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Heather Johnston et al v. andrew Weil Et

February 25, 2011

HEATHER JOHNSTON ET AL.,
APPELLANTS,
v.
ANDREW WEIL ET AL., APPELLEES.



Opinion

JUSTICE FREEMAN delivered the judgment of the court, with opinion.

Justices Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion.

Chief Justice Kilbride dissented, with opinion. Justice Theis took no part in the decision.

OPINION

The circuit court of Cook County certified the following question of law for interlocutory appeal pursuant to Supreme Court Rule 308

(Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)): "Whether evaluations, communications, reports and information obtained pursuant to section *** 604(b) of the Illinois Marriage and Dissolution of Marriage [Act] [citation] are confidential under the Mental Health and Developmental Disabilities Confidentiality Act [citation] where the 604(b) professional personnel to advise the court is a psychiatrist or other mental health professional."

The appellate court answered this question in the negative. 396 Ill.App. 3d 781. We allowed leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we likewise answer the certified question in the negative, and remand the cause to the circuit court for further proceedings.

I. BACKGROUND

Heather Johnston was married to Sean McCann and, in 1998, they had a son. Their marriage was dissolved. Johnston subsequently married Andrew Weil and, in 2002, they had a daughter. In June 2005, their marriage was dissolved. In each dissolution proceeding, McCann and Weil were represented by several attorneys, and an attorney was appointed as the child's representative.

McCann filed a post-dissolution petition to modify the joint parenting agreement with Johnston. In January 2006, the circuit court entered an order appointing Dr. Phyllis Amabile, a psychiatrist, to conduct an independent evaluation and assist the court in determining custody of the McCann son, pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/604(b) (West 2006)). Pursuant to the order, Johnston, her parents, McCann and Weil, among others, participated in the evaluation. The order required them to fully cooperate with Dr. Amabile in conducting her evaluation, including their submission to any tests administered by Dr. Amabile, her agents, or her recommended third parties. Dr. Amabile advised each of the parties that the information obtained through the evaluation would be disclosed to the court, all parties, and their attorneys. Dr. Amabile completed her evaluation and sent a report to the circuit court. The record does not show that Johnston or her parents sought a protective order regarding either the information they provided to Dr. Amabile or her report.

Contemporaneous with the McCann post-dissolution proceedings, Weil filed a motion seeking temporary possession or custody of his daughter, and seeking leave to subpoena Dr. Amabile. In response, Johnston asserted that Dr. Amabile's report was privileged under the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2006)). In December 2006, the circuit court in the Weil post-dissolution proceeding found that Dr. Amabile's section 604(b) report in theMcCann proceeding was privileged under the Confidentiality Act and not discoverable in the Weil proceeding.

In January 2007, plaintiffs, Johnston and her parents, filed the instant complaint, which named as defendants McCann, McCann's attorneys, the McCann child representative, Weil, Weil's attorneys, and the Weil child representative. The complaint alleged that Dr. Amabile was a therapist within the meaning of the Confidentiality Act; Dr. Amabile engaged in confidential communications with plaintiffs; and the information she obtained and included in her 604(b) report in the McCann proceeding was privileged under the Confidentiality Act. Further, the complaint alleged, "upon information and belief," essentially that the McCann defendants "individually and/or jointly" disclosed the confidential information to the Weil defendants "individually and/or jointly." The complaint sought $200,000 in damages for each plaintiff in addition to costs and attorney fees.

McCann, the McCann attorneys and child representative, Weil, and the Weil attorneys filed motions to dismiss pursuant to section 2--619.1 of the Code of Civil Procedure (735 ILCS 5/2--619.1 (West 2006)). The motions sought dismissal of the complaint as a matter of law (see 735 ILCS 5/2--615 (West 2006)), alleging that the contents of Dr. Amabile's 604(b) report were not privileged under the Confidentiality Act. Alternatively, the motions sought dismissal of the complaint based on affirmative matter that negates the claim. See 735 ILCS 5/2--619(a)(9) (West 2006). The McCann defendants argued that the parties, as a matter of fact, did not regard the contents of the 604(b) report as confidential. Weil attached an affidavit to his motion, in which he stated that he participated in Dr. Amabile's evaluation and that she told him that her report would be disclosed to the court and counsel in that case. However, Weil had never received or read a copy of Dr. Amabile's report. Weil's attorneys each attached an affidavit to their motions, in which each stated that he or she did not possess, disclose, or redisclose the contents of the 604(b) report.

The Weil child representative, Dorothy Johnson, separately filed a section 2--619(a)(9) motion to dismiss, to which she attached an affidavit stating as follows. In late November or early December 2006, Johnson received notice of Weil's motion. On December 6, 2006, Johnson telephoned Dr. Amabile to determine whether her section 604(b) report had any relevance to Weil's daughter. Dr. Amabile advised Johnson of three areas she evaluated: the possibility of ongoing substance (alcohol) abuse; the possibility of ongoing violence; and the ongoing impact of poor impulse control. Dr. Amabile advised Johnson that these areas of concern are relevant to the parenting of any child and are not specific or unique to any particular child. This was the extent of their telephone conversation, and Dr. Amabile did not provide any information regarding communications, opinions, or conclusions generated as a result of the section 604(b) evaluation.

