the property. He considered both need and location. Building permits in Plainfield, Plainfield Township, Wheatland Township, Bolingbrook, and Romeoville have increased substantially in 1987 and 1988, showing a need for asphalt. The location is excellent, according to Weitendorf, because one should be within 20 to 30 miles of the building area to haul asphalt.

Rolf Campbell, a planning and zoning consultant for many municipalities and private industry, testified next. Campbell has testified in 1,000 cases on zoning. He helped draft the original zoning code and planning code for Will County and other counties, including Cook County. He testified that this was an appropriate location for an asphalt plant. The zoning change is compatible with the uses around the parcel and with the future plans of open space, recreational, and residential uses for the area. It is for interim use. He is familiar with the factors involved under the Will County zoning ordinance and all of the factors considered under the ordinance. Campbell opined that it will not be detrimental to or endanger the public health and safety and will not adversely affect the use and enjoyment of the adjacent properties. From a land use standpoint, Campbell testified that an asphalt plant is desirable, and from a zoning standpoint, it meets the necessary criteria.

Paul Gorte testified next. Gorte is the current director of planning for the Will County Planning Commission. He approved the final report of the proposal to the Will County Planning Commission. The report contained certain conditions, which the owner agreed to. The planning staff recommended that an asphalt plant be approved with the conditions and made that recommendation to both the Planning and Zoning Commission and the Land Use and Zoning Commission. His testimony that both bodies approved the change was not allowed into evidence, and the offer of proof was denied.

Douglas Morita testified next for the plaintiff. Morita is employed by Polytech, Inc., as a mechanical engineer. Morita testified that he studied the plans for the proposed asphalt plant and also studied the ordinances and the EPA standards governing asphalt plants. He stated that the asphalt plant would comply with the standards and would have no adverse effect on the public health, safety and general welfare where it would be situated.

Thomas Franzen was the last witness for the plaintiff. Franzen testified that he was an operator of an asphalt plant and was familiar with a double drum mix plant, which is the type proposed here. He had operated one near a residential area and had received no complaints and experienced no problems with it as far as noise or dust. He stated that there was more noise from a quarry than from an asphalt plant.

At the conclusion of the plaintiff’s case, the defense filed a motion under section 2 — 1110 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110) for judgment in favor of the defendants. The court denied the motion.

The defendants initially called Michael Brown, the assistant planner in charge of Wheatland Township. Brown testified that he felt the proposed use was incompatible with the plans for the area. Brown indicated that he did a survey by telephone of the asphalt plants in the Will County area, noting that the Elmhurst and the New Lenox plants had been approved, but had not been built, and did not go into operation. He checked into the need for an asphalt plant by contacting Howard Reeves, who operates three asphalt plants in Will County. Brown asked him about the capacity of the plants, and he stated that they were operating anywhere from 33%% to 60%. Brown did not interview the owners of the other two asphalt plants, but relied on the information from Reeves that they were not operating at any more than 60% capacity.

On cross-examination by the plaintiff’s attorney, Brown stated that the surveys were made basically by phone and that the information that he got was from Reeves.

The defense also called Mary Kelley, the owner of 80 acres immediately across the road from the proposed site and 179 acres farther north. Kelley’s plans for the area are for agricultural use for the reasonable future and eventually residential. She opposed the asphalt plant because she felt that it detracted from the agricultural use, there would be emission and pollution problems, and drainage and traffic problems. Kelley opined that it was not desirable for residential use.

On cross-examination, Kelley stated that she lived five to six miles away and wanted to continue farming the area for the reasonable future, which she considered to be at least 20 years. She would not mind a lake across the street from her property, but would not want an asphalt plant.

The trial court entered its findings. It first denied the affirmative defenses which had been raised. Then, citing La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, and Sinclair Pipe Line Co. v. Village of Richton Park (1960), 19 Ill. 2d 370, 167 N.E.2d 406, the court applied its findings of fact to the factors outlined in La Salle National Bank and Sinclair Pipe Line. The court concluded the analysis by finding in favor of the defendants and against the plaintiff. The trial court also denied the plaintiff’s post-trial motion. The plaintiff appeals.

The law concerning challenges to zoning actions by a legislative body is well settled and not in dispute here. As our supreme court stated in La Grange State Bank v. County of Cook (1979), 75 Ill. 2d 301, 307-08, 388 N.E.2d 388:

“Because zoning is mainly a legislative function [citation], it is primarily within the province of the local municipal body to determine the uses of property and to establish zoning classifications [citations]. As this court has previously asserted:
‘It is clear from many holdings of this court that a zoning ordinance will be upheld if it bears any substantial relationship to the public health, safety, comfort or welfare. An ordinance will be presumed to be valid, and the one attacking an ordinance bears the burden of demonstrating its invalidity. The challenging party must establish by clear and convincing evidence that the ordinance, as applied, is arbitrary and unreasonable and bears no substantial relation to the public health, safety, or welfare. [Citations.]’ [Citation.]”

This court, following LaSalle National Bank and Sinclair Pipe Line, in National Bank v. County of Will (1987), 151 111. App. 3d 957, 503 N.E.2d 842, cited eight factors that should be taken into consideration in determining the validity of a zoning ordinance. They are: (1) the existing uses and zoning of nearby property; (2) the extent to which property values are diminished by the particular zoning restrictions; (3) the extent to which the destruction of property value of the plaintiff promotes the health, safety, morals or general welfare of the public; (4) the relative gain to the public as opposed to the hardship imposed upon the individual property owner; (5) the suitability of the subject for the zoned purposes; (6) the length of time the property has been vacant as zoned considered in the context of land development in the area; (7) the care with which a community has undertaken to plan its land use development; and (8) the evidence, or lack of evidence, of community need for the use proposed by the plaintiff. As the court in LaSalle National Bank commented, “[N]o one factor is controlling.” La Salle National Bank, 12 111. 2d at 47.

It is also well settled that “the trial court, sitting without a jury in such actions, is to weigh the conflicting testimony, and its findings will not be disturbed unless contrary to the manifest weight of the evidence.” (Boughton Trucking & Materials, Inc. v. County of Will (1983), 112 Ill. App. 3d 26, 29, 444 N.E.2d 1128, citing LaSalle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 48, 145 N.E.2d 65.) The appellant contends that the trial court’s decision is against the manifest weight of the evidence. We now examine the trial court’s findings and consider appellant’s attacks on these findings.

The first factor the court is to consider is the existing uses and zoning of the nearby property. The court essentially made two types of findings as to this factor: the property adjacent to the 8.74-acre parcel and the character of property in the general vicinity of the 8.74-acre parcel. The court found that much of the property adjacent to the 8.74-acre parcel is used for quarrying operations. The other property adjacent to the 8.74-acre parcel is either low-lying land along the Du Page River or farmland.

As to the character of the area, the court found that with the exception of the quarrying operations which had been allowed by court order, there is no heavy industrial use in the area. There is some light industrial use fairly close to the 8.74-acre parcel, but the remainder of the area is agricultural which is rapidly developing into residential use. While it is true that there is no residential development adjacent to the 8.74-acre parcel, the court found that there are planned residential developments within close proximity to the 8.74-acre parcel. The court found this factor to be equally balanced between the plaintiff and the defendants.

The second factor to be considered by the trial court is the extent to which the property values are diminished by the zoning restriction. The court noted that the current zoning on the 8.74-acre parcel is agricultural, but the allowable use pursuant to the court decree is as a quarry. The court found that while there was testimony from appraisers that the highest and best use of the 8.74-acre parcel would be for use as an asphalt plant, the record is devoid of any evidence that the land value of the 8.74-acre parcel or the 80-acre parcel is diminished one iota by the denial of the placement of an asphalt plant on the 8.74-acre parcel. The court noted that neither of the appraisers testified as to any dollar diminution of the value of this property.

The trial court found this factor to be strongly in favor of the defendants since there wasn’t any testimony regarding diminution of property value. On appeal, the trustee contends that the trial court erred by requiring evidence on diminution of property value. The trustee contends that the focus should be on the loss of economic benefit from the plant. Pointing to the “highest and best use” testimony of Messrs. McCann and Weitendorf, trustee contends that this evidence was unrebutted by the defendant.

