NO. 4-00-0798

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

		Plaintiff,

		v.

MICHAEL SLOVER, SR., MICHAEL SLOVER,

JR., and JEANETTE SLOVER,

		Defendants,

		and

MICHAEL SLOVER, SR., MICHAEL SLOVER,

JR., and JEANETTE SLOVER,

		Petitioners-Appellees and  		Cross-Appellants,

		v.

THE DECATUR HERALD & REVIEW and PEGGY

BELLOWS, Editor,

		Respondents-Appellants and  		Cross-Appellees.	)

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)	Appeal from

Circuit Court of

Macon County

No. 00CF140

Honorable

James A. Hendrian,

Judge Presiding.

_________________________________________________________________

		JUSTICE KNECHT delivered the opinion of the court:

		The State charged defendants, Michael Slover, Jr.,

Michael Slover, Sr., and Jeanette Slover, with the first degree

murder of Karyn Slover.  Michael Slover, Jr., served a subpoena

duces tecum upon respondent Peggy Bellows, as editor of respon dent Decatur Herald & Review (Herald).  After respondents refused

to produce unpublished photographs as ordered by the trial court,

the trial court cited Bellows for indirect civil contempt and

sentenced her to jail, which sentence was stayed pending appeal. 

Respondents appeal, claiming the photographs are protected by a

reporter’s privilege.  We reverse and remand with directions.

		I. BACKGROUND

		In January 2000, a grand jury indicted defendants for first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 1996)) based on the September 1996 homicide of Karyn Slover, and in dicted Michael Slover, Jr., and Michael Slover, Sr., for conceal

ing a homicidal death (720 ILCS 5/9-3.1(a) (West 1996)) and

Michael Slover, Jr., for perjury (720 ILCS 5/32-2(a) (West 1998))

for a June 1999 false statement under oath in Slover v. Slover,

No. 96-D-291 (Cir. Ct. Macon Co.).

		In June 2000, counsel for Michael Slover, Jr., caused a

subpoena duces tecum to be issued to persons employed at eight media organizations, including Sharon Reynolds, a librarian with

the Herald.  The subpoena issued to Reynolds commanded her to

produce specified items in her custody, including:

"all edited and unedited, published and un

published, broadcasted and not broadcasted,

photographs and moving picture or video de

pictions concerning the disappearance, dis

memberment, concealment and/or death of Karyn

Hearn Slover, including the investigation and

prosecutions relative thereto, for the period

of 9/27/96 to present."

		When Reynolds refused to produce unpublished photo graphs as ordered, Michael Slover, Jr., petitioned for a rule to

show cause as to why she should not be held in contempt.  Rey

nolds objected to the subpoena, asserting a qualified reporter's

privilege based on section 8-901 of the Code of Civil Procedure

(Code) (735 ILCS 5/8-901 (West 1998)) and the free press guaran

ties in the federal constitution (U.S. Const., amend. I) and the

Illinois Constitution (Ill. Const. 1970, art. I, §4).

		In August 2000, the trial court held a hearing on the

petition for a rule to show cause.  Counsel for Michael Slover,

Jr., represented the following to the trial court.  Beginning in

October 1996, police conducted a series of search warrants at the Miracle Motors automobile dealership in Mount Zion owned by

Michael Slover, Sr., and Jeanette Slover.  In executing a search

warrant on March 10, 1998, police allegedly found in "burn

barrels" some buttons from jeans worn by Karyn Slover at the time

of her death.  Police also allegedly recovered some bone frag

ments from the property at that time.  Prior to that search,

police brought a bone or box of meat near the property, where it

was cut up for comparison purposes.  None of the photographs

obtained by the defense through discovery or its independent

investigation showed these activities.  Counsel for Michael

Slover, Jr., also stated he wanted unpublished photographs

depicting the search warrants being executed through March 10,

1998, specifically those showing burn barrels.  Defense counsel

speculated about reasons why the alleged incriminating evidence

could not have gone undetected for 16 months in spite of multiple

police searches at the property.

