People v. Sevedo , 2017 IL App (1st) 152541 ( 2017 )

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People v. Sevedo, 2017 IL App (1st) 152541Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ALEJANDRA SEVEDO, Defendant (Sarah’s Inn and Carol Gall, as
Executive Director of Sarah’s Inn, Contemnors-Appellants).
District & No. First District, Fifth Division
Docket No. 1-15-2541
Filed March 24, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-16278; the
Review Hon. Charles P. Burns, Judge, presiding.
Judgment Reversed and fine vacated.
Counsel on Baker & McKenzie LLP, of Chicago (Michael C. McCutcheon and
Appeal Eileen T. Flynn, of counsel), for appellants.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Tasha-Marie Kelly, and Sara McGann, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Justice Hall concurred in the judgment and opinion.
Presiding Justice Gordon specially concurred, with opinion.
OPINION
¶1 Contemnors, Sarah’s Inn and Carol Gall, its executive director, appeal civil and criminal
contempt orders entered against them based on their refusal, pursuant to the statutory privilege
for domestic violence advocates and victims, to produce documents for in camera judicial
review. Sarah’s Inn is a domestic violence advocacy center and was providing services to
defendant Alejandra Sevedo, who had been charged with armed robbery. During that trial,
defendant allegedly made statements to a Sarah’s Inn advocate that threatened to harm one of
the State’s witnesses, a police detective. The advocate disclosed the statements to the police
pursuant to an exception to the advocate-victim privilege for imminent risks of serious bodily
harm or death.
¶2 Later, defendant was indicted for threatening a public official based on the disclosed
statements, and the State eventually served a subpoena on Sarah’s Inn to produce documents
generated in connection with the report of defendant’s threatening statements. Sarah’s Inn
moved to quash the subpoena based on the privilege for confidential communications between
domestic violence advocates and victims pursuant to section 227 of the Illinois Domestic
Violence Act of 1986 (Act) (750 ILCS 60/227 (West 2014)). The circuit court ordered Sarah’s
Inn to produce the documents for in camera review, but Sarah’s Inn and Gall refused. The
circuit court held them in direct civil and criminal contempt but stayed the imposition of the
fine pending the outcome of this appeal.
¶3 On appeal, contemnors argue (1) the circuit court erred by denying their motion to quash
because the subpoenaed documents are protected by the section 227 advocate-victim privilege,
which is absolute and does not allow a court to conduct an in camera review, (2) res judicata
precludes the State from contesting whether defendant’s statements to the advocate were
absolutely privileged and remained privileged despite the advocate’s disclosure pursuant to the
imminent risk exception, and (3) the contempt findings and fine should be vacated based on
contemnors’ good-faith assertion of the advocate-victim privilege.
¶4 For the reasons that follow, we reverse the circuit court’s order that denied the motion to
quash the subpoena and required Sarah’s Inn to submit the documents for in camera review.
We also vacate the contempt fine imposed on Sarah’s Inn and Gall.
¶5 I. BACKGROUND
¶6 Defendant and her then boyfriend were arrested in connection with a 2013 armed robbery.
Defendant allegedly was in an abusive relationship with the boyfriend and underwent
counseling with a domestic violence advocate employed by Sarah’s Inn. The State charged
defendant with armed robbery, and the Sarah’s Inn advocate accompanied her to court
appearances as part of the agency’s counseling services. Defendant’s boyfriend was not
charged in that matter.
¶7 When the bench trial commenced against defendant, a Chicago police detective testified as
a witness for the State on July 28, 2014. That afternoon, defendant made statements to the
Sarah’s Inn advocate that allegedly threatened the detective and his family. The advocate later
reported defendant’s statements to the police pursuant to section 227(b)(2) of the Act, which
allows domestic violence counselors or advocates to disclose any confidential communication
without the written consent of the domestic violence victim “in cases where failure to disclose
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is likely to result in an imminent risk of serious bodily harm or death of the victim or another
person.” 750 ILCS 60/227(b)(2) (West 2014).
