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A.K. v. G.V.

April 29, 2004.

A.K., a minor by her parents and next best friends, S.K. and P.K., Plaintiff,
v.
G.V. and E.V., Defendants



The opinion of the court was delivered by: WILLIAM HART, Senior District Judge

MEMORANDUM OPINION AND ORDER

The plaintiff in this diversity lawsuit is A.K., by her parents and next friends.*fn1 The K.'s reside in Minnesota. The defendants in this case are G.V. and E.V., who are the parents of T.V. The V.'s are residents of Illinois. T.V., who is not a named defendant, is a boy who allegedly was 15 years old in March 2002. A.K. is a girl, who apparently was six years old in March 2002.*fn2 Apparently while both families were on vacation in Florida in March 2002, T.V. allegedly assaulted A.K. in a women's restroom. The nature of the assault is not described in the complaint, but the parties indicate in their briefs that it is alleged to be sexual in nature.*fn3 There is complete diversity of citizenship and the amount in controversy exceeds $75,000. Plaintiff alleges that defendants negligently supervised their son.

Defendants do not dispute plaintiff's contention that, because the site of the alleged assault was Florida, Florida law provides the substantive law for her tort claim. They also do not dispute plaintiff's contention that, in order to prove her claim, she must show that defendants, as parents, failed to exercise control over their minor child although defendants knew, or with due care should have known, that injury to another person was possible. Snow v. Nelson, 475 So.2d 225, 226 (Fla. 1985); Thompson v. Baniqued, 741 So.2d 629, 632 (Fla. App. 1999). This requires proof "that the child had a habit of engaging in a particular act or course of conduct which led to the plaintiff's injury." Snow, 475 So.2d at 226; Thompson, 741 So.2d at 632.

  Presently pending is defendants' motion for a protective order. Defendants seek a very broad protective order. They seek to preclude discovery as to any matters that were possibly the subject of various proceedings or whose subject matter is covered by various statutes. For example, they do not merely seek to foreclose discovery as to what occurred during possible juvenile court proceedings; they instead seek to foreclose any discovery at all regarding an incident if it happened to be the subject of a juvenile court proceeding. In other words, they do not limit their protective order to precluding discovery as to what pleadings, testimony, and rulings occurred in a juvenile court proceeding; but would also preclude independently questioning a witness to the underlying incident regarding what he or she saw and heard.

  Defendants' proposed protective order includes the following paragraphs:
1. Confidential Material, as defined in paragraph 2, shall not be disclosed or produced in this litigation by either party.
2. "Confidential Material" means:
(a) documents, information or testimony concerning matters involving the Defendants' minor son that were or are the subject of proceedings under the Illinois Juvenile Court Act, 705 ILCS 405/1-8 et seq. and/or related Florida statutes, including without limitation Fla. Stat. §§ 39.0132(3) and (6), 39.202(1), and 985.04(2) (2004);
(b) documents, information or testimony concerning treatment or counseling rendered to the Defendants' minor son which are subject to the Illinois Mental and Developmental Disabilities Confidentiality Act, 740 ILCS 110/2 et seq. (2004) and/or similar Florida statutes, including without limitation Fla. Stat. § 90.503(2);
(c) documents, information and testimony concerning the school records of Defendants' minor son that are subject to the Illinois School Student Records Act, 105 ILCS 10/6(a) (2004) and/or similar Florida statutes;
(d) documents, information and testimony concerning the Defendants' minor son's registration as a sex offender under the Illinois Sex Offender Registration Act, 150 ILCS 150/1 et seq. (2004) and/or similar Florida statutes;
(e) documents information and testimony concerning communications subject to the physician-patient privilege under 735 ILCS 5/[8-]802 (2004) and/or similar Florida statutes, including without limitation Fla. Stat. § 456.057(5);
(f) documents, information and testimony concerning any investigation by the Department of Children & Family Services subject to 325 ILCS 5/11 (2004) and/or similar Florida statutes, including without limitation Fla. Stat. § 39.202(1) (2004); and
(g) other documents, information and testimony which are subject to privileges or confidentiality protections provided by applicable law.
3. Parties and witnesses may testify regarding documents, facts and/or events which do not involve any matters which are or have been the subject of any juvenile proceeding, mental health treatment, medical treatment, school records, the Illinois Sex Offender Registration Act, 150 ILCS 150/1 et seq., Florida or Illinois Department of Children and Family Services confidentiality statutes (325 ILCS 5/11 and Fla. Stat. § 39.202(1)), or any other applicable privileges or confidentiality laws.
  Plaintiff's first set of interrogatories includes requests that defendants identify any of the following activities in which T.V. may have engaged: (1) sexual contacts with another person, including the other person's age; (2) acts of sexual exhibition; (3) arrests and criminal charges; (4) periods of court probation and supervision, including the name of the probation officer or other supervisor; (5) educational institutions attended; and (6) instances of physical or psychological treatment, including the dates and treating professional. Plaintiff also requests a detailed description of T.V.'s actions and whereabouts on March 28 and 29, 2002. Plaintiff also indicates that she will seek documents that are the subject of defendants' motion for a protective order, including juvenile court records.