		Following argument, the trial court took the matter

under advisement.  In August 2000, the trial court found the

unpublished photographs were not privileged and found Reynolds in

indirect civil contempt for refusing to deliver all unpublished

photographs concerning the murder investigation.  The trial court

allowed Reynolds to "purge herself of the contempt finding by

delivering all referenced photographs to the [c]ourt for an in camera review to determine the existence of any photographs as heretofore described by defense counsel."  In September 2000,

Michael Slover, Jr., filed a motion to reconsider.

		In September 2000, the trial court held a sentencing

hearing, at which the trial court allowed Bellows to be substi

tuted as the subject of its order.  Bellows waived service of

summons.  Bellows respectfully declined to produce unpublished

photographs and requested a sentence in the trial court's discre

tion to enable her to appeal the trial court's order.  The trial

court sentenced Bellows to the Macon County jail pending compli

ance and stayed the sentence pending appeal.  The trial court

allowed Michael Slover, Jr., to withdraw his motion to recon

sider, and the trial court allowed Michael Slover, Sr., and

Jeanette Slover to join in Michael Slover, Jr.'s motion to

produce unpublished photographs.  Respondents appealed.

	II. ANALYSIS

	A. Reporter’s Privilege

		In Illinois, reporters have a statutory, qualified privilege protecting their sources, whether confidential or

nonconfidential, from compelled disclosure.  People v. Palacio, 240 Ill. App. 3d 1078, 1091, 607 N.E.2d 1375, 1383 (1993).  This

statutory privilege, also known as the reporter's privilege, is

found in section 8-901 of the Code (735 ILCS 5/8-901 (West 1998)), which states, "[n]o court may compel any person to disclose the source of any information obtained by a reporter

except as provided in *** this [Code]."

		The parties disagree whether the Herald's news photog raphers are "reporters" as defined in section 8-902(a) of the

Code (735 ILCS 5/8-902(a) (West 1998)) and whether the photo graphs they took are a "source" of information as defined in

section 8-902(c) of the Code (735 ILCS 5/8-902(c) (West 1998)).  

		Statutory construction is a matter of law and is considered de novo.  McCann v. Presswood, 308 Ill. App. 3d 1068, 1071, 721 N.E.2d 811, 813 (1999).  The principal rule of statu tory construction is to ascertain and give effect to the legisla

ture's intent.  To determine the legislature's intent, courts

first look to the statute's language.  McCann, 308 Ill. App. 3d at 1071, 721 N.E.2d at 813.  A court must give the legislative language its plain and ordinary meaning.  People v. Bowden, 313 Ill. App. 3d 666, 668, 730 N.E.2d 138, 140 (2000).

	B. The Herald's Photographers as Reporters

		The first issue is whether the Herald’s photographers

are considered "reporters" under section 8-901.  Section 8-902(a)

defines "reporter" as "any person regularly engaged in the business of collecting, writing[,] or editing news for publica tion through a news medium."  (Emphasis added.)  735 ILCS 5/8-

902(a) (West 1998).  Photojournalism includes "photographic

presentation of news stories."  Merriam-Webster's Collegiate

Dictionary 875 (10th ed. 1998).  The Herald’s photographers

unquestionably were engaged in the business of collecting news

for publication in a news medium.  Therefore, the photographs

defendants subpoenaed were "obtained by a reporter" within the

plain meaning of section 8-901 and section 8-902(a).

	C. Photographs as a Source of Information

		The parties also disagree whether the trial court has compelled respondents to disclose the "source" of any informa

tion.  Defendants urge us to interpret section 8-901, in cases involving photographs, to protect only those photographs depict

ing the identity of news sources.  We disagree.

		Section 8-902(c) of the Code (735 ILCS 5/8-902(c) (West 1998)) defines "source" as "the person or means from or through which the news or information was obtained" (emphasis added).  A "means" is "something useful or helpful to a desired end." 

Merriam-Webster's Collegiate Dictionary 720 (10th ed. 1998). 

News media employ photographers for purposes beyond obtaining pictures to publish; photography is a useful means to collect

newsworthy information.  "Photojournalism" is not a word crafted

to artificially enhance the status of a photographer.  It is a

descriptive word meant to recognize the photographer's capacity

to tell a story and gather or report the news by means of an

image.  A photojournalist is a reporter.  When a reporter obtains

news or information by means of photography, the photograph is a

"source" of information within the plain meaning of section 8-901 as defined in section 8-902(c).