Citing Edgemont Bank & Trust Co. v. City of Belleville (1980), 85 Ill. App. 3d 665, 407 N.E.2d 159, the trustee contends that highest and best use evidence is a proper consideration for a court to employ when determining the hardship imposed upon an owner by an ordinance. Trustee maintains that since the trial court failed to consider the highest and best use evidence, the entire judgment fails and cannot be sustained.

We note that the court did not reject the highest and best use evidence offered by Messrs. McCann and Weitendorf. It simply stated that the record was devoid of any testimony regarding diminution of value. The trustee apparently contends that Edgemont Bank obviates the need for a plaintiff to demonstrate a diminution in value. We disagree with that assertion.

In Edgemont Bank, the plaintiff bank sought to have certain property in Belleville, Illinois, rezoned from Cl light commercial to C2 heavy commercial. The previous owner of the property was unsuccessful in obtaining a zoning change from the city council. The bank filed an action in the trial court seeking declaratory and injunctive relief. The trial court declared the zoning classification unconstitutional and void as applied to the hank's property and enjoined the defendant city from preventing the bank’s development and use of the property for C2 purposes. Edgemont Bank, 85 Ill. App. 3d at 666-67.

The defendant City of Belleville and certain intervenors appealed the trial court’s decision. One of their contentions was “[t]he fact that property will be worth more if rezoned for a different use does not support the conclusion that the zoning ordinance prohibiting the use is invalid, unconstitutional or confiscatory.” Edgemont Bank, 85 Ill. App. 3d at 677.

The appellate court responded that “[t]he highest and best use of the subject premises is one consideration of a court in determining the hardship imposed on the owner and, thus, whether an ordinance is arbitrary and unreasonable and bears no substantial relation to the public health, safety, morals or welfare.” Edgemont Bank, 85 Ill. App. 3d at 677.

The court in Edgemont Bank took pains to demonstrate the gain to the public achieved by denying the zoning change was minimal or nonexistent. See, e.g., Edgemont Bank, 85 Ill. App. 3d at 675 (“In the case at bar there was, of course, persuasive testimony that the public derived no gain whatsoever from the present restriction whereas the highest and best use of the property to plaintiff is as a walk-in banking facility”).

In the instant case, there was evidence that indicated that the denial of the zoning change would benefit the public. For example, during the cross-examination of Mr. Hullinger, he testified that an asphalt plant was not compatible with single-family residential use, the eventual use contemplated by planners for the area. Mr. McCann speculated that the asphalt plant would be used as long as it was “economically viable.” This could be as long as the quarry is in operation, estimated by Mr. McCann to be 7 to 20 years.

We are of the opinion that Edgemont Bank is distinguishable from the instant case. In Edgemont Bank the court was careful to point out that little or no gain would come to the public by denying the zoning change. Here, it appears that there exists a gain to the public by denying the zoning change. Accordingly, the highest and best use evidence put on by the plaintiff does not obviate the need for showing diminution in value. The failure by the plaintiff to demonstrate a diminution in value clearly weighs this factor in favor of the defendants.

The third factor to be considered by the trial court is the extent to which the destruction of property values of plaintiff promotes the health, safety, morals or general welfare of the public. The court found no evidence that the plaintiff’s property value has been destroyed. The court did not discuss any findings relative to whether the public will benefit from the denial of the zoning request. The court found this factor in favor of the plaintiff.

The fourth factor to be considered by the trial court is the relative gain to the public as opposed to the hardship upon the individual property owner. The court indicated that factors two, three and four are interrelated and we agree. The court reiterated that the evidence was lacking in regard to diminution of value. The court found this factor to be split equally between the plaintiff and defendant.

The fifth factor to be considered is the suitability for the zoned purpose. The court indicated that the property was well suited for use as an asphalt plant. The court found this factor to weigh heavily in the plaintiff’s favor.

The sixth factor to be considered by the trial court is the length of time the property has been vacant as zoned. The court found that the property has not been vacant as zoned by the court decree. The court found that the property had been used constantly as a quarry since 1977. The court found this factor to weigh in favor of the defendants.

The seventh factor to be considered by the court is the care with which the community has undertaken to plan its land use development. The court found that a great deal of time and effort were expended in planning the area. The court indicated that the plan for the area is presently agricultural with development of residential areas and open space along the river. This factor was found to be moderately in favor of the defendants.

The last factor to be considered by the court is the evidence of community need for the use proposed. The trial court commented on the evidence regarding the great amount of building taking place in the area. The court also commented on the evidence regarding other asphalt plants in the area, noting that these plants are not operating at their full capacity. The court put special emphasis (calling it “telling”) that there were plants allowed to be constructed which have not yet been constructed. This, the court concluded, indicated that the need was not as great as conveyed by the plaintiff’s witnesses. The court thus found this factor to be moderately in favor of the defendants.

Plaintiff was required to prove his case by clear and convincing evidence. This the plaintiff did not do. We find that ample evidence exists to support the trial court’s decision.

Our finding on the issues discussed herein makes it unnecessary to consider other matters raised by the appellant.

For the reasons listed above, the decision of the circuit court of Will County is affirmed.

Affirmed.

SCOTT, J., concurs.

JUSTICE STOUDER,

dissenting:

After reviewing the opinion in the above-captioned case, I must respectfully dissent. I disagree with the analysis presented regarding the eight factors listed in National Bank v. County of Will (1987), 151 Ill. App. 3d 957, 503 N.E.2d 842.

Initially, I agree that the second factor weighs in favor of the defendants because the plaintiffs did not present evidence showing a diminution in the value of the property due to the zoning restriction.

The fourth factor, however, requires the court to consider the relative gain to the public as opposed to the hardship upon the individual property owner. The opinion indicates that factors two, three, and four are somehow interrelated. I disagree. The eight factors are to be viewed individually. If said factors were not independent of one another, there would have been no need for the court to delineate among the eight factors.

Here, all of the experts emphasized that the use as an asphalt plant was the highest and best use, but that the use was only as an integral part of the existing quarry and, as such, could not be assessed individually. Under these circumstances, the failing to testify as to the diminution in land values does not warrant the inference that the plaintiff (property owner) failed to prove hardship due to the zoning restriction.

In the instant case, the record shows the plaintiff testified that building the asphalt plant in the quarry would save approximately $3 million annually for his company. This is not only a significant savings to the company, but to the consumer as well. Also, at a time when this area of Will County is experiencing a surge in development, the reduction in truck traffic and the increased tax revenues from the property represent a significant benefit to the public. The defendants, meanwhile, presented no evidence to counter this evidence. Accordingly, I find the fourth factor to weigh heavily in the plaintiff’s favor.

Additionally, the seventh factor is the care with which the community has undertaken to plan its land use development. The extensive testimony here revealed that Hullinger, a person who helped develop the plan for Will County, testified that the asphalt plant fit well into the county plan and that it was less intense than a quarry. The trial court ruled in favor of the defendants, stating that the asphalt plant would not promote residential development. I note that residential developments are planned for this area and that the existing quarries have not deterred residential developers from purchasing and developing land in close proximity to these quarries. Indeed, it has been demonstrated that, after the quarries are exhausted, they become excellent areas for residential development. If the quarries fail to deter residential development, then neither will the asphalt plant.

I further disagree with the analysis of the eighth factor. The eighth factor requires the court to consider the evidence or lack of evidence of community need for the use proposed by the plaintiff. The trial court and the opinion emphasize the fact that two asphalt plants have been approved and not yet built. The record contains no evidence of why this is so. The trial court speculates that this must be due to their being no need for such asphalt plants. The plaintiffs counter with evidence that over 1,000 truck loads of stone per day leave the region for asphalt plants outside the area. The defendants presented evidence of a phone call to a local asphalt plant owner who stated that his plant was operating between 33% and 60% capacity. This testimony must be taken with a grain of salt for it’s hard to imagine that the plant owner would say something to the effect that “we’re operating at full capacity, and we sure need a competing asphalt plant to take some of our business.” The trial court, in my opinion, erred in finding this factor to weigh in favor of the defendants.

