The opinion of the court was delivered by: Justice Gordon
Nearly five years ago, respondent Ruth Davis (Davis) was shot and injured by an unknown assailant whom she believed to be her ex-husband, petitioner Mark Daniels (Daniels). The circuit court ordered that the two minor children (then 5 and 8 years old) be moved immediately from Davis' home to Daniels' home, on the basis that the children might inadvertently be caught in the "line of fire" if the unknown assailant again attempted to shoot Davis.
Respondent Davis then sought to have the children returned to her, arguing that they should not be living with petitioner Daniels, who was a prime suspect in the attempted murder investigation.
Petitioner took the discovery deposition of contemnor Don Thomas, an Illinois State police officer and a non-party to this dissolution of marriage case, and Thomas refused to disclose certain requested information about the criminal investigation other than the fact that petitioner and his brother were suspects.
The trial court, recognizing a limited law enforcement investigatory privilege, ordered contemnor Thomas to disclose some of the information requested by petitioner. Thomas refused, claiming all of the information was privileged. The parties, contemnor and the trial court agreed that to facilitate appeal Thomas would be held in civil contempt and fined $1,000 for each day he refused to comply with the discovery order.
Thomas appeals from the contempt order and the fine. This court stayed the judgment pending appeal. A brief has also been filed on behalf of the two minor children, Jennifer and David Daniels. Respondent Davis has not appeared in this court.
We find no abuse of discretion in entering its finding of contempt but because the issues here were largely matters of first impression raised by the contemnor in good faith we vacate that finding and the fines imposed thereunder.
In September 1987, the marriage of Daniels and Davis was dissolved and Davis was given custody of the two minor children.
On October 25, 1988, Daniels filed an emergency petition for temporary and permanent custody of the two children, then 5-year-old Jennifer and 8-year-old David. Daniels alleged that on September 21, 1988, at 2 a.m., Davis returned home from her job as a bartender. A person lying in wait outside her home shot five bullets at her, two of which struck her. Following the shooting, a man telephoned Davis' home and told her father that "we'll get her next time." Daniels believed that the shooting was connected with Davis' daily use of illegal drugs.
Daniels also alleged in his petition that the State police had provided Davis with protection; that the State police had moved Davis and the minor children to an unknown location because she was "in physical danger of further attack." Daniels asked for temporary and permanent custody and that the children be allowed to "commence a normal existence free from the danger of an assassin's bullet."
On November 1, 1988, Davis filed a response to the emergency petition, alleging that it was her belief that "the assassination attempt was perpetrated by" Daniels. Davis denied using drugs.
On November 3, 1988, Sergeant Thomas briefly testified in court regarding the investigation of the attempted murder of Davis. Although there is no transcript in the appellate record, Thomas apparently testified in open court that there were four suspects, including Daniels and Daniels' brother. Thomas also testified in camera. (While the transcript of that testimony has since been made available to the parties, it also is not contained in the appellate record.) On that day, the court granted Daniels' petition for temporary custody. Davis would be permitted to visit with the children "frequently with appropriate police protection." The court further ordered that the transcript of the in camera testimony of Thomas be impounded.
On December 8, 1988, the court entered an order enjoining Davis from trying to see the children without "proper police protection." No visitation was to occur at Davis' home. On December 15, 1988, the court entered an order providing for protected visitation, i.e., the children could visit Davis at her home only if an Island Lake police officer first "completely check[ed] out the facility. Said officer shall remain on the premises for the entire period of visitation * * *. In addition, he shall park a marked police vehicle in front of said residence." Davis' father was to be deputized by the Island Lake police and was to remain on the premises during visitation "for additional protection."
On January 31, 1989, at a status hearing, the court ordered Daniels to "subpoena the Island Lake Police Dept. for the next status date," and pay for any related costs. On February 22, 1989, the court entered an order making it the obligation of Davis' attorney to subpoena the Chief of the Island Lake police department "for testimony * * * relative to security for visitation."
