People v. McKee

2014 IL App (3d) 130696

Opinion filed December 15, 2014

_____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court

ILLINOIS, ) of the 12th Judicial Circuit,

) Will County, Illinois.

Plaintiff, )

)

v. )

) Appeal No. 3-13-0696

BETHANY McKEE, ) Circuit No. 13-CF-100

)

Defendant-Appellee )

)

(Joseph Hosey, ) The Honorable

) Gerald R. Kinney,

Contemnor-Appellant). ) Judge, presiding.

_____________________________________________________________________________

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 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

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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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

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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 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

4

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

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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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:

"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

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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

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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charge, or to a mitigation of the penalty associated with the charge). Because the identity of

Hosey's source cannot be said to 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.

¶ 16 CONCLUSION

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

¶ 18 Reversed.

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