APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
J. FITZGERALD, Judge, presiding.
MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A certificate issued by a justice of the New York Supreme Court pursuant to the Uniform Act to secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (Ill. Rev. Stat. 1977, ch. 38, par. 156-1 et seq.) (hereinafter "Uniform Witness Act") requested the circuit court of Cook County to issue a summons directing respondent Nathan Wagner to appear before the Albany County Grand Jury which was investigating certain indictable offenses by persons associated with named business entities. Following a hearing before the circuit court of Cook County, Wagner was found to be a material and necessary witness to the Albany County grand jury proceedings and a summons was issued directing him to appear before the jury to testify, from which order respondent prosecutes this appeal.
Respondent presents as issues for review whether or not: (1) the facts set forth in the certificate demonstrate that respondent's testimony was material and necessary to the subject matter of the inquiry; (2) respondent's right to due process of law was violated by the use of an in camera affidavit to establish materiality and necessity; (3) the requesting State is seeking the attendance of the witness to assist in the prosecution of the civil action involving the same issues as those presented in the certificate of the New York court; and (4) the laws of New York afford the witness the statutory protection afforded by the Illinois statute. We affirm the decision of the circuit court of Cook County for the reasons hereinafter set forth.
1 Section 2 of the Uniform Witness Act details the requisite procedure for requiring a witness in this jurisdiction to testify in another State, in pertinent part as follows:
"If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court that * * * a grand jury investigation has commenced * * * that a person being within this state is a material witness in such * * * grand jury investigation, and his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court in the county in which such person is, such judge shall fix a time and place for a hearing, and shall make an order directing the witness to appear at a time and place certain for the hearing.
If at a hearing the judge determines that the witness is material and necessary, * * * he shall issue a summons, with a copy of the certificate attached, directing the witness to attend and testify in the court where the * * * grand jury investigation has commenced * * * at a time and place specified in the summons. In any such hearing the certificate shall be prima facie evidence of all the facts stated therein." (Ill. Rev. Stat. 1977, ch. 38, par. 156-2.)
In the present case, therefore, it is the circuit court of Cook County which must make the determination of whether the testimony of the witness being sought is material and necessary. The conclusion alone of a petitioning court that the witness sought is material and necessary is not entitled to prima facie evidentiary value. If the responding court deems the facts certified insufficient, then the determination must be supported by other facts in evidence. In re Adams (1976), 64 Ill.2d 269, 273-74, 356 N.E.2d 55; In re Grothe (1965), 59 Ill. App.2d 1, 8, 208 N.E.2d 581.
The certificate issued by the Supreme Court of New York contained, among others, the following statements:
"1. The Grand Jury of Albany County, State of New York has commenced an investigation into indictable offenses connected with the expenditure and receipt of monies by certain persons in violation of the laws of this State by Di-Com Corporation and related persons and companies, including Di-Com Associates, Grace and Waring Ventures, Albert Schwartzberg, Jay Felner and Philip Schaffer.
2. Di-Com Corporation and its related companies and persons were involved in building many nursing homes and health related facilities in the State of New York. The cost of these homes has been passed on to the State of New York under the New York State reimbursement formula for construction costs for nursing homes and health related facilities. The Albany County Grand Jury is inquiring into various costs expended by Di-Com Corporation and its related companies to ascertain whether such costs were properly incurred and passed on to New York State by Di-Com Corporation and its related companies, whether such monies were expended for legal purposes and whether those receiving these monies paid the income taxes on such funds to the State of New York.
3. Albert Schwartzberg, Jay Felner and Nathan Wagner are all officers of Di-Com Corporation. They are also the controlling partners in Di-Com Associates and Grace and Waring Ventures.
5. Nathan Wagner is a material witness to the Grand Jury's investigation because Nathan Wagner, as an officer of Di-Com Corporation (Secretary-Treasurer), and a partner in the related companies, signed many of the checks and authorized many of the payments being investigated by the Grand Jury. As such Nathan Wagner is likely to have knowledge as to the purpose and nature of these payments.
7. The presence of Nathan Wagner before the Albany County Grand Jury panel is material, relevant and necessary for one day commencing June 20, 1979."
In addition to the certificate, an affidavit was sworn to and filed by the prosecutor which elaborated somewhat upon the foregoing facts and revealed additionally that the controlling partners of Di-Com's related companies, including respondent Wagner, also operated some of the facilities and have interests in them; that some of the costs involved in the construction of the nursing homes by Di-Com and its related companies were improperly incurred and included illegal payments; that the grand jury was also seeking to determine whether persons who received the illegal payments involved properly paid their income taxes; and that the laws of New ...