The gist of my disagreement, however, centers on the trial court’s emphasis on a single factor in making its determination. As stated in the opinion, the court in La Salle National Bank v. County of Cook (1957), 12 Ill. 2d 40, 145 N.E.2d 65, emphasized that “[n]o one factor is controlling.” Here, the trial court and the opinion rely primarily on the fact that the plaintiffs failed to submit evidence indicating that the property has suffered a diminution in value as a result of the ordinance. This factor, significant as it must seem to the trial court, is no more significant than the other seven factors. The National Bank case lists many factors, all of which must be given consideration before a decision is rendered. In addition, these types of cases need not be decided on a mathematical basis. The plaintiff does not necessarily win if he proves successful on five factors, nor does he lose if he fails to prove successful on four. The law requires that the trial court not base its judgment on one factor. After reviewing the substantial evidence presented by the plaintiffs in this case and after reviewing the trial court’s order, I find the trial court, in contravention to LaSalle National Bank, erroneously relied on one factor in rendering this decision. For these reasons, I respectfully dissent.


source: Caselaw Access Project

author: JUSTICE KNECHT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY E. SHELTON, Defendant-Appellant.
    Fourth District
    No. 4—90—0094
    Opinion filed December 6, 1990.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and James Majors, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial in McLean County, defendant Gary E. Shelton was convicted of theft by possession over $300 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16 — 1(a)(4)(C)) and theft by possession-subsequent offense felony (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16 — 1). The trial court entered judgment on the offense of theft by possession over $300, and defendant was sentenced to an extended six-year term of imprisonment to run consecutively with a four-year term of imprisonment previously imposed in McLean County case No. 89 — CF—10. The charges against defendant alleged he knowingly obtained control over stolen property — furniture of the Fairfield Inn and building equipment of the Triple R Interior Construction Company. Defendant was found not guilty of two separate charges of burglary stemming from the same facts. Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1.

On appeal, defendant raises the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial when evidence of other crimes was improperly introduced; (3) whether he was denied a fair trial when a statement he gave to the police officers was improperly admitted into evidence; (4) whether he was denied a fair trial when the State, in closing argument, made improper statements to the jury; (5) whether he was improperly sentenced to a consecutive term pursuant to section 5 — 8— 4(h) of the Unified Code of Corrections (111. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h)); (6) whether the trial court erred in sentencing by failing to take into account mitigating factors; and (7) whether the cause should be remanded so that a proper mittimus may be issued reflecting judgment was entered only on the offense of theft by possession over $300. We reverse and remand for a new trial, finding defendant was denied a fair trial when evidence of other crimes was improperly admitted. We address only the issues required to assist the trial court on remand.

At trial, Gary Retting testified he was the owner of the Triple R Interior Construction Company and that between May and August 1988, his company was doing drywall work at the First Assembly of God Church in Normal. Sometime during that period, Retting noticed a pair of drywall stilts and a drywall banjo were missing from the site. In January 1989, Retting went to the Bloomington police department, where he identified a pair of stilts and a banjo as being similar to the items missing. Retting stated the fair market value for the pair of drywall stilts was $275, while the fair market value for the banjo was around $150.

Kenneth Tipton testified he was the general manager of the Fair-field Inn in Normal, and that between August and November 1988, the motel was in the process of being constructed. In January 1989, Tipton was contacted by the Bloomington police department concerning furniture which had been recovered. The furniture consisted of a chair, ottoman, two pictures, and two nightstands. Tipton identified the furniture as belonging to Fairfield Inn and estimated the value of the items to be between $400 and $600. The items had just been received from the warehouse at the time they were taken from the hotel, but were in very poor condition when recovered. Tipton further stated that very close to the time he was contacted by the Blooming-ton police department, he received a call from a male identifying himself as Gary Shelton. The male offered to pay for the items or to return them.

Roger Marsh testified he had known the defendant for about five years and characterized him as being a good friend. Marsh acknowledged that he took certain property from the First Assembly of God Church and from the Fairfield Inn, and subsequently took the property to a trailer he shared with defendant and defendant’s girlfriend. Marsh put the drywall stilts underneath the trailer and the furniture in the living room of the residence. Marsh estimated the furniture was inside the trailer for three to four months before it was taken by the police. Everyone in the trailer, including defendant, used the furniture during this time.

Marsh testified defendant was not involved in the burglaries of Fairfield Inn or of the First Assembly of God Church. Marsh acknowledged that he made a statement on January 11, 1989, to Detective McKinley of the Bloomington police department in which he stated he and defendant took the items from the Fairfield Inn. Marsh also acknowledged that in his statement made on January 16, 1989, to Detective Richard Barkes, he also indicated defendant was involved in the church burglary. In his statement made on the same date to Frank Zayas of the Normal police department, Marsh stated defendant was involved in the Fairfield Inn burglary. Marsh identified People's exhibit No. 1 as a photograph of the drywall stilts and the banjo taken from the church, and People’s exhibit Nos. 2 through 5 as photographs of the property taken from the Fairfield Inn. At the time of testifying, Marsh had pleaded guilty to the two burglaries and received a sentence of probation.

On cross-examination, Marsh stated he had been living with defendant in a trailer in Lexington, Illinois, for about 18 months. Marsh considered the trailer his home as well as defendant’s. When Marsh first moved into the trailer, he brought personal belongings and from time to time, as he lived there, brought in other items which were not necessarily obtained from burglaries. Marsh indicated he told the police defendant was involved in the burglaries because he and defendant were fighting at the time, and because he was scared and thought it would be better for his case if he implicated someone else. Marsh chose to pinpoint defendant because the stolen property was in the trailer they shared together. Since the time he made these statements, Marsh had a change of heart because he did not want to see an innocent man go to jail. Marsh had told defendant the furniture had been obtained from yard sales.

Officer Richard Barkes of the Bloomington police department testified that in the course of investigating a burglary of the Fairfield Inn, he went to the trailer at which Marsh was staying in January 1989. Upon observing furniture he suspected had been stolen from the Fairfield Inn, Barkes transported Marsh to the Bloomington police department, where Marsh gave a written statement. In the statement, Marsh indicated defendant was his accomplice in the Fairfield Inn burglary. Based on the information contained in Marsh’s statement, a search warrant was obtained and executed for the trailer. At this time, the property from the Fairfield Inn and the drywall equipment from the Triple R Interior Construction Company were recovered. These items were taken into custody.

On February 12, 1989, Barkes took a written statement from defendant. In this statement, which was introduced at trial as People’s exhibit No. 9, defendant denied involvement in the burglaries of the drywall equipment and the furniture. Defendant stated Marsh and Ron Townscend brought the furniture into his trailer, at which time Marsh indicated he wanted to leave it in the trailer until he obtained a place of his own. Defendant stated he learned from Roy Potter the items were stolen, and that while he let the property stay in his trailer, he was going to dispose of it when he got home from work. Barkes further testified he took a written statement from Roger Marsh on January 16, 1989, concerning the burglary of the church. In this statement, People’s exhibit No. 7, Marsh admitted his involvement in the burglary and stated defendant was also involved.

On cross-examination, Barkes indicated he first learned about the burglaries, as well as Marsh’s and defendant’s involvement, from Ron Townscend, who was an inmate in the county jail. It was based upon this information that Barkes went to the trailer where he observed the furniture set up in the living room area. Pursuant to the search warrant, the drywall equipment was found in a storage room behind the living room.

Officer Randy McKinley of the Bloomington police department testified that on January 11, 1989, he took a written statement from Marsh in which Marsh implicated himself and defendant in the burglary of the Fairfield Inn. In this statement, which became People’s exhibit No. 6, Marsh described the items taken in the burglary of the motel. Officer Frank Zayas of the Normal police department testified that in January 1989, he took a statement from Marsh. In that statement, which became People’s exhibit No. 8, Marsh indicated he and defendant committed the burglary at Fairfield Inn.

Defendant did not testify, and the defense offered no evidence.

