## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Mahon ey v

. Gum m erson , 2012 IL App (2d) 120391

Appellate Court Caption CAROL YN MAHONEY
, a/k/a Caroly n Cox
, Plaintiff-App el l ee, v. R. MARC GUMMERSON and BI L L Y J

. COX, De fe n d ants (The Depa rtment of Corre ctions, Third-Party Respondent-Appe llant).

District & N o. Second District Docke t No. 2-12-0391

Filed November 20, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Pursuant to s ec t ion 8-802.3(b) of the Code of Civil Procedur e, the disclosure of a confidential informant’s identity is privileg ed in a civil action invol ving alleg ations of a murder- for- hire plot when no criminal
prosec ution is being conducte d, s i n ce s uch a civil action is not a “court
proce edinginvolving a f

elony or misdemeanor .”

Dec ision Under Review Appea l from the Circuit Court of McHe nry County
, No. 11-CH-1498; the Hon. Thomas A. Me y er, Judge , presiding

.

J udg ment First ce rtified question answe red; c ause r emande d.Counsel on

Appea l L isa Madig an, Attorney Gene ral, of Chic ago (Michae l A. Scodro, Solic i t o r Gene ral, and Christopher M.R. Turner
, Assistant Attorney Gene ral, of c ounsel), for

appellant Department of Corr ections.

No brief filed for appellee

.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
J ustices Z enoff

and Hudson c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 This matter comes befor e the court as a permissive interlocutory appea l broug ht pursuant
to I llinois Supreme Court Rule 308 (ef f. Fe b. 26, 2010). The questions cer tified arose from

a proce eding in which plaintiff, Caroly n Mahoney
, filed a civil action ag ainst defe ndants, her former husband, Billy J

. Cox
, and his attorney , R. Marc Gummerson, for alleg edly eng ag ing in a plot t o k i l l M ahoney

. Mahoney serve d a subpoena on the I llinois Depa rtment of Correc tions (De partment), seeking the d isclosure of the identity and statements of a confide ntial informant who assisted the Depa rtment in its investigat i o n o f t he alleg ed murder- for- hire plot. After denying the Depa rtment’s motion to quash the subpoena, the trial
court cer tified three questions to this court. We g rante d the Depa rtment’s appli cation to revie w two of the thre e ce rtified questions:
“1. Whether 735 I L CS 5/8-802.3 [(W est 2010)] prec ludes disclosure of a CI ’s [confidential informant’s] identity in a civil action involving alleg ations of a murder- forhire plot but where no criminal prose cution is being conducte d.
2. I f n o t , whether the Depa rtment must aff

irmatively prove that the interest in protec ting the CI ’s identity outweig hs the seeking party ’s need for the identity
, including that disclosure will impose a risk to the safe ty of the CI
, and that dis cl o s u re will discourag e other

citizens from providing inf ormation to law enf

orce ment.” ¶ 2 We answe r the first cer tified question in the aff i rm at i v e, wi t h a qualification. W e conclude that section 8-802.3(b) of the Code of Civil Procedur e (Cod e) (735 I L CS 5/8- 8 02.3(b) (West 2010)), which sets out the exception to the confide ntial informant’s privi le g e , does not compe l disclosure of a confide ntial informant’s identity in a civil action involving alleg ations of a murder- for- hire plot wher e no criminal prosec ution is being conducte d. The exception does not compel disclosure beca use, under section 8-802.3 (b )( 1 ), such a civil action is not a “cour

t proce eding involving a felony or misdemeanor.” 735 I L CS 5/8- 802.3(b)( 1) (West 2010). In answe ring that the statute preclude s disclosure, we assume that the informant’s identity alre ady has been established as privileg ed under section 8-802.3(a ) of the Code. I f prima facie evidenc e of the informant’s pr ivilege is a bsent, section 8-802.3 does not pr eclude disclosure. Our answe r to the first cer tified question obviates the need to

answe r the sec ond cer

tified question.

-2-¶ 3 FACTS

¶ 4 On J une 21, 2011, Mahoney filed a one-c ount complaint ag ainst Cox and Gummerson, alleg ing that they eng ag ed in a civil conspirac y to commit murder. On November 16, 2007, Cox was convicted of ag g ravated battery and attempting to murder Mahoney
, and Cox was

rema nded to the Dep ar t m en t to serve a 20-year prison sentenc e. Mahoney ’s complaint alleg ed th at , during his incar cer ation, Cox solicited at least two other inmates to murder Mahoney and that the Depa rtment aler

ted her of the plot. Mahoney alleg ed that Gummerson was inst rumental to Cox ’s s cheme becau s e h e controls C ox ’s m oney and property outside of prison. Mahoney soug ht at least $50,000 in compensatory damag es as well as injunctions
ag ainst Cox and Gummerson to r estrain eac h from convey ing or disposing of any of Cox ’s
proper ty without court approva l. ¶ 5 On August 19, 2011, Mahoney s er v ed a subpoena on the Department, seeking va rious documents related to any investigation into any alleg ation of misco n du ct b y C o x and, in particula r, any investigation into any alleg ation that Cox so u gh t to murder Mahoney

