NO. 4-01-0785

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

In re: the Marriage of

MARY KAY RONEY,

		Petitioner-Appellee,

		and

CHRISTOPHER J. RONEY,

		Respondent-Appellant.	)

)

)

)

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)

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)	Appeal from

Circuit Court of

Champaign County

No. 00D700

Honorable

Arnold F. Blockman,

Judge Presiding.

_________________________________________________________________

		JUSTICE STEIGMANN delivered the opinion of the court:

		In October 2000, petitioner, Mary Kay Roney, filed a petition to dissolve her marriage to respondent, Christopher J.

Roney.  In January 2001, Mary Kay filed (1) a motion, seeking to require Christopher to turn over tape recordings of her telephone

conversations; and (2) a motion in limine to exclude the record ings from evidence.  In May 2001, the trial court ordered Chris topher to turn over all of the tape recordings Mary Kay had requested in discovery.  In August 2001, the court found Christo

pher to be in indirect civil contempt for failing to turn over the tape recordings as ordered.  

		Christopher appeals, arguing that the trial court's

order violates his fifth amendment privilege against self-incrim

ination (U.S. Const., amend. V) because the act of turning over

the recordings would constitute a testimonial communication

incriminating him in the criminal offense of eavesdropping (720

ILCS 5/14-2(a)(1) (West 2000)).  We reverse in part, vacate in

part, and remand for further proceedings.

		I. BACKGROUND

		Mary Kay and Christopher married in November 1983.  As

stated, Mary Kay initiated dissolution proceedings, and in

January 2001, she filed a motion in limine and sought a turnover order.

	A. Proceedings Leading to the Turnover Order

		Along with her motion requesting a turnover order, Mary

Kay filed an affidavit in which she stated that (1) she discov

ered wiretapping equipment in the attic of the marital residence;

(2) Christopher admitted taping her telephone conversations; (3)

she did not consent to the taping; and (4) she understood that

approximately 30 tapes existed.  In response to Mary Kay’s motion, Christopher asserted his fifth amendment privilege

against self-incrimination.

		At a March 2001 hearing on Mary Kay’s motions, Thad

Trimble, a Champaign County sheriff's department evidence offi

cer, testified regarding the items that Mary Kay had submitted to

the police.  Trimble stated that he took possession of "the GE

tape recorder and plug-in, the white Radio Shack eavesdropping

device, the Gemini phone modular plug, [a] crimping tool, seven

cassette tapes with tape recorder, [and] three white cassette

tapes with storage cases."

		Mary Kay testified that on October 16, 2000, she went

into the attic because she suspected that Christopher was storing

pornography there.  She explained that she had heard him going

into the attic on a daily basis over the past eight months.  The attic did not have a floor, and insulation covered most of the

area.  After a half hour poking around with a mop handle and

lifting insulation, Mary Kay found the telephone recording

device.  In mid-November 2000, Mary Kay confronted Christopher

about splicing the phone line, and Christopher admitted doing it

and said that he did it to protect her.

		The trial court allowed Mary Kay's counsel to play two

of the tapes, only one of which contained recordings of Mary

Kay's telephone conversations.  Mary Kay called Christopher as an

adverse witness, but he refused to answer questions and asserted

his fifth amendment rights.  

		At the conclusion of the hearing, the trial court

granted Mary Kay's motion in limine after finding by a preponder ance of the evidence that the tape containing recorded telephone

conversations was obtained illegally.  The court continued the

hearing on Mary Kay’s request for a turnover order until May

2001.  At that hearing, Chase Leonard, an assistant State's

Attorney, testified that a criminal prosecution of Christopher

was unlikely.  The trial court found that the fifth amendment

privilege did not apply because turning over the tape recordings

was not testimonial in nature.  The court ordered Christopher to

turn over the tapes by May 29, 2001.  Christopher filed a motion

for rehearing, but never called it for a hearing.

	B. Contempt Proceedings

		At the August 2001 hearing on Mary Kay's petition for

adjudication of indirect civil contempt, Christopher testified 

as an adverse witness that he did not turn over any tapes.  He then asserted his fifth amendment rights when asked if he had the

tapes or knew of their location.  