  Other than as to two instances, in moving for the protective order, defendants do not represent whether or not there would be any activities to describe in response to all or some of the interrogatories and other possible discovery inquiries. For present purposes, it will be assumed that T.V. engaged in activities that, absent a protective order, would result in affirmative responses to the interrogatories. It will be assumed that T.V. engaged in sexual activities, acts of sexual exhibition, attended school, and received medical and psychological treatment in Illinois. It will be assumed that delinquency proceedings were instituted in Florida related to the March 2002 incident. It will be assumed that T.V. has been the subject of at least one delinquency proceeding in Illinois, based on an incident or incidents other than the one in Florida involving plaintiff. It is assumed that any incident in Illinois involved a victim other than plaintiff. The assumption that various activities have occurred should not be understood as indicating that any particular activity actually occurred.

  The parties have not discussed the question of the appropriate law to apply. They appear to assume that Illinois law would apply to delinquency proceedings, sexual activity, and treatment that occurred in Illinois, while Florida law would apply to such activities that occurred in Florida. Rule 501 of the Federal Rules of Evidence provides that, "with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law." The application of this provision to the present type of circumstance, where the applicable substantive law is from one state while potentially privileged communications and related activities occurred in another state and the federal forum is located in another state, is not clear. See Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice & Procedure § 5345 (1980 & 2003 Supp.). Since the parties do not contend otherwise, it will be assumed that Illinois privilege law applies to Illinois proceedings and activities and Florida privilege law applies to Florida proceedings and activities.

  The Illinois Juvenile Court Act of 1987 (the "Juvenile Act") contains a provision regarding confidentiality and accessibility of juvenile court records. See 705 ILCS 405/1-8. This is the statute cited by the parties and generally pertains to all types of juvenile proceedings, see In re K.D., 279 Ill. App.3d 1020, 666 N.E.2d 29, 31-32 (2d Dist. 1996), though some provisions are limited to applying to delinquency proceedings. See 705 ILCS 405/1-8(C)(1), (D)-(F). Although not cited by the parties, effective January 1, 1999, a provision was added to the Juvenile Act that particularly applies to the confidentiality of court records for delinquency proceedings. See, id. § 405/5-901. The two provisions generally contain duplicative provisions and no apparent inconsistencies, but each contains some provisions that are not in the other. Both will be considered and cases construing provisions in one of the statutes will be assumed to also be authoritative as to substantially identical provisions in the other statute.*fn4 To the extent T.V. was involved in any juvenile proceedings other than a delinquency proceeding, only § 1-8 would apply and none of that statute's provisions that are limited to delinquency proceedings would be applicable.

  With some exceptions, § 1-8 limits "inspection and copying of juvenile court records relating to a minor who is the subject of a proceeding" to those involved in the proceeding or related proceedings. See 705 ILCS 405/1-8(A). Section 5-901 has a parallel provision providing that court files in delinquency proceedings "shall be disclosed only" to those specified. See id. §§ 5-901(1)(a)-(b). Plaintiff relies on two possible exceptions. Section 1-8(C) provides that juvenile court records "may be inspected by . . . properly interested persons by general or special order of the court." Section 5-901(5) contains an identical provision. Also, where there is an adjudication of delinquency for aggravated criminal assault or criminal sexual assault, the court shall allow the general public access to the "name, address, and offense" of the minor. Id. §§ 1-8(C)(1)(A), 5-901(5)(a)(i).

  It is not for this court to decide whether plaintiff should be allowed access to court files based on either of the two cited exceptions. Those exceptions do not permit the release of juvenile court documents or even the copying of the documents; they only permit an interested person to inspect the juvenile records in person at the juvenile court, In re J.R., 307 Ill. App.3d 175, 717 N.E.2d 468, 473 (1st Dist. 1999), or the public to have "access" to the juvenile's name, address, and offense. The Juvenile Act requires an order of "the court" for the interested person exception and, for the sexual assault exception, that "the court" shall allow access. Unless the context indicates otherwise, the Juvenile Act defines "court" as meaning "the circuit court in a session or division assigned to hear proceedings under this Act." 705 ILCS 405/1-3(5).*fn5 As to any Illinois delinquency proceedings involving T.V., it is for the Juvenile Court in that county to decide whether the records should be available for inspection. To the extent plaintiff desires to pursue either of the two cited exceptions, she must proceed before the Juvenile Court in order to seek inspection or access to the files. See, e.g., J.R., 717 N.E.2d at 469-70. However, consistent with the additional ruling below, to the extent they know of any Illinois juvenile proceedings involving T.V., defendants will be required to disclose to plaintiff the case number and court for any such proceedings.