¶8 Defendant ultimately was acquitted of armed robbery in August 2014, but a complaint was
filed concerning her alleged threat to harm the detective. The grand jury issued a subpoena to
the Sarah’s Inn advocate to appear before the grand jury on September 8, 2014, to testify
concerning the complaint. Sarah’s Inn moved to quash the grand jury subpoena, arguing that
defendant’s statement to the advocate was a privileged communication between a domestic
violence advocate and victim. Sarah’s Inn asserted the statement at issue constituted a
confidential communication under section 227 of the Act because it was “any communication
between an alleged victim of domestic violence and a domestic violence advocate or counselor
in the course of providing information, counseling, or advocacy.” 750 ILCS 60/227(a)(3)
(West 2014). Sarah’s Inn also argued the advocate’s disclosure to the police of defendant’s
statement based on an imminent risk of serious bodily harm to the detective had no effect on
the privilege, which defendant never waived.
¶9 After hearing argument on September 8, 2014, the circuit court granted the motion to quash
the grand jury subpoena. The court found the communication the advocate received from
defendant was privileged, the advocate acted properly when she notified the police, the
notification to the police dissipated the imminent risk of serious harm, defendant never waived
the privilege, and the privilege must be deemed intact so that victims of domestic violence will
feel secure to discuss their situations with their advocates and counselors.
¶ 10 On September 16, 2014, the grand jury indicted defendant for threatening a public official,
alleging defendant knowingly and indirectly conveyed a threat that would put the detective or
his immediate family in reasonable apprehension of bodily harm when defendant threatened
that she knew the detective’s address and that he was married and had two children, and she
was going to hurt the detective and had a plan to do so. Moreover, defendant conveyed the
threat because of the detective’s performance of his public duty.
¶ 11 In October 2014, the State issued a subpoena duces tecum to Sarah’s Inn for “[a]ny and all
incident reports or documents [in Sarah’s Inn’s possession or control that were] generated in
connection to the report of threats made about a Chicago Police Detective by [defendant] on or
about July 28, 2014 reported under Chicago Police RD #HX364192 and communicated to [the
domestic violence advocate].”
¶ 12 Sarah’s Inn and Gall moved to quash the subpoena, arguing the issue was res judicata
based on the court’s September 8, 2014, ruling on the grand jury subpoena. They also argued
that section 227 of the Act protected communications between domestic violence advocates
and victims from disclosure, the privilege remained intact despite the advocate’s disclosure
under the imminent risk of serious harm exception, there was no evidence defendant waived
the privilege, and federal statutes and regulations required Sarah’s Inn to maintain the
confidentiality of a client’s records.
¶ 13 In response, the State conceded that the advocate involved in this matter met the definition
in section 227(a)(2) of the Act (750 ILCS 60/227(a)(2) (West 2014)) of a domestic violence
advocate. However, the State argued Sarah’s Inn failed to establish that defendant made the
statements to the advocate threatening the detective in the course of the client/advocate
relationship. The State also argued that even if the statement was considered a confidential
communication in a client/advocate context, the statement was subject to disclosure because it
fell under the imminent harm exception of section 227(b)(2) of the Act.
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¶ 14 In April 2015, the court found that the September 8, 2014, ruling quashing the grand jury
subpoena did not preclude the State, after defendant was charged, from litigating whether the
advocate’s testimony about the threat and any related documents were protected from
disclosure by the advocate-victim privilege. The court ordered Sarah’s Inn to provide the
documents to the court for an in camera inspection to determine whether the documents were
protected from discovery by the privilege.
¶ 15 In May 2015, Sarah’s Inn moved the court to reconsider, arguing the statements were made
within the scope of the domestic violence advocate-victim relationship because the advocate
accompanied defendant to court in the armed robbery case in the course of providing
information, counseling, and advocacy and, thus, the statements were protected from
disclosure by the unbroken absolute privilege. Sarah’s Inn also argued that section 227 did not
provide for any in camera inspection of the documents.
¶ 16 In July 2015, the court ordered Sarah’s Inn to provide the documents for in camera review,
and then the court would rule on the motion to reconsider.
¶ 17 In August 2015, Sarah’s Inn refused to provide the documents, asserting the court was not
allowed to conduct an in camera inspection of the documents to determine whether the
advocate-victim privilege applied. After much discussion, Sarah’s Inn agreed to file the
documents under seal with the office of the chief deputy clerk of the criminal court building,
and no one would review the documents pending the appeal of this matter. Furthermore, the
State stipulated that it would not prosecute Sarah’s Inn or its representatives for producing the
documents under seal pursuant to the court’s order. The court denied Sarah’s Inn’s motion to
reconsider, found Sarah’s Inn guilty of contempt, and fined it $500 per day but stayed the fine
pending this appeal. The documents were then turned over to the office of the chief deputy
clerk and remain under seal pending the outcome of this appeal.