		By defining "source" to include a "means," the legisla

ture clearly intended the privilege to protect more than simply

the names and identities of witnesses, informants, and other persons providing news to a reporter.  We note the legislature

did not limit the scope of section 8-901 of the Code by inserting

either "the name of" or "the identity of" before "the source of any information."  

		Defendants also contend the subpoenaed photographs should not be privileged because they preserved images all of

which are part of the public domain.  We reject that argument

because section 8-901 protects even nonconfidential sources.  Palacio, 240 Ill. App. 3d at 1092, 607 N.E.2d at 1383.

		In this case, defendants desire certain information, namely, whether police dumped burn barrels during searches prior

to March 10, 1998.  When defendants subpoenaed the Herald’s

photographs and filed their motion for a rule to show cause, they

sought to compel respondents to disclose a source of that infor

mation.  When the trial court found the statutory reporter’s

privilege did not apply, it erred as a matter of law.  Accord ingly, we reverse the trial court’s order compelling respondents

to produce unpublished photographs, and we reverse the contempt

finding based upon Bellows' violation of that order.  We remand

for the trial court to allow defendants to file an application to

divest the privilege, pursuant to section 8-903(a) of the Code (735 ILCS 5/8-903(a) (West 1998)), if they so desire.

	D. Cross-Appeal

		Because we reverse the trial court’s order, we need not

address defendants’ cross-appeal.

  		III. CONCLUSION

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

order requiring respondents to produce unpublished photographs

for an in camera examination, reverse the contempt finding, and remand for the trial court to allow defendants to file an appli

cation to divest the privilege.

		Reversed and remanded with directions.

		MYERSCOUGH, J., concurs.

		COOK, J., dissents.

		JUSTICE COOK, dissenting:

		The majority's refusal to limit the reporter's privi

lege statute "to protect only those photographs depicting the

identity of news sources" (slip op. at 6) is a fundamental

departure from the language of the statute and the existing case

law.  I respectfully dissent and would affirm the decision of the

trial court.  

		The reporter's privilege statute provides that "[n]o

court may compel any person to disclose the source of any infor mation obtained by a reporter" except after application to the

court for an order divesting the privilege.  (Emphasis added.) 

735 ILCS 5/8-901 (West 1998).  The court shall not order divesti

ture unless all other sources of information have been exhausted

and disclosure of the information sought is essential to the

protection of the public interest.  735 ILCS 5/8-907(2) (West

1998).

		In Palacio, we rejected the argument that mere asser tion of the privilege made the procedural aspects of the re

porter's privilege statute applicable.  "That statute does not

*** constitute a wholesale ban on ever calling reporters to testify unless the trial court has complied with the divestment

procedures ***."  (Emphasis in original.)  Palacio, 240 Ill. App. 3d at 1092, 607 N.E.2d at 1383.  In Palacio, defendant was shot while committing home invasion and arson.  Palacio, 240 Ill. App. 3d at 1082, 607 N.E.2d at 1377.  During closing argument the

prosecutor stated that "the truth of the matter is, he got shot

one too few times."  (Emphasis omitted.)  Palacio, 240 Ill. App. 3d at 1087, 607 N.E.2d at 1380.  In a posttrial motion, defendant argued the comment was intentional, and defendant quoted a

newspaper article where the prosecutor had stated, "I'm not too

sure [it was] wrong."  Palacio, 240 Ill. App. 3d at 1098, 607 N.E.2d at 1387.  Defendant attempted to call the reporter to

confirm the conversation and perhaps testify whether the prosecu

tor made other statements.  Palacio, 240 Ill. App. 3d at 1099, 607 N.E.2d at 1388.  We rejected the reporter's claim that the

reporter's privilege statute applied.  The privilege "is not

without its limits; it applies only to circumstances in which

someone seeks to compel a reporter to disclose the source of any information obtained by the reporter."  (Emphasis in original.) 

Palacio, 240 Ill. App. 3d at 1093-94, 607 N.E.2d at 1384.  We noted the appropriate concern was "about harassment of the press

and efforts to disrupt a reporter's relationship with his news

sources."  Palacio, 240 Ill. App. 3d at 1093, 607 N.E.2d at 1384.