On March 21, 1989, Davis notified the court that the Island Lake police department would no longer act as a supervisor for visitation. The court then began permitting unsecured visits, and those visits have apparently continued to the present time.
On June 8, 1989, Daniels filed a petition referring to the November 3, 1988, "gag" order regarding Thomas' in camera testimony. Daniels asked for leave to depose Thomas and question him "concerning his in camera testimony taken on November 3, 1988, as well as with regard to any matters Sgt. Thomas has learned through his investigation concerning the shooting incident" of Davis.
In addition, on June 8, 1989, the court entered an order that the court reporter for the November 3, 1988, hearing shall "transcribe the testimony in camera of Sgt. Thomas and make same available to [Davis'] attorney, [Daniels'] attorney and the children's attorney only." Furthermore, all parties were allowed to depose Thomas. "The parties shall be able to question Sgt. Thomas on matters covered by his in camera testimony of 11/3/88. [Any] matter obtained at that deposition by any attorney shall not be published to others."
On July 17, 1989, the court entered an order stating: "The gag order previously entered concerning Detective Thomas' in camera testimony is lifted to the extent that a transcript of his testimony shall be available to all counsel and he may be deposed concerning said testimony."
Thomas then filed an emergency motion to quash the subpoena. An August 10, 1989, affidavit of Thomas states that the investigation "is presently ongoing." In addition, Thomas states that he believes "that criminal charges will be filed in this matter," and that disclosure of his testimony or the investigatory file would "seriously interfere with my investigation."
On September 6, 1989, a hearing was held. The court explained that the reason she changed custody was "because I thought Mrs. Davis' life [was] still in jeopardy." The court stated further:
"So, what this court is concerned about--Forget Mark Daniels. What this court is concerned about is being informed as to those facts, the continuance of those dangers, or the possibility that the danger has subsided, the possibility that prosecution of the perpetrator is near, the possibility that the prosecution of a perpetrator is impossible because there is no current information. The court is seriously concerned about the possibility that one of the litigants, one of the parents is the perpetrator, and we need more information for the full hearing on permanent custody of these children in order to make an informed decision. That is the court's interest."
The court also stated: "Attorney for Mrs. Davis has told this court in one of his well-known, volatile pitches that this court has stuck the children with the primary suspect in this case. If Detective Thomas knows that and has said that to someone else, he is obligated to speak further on the subject." The court continued:
"And if Detective Thomas knows more about this case than I do, by God, he is obligated to share important information with the court. * * * I am saying that if this individual possesses information that is critical, to wit, that this court has made a placement with the only person Detective Thomas feels will ever be indicted with the attempted murder of Ruth Davis, then it is essential to the safety of the children that this court have that information."
The court instructed that Thomas be made available for:
"deposition because he owes some good explanations to all of us. And I think he can talk about whether or not this investigation is vital as well as ongoing. And I think he can talk about whether or not there is an arrest or an indictment near. I think he can certainly talk about whether or not there is any more to say about the likelihood that Mark Daniels is the only viable suspect.
Mark Daniels was mentioned by Detective Thomas in almost a diminishing context, heretofore. It was referred to in the arguments today and also at the trial. Sure, all ex-husbands are suspects. And if there is more to the theory of investigating Mark Daniels than that, then I think it ought to be made known.
I think that it is incredibly important that witnesses, informants, and the names of other suspects be at least for the time protected, and I don't think that it is necessary to knowing, as between Mrs. Davis and Mr. Daniels, who is the more appropriate person for the children to live with, now that I know who else is out there trying to shoot Mrs. Davis. But I think it is incredibly important to know whether or not the circumstances around that shooting were dangerous to the children, and if they would persist and create a climate that would be dangerous to custody, visitation, or to both.
And with those being the guidelines, I would say that you should consider that the file is protected subject to those avenues of discussions, and that I do not believe that any of us has an absolute right to access to the file. Neither do I believe that the state has an absolute right to close that file to us."