¶ 18 II. ANALYSIS
¶ 19 A. Domestic Violence Advocate-Victim Privilege
¶ 20 On appeal, contemnors Sarah’s Inn and Gall argue the circuit court erred by denying their
motion to quash the subpoena because the undisputed facts establish that the documents sought
are protected by the advocate-victim privilege, which they contend is absolute and does not
allow a court to conduct an in camera review.
¶ 21 Ordinarily, “[o]ne who claims to be exempt by reason of privilege from the general rule
which compels all persons to disclose the truth has the burden of showing the facts which give
rise to the privilege. ‘His mere assertion that the matter is confidential and privileged will not
suffice.’ ” Cox v. Yellow Cab Co., 61 Ill. 2d 416, 419-20 (1975) (quoting Krupp v. Chicago
Transit Authority, 8 Ill. 2d 37, 42 (1956)). Because evidentiary privileges operate to exclude
relevant evidence and therefore block the judicial fact-finding function, they are not favored
and, where recognized, must be narrowly construed. United States v. Nixon, 418 U.S. 683, 710
(1974). The issue raised concerns the scope of the domestic violence advocate-victim privilege
provision of the Act. “The construction of a statute is an issue of law and our review is
therefore de novo.” Boaden v. Department of Law Enforcement, 171 Ill. 2d 230, 237 (1996).
See also D.C. v. S.A., 178 Ill. 2d 551, 559-61 (1997) (we review the issue of whether a statutory
discovery privilege applies in a given case under a de novo standard of review).
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¶ 22 The primary rule of statutory construction is to ascertain and give effect to the intent of the
legislature. Wauconda Fire Protection District v. Stonewall Orchards, LLP, 214 Ill. 2d 417,
430 (2005). The statutory language is the best indicator of legislative intent, and that language
must be given its plain and ordinary meaning. King v. First Capital Financial Services Corp.,
215 Ill. 2d 1, 26 (2005). A fundamental principle of statutory construction is to view all
provisions of a statutory enactment as a whole. Accordingly, words and phrases should not be
construed in isolation but must be interpreted in light of other relevant provisions of the statute.
Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). In
construing a statute, we presume that the legislature, in its enactment of legislation, did not
intend absurdity, inconvenience, or injustice. Id. We may consider the reason and necessity for
the law, the evils it was intended to remedy, and the objects it was designed to attain. Stewart v.
Industrial Comm’n, 115 Ill. 2d 337, 341 (1987).
¶ 23 If the statutory text is clear and unambiguous, it should be given effect as written, without
reading into it exceptions, limitations, or conditions that the legislature did not express (Land v.
Board of Education of the City of Chicago, 202 Ill. 2d 414, 426 (2002)) and without resorting
to other aids of construction, such as the legislative history of the provision (Village of
Carpentersville v. Pollution Control Board, 135 Ill. 2d 463, 469-70 (1990)). The language of a
statute is ambiguous if it is susceptible to more than one reasonable interpretation. People
ex rel. Department of Public Aid v. Smith, 212 Ill. 2d 389, 397 (2004). “We consider whether a
statute is ambiguous in the context of the facts of the case before us.” People v. Boyce, 2015 IL
117108, ¶ 22.
¶ 24 When the Act was enacted in 1986, the General Assembly recognized that domestic
violence was a serious crime and the legal system historically had dealt ineffectively with
family violence. 750 ILCS 60/102 (West 2014). Section 227 of the Act specifically protects
confidential communications between domestic violence counselors/advocates and victims
and states, in pertinent part:
“(a) As used in this Section:
***
(3) ‘Confidential communication’ means any communication between an
alleged victim of domestic violence and a domestic violence advocate or counselor
in the course of providing information, counseling, or advocacy. The term includes
all records kept by the advocate or counselor or by the domestic violence program
in the course of providing services to an alleged victim concerning the alleged
victim and the services provided. The confidential nature of the communication is
not waived by the presence at the time of the communication of any additional
persons, including but not limited to an interpreter, to further express the interests
of the domestic violence victim or by the advocate’s or counselor’s disclosure to
such an additional person with the consent of the victim when reasonably necessary
to accomplish the purpose for which the advocate or counselor is consulted.
(4) ‘Domestic violence victim’ means any person who consults a domestic
violence counselor for the purpose of securing advice, counseling or assistance
related to one or more alleged incidents of domestic violence.
