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In Re Special Grand Jury Investigation





Appeal from the Circuit Court of Du Page County, the Hon. Bruce R. Fawell, Judge, presiding.


The question before us is whether the Du Page County circuit court properly divested a newspaper reporter of his statutory privilege to refuse to disclose his sources.

The proceedings stem from a Judicial Inquiry Board (the Board) investigation of Judge John Teschner of the circuit court of Du Page County, who was subsequently charged with using inappropriate language during two juvenile court hearings in 1981. During its investigation, the Board had obtained transcripts of those hearings from the State's Attorney of Du Page County, Michael Fitzsimmons. Excerpts from Judge Teschner's statements were subsequently quoted in two Chicago newspapers, the Chicago Sun-Times and the Chicago Lawyer. The complaint against Judge Teschner was ultimately dismissed by the Illinois Courts Commission on August 3, 1983.

On December 9, 1983, the Du Page County Bar Association passed a resolution to petition the circuit court of Du Page County "to appoint a Special Prosecutor to investigate the disclosure of confidential information contained in the transcripts of the juvenile court proceedings * * *." Chief Judge Bruce Fawell thereafter appointed attorney John F. Donahue as a special State's Attorney "to investigate and to prosecute all potential criminal offenses where there is probable cause to believe that a person or persons has committed a violation of the Juvenile Court Act." Judge Fawell subsequently appointed attorney Stephen Culliton to assist in the investigation and ordered the impaneling of a special grand jury. Before that grand jury convened, the State's Attorney sought, and we denied, leave to file a petition for a writ of mandamus directing expungement of the orders appointing the special prosecutor and convening the special grand jury.

Judge Kevin P. Connelly, the first witness to appear before the grand jury, testified that he ordered the release of transcripts of the juvenile proceedings to either Patrick King or Vicki Rossetti, the assistant State's Attorneys who participated in the hearings before Judge Teschner. Judge Connelly stated that he routinely signed such orders since the State's Attorney's office is entitled under the Juvenile Court Act to transcripts of juvenile court proceedings. Judge Connelly did not know how the transcripts were obtained by the news media.

Patrick King, the only member of the State's Attorney's staff to testify, stated that he received the transcripts and promptly delivered them to his supervisor, Thomas Knight, then chief of the criminal division of the State's Attorney's office. King denied giving the transcripts to the news media and testified that he had no knowledge of anyone in the State's Attorney's office releasing the information. He did acknowledge, however, that all members of the staff had access to the transcripts, and recalled seeing the transcripts in the possession of the first assistant, Mike Higgins. King further testified that a copy of a page from the transcripts was placed on a bulletin board in his office for two days.

James Warren, author of the Chicago Sun-Times article in which portions of Judge Teschner's statements were quoted, testified that the transcripts which he received were mailed to him in a brown envelope without a return address or cover letter, and that he did not know the identity of the person who sent them. However, the author of the article in the Chicago Lawyer, Rob Warden, testified that he knew who delivered transcripts to him, but invoked his privilege not to disclose that person's identity. It is unclear how many copies of the transcripts are in existence and whether those originally given the State's Attorney are the ones given the media.

Although three members of the Judicial Inquiry Board were subpoenaed, each invoked his constitutional privilege not to testify. See Ill. Const. 1970, art. VI, sec. 15.

The grand jury thereafter requested the special State's Attorney to file an application to divest Warden of his privilege to refuse disclosure. That application was granted by the Du Page County circuit court on May 23, 1984. Because of the importance of that decision we allowed a direct appeal to this court pursuant to our Rule 302(b) (87 Ill.2d R. 302(b)). No question is raised regarding our jurisdiction.

Section 8-901 of the Code of Civil Procedure provides:

"No court may compel any person to disclose the source of any information obtained by a reporter during the course of his or her employment except as provided in Sections 8-901 through 8-909 of this Act." (Ill. Rev. Stat. 1981, ch. 110, par. 8-901.)

The reporter's privilege has evolved from a common law recognition that the compelled disclosure of a reporter's sources could compromise the news media's first amendment right to freely gather and disseminate information. (See Simon, Reporter Privilege: Can Nebraska Pass a Shield Law to Bind the Whole World?, 61 Neb. L. Rev. 446 (1982) (hereinafter Simon); Note, The Protection of Confidential News Sources: Enhancing the Utility of Ohio's Shield Law, 42 Ohio St. L.J. 1039 (1981); Guest & Stanzler, The Constitutional Argument for Newsmen Concealing Their Sources, 64 NW. U.L. Rev. 18 (1969).) In addition to Illinois, the privilege has been codified in some form in 25 States and adopted by judicial decision in eight others and the Federal courts. (See Simon; S. Metcalf, Rights and Liabilities of Publishers, Broadcasters and Reporters sec. 3.02 (1982) (hereinafter Metcalf).) These jurisdictions have generally followed the lead of the United States Supreme Court in the seminal case of Branzburg v. Hayes (1972), 408 U.S. 665, 33 L.Ed.2d 626, 92 S.Ct. 2646, permitting forced disclosure of the reporter's source when the public interest in the information is sufficiently compelling. (See Metcalf sec. 3.05; Note, The Protection of Confidential News Sources: Enhancing the Utility of Ohio's Shield Law, 42 Ohio St. L.J. 1039 (1981).) In Illinois, the privilege may be divested where "all other available sources of information have been exhausted and disclosure of the information sought is essential to the protection of the public interest involved." (Ill. Rev. Stat. 1981, ch. 110, par. 8-907(2).) The circuit court concluded here that divestiture of Warden's privilege was justified since ascertaining the source of the information was essential to protect the confidentiality of juvenile court records, and "the chances of discovering the source through further investigation [was] remote at best." Warden challenges the correctness of those findings.

Like the circuit court, we have little difficulty concluding that a compelling public interest will be served by ascertaining the person or persons who violated the confidentiality provisions of the Juvenile Court Act. Our problem concerns the second requirement of section 8- 907 — "that all other available sources of information have been exhausted." The parties' briefs dwell extensively on the question of what constitutes an "available source." Is it necessary, for instance, to question every person who could possibly have relevant information? Will it suffice to inquire only of those who are most likely to possess the information sought? There are other questions relating to the adequacy of the inquiries which are made. Must questioning be done or statements be made under oath? Will even sworn statements suffice if the maker is not available for questioning? Although no Illinois court has yet attempted to delineate the scope of section 8-907, every jurisdiction which has recognized a qualified reporter's privilege has also required a showing, prior to divestiture, that other sources of information have ...

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