		When Christopher testified on his own behalf, his

counsel asked him, "Do you have a reason that you did not turn

over any tapes that might be in your possession?"  He responded,

"What tapes?  Are you asking--what makes them think I have any

tapes?"  Mary Kay's counsel objected to the answer and moved to

strike it as nonresponsive, and the trial court ordered the

volunteered portion stricken.

		Following the hearing, the trial court found Christo

pher in indirect civil contempt for having willfully disobeyed

the court's order to turn over all tape recordings to Mary Kay. 

The court ordered Christopher to be incarcerated in the county

jail until he (1) turned over all tapes as ordered, and (2) filed

an affidavit stating that the materials turned over constituted

all of the tapes in his possession or control or both.  Alterna

tively, the court ordered that Christopher could file an affida

vit stating that no tapes were in his possession or control.

		This appeal followed, and the trial court granted

Christopher's motion for a stay pending appeal.

	II. ANALYSIS

		The sole issue before us is whether the act of turning

over tape-recorded telephone conversations, which were obtained

by eavesdropping in violation of criminal law, constitutes an

incriminating testimonial communication protected by the fifth

amendment privilege.  We conclude that it does.

		In Fisher v. United States, 425 U.S. 391, 409-10, 48 L. Ed. 2d 39, 55-56, 96 S. Ct. 1569, 1580-81 (1976), the United

States Supreme Court explained the scope of the fifth amendment

privilege against self-incrimination as follows:

		"[T]he privilege protects a person only

against being incriminated by his own com

pelled testimonial communications.  ***

			The act of producing evidence in re

sponse to a subpoena nevertheless has commu

nicative aspects of its own, wholly aside

from the contents of the papers produced. 

Compliance with the subpoena tacitly concedes

the existence of the papers demanded and

their possession or control by the [witness]. 

It would also would   indicate the [witness’] belief that the papers are those described in the

subpoena.  [Citation.]  The elements of com

pulsion are clearly present, but the more

difficult issues are whether the tacit aver

ments of the [witness] are both 'testimonial'

and 'incriminating' for purposes of applying

the [f]ifth [a]mendment."

The Court in Fisher determined that a taxpayer's implicit admis sion regarding the existence and possession of his accountant's

papers did not rise to the level of testimony protected by the

fifth amendment privilege because "[t]he existence and location of the papers [was] a foregone conclusion."  Fisher, 425 U.S. at 411, 48 L. Ed. 2d at 56, 96 S. Ct. at 1581.		

		In a recent decision, however, United States v. Hubbell, 530 U.S. 27, 36, 147 L. Ed. 2d 24, 36, 120 S. Ct. 2037, 2043 (2000), the United States Supreme Court more restrictively

viewed its holding in Fisher as tied to the particular circum stances of that case--namely, the compulsory production of

documents otherwise required by tax law to have been previously

prepared.  In language applicable to the present case, the Court

explained the scope of fifth amendment protection as follows:

														“[This Court has made clear] that the

act of producing documents in response to a

subpoena may have a compelled testimonial

aspect.  We have held that 'the act of pro

duction' itself may implicitly communicate

'statements of fact.'  By 'producing docu

ments in compliance with a subpoena, the

witness would admit that the papers existed,

were in his possession or control, and were

authentic.'"  Hubbell, 530 U.S. at 36, 147 L. Ed. 2d at 36, 120 S. Ct. at 2043, quoting DoeDoe v. United States, 487 U.S. 201, 209, 101 L. WEdEd. 2d 184, 196, 108 S. Ct. 2341, 2347

(1988). v. .

		Thus, in the present case, compulsion exists because the trial court (1) ordered Christopher to turn over any record

ings, (2) found him in contempt, and (3) sentenced him to jail until he complied with the order.  Turning over any recordings

would amount to compelled testimonial communication because that

act would implicitly concede the existence, source, and authen

ticity of the materials.  Hubbell, 530 U.S. at 36, 147 L. Ed. 2d at 36, 120 S. Ct. at 2043; see also Briggs v. Salcines, 392 So. 2d 263, 267 (Fla. App. 1980) (holding that if tape recordings of

telephone conversations were in a witness’ possession, “the

forced production of them would amount to compelled incriminating

testimonial communication in that the production would serve as

authentication that [the witness] had made the tape recordings”). 