***
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(b) No domestic violence advocate or counselor shall disclose any confidential
communication or be examined as a witness in any civil or criminal case or proceeding
or in any legislative or administrative proceeding without the written consent of the
domestic violence victim except (1) in accordance with the provisions of the Abused
and Neglected Child Reporting Act or (2) in cases where failure to disclose is likely to
result in an imminent risk of serious bodily harm or death of the victim or another
person.
(c) A domestic violence advocate or counselor who knowingly discloses any
confidential communication in violation of the Act commits a Class A misdemeanor.
***
(f) Nothing in this Section shall be construed to limit in any way any privilege that
might otherwise exist under statute or common law.
(g) The assertion of any privilege under this Section shall not result in an inference
unfavorable to the State’s cause or to the cause of the domestic violence victim.”
(Emphases added.) 750 ILCS 60/227 (West 2014).
¶ 25 Contemnors argue the undisputed facts concerning the statement defendant made to the
advocate establish that the documents sought by the State fall within the scope of the
advocate-victim privilege. Specifically, defendant made the statement to her domestic violence
advocate while that advocate was attending defendant’s armed robbery trial in accordance with
the advocate’s job to provide information, counseling, or advocacy. There is no evidence that
defendant and the advocate had any relationship apart from victim-counselor. According to
contemnors, no further analysis is necessary to support the conclusion that the statement is
protected by the advocate-victim privilege, which has not been waived by defendant or broken
by the advocate’s disclosure pursuant to the imminent risk exception. Contemnors argue this
interpretation of the advocate-victim privilege is consistent with the court’s holding in People
v. Gemeny, 313 Ill. App. 3d 902, 908 (2000), that communications between a therapist and
client occurring outside of a formal treatment session can still be considered privileged under
the Mental Health and Developmental Disabilities Confidentiality Act (740 ILCS 110/1 et seq.
(West 1998)) because the “professional relationship cannot be neatly confined to what happens
in formal treatment sessions” and “the danger that such communications could be disclosed
later in court could discourage those needing help from seeking it in the first place.”
Contemnors also contend that the nature of this privilege is absolute and thus not subject to any
in camera inspection by the court.
¶ 26 The State argues that defendant’s threat to harm the detective falls outside the scope of the
advocate-victim privilege because the statement was not made in a privileged context but,
rather, to the advocate in open court following the detective’s testimony against defendant in a
matter unrelated to an incident of domestic violence. According to the State, in such a setting,
neither the advocate nor defendant could reasonably be characterized as an advocate or a client
at the time the statement was made, and the language of section 227 limits the scope of the
privilege to instances where the parties involved acted in the specific roles of “advocate” and
“victim.” The State argues an advocate must actually be providing the victim counseling or
support regarding incidents of domestic violence at the time of the communication in order for
the privilege to apply, and consequently the advocate’s mere accompaniment of defendant at
the armed robbery trial fails to meet this requirement. In addition, at the time of the statement,
defendant was not a domestic violence victim but rather a defendant in her own criminal case.
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Moreover, the nature of defendant’s statement demonstrates that the conversation did not take
place under the guise of domestic violence counseling because the threat was wholly unrelated
to any incident of domestic violence and was directed toward a third party, the detective who
testified against defendant in the armed robbery trial.
¶ 27 In the alternative, the State argues that if the threat was made in an advocate-victim
context, the threat is still subject to disclosure because it clearly met the exception for the
disclosure of communications that present an imminent risk of serious harm and this exception
does not expire. Finally, the State contends the rules of general criminal procedure and the
Illinois Supreme Court discovery and subpoena rules establish that the trial court has the
authority to review any related documents at issue to determine if they are, in fact, privileged.
¶ 28 We reject the State’s constrained interpretation of the scope of the advocate-victim
privilege. The terms and provisions of section 227 show the legislative intent to encourage
victims of domestic violence to share confidential information with their advocates without the
fear that the very act of seeking or receiving information, counseling, and advocacy will
subject them to stigmatization or further victimization. Accordingly, the advocate-victim
privilege prohibits the disclosure of any confidential communication unless the victim
consents or an exception is satisfied. The scope of the privilege is very broad so that victims
will not fear that confidential information will be disclosed to a third party. Nevertheless, the
privilege does not protect any utterance between the victim and advocate; the plain language of
subsection 227(b) limits the privilege to confidential communications. In order to qualify as a
confidential communication, the communication between the victim and advocate must be “in
the course of providing information, counseling, or advocacy.” 750 ILCS 60/227(a)(3) (West
2014).
