                                  Illinois Official Reports

                                          Appellate Court



                              People v. McKee, 2014 IL App (3d) 130696



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff, v.
Caption                      BETHANY McKEE, Defendant-Appellee (Joseph Hosey,
                             Contemnor-Appellant).



District & No.               Third District
                             Docket No. 3-13-0696



Filed                        December 15, 2014



Held                         The trial court’s contempt order and the associated fines arising from
(Note: This syllabus         the contemnor’s refusal to comply with the trial court’s order
constitutes no part of the   divesting him of his reporter’s privilege and requiring him to
opinion of the court but     surrender the documents and materials he obtained that led to the
has been prepared by the     articles he wrote in connection with a murder case based on the
Reporter of Decisions        strangulation of two men, including any information tending to
for the convenience of       identify the source of the material or an affidavit revealing the source
the reader.)                 of the material, was reversed on the ground that the identity of the
                             source of the material could not be said to be relevant to a fact of
                             consequence in the murder case.




Decision Under               Appeal from the Circuit Court of Will County, No. 13-CF-100; the
Review                       Hon. Gerald R. Kinney, Judge, presiding.



Judgment                     Reversed.
     Counsel on                Kenneth L. Schmetterer (argued) and Joseph A. Roselius, both of
     Appeal                    DLA Piper LLP, of Chicago, for appellant.

                               Chuck Bretz and Neil G. Patel (argued), both of Chuck Bretz &
                               Associates, P.C., of Joliet, for appellee.

                               Natalie J. Spears and Kristen C. Rodriguez, both of Dentons US LLP,
                               of Chicago, and Bruce D. Brown, of Reporter’s Committee for
                               Freedom of the Press, of Arlington, Virginia, for amicus curiae.



     Panel                     JUSTICE CARTER delivered the judgment of the court, with opinion.
                               Presiding Justice Lytton and Justice Schmidt concurred in the
                               judgment and opinion.


                                                 OPINION

¶1         The State charged four individuals, including the defendant, Bethany McKee, with six
       counts of first degree murder in connection with the alleged strangling deaths of two males.
       After the indictment was filed, a reporter, respondent Joseph Hosey, wrote several articles that
       contained alleged details of the murders. During pretrial matters, counsel for McKee filed a
       motion to divest Hosey of his reporter’s privilege, which sought the materials Hosey used to
       write the articles and the source of those materials. The circuit court granted the motion, and
       after Hosey was found in direct criminal and civil contempt for refusing to comply with the
       divestiture order, Hosey appealed. On appeal, Hosey argues that the court erred when it
       granted the motion for divestiture. We reverse.

¶2                                               FACTS
¶3         On January 31, 2013, the State charged four individuals, including the defendant, Bethany
       McKee, via indictment with six counts of first degree murder in connection with the alleged
       strangling deaths of two males.
¶4         On March 1, 2013, counsel for McKee filed a motion for a gag order to seal the court
       records on the case. In that motion, counsel for McKee stated that the news website, the Joliet
       Patch, ran a series of articles online beginning on February 26, 2013, that contained alleged
       details of the events surrounding the murders. The articles were written by respondent Joseph
       Hosey. One of the articles from February 26, 2013, stated that the Patch had obtained the
       police reports from the investigation. The circuit court entered an agreed order on March 1,
       2013, that prohibited the parties from discussing the case with the media and that sealed the
       court record.1 Eventually, pursuant to court order, all of the individuals with the Will County

             1
           The gag order was extended beyond its original expiration date and was later modified on May 21,
       2013, to contain specific prohibitions. Also on that date, the court unsealed the court record.