That act would also be incriminating because the recorded conver

sations, if any, would have been knowingly and intentionally

obtained by an eavesdropping device in violation of Illinois

criminal law (see 720 ILCS 5/14-2(a)(1) (West 2000) (one commits

eavesdropping by knowingly and intentionally using an eavesdrop

ping device for the purpose of hearing or recording all or any

part of any conversation)).

		In support of our conclusion in this case, we quote from Justice Thomas’ concurring opinion in Hubbell (joined in by Justice Scalia), as follows:

		“[T]his Court has noted that, for generations

before the framing, 'one cardinal rule of the

court of chancery [wa]s never to decree a

discovery which might tend to convict the

party of a crime.'  Boyd v. United States, 116 U.S. 616, 631[, 29 L. Ed. 746, 751, 6 S.

Ct. 524, 533] (1886).  See also Counselman v. Hitchcock, 142 U.S. 547, 563-64[, 35 L. Ed. 1110, 1114, 12 S. Ct. 195, 198] (1892) ('It

is an ancient principle of the law of evi

dence, that a witness shall not be compelled,

in any proceeding, to make disclosures or to

give testimony which will tend to criminate

him or subject him to fines, penalties[,] or

forfeitures').”  Hubbell, 530 U.S. at 51-52, 147 L. Ed. 2d at 45, 120 S. Ct. at 2051

(Thomas, J., concurring, joined by Scalia,

J.).

	 	Christopher asserted a valid fifth amendment privilege against self-incrimination, and the trial court erred by (1)

ordering him to turn over the recordings, and (2) holding him in

indirect civil contempt for willfully refusing to comply with

that order.

  		III. CONCLUSION

		For the reasons stated, we reverse the trial court’s

order that Christopher turn over the tape recordings, vacate the

court's order finding Christopher in indirect civil contempt, and

remand for further proceedings not inconsistent with this order.

		Reversed in part and vacated in part; cause remanded

for further proceedings.

		KNECHT, J., concurs.

		COOK, J., dissents.

		JUSTICE COOK, dissenting:

		I respectfully dissent and would affirm the decision of

the trial court.  The majority opinion fails to address the

special rules which apply when the fifth amendment is sought to

be exercised in a civil case. 

		The interests of fundamental fairness and substantial

justice outweigh the protections afforded by a privilege where

plaintiff seeks to utilize those protections as a sword (rather

than a shield) to prevent disclosure of relevant, probative,

admissible, and not unduly prejudicial evidence.  D.C. v. S.A., 178 Ill. 2d 551, 570, 687 N.E.2d 1032, 1041 (1997) (therapist-

recipient relationship).  D.C. cited Galante v. Steel City National Bank of Chicago, 66 Ill. App. 3d 476, 481, 384 N.E.2d 57, 61 (1978), where the court noted that a number of jurisdic

tions have overwhelmingly rejected the contention that a plain

tiff in a civil action may invoke the fifth amendment privilege

against self-incrimination while still maintaining the lawsuit. 

See also In rwe e Marriage of Kocher, 282 Ill. App. 3d 655, 659, 668 N.E.2d 651, 654 (1996), (where we refused to allow a party to put

in his financial affidavits as evidence when he asserted the

fifth amendment in response to questions concerning them).  See

also In re Marriage of Hartian, 172 Ill. App. 3d 440, 453, 526 N.E.2d 1104, 1113 (1988):  ("We find that once Marie filed her

[petition for attorney fees] beneficial to herself, she 'became

an actor, a profiteer of the judicial machinery and process.'"

[citation] ***").

		It is the prevailing rule that the fifth amendment does

not forbid adverse inferences against parties in civil actions

when they refuse to testify in response to probative evidence

offered against them.  People v. $1,124,905 U.S. Currency& & One 1998 Chebvrolet Astro Van, 177 Ill. 2d 314, 332, 685 N.E.2d 1370, 1379 (1997), qauotinguciting Baxter v. Palmigiano, 425 U.S. 308, 318, 47 L. Ed. 2d 810, 821, 96 S. Ct. 1551, 1558 (1976); Jacksonville Savings Bank v. Kovack, 326 Ill. App. 3d 1131, 1137, 762 N.E.2d 1138, 1143 (2002) (stay of civil case not appropriate where

defendant not charged and merely asserted he was the subject of a

criminal investigation).    