¶ 29 The undefined word “communication” is given its ordinary and popularly understood
meaning as “information communicated[,] *** a verbal or written message”
(Merriam-Webster’s Collegiate Dictionary 233 (10th ed. 1998)), and the “expression or
exchange of information by speech, writing, or gestures” (Black’s Law Dictionary 273 (7th ed.
1999)). See In re Ryan B., 212 Ill. 2d 226, 232 (2004). “Course” is “the act or action of moving
in a path from point to point”; “accustomed procedure or normal action ”;
“progression through a development or period or a series of acts or events.”
Merriam-Webster’s Collegiate Dictionary 266 (10th ed. 1998).
¶ 30 By its plain terms, section 227(a)(3) protects “any” communication between defendant and
the Sarah’s Inn advocate in the normal series of acts or events of providing information,
counseling or advocacy. We discern no language within this statutory provision that indicates
the General Assembly intended to confine the privilege to protect only statements that are
limited to the subject of domestic violence. A correct reading of the statute indicates that the
legislature intended to include within its scope any communication beyond the topic of
domestic violence, even statements unrelated to the information, counseling, or advocacy
being provided to the victim. The first sentence of section 227(3)(a) sets forth the very broad
boundaries of this privilege, and then the next sentence explains that this broad privilege
includes the smaller category of all records kept by the advocate or domestic violence program
“in the course of providing services to an alleged victim concerning the alleged victim and the
services provided.” (Emphasis added.) 750 ILCS 60/227(a)(3) (West 2014). The legislature
chose not to restrict the very broad language in the first sentence by adding the limiting phrase
“concerning the alleged victim and the services provided.” If the legislature had done so, then
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the language of the statute arguably would have supported the interpretation urged by the State.
The legislature easily could have limited the scope of the privilege in the first sentence to
communications related to domestic violence and the services provided to the victim but chose
not to do so. When viewed in this context, the plain language of the statute protects even
communications that are not related to instances of domestic violence or the services provided
by the advocate. Accordingly, defendant’s statement falls within the scope of the privilege.
¶ 31 We also disagree with the State’s assertion that the imminent risk exception to disclosure
applies to require Sarah’s Inn to produce the privileged records for discovery in defendant’s
case for threatening a public official. There is no dispute between contemnors and the State
that defendant’s threat to harm the detective clearly met the exception for the disclosure of
confidential communications based on imminent risk of serious harm at the time the advocate
disclosed the threat to the police. The State, however, asserts that this exception does not
expire, and contemnors counter that there is no current or continuing imminent risk of serious
harm because the advocate relayed the threat to the police and defendant was arrested and
charged with threatening a public official.
¶ 32 According to the statute, “[n]o domestic violence advocate *** shall disclose any
confidential communication *** without the written consent of the domestic violence victim
except *** in cases where failure to disclose is likely to result in an imminent risk of serious
bodily harm or death of the victim or another person.” (Emphases added.) 750 ILCS
60/227(b)(2) (West 2014). The plain language of the statute uses the present tense and requires
the risk of harm to be “imminent,” which means “ready to take place; esp : hanging
threateningly over one’s head.” Merriam-Webster’s Collegiate Dictionary 580 (10th ed. 1998).
We discern no support in the statute for the State’s assertion that once an advocate properly
utilizes the imminent risk exception, the statement is subject to disclosure indefinitely. Clearly,
this disclosure exception is tied to the requirement of an imminent risk.
¶ 33 Another dispute in this appeal concerns the authority of the trial court to conduct an
in camera review of documents that are claimed to be protected by the advocate-victim
privilege. Contemnors assert a circuit court cannot review in camera domestic violence
counseling records because there is no provision in section 227 allowing for such a review.
Contemnors deduce that the absence of an in camera review provision means the
advocate-victim privilege is absolute and, thus, bars the court from conducting an in camera
examination.
¶ 34 Illinois Supreme Court Rules address the authority of the trial court to conduct in camera
reviews to resolve discovery disputes. Discovery rules in civil proceedings in the trial court
provide that:
“When information or documents are withheld from disclosure or discovery on a claim
that they are privileged pursuant to a common law or statutory privilege, any such
claim shall be made expressly and shall be supported by a description of the nature of
the documents, communications or things not produced or disclosed and the exact
privilege which is being claimed.” Ill. S. Ct. R. 201(n) (eff. July 1, 2014).