Defendant contends he was denied a fair trial when evidence of other crimes was improperly introduced to the jury. Specifically, defendant cites that a prior conviction for burglary was disclosed to the jury in direct contravention of section 16 — 1(b)(2) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16— 1(b)(2)). We agree with defendant that the introduction of his prior conviction was in contravention of section 16 — 1(b)(2) of the Code and merits reversal.

Section 16 — 1(b)(2) of the Code provides:

“A person who has been convicted of theft of property not exceeding $300 in value, other than a firearm and not from the person, who has been previously convicted of any type of theft, robbery, armed robbery, burglary, residential burglary, possession of burglary tools or home invasion is guilty of a Class 4 felony. When a person has any such prior conviction, the information or indictment charging that person shall state such prior conviction so as to give notice of the State’s intention to treat the charge as a felony. The fact of such prior conviction is not an element of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial.” (Emphasis added.) Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16 — 1(b)(2).

Immediately prior to closing arguments, the court made the following statement to the jury:

"Ladies and gentlemen, the exhibit, People’s Exhibit Number 10 reads as follows: ‘The Defendant was convicted of the felony criminal offense of burglary in McLean County Case 84 CF 117 on July 12,1984.’ ”

Thereafter, in its closing arguments, the State made the following remarks:

“Now concerning the final charge, the theft as a subsequent offense, really that comes into play if you should not find that the value of the property was in excess of $300. Again, I don’t believe that is the real issue here, but to prove that, we must prove the same elements basically as the other except that as an additional element, the Defendant had previously been convicted of the offense of burglary, and Judge Witte already indicated that was, in fact, the case. He was already convicted of that offense.”

During its deliberation, the jury sent to the court a note, which stated as follows:

“Is the burglary referred to in the 4th tennent [sic] of the ‘subsequent offense’ the current charges or previous (1984?) charges.”

The court responded with a written court’s instruction No. 1, which stated:

“Ladies and Gentlemen of the Jury: The burglary referred to in the fourth proposition of the issue instruction for the charge of theft — subsequent offense refers to the prior burglary conviction of the defendant in 1984.”

Defendant did not object to the introduction of his prior burglary conviction at trial or in a post-trial motion. Failure to raise an issue at trial or in a post-trial motion waives the issue for appeal. (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) We review this issue under the limited exception to the waiver rule which allows a reviewing court, in its discretion, to consider plain errors or defects affecting substantial rights. 107 Ill. 2d R 615(a).

The trial judge, the prosecutor, and defense counsel all apparently believed it was permissible and perhaps even necessary to disclose the defendant’s prior conviction for burglary. The disclosure was violative of the statute and, in this case, the error in disclosing defendant’s previous burglary conviction cannot be considered harmless. The evidence connecting defendant to the offenses was purely circumstantial and depended upon the contradicting statements of Roger Marsh. The evidence of defendant’s guilt was not so overwhelming as to render the introduction of defendant’s prior conviction harmless. It also cannot be said the jury might have ignored the disclosure of defendant’s prior conviction in their deliberations. The jury’s specific note referring to the previous burglary conviction indicates otherwise. For these reasons, we reverse on this issue and remand for a new trial.

We address the other issues raised by defendant to the extent that they may recur on retrial. We do not agree with defendant’s contention he was denied a fair trial by the introduction of a pretrial statement which, he alleges, constituted hearsay and not an admission. We also do not agree with defendant’s contention he was denied effective assistance of counsel by his attorney’s failure to object to the introduction of this statement.

The statement in question occurred in the pretrial interview between Officer Barkes and defendant, which was admitted to the jury as People’s exhibit No. 9. The statement included:

“Barkes: Gary, also taken from your residence was a pair of Dry wall walking stills and a dry wall banjo. What can you tell me about this item?
Shelton: I know that Roger and Ron Townscend brought them over and I found out later that they stole them from somewhere. Roy Potter was telling me that Roger was bragging about all the stuff that he had stole.
* * *
Barkes: Gary what can you tell me about some living room furniture that was located in your trailer?
Shelton: Well, it was again brought over by Roger Marsh and Ron Townscend. Roger stated he had no use for it and that he wanted me to keep it for a while.
Barkes: Gary, when did you learn that this furniture was stolen?
Shelton: By Roy Potter.
Barkes: Gary, once you knew that the property was stolen, you still elected to let the property to stay in your trailer didn’t you?
Shelton: Yes, but I was going to dispose of it when I came home from work.”

In the same statement, defendant denied any involvement in the burglary or thefts.

An admission is a statement of conduct from which guilt may be inferred, when taken in connection with other facts, but from which guilt does not necessarily follow. (People v. Stewart (1984), 105 Ill. 2d 22, 473 N.E.2d 840.) Here, guilt may be inferred from defendant’s statement indicating he knew the property was stolen when that statement is taken in connection with all the other evidence received in this case. The statement was an admission and not objectionable under the rule of hearsay.

We do not find defense counsel’s failure to object to this statement denied defendant of the effective assistance of counsel. Defendant was on trial not only for theft, but also for burglary. In his interview with Officer Barkes on February 12, 1989, defendant denied participating in the burglaries. Defendant did not testify at trial. Admission of the statement made to Officer Barkes allowed the only evidence of defendant’s denial of the burglaries. Given the jury’s verdict of not guilty as to the two separate counts of burglary, it is illogical to contend defense counsel was ineffective on this matter.

For the purposes of resentencing, we note it would be inappropriate to apply section 5 — 8—4(h) of the Unified Code of Corrections in determining defendant’s sentence should be consecutive to his sentence previously imposed in McLean County case No. 89 — CF—10.

Section 5 — 8—4(h) of the Unified Code of Corrections provides:

“If a person charged with a felony commits a separate felony while on pre-trial release or in pretrial detention in a county jail facility or county detention facility, the sentences imposed upon conviction of these felonies shall be served consecutively regardless of the order in which the judgments of conviction are entered.” Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 8— 4(h).

Defendant contends in the instant case if he actually committed the offense of theft by possession, it was prior to posting bond in case No. 89 — CF—10, the sentence to which this sentence was made consecutive. The State contends defendant’s possession of the items was a continuous offense meriting the application of section 5 — 8— 4(h). We agree with defendant. The docket sheet from case No. 89— CF — 10 reflects defendant posted bond in case No. 89 — CF—10 on January 9, 1989; pleaded guilty to the offense of theft by possession on July 27, 1989; and was sentenced to a term of four years’ imprisonment on October 2, 1989. In the instant case, the search warrant on defendant’s trailer was executed on January 12, 1989, though the evidence at trial indicated the property was discovered missing from Triple R Construction sometime between May and August 1988, and from Fairfield Inn sometime between August and November 1988. On direct examination, Roger Marsh stated the furniture had been inside the trailer three or four months before it was taken by the police. For the purposes of this statute, possession is not a continuous offense and defendant did not “commit” the offense of theft by possession in the instant case while on pretrial release in case No. 89 — CF—10. The trial court erred in finding that it was mandatory it impose consecutive terms for the two sentences pursuant to section 5 — 8—4(h).

For the reasons stated, we reverse the conviction and remand the case for a new trial. Insofar as defendant’s reasonable doubt argument, we have reviewed all of the evidence, and we conclude the evidence admitted at trial was sufficient for a jury to conclude defendant was guilty beyond a reasonable doubt. We are not making a finding as to defendant’s guilt or innocence which will be binding on retrial, but our consideration of the sufficiency of the evidence admitted at trial will protect defendant’s constitutional right against double jeopardy. See People v. Taylor (1979), 76 Ill. 2d 289, 309-10, 391 N.E.2d 366, 375.

Reversed and remanded.

SPITZ and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH JUSTICE STEIGMANN,

text:
      In re A MINOR (The People of the State of Illinois, Petitioner-Appellee, v. The Champaign News-Gazette, Appellant).—In re A MINOR (The People of the State of Illinois, Petitioner-Appellee, v. The Champaign News-Gazette, Appellant).
    Fourth District
    Nos. 4—90—0167, 4—90—0168 cons.
    Opinion filed November 15, 1990.

      STEIGMANN, J., dissenting.
    Traci E. Nally, of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellant.
    No brief filed for the People.
    Stephen R. Pacey, of Pacey & Pacey Lawyers, P.C., of Paxton, guardian ad litem.

