In a motion filed with the Illinois Supreme Court, Attorney Terry Ekl asks that documents kept secret by McHenry County Circuit Court Judge Gordon Graham be made public.

Ekl is representing a group of supporters of McHenry County State’s Attorney Lou Bianchi, who was charged with criminal activity by Special Prosecutors Henry Tonigan and Thomas McQueen, but found not guilty without having to present any evidence.

Despite a Freedom of Information request made of County officials, billings which include the time spent on trial have not been made public because the Judge has sealed them from public view.

Eck contends that there was no notice of the secreting of the records nor was a reason provided by Graham.

All of that information, if it exists, remains unavailable for public viewing, “if it exists.”

The motion points out what Judge Graham said in court the day he rejected the request to unseal the file. Comparing the “access to a court file to accessing a prosecutor’s file,” Graham said,

“I mean anybody could go up to the State’s Attorney’s Office and say we want to have everything that’s in your file that is not even discoverable just because you brought a case against my client and I am sure the answer to that would be no because there would be no secrecy at all in the prosecutor’s work files or anything else.”

“Judge Graham found the appointment of the special State’s Attorney and the convening of a grand jury compelling reasons to seal the court file,” the motion continues.

“So notwithstanding the fact that it’s an – – argue that there is a compelling reason I think certainly when a special prosecutor is appointed and there is a grand jury convened as a result of that that that in and of itself is a compelling reason as to why that file would be sealed.”

A third reason cited was that the case was over, so there was no reason to make the details public:

“Conversely what compelling reason is there now to unseal it because was we indicated for the greater portion of things this file is moot. This case is pretty much over.”

Ekl points to three reasons the court record should be made public:

1. a constitutional right of access based on the first amendment of the federal constitution and article one of our State constitution;
2. common-law right of access which parallel the constitutional right of access; and
3. a statutory right of access as part of the Illinois Clerks of Court Act

Ekl cites an Illinois Supreme Court opinion in what has to be one brought by famed legal researcher Sherman Skoknick:
“…the availability of court files for public scrutiny is essential to the public’s right to’“monitor the functioning of our courts, thereby insuring quality, honesty and respect for our legal system’” (Skolnick v. Altheimer & Gray).

Another case cited says, “[L]itigation is a public exercise; it consumes public resources. It follows that in all but the most extraordinary cases – perhaps those involving matters of weighty national security – complaints must be public.”

Ekl points out that court records can be kept secret, but that reasons must be given.

“In this case, the Circuit Court flipped Illinois law on its head when it found that no compelling reason existed for unsealing this public record.” (Emphasis in the original.)

“…what possible compelling interest would require the sealing of the entire court file?” Ekl asks. “The Circuit Court’s citation to the fact that a grand jury was convened to justify the sealing of an entire court file is ridiculous since it would be similarly applicable to all felonies in which a grand jury returned a bill of indictment.”

“…now that the criminal indictments have been dismissed and/or directed verdicts entered, no compelling reason exists for maintaining the seal on this entire court file except to hide public records from the citizens of this State,” the motion continues.

“…the Circuit Court is able to avoid any immediate scrutiny of its decision. The Circuit Court has positioned itself so as to delay any public access to this court file until years from now…” when the case returns from the Appellate Court.

Ekl points out that Judge Graham’s refusal to allow his clients to intervene in the case makes it impossible for them to appeal the decision to seal the case records.

The attorney asks the Illinois Supreme Court for “immediate review so as to preserve the honesty and integrity of the judicial process.”

Plaintiffs in the case are Robert Borchert, Thomas Crane, Anthony Scimeca, John Reckamp, Appolonia Reckamp, and Mary Alger. Alger is a candidate for McHenry County Board in District 3.

= = = = =
You can view the entire motion here.