“The purpose of [Rule 201(n)] is to enable the court to evaluate the applicability of the asserted
privilege and determine the need for an in camera inspection of the documents, and also to
minimize any disputes between the parties regarding those matters.” Thomas v. Page, 361 Ill.
App. 3d 484, 497 (2005).
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¶ 35 The rules addressing discovery and disclosures to the prosecution in felony criminal
proceedings in the trial court provide that:
“Upon a showing of materiality, and if the request is reasonable, the court in its
discretion may require disclosure to the State of relevant material and information not
covered by this rule.” Ill. S. Ct. R. 413(e) (eff. July 1, 1982) (providing for compelled
disclosure beyond requiring the accused to submit to procedures to secure evidence
involving the use of his person, the production of medical and scientific evidence in
defense counsel’s possession, and the disclosure of the defenses the accused intends to
offer, defense witnesses and their statements, and any records or physical evidence the
accused intends to use).
Furthermore, concerning the regulation of discovery and in camera proceedings, the rules
provide:
“Upon request of any person, the court may permit any showing of cause for denial or
regulation of disclosures, or portion of such showing, to be made in camera. A record
shall be made of such proceedings. If the court enters an order granting relief following
a showing in camera, the entire record of such showing shall be sealed, impounded,
and preserved in the records of the court, to be made available to the reviewing court in
the event of an appeal.” Ill. S. Ct. R. 415(f) (eff. Oct. 1, 1971).
¶ 36 In order to create a privilege, the plain language of the statute must explicitly state that the
information that is confidential is also privileged, nondiscoverable, or inadmissible. Klain v.
Southern Illinois Hospital Services, 2016 IL 118217, ¶ 19. A privilege may be absolute or
qualified in nature, and there are crucial distinctions between the two. In Thomas, where the
court addressed the judicial deliberation privilege, the court explained the distinctions between
absolute and qualified privileges.
“If information is protected from disclosure pursuant to an absolute privilege, the
opposing party cannot defeat the privilege by an ad hoc, case-specific showing of need
for the privileged information. [Citation.] In such a case, the appropriate inquiry is
whether the information sought falls within the scope of the privilege. If it does, the
information is protected from discourse and the inquiry ends. By contrast, a qualified
privilege can be defeated if the party seeking discovery of the privileged information
can demonstrate that his or her need for the materials is sufficiently great to overcome
the privilege. [Citations.] To meet this burden, the party seeking the information must
show the importance of the inquiry for which the privileged information is sought; the
relevance of that information to its inquiry; and the difficulty of obtaining the desired
information through alternative means. [Citation.] After the burden is met, the court
then balances the demonstrated need for the privileged information against the degree
of intrusion upon the confidentiality of the privileged communications necessary to
satisfy the need. [Citation.]” (Internal quotation marks omitted.) Thomas, 361 Ill. App.
3d at 493.
¶ 37 When the legislature created the advocate-victim privilege, it provided that no advocate
“shall disclose any confidential communication or be examined as a witness in any civil or
criminal case or proceeding or in any legislative or administrative proceeding without the
written consent of the domestic violence victim” except for situations involving abused and
neglected children or an imminent risk of serious bodily harm. 750 ILCS 60/227(b) (West
2014). The provision of only these two exceptions for the advocate-victim privilege is a sharp
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contrast to the multiple exceptions the legislature provided for the therapist-patient privilege
under sections 10 and 11 of the Mental Health and Developmental Disabilities Confidentiality
Act (740 ILCS 110/10, 11 (West 2014)). Furthermore, the legislature provided that the
wrongful disclosure of communication protected by the advocate-victim privilege constitutes a
Class A misdemeanor. 750 ILCS 60/227(c) (West 2014). The plain language of section 227 of
the Act indicates the legislature believed the overriding public good requires that domestic
violence advocates and victims must be able to communicate with each other freely and
frankly without fear that their communications might be publicly disclosed and anything less
than the protection afforded by an absolute privilege would adversely affect the freedom of
their communication. Accordingly, we recognize that the advocate-victim privilege is absolute
in nature.
¶ 38 We disagree, however, with contemnors’ assertion that the absence of any provision in
section 227 for in camera review by the court bars the court from conducting in camera
reviews. The decision to apply the advocate-victim privilege to bar discovery of certain
documents turns on the question of whether the documents sought fall within the scope of the
privilege, and the resolution of this question may rest on a factual inquiry performed by the
trial judge. If a subpoena reveals on its face that the documents sought fall within the scope of
an absolute privilege, the court does not need to look further than the face of the request.