		In the present case, the trial court had the right to

ask Christopher whether he had the tapes, and when Christopher

invoked the fifth amendment privilege, the trial court had the

right to draw the negative inference that Christopher in fact had

the tapes.  The court was then entitled to take steps to secure

the tapes.  

		The majority relies on Hubbell, 530 U.S. at 36, 147 L. Ed. 2d at 36, 120 S. Ct. at 2043, where an indictment against

Webster Hubbell was dismissed because the evidence the government

proposed to use against him was derived from the testimonial

aspect of Hubbell's immunized conduct in previously producing

subpoenaed documents.  The question before us, whether the tapes

must be turned over, is not the question addressed in Hubbell.  Whether Christopher's acts in turning over the tapes may be used

against him in some future proceeding (the issue in Hubbell) is not an issue in this case.

		A case more in point is Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549, 107 L. Ed. 2d 992, 110 S. Ct. 900 (1990), where a mother was ordered to produce her

missing child, and when she refused to do so was found in contempt

and imprisoned until she complied with the court order.  The

Supreme Court rejected the mother's contention that the contempt

order violated her privilege against self-incrimination.  "When a

person assumes control over items that are the legitimate object

of the government's noncriminal regulatory powers, the ability to

invoke the privilege is reduced."  Bouknight, 493 U.S. at 558, 107 L. Ed. 2d at 1002, 110 S. Ct. at 906; see also Sanders v. Shephard, 185 Ill. App. 3d 719, 733, 541 N.E.2d 1150, 1159 (1989) (father found in contempt and imprisoned until he produced

child).  The child in Bouknight was the particular object of the State's regulatory interests, (Bouknight, 493 U.S. at 559, 107 L. Ed. 2d at 1002-03, 110 S. Ct. at 907).  

		If there is a prosecution of Christopher for a viola tion of the eavesdropping statute, and if the prosecution seeks to use the turnover of the tapes or evidence derived therefrom,

Christopher may not be without a remedy.  "We are not called upon

to define the precise limitations that may exist upon the

[s]tate's ability to use the testimonial aspects of Bouknight's

act of production in subsequent criminal proceedings.  But we

note that imposition of such limitations is not foreclosed." 

Bouknight, 493 U.S. at 561, 107 L. Ed. 2d at 1004, 110 S. Ct. at 908.  The attractive and apparently practical course of subse

quent use restriction is not appropriate where a significant

element of the regulatory requirement is to aid law enforcement,

but that was not the case in Bouknight.  Bouknight, 493 U.S. at 562, 107 L. Ed. 2d at 1004, 110 S. Ct. at 908-09, quoting

Marchetti v. Unitedm  .S.tates, 390 U.S. 319, 58-59, 19 L. Ed. 2d 889, 903-04, 88 S. Ct. 697, 1708-09 (1968).

		Christopher's conduct, spying on his wife, is of

particular governmental concern.  His conduct, stalking, or keeping

his wife under surveillance, constitutes "harassment" and "domes

tic violence" under the Illinois Domestic Violence Act of 1986

(750 ILCS 60/103(1), (3), (7) (West 2000).  The legislature has

directed that we recognize domestic violence as a serious crime

against the individual and society which produces family dishar

mony in thousands of Illinois families, and promotes a pattern of

escalating violence which frequently culminates in intrafamily

homicide.  750 ILCS 60/102(1) (West 2000).  Christopher's spying

on his wife might enable him to determine when she would be alone

or in other situations where she would be susceptible to attack. 

The trial court did not have to tolerate Christopher's continued

possession and use of the tapes.  The trial court has the power

to direct respondent to promptly make personal property available

to petitioner if "sharing it would risk abuse of petitioner by

respondent."  750 ILCS 60/214(b)(10) (West 2000).