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     State’s Attorney’s office, the Will County public defender’s office, the Joliet police
     department, and the law offices representing the accuseds submitted affidavits that they were
     not responsible for the “leak.”
¶5        On July 3, 2013, counsel for McKee filed a motion to divest Hosey of his reporter’s
     privilege. In addition to acknowledging that the Joliet Patch obtained police reports from the
     case, the motion also alleged that Hosey additionally obtained the toxicology reports from the
     autopsies of the victims. The motion further stated that the Joliet clerk’s office: (1) did not
     receive a Freedom of Information Act (FOIA) (5 U.S.C. § 552 (2012)) request for the reports
     from Hosey; (2) denied all other FOIA requests for the reports; and (3) did not have copies of
     the reports. The motion also alleged that the divestiture was necessary because the “leak”
     compromised McKee’s ability to receive a fair trial and violated her due process rights, and
     that the divestiture would stop the “leak.”
¶6        The circuit court held a hearing on the motion to divest, during which arguments were
     presented, and on August 29, 2013, the circuit court issued a written decision granting the
     motion. In support of its ruling, the court found that “[i]t is *** clear that if the source of the
     information to the reporter is an attorney or a member of the staff of any of the attorneys
     involved in this matter, that the Supreme Court rules relative to discovery have clearly been
     violated”; that “[t]he timing of the release of this information to the news media also creates a
     concern as to whether or not the secrecy of the Grand Jury process was violated”; and that the
     filing of over 500 affidavits from individuals regarding whether they had any role in the “leak”
     was sufficient to establish that all other sources of the information had been exhausted.
     Further, the court found:
             “This Court cannot ignore the fact that there is the potential for financial gains that
             come from one reporter obtaining this information sooner than other reporters. The
             Court can envision instances where significant income can result from obtaining
             information and using that information to author articles, books, plays, screenplays, in
             order to profit from exclusively obtained information. This Court is aware of its duty
             and obligation to protect the First Amendment Rights of the reporters, but cannot
             envision where those rights are superior to the fair trial rights of individuals charged by
             the State with the most serious criminal offenses.”
     Also in support of its ruling, the court stated the following with regard to the relevancy of the
     divestiture to the case’s pending issues:
             “The issue of relevancy is not essentially limited to relevancy for trial issues. As the
             Court has previously noted, the disclosure of this information is relative to a
             determination of whether or not the Rules regarding the secrecy of the Grand Jury
             proceedings and the Rules of the Illinois Supreme Court have been intentionally
             violated by individuals who are subject to such Rules. Although the Court has indicated
             that these inquiries may seem to be off topic when it comes to focusing [sic] four (4)
             Defendants charged with Murder, this Court in no way believes that this inquiry is off
             the topic of determining whether or not there have been violations of Illinois law or
             Supreme Court Rules. In the event that these charges lead to a conviction, identifying
             the source of this information will become an issue on appeal or in a post-conviction
             petition.”
     Accordingly, the court divested Hosey of his reporter’s privilege and required him to surrender
     copies of the documents he received, including any information that tended to identify the

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       source of the material provided to him. Further, in the event that disclosure did not identify the
       source, the court ordered Hosey to provide an affidavit revealing the source of the material
       provided to him.
¶7         Hosey asked the court to find him in contempt so he could appeal. On September 20, 2013,
       the court found Hosey in direct criminal and civil contempt, which included a $1,000 fine and
       a $300-per-day fine for every day of noncompliance extending for 180 days, at the end of
       which Hosey would be subject to incarceration until he complied with the court’s order. Hosey
       appealed.

¶8                                                ANALYSIS
¶9         On appeal, Hosey argues that the court erred when it granted the motion for divestiture.
       Hosey contends, inter alia, that the divestiture motion did not meet the threshold requirement
       of establishing relevancy to the underlying proceeding.2
¶ 10       Initially, we note that the parties dispute the applicable standard of review. Hosey contends
       that we should apply the de novo standard, while McKee argues that we should apply the
       manifest weight of the evidence standard. We believe the appropriate standard is in fact the
       de novo standard. We acknowledge that section 8-905 of the Code of Civil Procedure states
       that divestiture proceedings are civil proceedings (735 ILCS 5/8-905 (West 2012)), and that in
       such proceedings, the party seeking divestiture has the burden of proof by a preponderance of
       the evidence (People v. Pawlaczyk, 189 Ill. 2d 177, 188 (2000) (applying the manifest weight
       of the evidence standard); In re Subpoena Duces Tecum to Arya, 226 Ill. App. 3d 848, 854
       (1992) (same)). However, the dispositive question on appeal concerns the scope of relevancy
       under section 8-906 of the Code of Civil Procedure–Hosey argues for a narrow definition of
       relevance, while the defendant argues for a broad definition of relevance. Accordingly, this
       appeal presents a question of law, which we review de novo. See People v. Slover, 323 Ill. App.
       3d 620, 623 (2001) (addressing the scope of terms in section 8-902 and applying the de novo
       standard to that question of statutory construction); cf. Pawlaczyk, 189 Ill. 2d at 188, 192-95
       (stating earlier in the opinion that the manifest weight of the evidence standard applied to the
       appeal, but later stating that in addressing the scope of relevancy under section 8-904 that the
       court was performing statutory construction).
¶ 11       In Illinois, reporters possess a qualified privilege regarding confidentiality of sources.
       Pawlaczyk, 189 Ill. 2d at 187; see 735 ILCS 5/8-901 to 8-909 (West 2012). “The purpose of the
       privilege is to assure reporters access to information, thereby encouraging a free press and a
       well-informed citizenry.” Pawlaczyk, 189 Ill. 2d at 187. In cases other than libel and slander
       cases in which an individual claims the qualified privilege, the party seeking the information
       can apply to the circuit court for a divestiture of the qualified privilege. 735 ILCS 5/8-903
       (West 2012).
¶ 12       In relevant part, the party seeking the divestiture must meet three threshold requirements in
       the application:


