The opinion of the court was delivered by: Justice McMORROW
Agenda 39-September 1999.
The circuit court of St. Clair County appointed a special prosecutor to investigate whether two officials from the City of Belleville perjured themselves in depositions given in a civil suit entitled Hurst v. Viacom Broadcasting of Missouri, Inc., No. 96-L-103. The perjury allegedly occurred when the officials denied, under oath, that they furnished information concerning a criminal investigation to defendants George Pawlaczyk and Marilyn Vise, newspaper reporters employed by the Belleville News-Democrat.
In response to subpoenas issued by a special grand jury for their testimony, Pawlaczyk and Vise asserted the "reporter's privilege," codified in article VIII, part 9, of the Code of Civil Procedure (Reporter's Privilege Act or Act) (735 ILCS 5/8-901 et seq. (West 1998)), and refused to reveal whether the City of Belleville officials were defendants' sources for stories published in the newspaper. The special prosecutor initiated a separate proceeding in equity to divest defendants of their reporter's privilege. 735 ILCS 5/8-903 (West 1998); People v. Pawlaczyk, No. 97-MR-148; People v. Vise, No. 97-MR-149. The circuit court ordered Pawlaczyk and Vise to respond to the special prosecutor's questions concerning the City of Belleville officials. The appellate court affirmed. No. 5-98-0005 (unpublished order under Supreme Court Rule 23). Before this court, Pawlaczyk and Vise request that we reverse the circuit court's orders.
On October 18, 1995, Lori Nolen contacted the Belleville police department and reported that she had been the victim of a sexual assault. On November 29, 1995, KMOV-TV, Channel 4, a television station that broadcasts in the Belleville area, reported that Nolen had identified Robert Hurst, a former chief of the Belleville police department, as her attacker. The day after, on November 30, 1995, the Belleville News-Democrat published a story with the headline "Hurst Quizzed in Rape." Defendant George Pawlaczyk wrote the article, which stated in pertinent part that KMOV-TV had reported that Hurst was a suspect in the rape of Lori Nolen. Subsequent article or articles repeated the same allegations.
No criminal charges were ever filed against Hurst. Results of DNA and polygraph tests, as well as witness interviews, prompted the Madison County State's Attorney to clear Hurst as a suspect in the Nolen case.
On February 13, 1996, Hurst filed suit in the circuit court of Madison County, against Viacom Broadcasting of Missouri, Inc., d/b/a KMOV-TV, Channel 4; Mary Phelan, an employee of Channel 4; Capital Cities Media, d/b/a the Belleville News-Democrat; Pawlaczyk; Lori Nolen; and Greg Edwards, an editor for the News-Democrat. Hurst v. Viacom Broadcasting of Missouri, Inc., No. 96-L-103. Hurst's claims sounded in libel, slander, and the tort of false light. As finally amended, *fn1 the complaint also named as defendants Roger Cook, mayor of Belleville; James Brede, the president of the Belleville board of police and fire commissioners; and Gary Berkley, publisher of the Belleville News-Democrat. Hurst dropped Greg Edwards from the lawsuit. Further, Hurst's last amended pleading replaced Hurst's initial claims with allegations of: a civil conspiracy "to deprive plaintiff of his constitutional right to privacy"; invasion of privacy; defamation; and intentional infliction of emotional distress.
In the course of discovery conducted in the Hurst lawsuit, Hurst deposed Belleville Mayor Roger Cook. Cook testified that he spoke to no one "from any media source" about Hurst's identity as a suspect until after November 30, 1995, when the Belleville News-Democrat first printed the "Hurst Quizzed in Rape" story. Cook testified that he never commented about the Nolen incident to Vise; Cook asserted that he did not talk to any reporter for the newspaper about the Nolen case until "after it was already in the media."
Hurst also deposed Vise in the Hurst case. In pertinent part, Vise averred that, as a reporter for the Belleville News-Democrat in the autumn of 1995, she learned from another reporter for the News-Democrat, Doug Moore, that Hurst had been named by Nolen as Nolen's attacker. Vise stated that she later confirmed this information with another source. She refused to disclose the identity of the other source, asserting the privilege granted to reporters under the Reporter's Privilege Act (735 ILCS 5/8-901 et seq. (West 1998)). She would confirm, however, that she talked to the source between November 14 and November 23, 1995, that the source was either a police officer, someone with connections to the police department, or someone that the police department "communicates with." Because she left the paper temporarily on medical leave, she did not write a story identifying the source, but she did share the information with the "editorial staff" before her departure. She said too that the source was not James Brede.
Hurst deposed James Brede of the Belleville board of police and fire commissioners on March 25, 1996. Brede denied being a source for the Belleville News-Democrat for the stories regarding Hurst. Further, Brede maintained that he never discussed Hurst's status as a suspect with David Bauer, the chief of police for Belleville, Michael Boyne, a Belleville police officer, or any other member of the Belleville police department.
