Appeal from the Circuit Court of Du Page County; the Hon. John
S. Teschner, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 17, 1986.
This appeal involves an issue of disclosure of grand jury materials for use in a subsequent administrative proceeding. The circuit court of Du Page County entered a judgment suppressing the use of previously disclosed grand jury materials at a teacher-dismissal hearing. The court also declined to find any of the parties in contempt of court for disclosing the grand jury material. This appeal followed.
On February 25, 1982, petitioner, board of education of Community School District No. 200, Du Page County (board), adopted by resolution a notice of charges and dismissal against respondent, Nyla Verisario, a tenured teacher and employee of petitioner. The charges against respondent included, inter alia, that she was unethical, immoral and unprofessional in that she: (1) forged a United States Postal Service change-of-address form concerning an employee of petitioner; and (2) placed a false newspaper advertisement concerning an employee of petitioner.
An administrative hearing was convened. Pursuant to the board's request, the hearing officer issued a subpoena to the Wheaton police department on August 8, 1984. Among the documents produced under the subpoena were handwriting exemplars and telephone records. The exemplars and telephone records were obtained by counterrespondent Jeffrey C. Ludman, an officer of the Wheaton police department, pursuant to grand jury subpoena previously obtained by counterrespondent J. Michael Fitzsimmons, then State's Attorney of Du Page County.
Respondent's dismissal hearing began on August 15, 1984. On September 17, 1984, respondent objected to the use of the handwriting exemplars and phone records at the hearing, contending that their use violated section 112-6(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 112-6(b)). The dismissal hearing was then stayed pending resolution of the issue by the circuit court.
On September 25, 1984, the board filed a petition for a protective order and enforcement of administrative subpoena in the circuit court. The petition sought a protective order declaring that the disclosure of the telephone records and the handwriting exemplars was not governed by section 112-6(b). In the alternative, if the court found section 112-6(b) was applicable, the petition sought an order permitting the use of the documents. On October 24, 1984, respondent filed a counterpetition for rule to show cause requesting that the board, Ludman and Fitzsimmons be found in contempt for disclosing grand jury matters. On December 14, 1984, the circuit court issued its judgment which suppressed the use of the handwriting exemplars and the telephone records at the dismissal hearing, but denied respondent's counterpetition for rule to show cause. The board thereafter appealed and respondent cross-appealed.
We note initially that this appeal involves the interpretation and application of section 112-6(b) of the Code of Criminal Procedure of 1963 which states in part:
"Matters other than the deliberations and vote of any grand juror may be disclosed by the State's Attorney solely in the performance of his duties. Matters occurring before the Grand Jury other than the deliberations and vote of any grand juror may be disclosed when the court, preliminary to or in connection with a judicial proceeding, directs such in the interests of justice or when a law so directs. * * * Any grand juror or officer of the court who discloses, other than to his attorney, matters occurring before the Grand Jury other than in accordance with the provisions of this sub-section or Section 112-7 is in contempt of court, subject to proceedings in accordance to law." (Ill. Rev. Stat. 1983, ch. 38, par. 112-6(b).)
Our research discloses little case law interpreting this statute. There is, however, a substantial body of case law interpreting Rule 6(e) of the Federal Rules of Criminal Procedure. In view of the fact that Rule 6(e) was the model for section 112-6(b) (People ex rel. Sears v. Romiti (1971), 50 Ill.2d 51, 58, cert. denied (1972), 406 U.S. 921, 32 L.Ed.2d 121, 92 S.Ct. 1778), and contains similar or identical language in many respects, we find Federal case law instructive in interpreting section 112-6(b).
• 1 The first issue raised is whether disclosure of the documents was proper as a disclosure by the State's Attorney "in the performance of his duties." (Ill. Rev. Stat. 1983, ch. 38, par. 112-6(b).) The board argues that the disclosure in the present case was in the performance of Fitzsimmons' duties because he was responding to an administrative subpoena. Respondent contends, however, that the phrase "solely in the performance of his duties" (Ill. Rev. Stat. 1983, ch. 38, par. 112-6(b)) is limited to the State's Attorney's duties in aiding a grand jury.
In United States v. Sells Engineering, Inc. (1983), 463 U.S. 418, 77 L.Ed.2d 743, 103 S.Ct. 3133, the court was required to interpret Rule 6(e)(3)(A), which states:
(A) Disclosure otherwise prohibited by this rule of matters occurring before the grand jury, other than its deliberations and the vote ...