   JUSTICE McCULLOUGH

delivered the opinion of the court:

This is an interlocutory appeal by the Champaign News-Gazette, Inc. (News), from an order excluding the News from the juvenile proceedings involving the two minors in these cases. The News argues the trial court erred in excluding its reporters from the proceeding pursuant to section 1 — 5 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5). We affirm in part and reverse in part.

The docket entries in the record reveal the two minors, who were the victims of physical and sexual abuse at the hands of a parent, were taken into shelter care on February 23, 1989. According to the News, one of its reporters was in the courtroom on March 13, 1989, the day scheduled for the adjudicatory hearing for both minors, to report on the proceedings. Upon identifying himself to the trial judge as a reporter for the News, he was ordered to leave the courtroom. The reporter’s request for an immediate hearing on the exclusion order was denied.

The News filed a motion for reconsideration of the exclusion order. At a hearing on April 18, 1989, the trial judge stated the court had an obligation to protect minors and there is a policy of confidentiality embodied in section 1 — 5 of the Act with respect to juvenile proceedings. The judge further noted section 1 — 5 of the Act provides the media may be admitted to proceedings if, in the opinion of the court, they have a direct interest in the case. Further, the media should make an advance application for admission to juvenile proceedings. Finally, the judge stated the News could be admitted to the proceedings if it agreed not to further reveal the identity of the minors.

Following the hearing on April 18, 1989, an order entitled “CONFIDENTIALITY ORDER ENTERED PURSUANT TO CHAPTER 37, SECTION [1-8] AND SECTION [1-5(6)]” was filed on April 20, 1989. The order stated, pursuant to section 1 — 5(6) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(6)), “all persons and agencies present in the court for hearings [regarding the two minors] are prohibited and enjoined from further disclosing the minor[s’] identities].” Further, pursuant to section 1 — 8 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 8), all parties to the proceeding were prohibited from disclosing the content or substance of any court record involving the two minors. A written order addressing the issues raised by the News and setting forth the court’s decision announced in court on April 18 was filed on January 31, 1990. The News appeals from the order entered on January 31, 1990.

The jurisdiction of this court for appeal purposes is based upon the trial court’s order of January 31, 1990. The issues set forth in the appellant’s brief are whether advance application to the trial court must be made before being admitted to juvenile court proceedings and whether the News may be excluded from the proceedings if it discloses the identity of the juveniles, even if identity is obtained from other sources. The appellant addresses the January 31, 1990, order in its brief. The failure of the trial court to make specific findings at the March 13, 1989, hearing is waived. We, therefore, address the issues as they pertain to the January 31, 1990, order.

The parties’ arguments focus on section 1 — 5(6) of the Act, which reads as follows:

“The general public except for the news media and the victim shall be excluded from any hearing and, except for the persons specified in this Section, only persons, including representatives of agencies and associations, who in the opinion of the court have a direct interest in the case or in the work of the court shall be admitted to the hearing. However, the court may, for the minor’s protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor’s identity.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(6).)

The News contends this section evidences that juvenile proceedings are open to the media. Specifically, the News argues section 1 — 5(6) clearly excepts the news media and the victim from the class of the general public. The News argues the term “this Section” refers only to section 1 — 5(6), not section 1 — 5. Relying on this analysis of the language in section 1 — 5(6), the News maintains it is excepted not only from the group of the general public but also from those persons whom the court may exclude if it finds they do not have a direct interest in the case or the work of the court. The News relies on In re Jones (1970), 46 Ill. 2d 506, 263 N.E.2d 863, which considered section 1— 20(6) of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 701— 20(6)), predecessor to section 1 — 5(6), for support.

The News also argues that given the language of section 1 — 5(6) and the history of juvenile proceedings in Illinois, it has a first amendment right of access to juvenile proceedings. Relying on Press-Enterprise Co. v. Superior Court (1986), 478 U.S. 1, 92 L. Ed. 2d 1, 106 S. Ct. 2735, the News contends it can only be excluded after a finding that there is an overriding interest essential to preserving higher values. The News further maintains the trial judge’s requirement in this case of an advance application for admission has no basis in the Act and is unconstitutional. Finally, the News argues the threat of exclusion, if it discloses the minor’s identity, constitutes a prior restraint of the press.

The guardian ad litem for the minors argues the trial court correctly found three classes of persons are mentioned in section 1 — 5, which concerns “Rights of parties to proceedings”: (1) the minor, his parents, guardian or custodian, who are parties respondent; (2) the general public except for the news media and the victim; and (3) except for those persons mentioned in section 1 — 5, those persons, in the court’s opinion, with a direct interest in the case or work of the court. The guardian contends the News’ reliance on Jones is misplaced and, further, that historically juvenile proceedings have not been open to the general public.

The guardian distinguishes the cases relied upon by the News by pointing out that it is undisputed that the News did not obtain the minors’ identities through common reportorial techniques. Further, the minors involved in these proceedings are victims of physical and sexual abuse, unlike the delinquent minors or criminal defendants involved in the cases the News relies on. Finally, the guardian points out that the United States Supreme Court cases addressing freedom of the press with regard to judicial proceedings have yet to consider this right with regard to juvenile proceedings involving abused or neglected children.

In its reply brief, the News maintains it is not arguing it has an absolute right to be admitted to all juvenile proceedings, or that the well-being of the minors herein is not compelling enough to justify closure of the proceedings. Rather, the News argues that because no request for closure or factual findings supporting closure were made in these cases, the order must be reversed.

We first address the News’ construction of section 1 — 5(6) of the Act. Statutes should be evaluated as a whole, and each provision should be construed in connection with every other section and in light of the statute’s general purpose. (Peoples Gas Light & Coke Co. v. Illinois Commerce Comm’n (1987), 165 Ill. App. 3d 235, 247, 520 N.E.2d 46, 54.) A reading of section 1 — 5 in its entirety does not support the News’ analysis that the term “this Section” in section 1 — 5(6) refers only to section 1 — 5(6). In section 1 — 5(1) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(1)), the same term, “this Section,” is used. To confine the term “this Section” to the paragraph it appears in does not comport with the principles of statutory construction. We find the News’ analysis of the language in section 1 — 5(6) to be without merit.

We now consider the first amendment right of freedom of the press regarding juvenile proceedings. Our analysis begins first with the decisions of the United States Supreme Court on freedom of the press in judicial proceedings. The Court has held that a State may not prohibit a newspaper from publishing any information regarding criminal defendants, juvenile delinquents, and crime victims where the information had been obtained through common reportorial techniques. (Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 43 L. Ed. 2d 328, 95 S. Ct. 1029; Nebraska Press Association v. Stuart (1976), 427 U.S. 539, 49 L. Ed. 2d 683, 96 S. Ct. 2791; Oklahoma Publishing Co. v. District Court (1977), 430 U.S. 308, 51 L. Ed. 2d 355, 97 S. Ct. 1045; Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613.) Further, in The Florida Star v. B.J.F. (1989), 491 U.S. 524,105 L. Ed. 2d 443, 109 S. Ct. 2603, the Court stated the publication of information lawfully obtained and of public significance cannot be constitutionally punished, absent a need to further a State interest of the highest order. The rationale underlying the Court’s decisions is the recognized constitutional right of access to criminal trials, embodied in the first amendment, which the press and the general public enjoy. (See Richmond Newspapers, Inc. v. Virginia (1980) , 448 U.S. 555, 65 L. Ed. 2d 973, 100 S. Ct. 2814; Globe, 457 U.S. at 603, 73 L. Ed. 2d at 255, 102 S. Ct. at 2618.) This right of access is not absolute. (Nebraska, 427 U.S. at 570, 49 L. Ed. 2d at 704, 96 S. Ct. at 2808.) The State may deny access but its justification for doing so must be backed by a compelling governmental interest. Further, the denial must be narrowly tailored to serve that interest. Globe, 457 U.S. at 607, 73 L. Ed. 2d at 257, 102 S. Ct. at 2620.