When Hurst deposed Pawlaczyk, Pawlaczyk testified that he was first assigned to cover the Nolen matter for the newspaper on November 28, 1995. Prior to that date, he had heard rumors around Belleville that Hurst had been named as a suspect. On November 28, after his assignment as a reporter, Pawlaczyk confirmed these rumors by talking to other sources. Pawlaczyk said his primary source for the November 30 story was the November 29 account that appeared on KMOV-TV. Excluding KMOV-TV, Pawlaczyk said, he considered his other sources for the story to be reliable. Pawlaczyk refused to state how many sources he had, and refused to state whether his sources included Roger Cook or James Brede.
On Hurst's motion, the circuit court divested Pawlaczyk and Vise of their reporters' privilege (735 ILCS 5/8-903, 8-907 (West 1998)), and ordered them to reveal the names of the sources that told them that Hurst was suspected of raping Nolen. The court ordered Vise to divulge whether her source was Roger Cook. Vise did not seek leave to appeal the circuit court's order, which was entered on November 7, 1996. Instead, by affidavit filed November 20, 1996, Vise answered the circuit court's query in the affirmative.
In addition, the circuit court ordered Pawlaczyk to reveal whether, "prior to publication of the offending article on November 30, 1995, defendant Brede discussed with [Pawlaczyk] the alleged fact that Ms. Nolen had identified plaintiff Hurst as her attacker. If the question is answered in the negative, no further inquiry may be made regarding [Pawlaczyk's] sources except by leave of court." Pawlaczyk refused to answer the question in the court's order and appealed the order, pursuant to Illinois Supreme Court Rule 308 (134 Ill. 2d R. 308).
During the pendency of Pawlaczyk's appeal, Hurst moved to withdraw his request to divest Pawlaczyk of his reporter's privilege. Hurst asserted that the pending appeal would delay final resolution of the issues litigated in the Hurst lawsuit. Hurst stated as well that "plaintiff's counsel's review of the evidence has convinced him that the issue can be resolved absent divestiture of [Pawlaczyk]." On July 11, 1997, the circuit court granted plaintiff's motion and withdrew its order divesting Pawlaczyk of his privilege. The appellate court subsequently dismissed Pawlaczyk's appeal.
Also, while the Hurst lawsuit was still pending in the circuit court, the St. Clair County State's Attorney moved the circuit court for appointment of a special prosecutor to determine whether sufficient evidence existed to charge Brede and Cook with perjury. The request for appointment of a special prosecutor apparently was prompted by evidence adduced during the discovery stage of the Hurst case. Information obtained from the State's Attorney for Madison County and from employees of the Belleville police department and the Belleville News-Democrat allegedly contradicted Brede's and Cook's sworn deposition testimony that they were not sources for Pawlaczyk and Vise.
On December 17, 1996, the circuit court of St. Clair County appointed attorney Richard Sturgeon as a special prosecutor to "investigate and prosecute if warranted, alleged criminal conduct on the part of Roger Cook, Mayor of Belleville, and James Brede, Commissioner for the City of Belleville." A grand jury convened to investigate the perjury allegations heard testimony from, among others, Brede, Cook, Vise and Pawlaczyk. Brede's testimony before the special grand jury differed from his deposition testimony in the Hurst case. In the Hurst case, Brede averred that he learned that Hurst was a suspect on or after November 29, 1995, the date of the "Hurst Quizzed in Rape" article. Before the grand jury, Brede stated that he first learned the information on November 27, 1995, when Pawlaczyk telephoned Brede to ask him about the allegation. However, Brede repeated his contention that he was not a source for any reporter concerning the Hurst matter.
Roger Cook testified in the grand jury proceedings that Vise was not truthful when she swore, in her affidavit, that Cook was a source that named Hurst as a suspect in the Nolen rape. Cook stated that he never gave any information regarding the case to Vise.
Vise and Pawlaczyk asserted their reporters' privilege before the grand jury and refused to reveal whether Cook and Brede acted as sources of information for them.
On March 27, 1999, the special prosecutor filed two "Complaints for Divestiture of Reporter's Privilege and to Compel the Answering of Non-Privilege [sic] Questions" with the circuit court of St. Clair County. People v. Pawlaczyk, No. 97-MR-148; People v. Vise, No. 97-MR-149; 735 ILCS 5/8-903 (West 1998). As to Vise, the special prosecutor initially alleged that the doctrine of collateral estoppel barred Vise from raising the reporter's privilege before the special grand jury. The special prosecutor asserted too that Cook's testimony before the grand jury was directly contradictory to statements in Vise's affidavit filed in the Hurst lawsuit. Only by ...