		Consider this hypothetical.  A reporter witnesses a

murder on a public street, writes down the license number of the

car in which the murderer fled, and writes an article about the

event.  The prosecution attempts to call the reporter as a

witness at a criminal trial, but the reporter refuses to testify,

arguing that the prosecution must show that "all other available

sources of information have been exhausted," and "disclosure of

the information sought is essential to the protection of the

public interest."  735 ILCS 5/8-907(2) (West 1998).  There is

clearly no reporter's privilege.  Palacio, 240 Ill. App. 3d at 1092, 607 N.E.2d at 1383 (statute protects against disclosure of

sources, not disclosure of information).  Short of government

harassment, the media must bear the same burden of producing evidence of criminal wrongdoing as any other citizen.  People v. Pawlaczyk, 189 Ill. 2d 177, 198-99, 724 N.E.2d 901, 914 (2000), quoting United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998).  If a reporter refused to testify about a crime that he

observed, we would force him to do so, even though he argued that

he was being forced to disclose himself as the "source" of the

information, and even though the notes he made of the event were

a "means" of obtaining the information.  

		The majority now abandons the holding in Palacio that the reporter's privilege is "limited," in favor of a broad

holding that whenever a litigant seeks a photograph from a

newspaper the litigant must first file an application for divest

ment of privilege.  In Palacio, we "[d]eclined to read out of section 8-901 *** the phrase 'to disclose the source of any information.'  (Emphasis added.)  Ill. Rev. Stat. 1989, ch. 110,

par. 8-901."  Palacio, 240 Ill. App. 3d at 1092, 607 N.E.2d at 1383.  The majority, however, does exactly that today:

			"By defining 'source' to include a 

		'means,' the legislature clearly intended 

		the privilege to protect more than simply the 

		names and identities of witnesses, informants, 

		and other persons providing news to a report-

		ter.  We note the legislature did not limit 

		the scope of section 8-901 of the Code by 

		inserting either 'the name of' or 'the iden-

		tity of' before 'the source of any informa-

		tion.'"  Slip op. at 6.

		The majority notes that "source" is defined by the

statute to mean "'the person or means from or through which the

news or information was obtained,'" and a photograph can be a

"means."  (Emphasis aomitted.)  Slip op. at 6, quoting 735 ILCS

5/8-902(c) (West 1998).  The majority would accordingly allow a

reporter to assert the privilege where the source of his informa

tion was a library book, even though there was no concern about

identifying that source or disruption of the reporter's relation

ship with that source.  

		In some cases, disclosing the means by which informa

tion was obtained will "disclose the source of [the] informa

tion."  735 ILCS 5/8-901 (West 1998).  If a source has made a

tape recording of a conversation between herself and a public

figure, and turns the tape recording over to a reporter, disclo

sure of the means will also identify the source.  If a source has

made a photograph of herself and another individual at a location

where the individual was not expected to be, disclosure of the

photograph will also disclose the source of the information.  In

the present case, however, the source of the information was the

crime scene.  Turning over the photographs might disclose infor

mation known to the reporter/photographer, but it does not

"disclose the source of any information" (735Palacio, ILCS 240 5/8-901 (West 1009998_) Ill. App. 3d at 1092, 607 N.E.2d at 1383), nor does it "disrupt a reporter's relationship with his

news sources" (Palacio, 240 Ill. App. 3d at 1093, 607 N.E.2d at 1374).  In the present case, the photographs taken by the re

porter were no different than notes made by a reporter of events

observed by him.  Absent disclosure of a source, the reporter's

privilege statute did not apply, and there was no need to file an application for divestment.  

		Reporters have some protections even when the re

porter's privilege does not apply.  The special witness doctrine

applies to reporters.  Palacio, 240 Ill. App. 3d at 1094-102, 607 N.E.2d at 1384-90.  The trial court considered the special

witness doctrine in this case, conducted a hearing, and issued a

thoughtful order, concluding that the photographs should be

turned over.  At the present time, of course, there is no indica

tion that the reporter/photographer will be called to testify. 

The rights of respondents have been fully protected in this case.