Thomas, 361 Ill. App. 3d at 497. If it cannot be immediately determined whether the sought
documents are protected from discovery under the advocate-victim privilege, the Illinois
Supreme Court Rules authorize the court to evaluate the applicability of the asserted privilege
and determine the need for an in camera inspection of the documents. See id.
¶ 39 Here, we have already determined that the undisputed facts concerning the communication
and the face of the subpoena establish that the documents sought by the State are absolutely
protected from disclosure under the advocate-victim privilege. Accordingly, there is no
necessity in the instant case for the circuit court to invoke its authority to conduct an in camera
review of the sought documents.
¶ 40 B. Grand Jury Subpoena and Res Judicata
¶ 41 Contemnors argue that the State’s failure to appeal the circuit court’s ruling that granted
the motion to quash the grand jury subpoena of the advocate’s testimony before the grand jury
precluded the State, under res judicata, from contesting the issues of whether defendant’s
statements to the advocate were absolutely privileged and remained privileged despite the
advocate’s disclosure pursuant to the imminent risk exception. Contemnors also argue, for the
first time on appeal, that collateral estoppel precludes the State from contesting the same
issues.
¶ 42 Contemnors have forfeited review of the issue of collateral estoppel by failing to raise it in
the circuit court and include it in their written motion to quash the subpoena. See People v.
Terrell, 185 Ill. 2d 467, 502 (1998). Furthermore, contemnors have failed to cite any relevant
authority to support the proposition that a ruling quashing a grand jury subpoena can preclude
the litigation of certain issues in a subsequent criminal proceeding based on res judicata. A
grand jury proceeding is not a criminal proceeding. Professor Wigmore noted in his treatise on
evidence that grand jury proceedings are both ex parte and interlocutory, and the grand jury
only seeks for a probable cause so the jury-trial rules of evidence should not apply. 1 John
Henry Wigmore, Evidence § 4, at 21 (3d ed. 1940). A grand jury proceeding is not an
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adversary hearing in which the guilt or innocence of the accused is adjudicated; rather, it is an
ex parte investigation to determine whether a crime has been committed and whether criminal
proceedings should be instituted against any person. People v. Creque, 72 Ill. 2d 515, 527
(1978). The doctrine of res judicata applies only to final determinations, and contemnors cite
no relevant authority to show that the initial trial court ruling quashing the grand jury subpoena
constituted a final determination. See In re Estate of Pinckard, 94 Ill. App. 3d 34, 45 (1980)
(declining to find res judicata in the context of an appealed contempt order that did not impose
a sanction because in the absence of a sanction, the contempt order was never appealable in the
first place); People ex rel. Illinois Department of Labor v. E.R.H. Enterprises, Inc., 2013 IL
115106, ¶ 56 (a reviewing court deserves the benefit of cohesive legal argument and is not a
depository into which a party may dump the burden of argument and research). Accordingly,
we reject contemnors’ argument concerning res judicata in the instant case.
¶ 43 C. Contempt Fine and Good-Faith Assertion of Privilege
¶ 44 Contemnors ask this court to vacate the trial court’s contempt sanctions based on
contemnors’ good-faith assertion of the absolute nature of the advocate-victim privilege.
¶ 45 It is well settled that the correctness of a discovery order may be tested through contempt
proceedings. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001). A pretrial discovery order is subject to
appellate review when a party appeals a contempt sanction for refusing to comply with the
order. Id. We review a trial court’s decision imposing sanctions for noncompliance with
discovery and subpoenas for an abuse of discretion. Cohn v. Northern Trust Co., 250 Ill. App.
3d 222, 228 (1993); see also People v. Richardson, 2011 IL App (5th) 090663, ¶ 22 (an abuse
of discretion occurs when the trial court’s ruling is arbitrary, fanciful, or unreasonable or when
no reasonable person would agree with the position taken by the trial court). The circuit court’s
discretionary authority to impose sanctions for discovery violations must be exercised with
great care and with the goal of full discovery and a full trial on the merits. Wilhelmsen v.
Century 21 Bee Line Realty, Inc., 193 Ill. App. 3d 64, 66 (1989). A contempt citation is an
appropriate method for testing the propriety of a discovery order, and if the discovery order is
found to be invalid, a contempt judgment for failure to comply with that discovery must be
reversed. Flannery v. Lin, 176 Ill. App. 3d 652, 655 (1988).