           2
             We acknowledge that the Reporter’s Committee for Freedom of the Press and 38 other
       organizations filed an amicus curiae brief with this court in support of Hosey. The State also filed a
       brief, and McKee filed a motion to strike the State’s brief and dismiss the State as a party on appeal. We
       have considered that motion and hereby deny it.

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               “the name of the reporter and of the news medium with which he or she was connected
               at the time the information sought was obtained; the specific information sought and its
               relevancy to the proceedings; and *** a specific public interest which would be
               adversely affected if the factual information sought were not disclosed.” 735 ILCS
               5/8-904 (West 2012).
       See also 735 ILCS 5/8-906 (West 2012) (requiring the circuit court to consider, inter alia, the
       relevancy of the source in making its divestiture determination).
¶ 13       With regard to the threshold requirement of relevancy, it is important to note the type of
       proceeding in which the information is being sought. In Pawlaczyk, the proceeding was a
       special grand jury proceeding related to perjury charges. Pawlaczyk, 189 Ill. 2d at 193. In
       addressing relevancy, the Pawlaczyk court noted that “a fact is ‘relevant’ if it tends to make the
       existence of any fact that is of consequence to the determination of the action more probable or
       less probable than it would be without the evidence.” 3 Id. After noting what facts were
       consequential to a perjury charge, the Pawlaczyk court concluded that “if the privileged
       information will make any one of the elements of perjury more or less probable, then it is
       relevant ‘to the proceedings.’ ” Id. at 193-94.
¶ 14       In this case, the proceeding in which the information is being sought is a criminal
       prosecution for first degree murder. See 735 ILCS 5/8-903(a), 8-904 (West 2012); Pawlaczyk,
       189 Ill. 2d at 193. Specifically, McKee has been charged with six counts of first degree
       murder–one count for each victim under each of the three subsections of the first degree
       murder statute. See 720 ILCS 5/9-1(a)(1)-(3) (West 2012). The circuit court noted in its
       decision that the information being sought was seemingly off topic with regard to the murder
       charges. However, the court stated that the information pertained to whether the “leak”
       violated the Illinois Supreme Court Rules or other Illinois law–in other words, to collateral
       matters. As a matter of statutory construction, relevance to such collateral matters is not
       sufficient to satisfy section 8-904’s threshold requirement that the sought-after information be
       relevant to the proceedings in which it is being sought. See Pawlaczyk, 189 Ill. 2d at 193-94;
       accord Brown v. Commonwealth, 204 S.E.2d 429, 431 (Va. 1974) (holding that divestiture is
       warranted in a criminal case when the information sought is material to proof of an element of
       the offense charged, to proof of the defense asserted by the accused, to a reduction in the
       gradation of the charge, or to a mitigation of the penalty associated with the charge). Because
       the identity of Hosey’s source cannot be said to be relevant to a fact of consequence to the first
       degree murder allegations, we hold that the circuit court erred when it granted the motion for
       divestiture. See Pawlaczyk, 189 Ill. 2d at 193-94.
¶ 15       Our ruling on the relevancy issue obviates the need to address Hosey’s other arguments on
       appeal, including his argument related to the contempt order and its associated fines. Because
       we have reversed the circuit court’s judgment, the court’s contempt order and its associated
       fines are hereby vacated.



           3
             In this regard, we also note that under Illinois Rule of Evidence 401 (eff. Jan. 1, 2011),
       “ ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of
       consequence to the determination of the action more probable or less probable than it would be without
       the evidence.”

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¶ 16                                    CONCLUSION
¶ 17   The judgment of the circuit court of Will County is reversed.

¶ 18   Reversed.




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