The circuit court denied defendants' motions to dismiss plaintiffs' complaint.*fn1 Defendants filed a motion to reconsider the dismissal or, alternatively, to certify the question of law at issue in this case. The circuit court certified the above-quoted question of law and stayed the proceedings pending appellate resolution of the certified question.

The appellate court allowed defendants' application for leave to appeal and answered the certified question in the negative. 396 Ill. App. 3d 781.*fn2 The court concluded that information obtained pursuant to section 604(b) of the Marriage Act is not confidential and privileged under the Confidentiality Act. Accordingly, the court held that plaintiffs may not invoke the Confidentiality Act with respect to their communications with Dr. Amabile made in the course of her section 604(b) evaluation. 396 Ill. App. 3d at 792.

This court allowed plaintiffs' petition for leave to appeal (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)), and plaintiffs subsequently elected to have their petition stand as their brief (Ill. S. Ct. R. 315(h) (eff. Feb. 26, 2010)). We subsequently granted the Illinois Chapter of the American Academy of Matrimonial Lawyers leave to submit an amicus curiae brief in support of defendants. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010). Additional pertinent background will be discussed in the context of our analysis of the issues.

II. ANALYSIS

Before this court, plaintiffs contend that Johnston was the subject of, and her parents were collateral sources in, a court-ordered "psychiatric evaluation related to fitness for child custody." According to plaintiffs, the appellate court erred by exempting what they characterize as "604(b) psychiatric examinations" from the protections afforded under the Confidentiality Act. Defendants and supporting amicus contend that information obtained pursuant to section 604(b) of the Marriage Act is not privileged under the Confidentiality Act.

Although we ultimately answer the certified question in the negative, our analysis reveals that several unresolved variables are at work here. In other words, the certified question does not represent the full range of issues presented in this case. However, this court may go beyond the limits of a certified question in the interests of judicial economy and the need to reach an equitable result. Bright v. Dicke, 166 Ill. 2d 204, 208 (1995); see Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 468-72 (1998).

The certified question requires us to construe the relevant provisions of the Marriage Act and the Confidentiality Act. The primary rule of statutory construction is to give effect to the intent of the legislature. The best evidence of legislative intent is the statutory language itself, which must be given its plain and ordinary meaning. The statute should be evaluated as a whole. Where the meaning of a statute is unclear from a reading of its language, courts may look beyond the statutory language and consider the purpose of the law, the evils it was intended to remedy, and the legislative history of the statute. Stroger v. Regional Transportation Authority, 201 Ill. 2d 508, 524 (2002); Reda v. Advocate Health Care, 199 Ill. 2d 47, 55 (2002). However, legislative intent remains the primary inquiry and controls a court's interpretation of a statute. Traditional rules of statutory construction are merely aids in determining legislative intent, and those rules must yield to such intent. Collins v. Board of Trustees of the Firemen's Annuity & Benefit Fund, 155 Ill. 2d 103, 111 (1993). Because this issue concerns a question of law certified by the circuit court pursuant to Supreme Court Rule 308, our review is de novo. Thompson v. Gordon, 221 Ill. 2d 414, 426 (2006).

A. Disclosure: Marriage Act

Dr. Amabile compiled her report pursuant to section 604(b) of the Marriage Act. Part VI of the Marriage Act pertains to child custody. Section 602 mandates: "The court shall determine custody in accordance with the best interest of the child. The court shall consider all relevant factors," including specific factors listed therein. (Emphasis added.) 750 ILCS 5/602(a) (West 2006). Section 604(b) provides: "(b) The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness." 750 ILCS 5/604(b) (West 2006).

The appellate court concluded that the plain language of section 604(b) provides no limitations or exceptions when the court-appointed expert witness is a psychiatrist or other mental health professional, and that a court must not depart from this plain language by reading such an exception into the statute. 396 Ill. App. 3d at 785-86.

Before this court, both sides point to the plain language of section 604(b), but disagree as to its meaning. According to plaintiffs: section 604(b) "on its face limits distribution of the report to the [circuit court] and the attorneys for the litigants"; nothing in the subsection "indicates that anyone other than the attorneys will have access to this information"; and section 604(b) "limits actual use of the information to *** when the court designates the evaluator as a court's witness." Plaintiffs also contend that nothing in the language of section 604(b) "states or implies that if the ordered examination is a psychiatric examination, then the participant has waived all confidentiality rights to any psychiatric information received by the examining psychiatrist and any psychiatric reports." In contrast, defendants contend that section 604(b), on its face, does not provide that ...


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