¶ 46 As discussed above, the undisputed facts concerning defendant’s statement and the
subpoena seeking the records kept by Sarah’s Inn in the course of providing services to
defendant, an alleged domestic violence victim, concerning her and the services provided,
established that the sought documents fell within the absolute privilege for advocate-victim
communications. Because the court did not need to look further than the face of the request to
conclude that the documents sought were absolutely protected from disclosure under the
advocate-victim privilege, in camera review of the documents was not warranted in this
matter. Therefore, we reverse the trial court’s judgment of contempt and vacate the fine
imposed by the court.
¶ 47 III. CONCLUSION
¶ 48 We conclude that the undisputed facts established that defendant’s alleged threat to harm
the detective was communicated to the advocate in the course of the advocate providing
information, counseling, or advocacy and, thus, the advocate-victim privilege applied to
prevent disclosure of the confidential communication in the State’s prosecution of defendant
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for threatening a public official. Although we hold that circuit courts have the authority to
conduct in camera reviews of documents claimed to be protected by the advocate-victim
privilege, which is absolute in nature, we find that an in camera review was unnecessary in the
instant case to determine whether the documents sought by the State fell within the scope of the
privilege. Accordingly, we reverse the judgment of the circuit court denying the contemnors’
motion to quash the State’s subpoena and ordering contemnors to produce the documents for
in camera review. We also reverse the circuit court’s contempt order and vacate the fine
imposed on contemnors based on their good-faith assertion of the privilege.
¶ 49 Reversed and fine vacated.
¶ 50 PRESIDING JUSTICE GORDON, specially concurring.
¶ 51 I agree with the majority’s well-written opinion in this case, but I must write separately as
to the propriety of the contempt findings, which I find were improper in the first place for
reasons not mentioned by the majority.
¶ 52 Initially, the State filed a “PETITION WHY RESPONDENT [Carol Gall] SHOULD BE
HELD IN DIRECT CIVIL CONTEMPT ORDER [sic].” The trial court entered an order on
August 5, 2015, that respondent, Carol Gall, executive director of Sarah’s Inn, “is found in
direct civil contempt.” No fine or conditions were imposed, and the contemnor was not given
the ability to purge herself of the contempt in the order. In the transcript of the proceedings, the
trial court stated, “I’m staying any sanctions.”
¶ 53 Illinois Supreme Court Rule 304(b)(5) only allows an appeal from “[a]n order finding a
person or entity in contempt of court which imposes a monetary or other penalty.” Ill. S. Ct. R.
304(b)(5) (eff. Feb. 26, 2010). Generally, if an order does not mention the word “contempt” or
impose a fine or penalty for a contempt finding, then the order is not appealable under Rule
304(b)(5), and if it is not a final order, then it is not appealable until a final order is entered.
Lewis v. Family Planning Management, Inc., 306 Ill. App. 3d 918, 921-23 (1999); Dolan v.
O’Callaghan, 2012 IL App (1st) 111505, ¶¶ 37-38. As a result, the direct civil contempt order
was improper for two reasons: (1) the contemnor was not given the ability to purge herself of
the contempt, and (2) no monetary fine or other penalty was imposed. See County of Cook v.
Lloyd A. Fry Roofing Co., 59 Ill. 2d 131, 135-36 (1974); In re Marriage of Betts, 200 Ill. App.
3d 26, 43-44 (1990).
¶ 54 On August 6, 2015, the trial court entered an order of adjudication of direct criminal
contempt against Sarah’s Inn and Carol Gall, imposing a $500-per-day sanction for each day of
noncompliance with the court’s order.
¶ 55 This appears on its face to be a valid criminal contempt order, but it does not appear that a
hearing was held that date or that criminal contempt was contemplated by the trial court during
any of the hearings on the matter. In order for the trial court to find the contemnor in criminal
contempt for an act that occurred before the judge, such as failure to produce an ordered
document, the trial court must advise the contemnor of (1) the conduct deemed contemptuous,
(2) the right to receive a copy of the written order of the adjudication of contempt, and (3) the
right to appeal. People v. Coupland, 387 Ill. App. 3d 774, 778 (2008). In the transcript in the
record on appeal, there is no mention of direct criminal contempt. As a result, I would find the
trial court was required to follow the three steps explained above in order to have a valid direct
criminal contempt order, which did not occur here.
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