Appeal from the Circuit Court of Cook County; the Hon. Richard
L. Curry, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
The Illinois Judicial Inquiry Board (Board) appeals the dismissal of its petition to enforce a subpoena ad testificandum and duces tecum issued to Thomas Z. Hayward, Jr., former president, Chicago Bar Association (CBA), for records relating to the CBA's evaluation of the associate judges of the circuit court of Cook County. On appeal the Board argues: (1) the trial court erred in finding the CBA has a qualified privilege in the subpoenaed information which supersedes the Board's subpoena; (2) the trial court erred in relying on information outside the record; and (3) the trial court erred in not holding an evidentiary hearing.
On May 23, 1983, the CBA issued a report to the chief judge of the circuit court of Cook County evaluating the 138 associate judges who were being considered for retention by the circuit court judges. On June 1, 1983, an article appeared in the Chicago Tribune indicating the report had recommended nine associate judges not be retained. The article named three judges who allegedly received not recommended ratings because "their integrity was questioned."
The Board's subpoena sought "all documents in whatever form * * * which `either directly or indirectly' reflect actual or potential violations of the Standards of Judicial Conduct * * *." The subpoena also sought all records underlying the recommendations "for non-retention of certain associate judges."
In response to the Board's petition for enforcement of the subpoena, the CBA filed a motion to dismiss the petition and a supporting affidavit. The affidavit, executed by Thomas Z. Hayward, Jr., former president of the CBA, states the CBA was established in 1874 and has made recommendations concerning the qualifications of judicial candidates and of judges seeking retention "throughout its history." The recommendations are made by the CBA's Committee on Evaluation of Candidates (CEC). The CEC undertakes investigations and hearings regarding the qualifications of candidates. The rules of the CEC specify that all information obtained by the CEC "shall be kept confidential and shall not be disclosed to any person including the candidate." Every member of the CEC signs an oath of confidentiality not to disclose "any information received from any person or source during the course of the investigation and hearing." People who supply information to the CEC are assured that the information is confidential. The CEC relies heavily on the right and ability of members of the CBA and other persons to voluntarily and in confidence relate their experiences and opinions of the professional qualifications and capabilities of a candidate. The affiant concluded that the subpoena would "destroy the confidentiality of this information," impair the effectiveness of the evaluation process, and "may lead to its abandonment." The Board did not file a counteraffidavit.
First, the Board contends that the trial court erred in finding the CBA has a qualified privilege in the subpoenaed information which supersedes the Board's subpoena.
• 1 In his treatise on evidence, Professor Wigmore has established a four-part test for the creation of a privilege against disclosure of communication. 8 Wigmore, Evidence sec. 2285 (McNaughton rev. ed. 1961):
"(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."
The unrefuted affidavit submitted by Thomas Hayward clearly satisfies the first two criteria. The affidavit specifies that the CBA pledges confidentiality to each participant in its judicial evaluation process, that the CBA relies heavily on the ability of the participants to advance their opinions and experiences in confidence, and that the CBA may abandon its evaluation if that confidence is eroded. In addressing the third and fourth criteria, we must consider the efficacy of the CBA's judicial evaluation process and weigh the benefits it offers society against the benefits that would accrue in enforcing the instant subpoena.
However, before we address the public policy issue before us, we wish to stress that both the CBA and the Board are keenly concerned with the betterment of the judiciary in Cook County and the enhancement of public confidence in it. This litigation makes clear that both parties are primarily concerned with the public interest. We are ...