The Court had stated, in two of its decisions to date, that its holdings should be confined to the facts of the case and the issue presented. Specifically, in Globe, the court held that a State statute mandating closure of criminal proceedings when a minor victim of a sex offense was testifying was too restrictive because it did not give discretion to trial courts to determine on a case-by-case basis whether closure is called for. Thus, the court left open the question of whether a State statute giving discretion to trial judges to close criminal proceedings in certain cases would survive a constitutional challenge. In her concurring opinion in Globe, Justice O’Connor stated:

“I interpret neither Richmond *** nor the Court’s decision today to carry any implications outside the context of criminal trials.” (Globe, 457 U.S. at 611, 73 L. Ed. 2d at 260, 102 S. Ct. at 2622 (O’Connor, J., concurring).)

In Florida Star, the Court rejected an invitation to hold that truthful publication of information may never be punished and stated:

“Our cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily.” The Florida Star, 491 U.S. at 532,105 L. Ed. 2d at 455,109 S. Ct. at 2608.

The Supreme Court has yet to determine whether the constitutional right of access in criminal trials extends to juvenile proceedings. However, several State courts have considered the issue. In In re J.S. (1981) , 140 Vt. 458, 438 A.2d 1125, at issue was a State statute prohibiting the general public from juvenile proceedings and prohibiting publicity regarding the proceedings except with the consent of the minor and his parent. The Vermont Supreme Court determined the Richmond right of access to criminal trials did not extend to juvenile proceedings involving delinquent minors. In so holding, the court reasoned that juvenile proceedings have traditionally been closed and the statute evidenced the legislature’s intent that these proceedings be closed. Further, the court noted the purposes served by open criminal trials were inapplicable to juvenile proceedings, considered rehabilitative and not criminal in nature. Finally, the court stated the confidentiality inherent in juvenile proceedings overrides any first amendment rights.

In Edward A. Sherman Publishing Co. v. Goldberg (R.I. 1982), 443 A.2d 1252, the Rhode Island Supreme Court determined the trial court’s order barring the press from juvenile proceedings, where the name of the minor was lawfully obtained by the press, violated the decisions of the United States Supreme Court in Oklahoma Publishing and Smith v. Daily Mail Publishing Co. (1979), 443 U.S. 97, 61 L. Ed. 2d 399, 99 S. Ct. 2667. However, in considering the constitutionality of a statute barring the general public from court hearings in juvenile proceedings, the court reasoned the press had no constitutional right of access to these proceedings under the United States Constitution and, therefore, the State legislature could exclude the press by statute from the proceedings.

In Florida Publishing Co. v. Morgan (1984), 253 Ga. 467, 322 S.E.2d 233, a Georgia statute excluded the general public from delinquency, deprivation, and unruliness hearings in juvenile court. The Georgia Supreme Court upheld the constitutionality of the exclusion statute, reasoning there was no historically based constitutional presumption of openness in juvenile proceedings. The court further opined that the presumption of closed proceedings, involving juveniles, is not conclusive and the press must be given an opportunity to show the juvenile’s interest in a closed proceeding is not “overriding” or “compelling.”

In Associated Press v. Bradshaw (S.D. 1987), 410 N.W.2d 577, the South Dakota Supreme Court, noting first the media’s right of access to juvenile proceedings was not compelled by the United States Constitution, stated the media had a qualified right of access under a State statute. The statute at issue in Bradshaw provided the general public was to be admitted to juvenile proceedings except when the child, parent, or attorney requested a private hearing. In that event, the trial judge was given discretion to admit those persons with “ '*** a direct interest in the case, witnesses, officers of the court and news media representatives.’ ” (Emphasis in original.) (Bradshaw, 410 N.W.2d at 579, quoting S.D. Codified Laws Ann. §26 — 8—32 (1984).) The court stated the statute gave judges discretion to admit one, all, or a combination of the enumerated parties and the press had no greater right than that of the general public under the statute. The court further noted the qualified right of access required the balancing of first amendment rights with the State’s interest in preserving the juvenile’s anonymity and in protecting the juvenile.

In In re N.H.B. (Utah App. 1989), 769 R2d 844, the Utah Court of Appeals noted that while the United States Supreme Court has not squarely addressed the issue of public access to juvenile proceedings, it had repeatedly “evinced an appreciation for the purposes served by closure.” (N.H.B., 769 P.2d at 848.) The Utah statute at issue in N.H.B. provided the general public was excluded from juvenile proceedings except where a petition was presented alleging the commission of a crime by a juvenile which would be a felony if committed by an adult. The court concluded the statute, which presumed the proceedings were closed, whs constitutional under the United States Constitution and the Utah State Constitution.

Recently, in In re T.R. (1990), 52 Ohio St. 3d 6, 556 N.E.2d 439, the Ohio Supreme Court considered a State statute which provided that the general public may be excluded and only those persons who have a direct interest in the case may be admitted to juvenile proceedings. The court determined juvenile proceedings are not presumptively open and the statute allowed trial judges to close juvenile proceedings — but only after hearing evidence on the issue and finding (1) there was a reasonable and substantial basis for believing that access would endanger the child or endanger the fairness of the proceedings; and (2) the potential harm outweighed the benefits of public access. (T.R., 52 Ohio St. 3d at 7, 556 N.E.2d at 442.) The proceedings before the court in T.R. involved the legal custody of a minor. The trial judge closed the proceedings to the media, sealed the court records, and issued a gag order to the parties and their counsel. The court upheld the validity of the closure order, reasoning the trial court’s analysis that the harm to the child outweighed the benefits of access was not an abuse of discretion.

We are persuaded by the great weight of current authority that juvenile proceedings, unlike criminal proceedings, are not presumptively open to the public. Accordingly, we reject the argument that the press has an absolute right, under the United States Constitution, of access to such proceedings. Our conclusions, however, do not address the media’s right of access under section 1 — 5(6) of the Act. We now consider that section of the Act.

Unlike the State statutes considered to date by other State courts, section 1 — 5(6) excepts the news media from the general public who are excluded from juvenile proceedings. Section 1 — 5(6) further provides that except for those persons specified in section 1 — 5, only persons “who in the opinion of the court have a direct interest in the case or in the work of the court shall be admitted to the hearing.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(6).) Two supreme court cases have considered the predecessor to section 1 — 5(6), section 1 — 20(6), without reaching the question presented in this appeal. In Jones, a delinquent minor waived his right to a public trial and the trial court ordered the general public and the press excluded from the proceedings. The order was later modified to allow the news media admittance but was subject to the condition that nothing regarding the proceedings was to be published. On appeal, the minor claimed error in the admittance of the media and argued his personal right to a public trial could be waived.

The Jones court reasoned section 1 — 20(6) evidenced the legislature’s intent that “openness should prevail throughout [juvenile] proceedings.” (Jones, 46 Ill. 2d at 509, 263 N.E.2d at 864.) Further, the court noted the ability to waive a constitutional right does not ordinarily carry with it the right to insist on the opposite of that right. Finding no prejudice to the respondent in allowing the press access to the proceedings, the court found no error in denying the minor a purely private trial.

In In re a Minor (1989), 127 Ill. 2d 247, 537 N.E.2d 292, the supreme court determined the trial court’s power to exclude the news media under section 1 — 20(6) was unconstitutionally applied where the identity of the delinquent minor was learned through lawful and routine newspaper reporting. The orders entered in Minor were similar to those entered here: the media was (1) prohibited from publishing the minor’s name; and (2) banned from the proceedings unless it agreed to comply with the nonpublish order. The court noted the order was not necessary to protect the minor because the minor’s identity had already been revealed.

These cases are distinguishable from the case presented. Here, it is undisputed that the news media had not learned the minors’ identities through accepted reportorial techniques prior to the adjudicatory hearing when the News asked for admittance to the proceedings. This fact distinguishes this case from Minor. Additionally, this case involves two victims of abuse, unlike Jones and Minor, which involved alleged delinquents.

