Appeal from the Circuit Court of Kane County. No. 02-CF-2718. Honorable Timothy Q. Sheldon, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice O'malley
The Roman Catholic Diocese of Rockford (Diocese) appeals the judgment of the circuit court holding the Diocese in contempt of court for refusing to comply with a discovery order requiring the Diocese to produce certain documents in its possession. We affirm the underlying discovery order, vacate the contempt order, and remand for further proceedings consistent with this opinion.
The State brought sexual assault charges against defendant, Mark A. Campobello, alleging that he molested a young girl while acting in a position of trust as her priest in the Roman Catholic Church (Church). The State served the Diocese with a subpoena for "any and all records regarding [defendant]," including "Personnel Files, Transfer Record, Intervention Team Records, Misconduct Officer Records, Placement at St. Luke's in Maryland, and Records kept pursuant to Canon 489." The Diocese moved to quash the subpoena on various grounds. As we describe below, the State clarified the scope of its subpoena at the hearing on the Diocese's motion to quash.
The Diocese attached to its motion the affidavit of Monsignor David Kagan, who explained the Church's procedures for investigating allegations of sexual misconduct against clergy members. In September of 1995, the Diocese adopted as canon law a document entitled, "Sexual Misconduct With Minors: Norms for Education, Prevention, Assistance to Victims and Procedures for Determination of Fitness For Ministry/Employment" (Norms). The Norms established the position of Diocesan misconduct officer, as well as the Diocesan intervention committee (or "intervention team," as the State calls it in certain pleadings). The functions of the misconduct officer are to investigate allegations of sexual misconduct by Church priests and laity and to report findings to the intervention committee, which is comprised of 16 members, including both Church laity and clergy, who are appointed by the Diocesan bishop. According to Monsignor Kagan, the members of the intervention committee, while acting in their official capacity, "are equivalent to practitioners accredited by the Roman Catholic Church" because they perform duties prescribed by the Diocese. After reviewing the information provided by the misconduct officer, the intervention committee recommends to the bishop whether the clergy or lay member under investigation should remain employed by the Church or should at least be removed from active ministry.
Monsignor Kagan explained that the United States Conference of Bishops adopted a "Charter for the Protection of Children and Young People" (Charter) in 2002. The Charter mandates that each diocese have a review board that functions as a confidential consultative body to the diocesan bishop to advise and assist him with respect to allegations of sexual abuse by clergy and laity and to the suitability for continued ministry of persons accused of such misconduct. Monsignor Kagan asserted that the Diocese's intervention committee and misconduct officer fulfill the requirements of the Charter.
Monsignor Kagan averred that the records generated by the misconduct officer and the intervention committee contain the "religious thoughts and ideas of members of the Church" concerning "whether violations of canonical law occurred and, if so, how such violations should be addressed and remedied" in accord with canon law. The Norms require that information generated by the misconduct officer and the intervention committee be kept confidential. Canon 489 of the Church's code of canon law requires the diocesan bishop to maintain an archive of documents relating to internal Church discipline of clergy. The archive is to be "secret," with the diocesan bishop alone having access. Monsignor Kagan averred that the confidentiality of misconduct officer and intervention committee records encourages the free flow of information because "individuals with knowledge of misconduct would be less likely to come forward to report such acts if they thought the information would not be kept private."
Monsignor Kagan averred that in October 2002, while he was serving as misconduct officer, he and the intervention committee generated documents regarding defendant. Monsignor Kagan further averred that the documents he generated in the course of the investigation were "the result of communications made to [him] in [his] capacity as priest."
At the hearing on the Diocese's motion to quash, the State clarified that its subpoena covered: (1) defendant's personnel files, (2) transfer records reflecting defendant's various parish assignments within the Church, (3) misconduct officer and intervention committee records of investigations within the Church of allegations of impropriety against defendant, and (4) reports indicating why the Diocese had defendant admitted to St. Luke's Hospital, a mental health facility in Maryland. The State emphasized that it was not seeking "actual mental health records," such as "psychological tests" or "statements [defendant] made to a therapist." The State explained:
"MS. GLEASON [Assistant State's Attorney]: Your Honor, *** the State certainly believes we would have a right to records, if there were any records, which would indicate that the Diocese sent [defendant] to St. Luke's because they were aware of some kind of sexual misconduct with a child.
