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Carolyn Mahoney, A/K/A Carolyn Cox v. R. Marc Gummerson and Billy J. Cox

November 20, 2012

CAROLYN MAHONEY, A/K/A CAROLYN COX,
PLAINTIFF-APPELLEE,
v.
R. MARC GUMMERSON AND BILLY J. COX, DEFENDANTS (THE DEPARTMENT OF CORRECTIONS,
THIRD-PARTY RESPONDENT-APPELLANT).



Appeal from the Circuit Court of McHenry County. No. 11-CH-1498 Honorable Thomas A. Meyer, Judge, Presiding.

The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶ 1 This matter comes before the court as a permissive interlocutory appeal brought pursuant to Illinois Supreme Court Rule 308 (eff. Feb. 26, 2010). The questions certified arose from a proceeding in which plaintiff, Carolyn Mahoney, filed a civil action against defendants, her former husband, Billy J. Cox, and his attorney, R. Marc Gummerson, for allegedly engaging in a plot to kill Mahoney. Mahoney served a subpoena on the Illinois Department of Corrections (Department), seeking the disclosure of the identity and statements of a confidential informant who assisted the Department in its investigation of the alleged murder-for-hire plot. After denying the Department's motion to quash the subpoena, the trial court certified three questions to this court. We granted the Department's application to review two of the three certified questions:

"1. Whether 735 ILCS 5/8-802.3 [(West 2010)] precludes disclosure of a CI's [confidential informant's] identity in a civil action involving allegations of a murder-for-hire plot but where no criminal prosecution is being conducted.

2. If not, whether the Department must affirmatively prove that the interest in protecting the CI's identity outweighs the seeking party's need for the identity, including that disclosure will impose a risk to the safety of the CI, and that disclosure will discourage other citizens from providing information to law enforcement."

¶ 2 We answer the first certified question in the affirmative, with a qualification. We conclude that section 8-802.3(b) of the Code of Civil Procedure (Code) (735 ILCS 5/8-802.3(b) (West 2010)), which sets out the exception to the confidential informant's privilege, does not compel disclosure of a confidential informant's identity in a civil action involving allegations of a murder-for-hire plot where no criminal prosecution is being conducted. The exception does not compel disclosure because, under section 8-802.3(b)(1), such a civil action is not a "court proceeding involving a felony or misdemeanor." 735 ILCS 5/8-802.3(b)(1) (West 2010). In answering that the statute precludes disclosure, we assume that the informant's identity already has been established as privileged under section 8-802.3(a) of the Code. If prima facie evidence of the informant's privilege is absent, section 8-802.3 does not preclude disclosure. Our answer to the first certified question obviates the need to answer the second certified question.

¶ 3 FACTS

¶ 4 On June 21, 2011, Mahoney filed a one-count complaint against Cox and Gummerson, alleging that they engaged in a civil conspiracy to commit murder. On November 16, 2007, Cox was convicted of aggravated battery and attempting to murder Mahoney, and Cox was remanded to the Department to serve a 20-year prison sentence. Mahoney's complaint alleged that, during his incarceration, Cox solicited at least two other inmates to murder Mahoney and that the Department alerted her of the plot. Mahoney alleged that Gummerson was instrumental to Cox's scheme because he controls Cox's money and property outside of prison. Mahoney sought at least $50,000 in compensatory damages as well as injunctions against Cox and Gummerson to restrain each from conveying or disposing of any of Cox's property without court approval.

¶ 5 On August 19, 2011, Mahoney served a subpoena on the Department, seeking various documents related to any investigation into any allegation of misconduct by Cox and, in particular, any investigation into any allegation that Cox sought to murder Mahoney. The Department moved to quash the subpoena, arguing that the documents sought contained the identity of a confidential informant and that disclosure would present a substantial risk to the informant's safety and the willingness of other individuals to cooperate with law enforcement in the future.

¶ 6 On January 20, 2012, after reviewing in camera the requested documents, the trial court denied the motion to quash the subpoena and compelled disclosure of the informant's identity and any recorded statements of the informant. After unsuccessfully moving for reconsideration, the Department filed a motion to vacate the order or, in the alternative, to certify certain questions for appellate review. In the motion, the Department argued for the first time that the informant's identity is privileged under section 8-802.3 of the Code. See 735 ILCS 5/8-802.3 (West 2010).

¶ 7 On March 21, 2012, the trial court denied the motion to vacate but certified the following two questions for appellate review:

1. Whether section 8-802.3 of the Code (735 ILCS 5/8-802.3 (West 2010)) precludes disclosure of a confidential informant's identity in a civil action involving allegations of a murder-for-hire plot but where no criminal prosecution is being conducted.

2. If not, whether the Department must affirmatively prove that the interest in protecting the confidential informant's identity outweighs the seeking party's need for the identity, including that disclosure will impose a risk to the safety of the confidential informant and that disclosure ...


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