  J.R., 717 N.E.2d at 473, indicates that the plain language of § 1-8 is to be followed. When the statute says "inspect," it means inspect and nothing additional, such as copying. Sections 1-8 and 5-901 limit the inspection and copying of juvenile court records themselves. When a juvenile's conduct is the subject of a Juvenile Act proceeding, neither § 1-8 nor § 5-901 make any and all information related to the juvenile's conduct confidential; they only limit disclosure of the juvenile court records themselves. Defendants argue that the purpose behind § 1-8 supports prohibiting disclosure of all information about and related to the juvenile proceedings and the underlying offense. There is no Illinois case law to that effect and the language of the statute itself does not support such a reading.

  As already stated, the two statutory sections refer only to juvenile records and say nothing about underlying offenses; there is no reference to prohibiting any testimony from witnesses to the underlying offenses. Cf. Del Rivero v. Cahill, 71 Ill. App.3d 618, 390 N.E.2d 355, 359 (1st Dist. 1979) (expungement of official records of arrest "does not act to eliminate the facts and circumstances leading to the arrest, nor does it erase the incident from the mind of an independent occurrence witness"); McCraven v. City of Chicago, 109 F. Supp.2d 935, 940 (N.D. Ill. 2000) (same).

  The Juvenile Act is intended to protect the confidentiality of the juvenile's identity and avoid an invasion of the juvenile's privacy. Landon v. Oswego Unit School District #308, 2000 WL 33172933 *1 (N.D. Ill. Feb. 13, 2000); K.D., 666 N.E.2d at 31; In re Robert K., 336 Ill. App.3d 867, 785 N.E.2d 562, 566 (2d Dist. 2003). However, the two pertinent sections have a number of exceptions even as to the juvenile records themselves. As the Illinois courts have stated, "protective confidentiality provisions of the Juvenile Court Act do not amount to an absolute prohibition against disclosure of juvenile records." People v. Puente, 98 Ill. App.3d 936, 424 N.E.2d 775, 778 (1st Dist. 1981). A victim of certain sexual offenses, including a delinquent's criminal sexual abuse (see 720 ILCS 5/12-15) for example, still has a right to information about the conviction, sentence, imprisonment, and release of the accused. See 705 ILCS 405/1-8(D); 725 ILCS 120/4(5). Victims of all offenses, and their legal representatives, are entitled to access to the minor's name and address and the disposition of the proceedings. See 705 ILCS 405/1-8(A) (7).*fn6 See also id. § 405/5-905(6). Also, a properly interested person, which has been construed as including parties involved in litigation for which the juvenile proceedings may be relevant, see K.D., 666 N.E.2d at 31; Landon, 2000 WL 33172933 at *1, is entitled to inspect the entire juvenile record. See 705 ILCS 405/1-8(C), 5-901(5). For certain offenses, the name, address, and offense of the minor is made available to the general public. See id. § 405/1-8(C)(1)-(2), 5-901(5)(a)-(b). Once the information is made available, see J.R., 717 N.E.2d at 473, evidence and adjudications in delinquency proceedings may be used for certain purposes in criminal proceedings and for all relevant purposes in civil proceedings based on causes of actions arising out of the incident underlying the delinquency proceeding. 705 ILCS 405/5-150(1).*fn7

  A "properly interested person" has been construed as including persons involved in litigation in which the juvenile proceeding may contain relevant information. This has not been limited to persons who were bringing suit based on being victims of an underlying offense that was the subject of a juvenile proceeding. In K.D., 666 N.E.2d at 30-31, the Illinois Department of Professional Regulations ("IDPR") was granted the right to inspect a girl's abused minor proceedings because her stepfather was the accused abuser and the IDPR was engaged in proceedings regarding the stepfather's medical license. In Landon, 2000 WL 33172933 at *1, the defendant school district, which was accused of Title IX violations, was found to be a properly interested person in the minor plaintiff's delinquency proceedings because the delinquency proceedings might be relevant to the plaintiff's claims or defendant's defense. Contrary to implications in defendants' argument, J.R. is not inconsistent with either of these cases. In J.R., a realty company managed the property where J.R. had killed a victim and the realty company had been sued by the victim's estate. The realty company requested the juvenile records themselves. See J.R., 717 N.E.2d at 469. J.R. found it unnecessary to determine if the realty company was a properly interested person and did not reach the question of whether the realty company was entitled to inspect the juvenile ...


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