So if there is a report that, you know, so-and-so said that there was some kind of sexual misconduct with a child and then they took the action and said, 'therefore we are sending him to St. Luke's,' I think I would be entitled to that; but I'm not saying that we are entitled to any kind of records from St. Luke's regarding mental health."
Specifically, the State sought any "report" indicating why defendant was placed at St. Luke's for mental health treatment, including "notes or records of communications between the hospital and the Diocese regarding the reasons for [defendant]'s admission." With respect to the request for records of the Diocese's internal investigation, the State emphasized that it was not seeking "defendant's admissions in a priest/penitent situation."
The Diocese argued that records indicating the reasons for defendant's admission to St. Luke's were privileged from disclosure under the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2002)). The Diocese also claimed that it was protected against compelled disclosure of the records of its internal investigation by the religion clauses of the first amendment to the United States Constitution (U.S. Const., amend. I) and by the clergy member privilege (735 ILCS 5/8--803 (West 2002)). The Diocese also urged the trial court to recognize a "critical self-analysis" privilege under Illinois law and hold that the privilege protected the Diocese's records of its investigation.
The trial court issued a written order disposing of all issues. Therein, the trial court ordered the Diocese to provide the State all personnel files and transfer records relating to defendant. The trial court added that the State had agreed that "mental health records" in the possession of the Diocese are protected by the Confidentiality Act. The trial court quashed the State's subpoena to the extent that it covered "mental health records protected under [the Confidentiality Act]." However, the trial court ordered the Diocese to produce for in camera inspection all records concerning defendant's "placement at St. Luke's in Maryland."
The trial court rejected the Diocese's argument that the religion clauses of the first amendment prohibited compelled disclosure of the records of the Diocese's internal investigation of defendant. Regarding the Diocese's claim of protection under the clergy member privilege, the trial court adopted the following remarks from the Pennsylvania Superior Court in the case of Hutchison v. Luddy, 414 Pa. Super. 138, 146, 606 A.2d 905, 909 (1992):
"This privilege protects 'priest-penitent' communications; it does not protect information regarding the manner in which a religious institution conducts its affairs or information acquired by a church as a result of independent investigations not involving confidential communications between priest and penitent."
The trial court also held that the clergy member privilege applies to statements made by a party to a clergy member on a "one-to-one" basis, not to statements made "before a panel or group." Finally, the trial court rejected the argument that the records of the internal investigation of defendant were protected by a "critical self-analysis" privilege. The trial court ordered the Diocese to produce all records of the internal investigation of defendant for in camera inspection to determine whether the records are protected by the clergy member privilege.
The Diocese's attorney represented to the court that the Diocese did not intend to comply with the discovery order and respectfully requested a contempt order. The court entered such an order, from which the Diocese appeals.
Generally, non-final discovery orders are not appealable. Norskog v. Pfiel, 197 Ill. 2d 60, 69 (2001). However, it is well settled that the correctness of a discovery order may be tested through contempt proceedings. Norskog, 197 Ill. 2d at 69. A pretrial discovery order is subject to appellate review when a party appeals a contempt sanction for refusing to comply with the order. Norskog, 197 Ill. 2d at 69.
The standard of review applicable to a discovery order depends on the nature of the question answered in the trial court. Norskog, 197 Ill. 2d at 70. The Diocese challenged the subpoena on grounds of privilege and constitutionality. Constitutional interpretations are reviewed de novo (Quantum Pipeline Co. v. Illinois Commerce Comm'n, 304 Ill. App. 3d 310, 314 (1999)), as are questions about the applicability of discovery privileges (Berry v. West Suburban Hospital Medical Center, 338 Ill. App. 3d 49, 53 (2003)).
We address first the applicability of the Confidentiality Act to the State's discovery requests. Section 3(a) of the Confidentiality Act (740 ILCS 110/3(a) (West 2002)) provides that "[a]ll records and communications shall be confidential and shall not be disclosed except as provided in this Act." Section 10 ...