The News relies on Jones for its argument that juvenile proceedings are presumptively open in Illinois. We do not read Jones so broadly. The Jones court was presented with the issue of whether a delinquent minor had a right to a private trial. After considering the language of section 1 — 20(6), the Jones court reasoned the legislature intended for openness to “prevail throughout the proceedings.” (Jones, 46 Ill. 2d at 509, 263 N.E.2d at 864.) We do not believe this statement is in conflict with a finding that the press has only a conditional right of access under the statute. In our view, the language of section 1— 5(6) suggests the legislature intended to give trial courts control over persons admitted to juvenile court hearings.

Further, we note that since Jones was decided in 1970, section 1— 20(6) has been amended to include the following sentence at the end of the successor section:

“However, the court may, for the minor’s protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor’s identity.” (Ill. Rev. Stat. 1989, ch. 37, par. 801-5(6).)

The addition of this language further evidences an intent to give trial courts the discretion to deny access to anyone for the minor’s protection.

Our conclusion is further supported by other provisions of the Act. Section 1 — 8(C) of the Act provides:

“Juvenile court records shall not be made available to the general public but may be inspected by representatives of agencies, associations and news media or other properly interested persons by general or special order of the court. The State’s Attorney, the minor, his parents, guardian and counsel shall at all times have the right to examine court files and records.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 8(C).)

Also section 2 — 22 directs as to “factual contents and the conclusions of the reports prepared for the use of the court and considered by it” at dispositional hearing as follows:

“Factual contents, conclusions, documents and sources disclosed by the court under this paragraph shall not be further disclosed without the express approval of the court pursuant to an in camera hearing.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 22(2).)

Section 1 — 8(C), which directs that the news media may only inspect court records by general or special order of the court, evidences that juvenile records of proceedings are to remain confidential. (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 8(C).) Allowing the press unfettered access to court hearings where confidential records are generated would render this provision meaningless. (See T.R., 52 Ohio St. 3d at 16, 556 N.E.2d at 449.) Section 2 — 22 also stresses the importance of confidentiality in juvenile proceedings.

The cases from other jurisdictions which have considered this issue and held there is a conditional right of access have also concluded that the media may only be excluded from the proceedings after a hearing at which it was concluded (1) the State’s interest in protecting the minor is compelling, and (2) the potential harm to the minor on opening the proceedings outweighs the benefits of public access. (T.R., 52 Ohio St. 3d at 18-19, 556 N.E.2d at 451; N.H.B., 769 P.2d at 852; Brad shaw, 410 N.W.2d at 579; Florida Publishing, 253 Ga. at 473, 322 S.E.2d at 238.) Two States have determined the State’s interest in protecting the juvenile is compelling and overrides the benefits of public access. T.R., 52 Ohio St. 3d at 21, 556 N.E.2d at 453; J.S., 140 Vt. at 464, 438 A.2d at 1127.

Here, the trial court concluded that because of (1) the nature of the abuse, and (2) size of community where the minors resided, and would likely continue to reside, extensive publicity of the proceedings would adversely affect the two minors for the rest of their lives. The State’s interest in protecting these minors is compelling and the articulated reasons for closing these proceedings are sound. We find the trial court properly exercised its discretion under section 1 — 5(6).

The News also contends the trial court’s requirement that the media make advance application for admittance to a juvenile proceeding is not authorized by section 1 — 5(6) and is an unconstitutional prior restraint of the press. In his order, the trial judge stated advance application by the media would prevent any delay in the proceedings when the media entered the courtroom and would ensure all parties understood “the ground rules” before the proceedings began. The trial judge did not indicate what the advance application would entail.

We believe the trial judges do have the discretion to determine the best way to conduct juvenile proceedings. Establishing a procedure to identify efficiently all persons seeking admission to a juvenile proceeding falls within this discretion. However, a formal written application for admission, upon which a hearing may have to be conducted, in our view, causes more delay in the commencement of proceedings designed to protect minors.

The News also argues the portion of the trial court’s order requiring it, before admittance to the proceedings, to state it would not further identify the minor constitutes a prior restraint of the press. A prior restraint occurs when the State attempts to prohibit the broadcasting or publication of material already in the possession of the media. (T.R., 52 Ohio St. 3d at 19, 556 N.E.2d at 452, citing Florida Freedom Newspapers, Inc. v. McCrary (Fla. 1988), 520 So. 2d 32, 35.) The Supreme Court has held that once truthful information is publicly revealed or in the public domain, a court may not constitutionally restrain its dissemination. (Smith, 443 U.S. at 103, 62 L. Ed. 2d at 405, 99 S. Ct. at 2671; Oklahoma, 430 U.S. at 309-12, 51 L. Ed. 2d at 357-59, 97 S. Ct. at 1046-47.) In the case presented, the order is broad enough to require that the News represent it will not further publicize the minor’s identity no matter from what source the information was obtained. To the extent the order concerns information the News may obtain through common reportorial techniques, it may not be restrained from publishing the information. However, the court may prohibit the News from publishing any information regarding the minors’ identities which was obtained from the courtroom.

Finally, we consider the News’ claim that the procedure used to bar the media in this case was improper. Consideration of this issue requires an examination of the purposes and policy of the Act.

Section 1 — 2 of the Act sets forth the purposes and policies of the Act, which include, inter alia, the protection of minors and the strengthening of a minor’s family ties, whenever possible. (111. Rev. Stat. 1989, ch. 37, par. 801 — 2.) The relation between the juvenile court and the minor is that of parens patriae (People v. Zepeda (1970), 47 Ill. 2d 23, 29, 265 N.E.2d 647, 650), and it is the duty of the court to attempt to act solely in the best interests of the child and for his own protection. (In re Frazier (1978), 60 Ill. App. 3d 119, 123, 376 N.E.2d 643, 646, rev’d on other grounds (1979), 76 Ill. 2d 204, 390 N.E.2d 884.) To these ends, a court will even intervene on its own motion and take note of legitimate and substantial errors in the proceeding involving minors even though the minors may be represented by counsel. In re Carson (1973), 10 Ill. App. 3d 387, 388-89, 294 N.E.2d 75, 76-77.

The News argues there must be a request for their exclusion by the parties before it may be denied access. We disagree. The court as parens patriae has a duty to protect a minor when danger of harm is perceived.

For the foregoing reasons, the order of the trial court is affirmed in part and reversed in part.

Affirmed in part; reversed in part.

SPITZ, J., concurs.

JUSTICE STEIGMANN,

dissenting:

In my judgment the majority has incorrectly analyzed the issues before this court. As a result, it has reached the wrong conclusion. Respectfully, I dissent.

To correctly analyze the issues before this court, three questions must be asked: (1) Do the news media have a statutory right to be present during juvenile court proceedings? (2) If the news media have such a right, do courts possess the authority to impose conditions upon the exercise of that right? (3) Do courts have the authority to prohibit the news media from publishing or disclosing information obtained while a media representative was present during juvenile court proceedings? As the following discussion reveals, the answer to each of these questions is clear, requiring that the orders before us on appeal, purporting to impose restrictions upon the news media, be reversed.

I. DO THE NEWS MEDIA HAVE A STATUTORY RIGHT TO BE PRESENT DURING JUVENILE COURT PROCEEDINGS?

The cardinal rule of statutory construction is to ascertain and give meaning to the intention of the legislature. When the text of the statute being construed is clear, ancillary sources need not be consulted. In my judgment, this is such a case. Section 1 — 5(6) of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(6)) states in pertinent part the following: “The general public except for the news media and the victim shall be excluded from any hearing and ***.” The language appearing after the word “and” in no way affects or modifies the language appearing before that word. The 17 words appearing before the word “and” can mean only one thing: the news media and the victim have the right to be present at a hearing conducted under the Act.

I feel a bit awkward in making this emphatic assertion in view of the newspaper’s position in this case, conceding that it does not have “an ‘absolute right’ to be admitted to all juvenile proceedings.” It may be that the newspaper thought this position to be tactically advantageous, but as a matter of law, I believe it to be clearly wrong.