The court further found the law enforcement investigatory privilege was not absolute.
"I think it would be absolutely inappropriate for me to say the privilege is absolute. This unfortunate case which has arisen only because of the attack on Mrs. Davis has created accidental circumstances that put[ ] all of these problems in contact with each other and in tension with each other. And I do not perceive that anyone in legislative, or in any trial court, or reviewing court level has ever imagined what would happen under a case like this."
On October 11, 1989, the court issued a written order stating that Thomas must appear for deposition, and that a representative of the Attorney General's office file an affidavit providing specific descriptions of every item in the investigatory file "so that the court can determine, after argument, which of said items shall be disclosed in advance of said deposition."
On December 11, 1989, the court entered a protective order in regard to Thomas' motion to quash subpoena. Certain records were to be produced, while other records were not to be disclosed.
On April 3, 1990, Daniels moved for the entry of a contempt finding against Thomas, pursuant to Illinois Supreme Court Rule 219 (134 Ill.2d R. 219), for his failure to answer, at a March 27, 1990, deposition, any question related to the investigation except those covered by the documents produced.
On April 16, 1990, Thomas again appeared for deposition and asserted the law enforcement privilege in refusing to answer certain questions. On the same day, the parties appeared before the court and argued the propriety of the questions put to Thomas. At that hearing those questions, which are the subject of this appeal, were described by the attorney for petitioner-appellee, Mark Daniels, as follows:
"I asked him about whether he was pursuing any leads in his investigation of the shooting of Ruth Davis, and he said yes, and I asked him what was the most recent lead that he obtained in pursuit. He said last Thursday, which is April 12th, and I asked what lead did you pursue, and there was an objection. I asked him what the source of that lead was, and I explained that by 'source' I meant whether it was through some investigation of material things found at the scene of the crime or anything like that, and there was an objection, and he was instructed not to answer. I asked him whether there are any present suspects in that shooting, and he refused to answer. I asked if Mark Daniels was a suspect, and he refused to answer. I asked him if Joe Dunser is a suspect, and he refused to answer. I asked him in what way would the disclosure of whether he disclosed to Ruth Davis the name of Joe Dunser how that would impede his investigation, and he refused to answer. I then went into--I asked him whether or not he is in the process of preparing a case for the Grand Jury, and he refused to answer. I asked him whether--I reminded him that at the trial of this case on November 3rd of 1988 he indicated there were four suspects, and I asked whether they still are suspects in these proceedings, and he refused to answer. I asked him whether any informant has given him any direct testimony that he testified to at the original proceedings other than Mark and Greg Daniels being two of the suspects, and he said there were two others. We went in camera, and there was an objection as a result of me questioning him on what we had obtained from the in camera hearing, and I indicated to counsel that as far as I am concerned, since the deposition was closed, that it is my understanding--and since all the parties to the deposition had been privy to the in camera hearing because the Court did release the transcript to all of the parties concerned--that I could carry my investigation further on that, and Mr. Solberg said he will not answer. I asked him whether he is able to obtain a statement from that informant, that he indicated that he had not yet obtained a statement at the time of the hearing on November 3rd, and he refused to answer, and I asked him whether he found the two people that he was looking for at that time, being the people whose names were given to him by that informant, and he refused to answer that question."
The court again stated its intent to determine if:
"A, [the children are] in the home of a murderer or one who has taken steps to attempt the murder of another person; B, it is possible that I could put the children in the home of a person who is in the line of fire for a yet unarrested perpetrator of an attempted murder. C, it is possible that I could put the children in the home of a person who is involved in dangerous criminal activity, including but not limited to the sale or use of narcotics or other illegal substances."
The parties and the court then agreed that the question would have to be appealed, and that the vehicle for such appeal would be to hold Thomas in contempt. The court stated: "So, as I see it now, having tried my darndest on this record for the sake of my reviewing colleagues upstairs, I see nothing else but to order Detective Thomas to answer each and every one of the questions that have been put to him thus far, and I ...