While I am sympathetic to the newspaper’s claim that it has a first amendment right of access to proceedings under the Act, this court need not pass upon that question in this case. Similarly, we need not concern ourselves with a lengthy review of what courts from other States have held regarding media access to their juvenile court proceedings. We need not concern ourselves with these subjects because the policy-making branch of our State government, the Illinois General Assembly, has already determined the policy regarding access of the news media to juvenile court proceedings: the news media may be present if they wish. This legislative judgment is in violation of no State or Federal constitutional principle and, accordingly, it must be obeyed. It is utterly inappropriate for courts which disagree with legislative judgments to frustrate those judgments by construing statutes in a fashion to achieve ends thought desirable by the courts but not intended by the legislature.

By its holding in this case, the majority has usurped legislative prerogatives by judicially amending section 1 — 5(6) of the Act to make it read, in effect, as follows: “The general public except the news media and the victim shall be excluded from any hearing unless the court for good cause shown believes they should be excluded as well.” Had the legislature intended to add the emphasized language, it could have done so.

In re Jones (1970), 46 Ill. 2d 506, 263 N.E.2d 863, is the only decision of the Illinois Supreme Court which construed this section. While the majority concedes that the Jones court reasoned the legislature intended “openness to ‘prevail throughout the [juvenile] proceedings’ ” (205 Ill. App. 3d at 489, quoting Jones, 46 Ill. 2d at 509, 263 N.E.2d at 864), that barren concession hardly conveys the feeling of emphasis on this point found in Jones.

“[I]t is clear that the legislature intended that openness should prevail throughout the proceedings. We are of the opinion that section 1 — 20(6) [the predecessor statute to section 1 — 5(6), which was being construed in Jones] serves the dual function of not only protecting a respondent’s right to a ‘public trial’ but also preserves the right of the general populace to know what is transpiring in its courts.” (Emphasis in original.) Jones, 46 Ill. 2d at 509, 263 N.E.2d at 864.

The only other case in which the supreme court has addressed section 1-20(6) is In re a Minor (1989), 127 Ill. 2d 247; 537 N.E.2d 292, in which the issue before the court was whether a newspaper which learns through ordinary reportorial techniques of the identity of a minor charged in a closed criminal proceeding may be forbidden from reporting that information once it has entered the public domain. (Minor, 127 Ill. 2d at 250, 537 N.E.2d at 293.) The court held the answer to that question was no. (Minor, 127 Ill. 2d at 250-51, 537 N.E.2d at 293.) While Minor did not directly address whether the news media have the right of access to juvenile court proceedings under section 1— 5(6) of the Act, that opinion nonetheless contains an .indication of the supreme court’s view on this subject.

In setting forth the factual circumstances in Minor in which the reporter for a local newspaper learned of the alleged delinquent’s identity from her discussions with police officers and Watseka city council members, the court stated the following:

“The next day, *** the minor was taken before the trial court to be charged in connection with the shooting. Under the mistaken impression that the courtroom was closed to the press, [the reporter] chose not to attend. During and immediately after the hearing, however, she spoke about the case with an Iroquois County juvenile probation officer, who told her what had happened at the hearing and about the minor’s family life. In the course of the conversation the probation officer, like the police chief, freely used the minor’s name.” (Emphasis added.) (Minor, 127 Ill. 2d at 252, 537 N.E.2d at 294.)

The emphasized language from the above quotation is a strong indication that the supreme court believes that the courtroom in which the juvenile proceedings in Minor were taking place was open to the press.

II. DO THE TRIAL COURTS HAVE THE AUTHORITY TO IMPOSE CONDITIONS ON NEWS MEDIA ACCESS TO JUVENILE PROCEEDINGS?

The majority states that “[i]n our view, the language of section 1— 5(6) suggests the legislature intended to give trial courts control over persons admitted to juvenile court hearings.” (205 Ill. App. 3d at 489-90.) In support of this conclusion, the majority cites section 1 — 8(C) of the Act, which concerns the confidentiality of court records. (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 8(C).) In my judgment, this section not only fails to support the majority opinion, but in fact undermines it.

Section 1 — 8(C) of the Act demonstrates that the legislature is fully capable of distinguishing between the general public on the one hand and the news media on the other in according special rights to the news media which the general public does not possess. That section provides that juvenile court records “shall not be made available to the general public” but may be inspected by the news media upon general or special order of the court.

Citing section 1 — 8(C) of the Act, the majority states the following: “Allowing the press unfettered access to court hearings where confidential records are generated would render this provision meaningless.” (205 Ill. App. 3d at 490.) Section 2 — 22(2) of the Act states that dispositional reports prepared for juvenile delinquency hearings — the equivalent of presentence reports used in sentencing hearings for adults — shall not be disclosed “without the express approval of the court pursuant to an in camera hearing.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 22(2).) Section 5 — 3—4(b)(7) of the Unified Code of Corrections (Code) similarly provides that presentence reports shall be opened for inspection to noncourt personnel “only as ordered by the court.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3—4(b)(7).) A comparison of section 2 — 22(2) of the Act with section 5 — 3—4(b)(7) of the Code thus reveals that in sentencing hearings regarding both juvenile delinquents and adult criminal defendants, the presentence reports are not to be disclosed, absent a court order. Yet I am confident the majority would not hold that the news media may be denied access or given only restricted access to sentencing hearings in felony cases based upon a claim that “[allowing the press unfettered access to [sentencing] hearings where confidential records are generated would render [the confidentiality statute] meaningless.”

The legislature is perfectly capable of saying what it means regarding the sensitive subjects of protection of juveniles and news media access to juvenile court proceedings. Thus, when the legislature in section 1 — 5(6) of the Act provides for the right of the news media to be present and does not provide for any authority in the trial courts to limit or restrict news media access in any way, this legislative judgment should be respected. The only way to avoid concluding that the legislature meant what it said is somehow to decide that the legislature overlooked the concerns expressed by the majority as to the evils that would befall the juvenile court system if news media access were unlimited. Such a claim is simply untenable in view of the great detail set forth in section 1 — 8 of the Act regarding the confidentiality and accessibility of juvenile court records.

The trial court’s claim that it needs “advance application” by the media whenever the media wished to attend juvenile court proceedings in order to “prevent any delay in the proceedings” is without merit. This claim is in no way connected to the legitimate needs of trial judges to have the discretion to determine the best way to conduct juvenile proceedings. In the hundreds of appeals to this court from proceedings under the Act, no problem has ever been shown in having persons seeking admission to such proceedings identify themselves so that the trial judge might determine whether their presence was appropriate. This record is devoid of any basis to conclude that establishing a procedure to identify such persons is necessary or desirable, much less the requirement of a formal written application for admission. By suggesting such a procedure, the majority is proposing a cure for no known disease.

III. DO COURTS HAVE THE AUTHORITY TO PROHIBIT THE NEWS MEDIA FROM PUBLISHING OR DISCLOSING INFORMATION OBTAINED WHILE A NEWS MEDIA REPRESENTATIVE WAS PRESENT DURING JUVENILE COURT PROCEEDINGS?

In my judgment, this third question is the easiest of the three to answer, and I do so with an emphatic, “No.”

The last sentence of section 1 — 5(6) of the Act states the following: “However, the court may, for the minor’s protection and for good cause shown, prohibit any person or agency present in court from further disclosing the minor’s identity.” (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 5(6).) In this provision, the legislature has authorized the imposition of restrictions on persons present during proceedings under the Act, such as attorneys or the members of a juvenile’s family, but in doing so, the legislature must be presumed to have intended not to act in violation of the United States Constitution. In my judgment, to hold this provision applicable to the news media would be to violate the first amendment; therefore, this statute must be construed so that the courts are not given authority to impose restrictions upon publication or disclosure by the news media of matters learned by having news media representatives present in the courtroom.

“[T]he first amendment strips the State of the power to proscribe the publication of information which has already been lawfully revealed and which has been obtained by lawful means.” (Minor, 127 Ill. 2d at 268, 537 N.E.2d at 301.)

As discussed in part I of this dissent, the news media have the right to be present during juvenile court proceedings; accordingly, anything learned through their presence has, by definition, been lawfully revealed to them and “obtained by lawful means.” Any court orders purporting to limit the use of information obtained through media presence would be an improper effort to impose a prior restraint upon the freedom of the press and would be in violation of the United States Constitution.

For the reasons stated, the orders on appeal should be reversed in their entirety.