. The Depa rtment moved to quash the subpoena, arguing that the documents soug ht contained the identity of a confide ntial informant and that disclosure would prese nt a substantial risk to the informant’s safe ty and the willingness of oth e r in d iv id u a ls to c o o perate with law enfor ceme nt in the future. ¶ 6 On J anuar

y 20, 2012, afte r revie wing in came ra the reque sted documents, the trial court denied the motion to quash the subpoena and compelled disclosure o f the informant’s identity and any rec orded statements of t h e informant. After unsucce ssfully moving for

rec onsideration, the Depa rtment filed a motion to vacate t he order or, in the alternative, to

cer tify cer tain questions f

or appellate revie w. In the motion, the Depa rtment argued for the first time that the informant’s identity is privilege d under se ction 8-802.3 of the Code. See 735 I L CS 5/ 8-802.3 (West 2010). ¶ 7 On Marc h 21, 2012, the trial court denied the motion to vacate but cer tified the following two questions for appe llate re view:
1. Whether section 8-802.3 of the Code (735 I L CS 5/8-802.3 (West 2010)) prec ludes disclosure of a confide ntial informant’s identity in a civil action involving alleg ations of a murde r-f

or-hire plot but where no c riminal prosec ution is being c onducted.
2. I f not, whether the Depa rtment must aff

irmatively prove th at t h e interest in protec ting the confide ntial in fo rm ant’s identit y outweig hs the s eeking party ’s need for the identity
, including that disclosure will impose a risk to the safe ty of the confide ntial informant and that disclosure will discourag e other citizens from providing information to law enf

orce ment. ¶ 8 This court g rante d the Depa rtment’s application for leave to appea l pursuant to Rule 308.

¶ 9 ANALYSI S ¶ 10 At the outset, we note that none of the parties to the orig inal complaint, Mahoney
, Cox
, and Gummerson, has filed a brief on appea l. In such a situation, our supreme court’s decision

-3-in First Capitol Mortgage Corp. v. Talandis Con s t r u ct ion Corp.
, 63 I ll. 2d 128 (1976),

normally dictates that a court consider the merits of an appea l if the issues and the rec ord are susceptible to easy decision, but that a court otherwise decide the case in favor of the appellant if the appellant establishes a prima facie case for reve rsal. Grundy v. Lincoln Park Zoo , 2011 I LApp (1st) 102686, ¶ 3. ¶ 11 Ho we v er , i n an ap p ea l t hat considers cer tified questions, Talandis does not apply
, beca use ruling in favor of the appellant who establishes a prima facie case would entail not order ing a case -spec ific outcome but, rathe r, articulating a leg al proposition that may or may not be corr ect. Grundy
, 2011 I L App (1st) 102686, ¶ 3. Talandis is not dispositi ve beca use the failure to file an appellee ’s brief does not establish or corr oborate the answe r to a cer tified question. A ce rtified question is a question of law that is not susceptible to either a defa ult

or a prima facie showing of err or. There fore
, we addre ss the cer tifi ed q u estions on their merits, reg ardle ss of their simpli city

. Our revie w is de novo beca use we are prese nted solely with questions of law. Grundy , 2011 I LApp (1st) 102686, ¶ 3. ¶ 12 The first cer

tified question is whether section 8-802.3 of the Code prec ludes disclosure of a confide ntial informant’s identity in a civil action involving alleg ations of a murder- forhire plot but wher e no criminal prosec ution is being conducte d. The confide ntial informant’s privileg e, as c odified in section 8-802.3, pr ovides as follows: “(a ) Ex cept as provided in subsection (b), if an individual (i) submits information

conce rning a criminal act to a law enfor ceme nt a g ency or to a c ommunity org anization that acts as an intermediar y in repor ting to law enfor ceme nt and (ii) reque sts anony mity
, then the identity of t hat individual is privileg ed and confide ntial and is not subject to discovery or admissible in evidenc e in a pr ocee ding. (b) There is no privile ge under subsection (a) if a court, afte r a hearing in came ra, finds that the par

ty seekingdiscovery

or the propone nt of the evidenc e has shown that: (1) the identity of an individual who submits information conce rning a criminal act is soug ht or offe red in a court procee ding involving a felony or misdeme anor ; (2) the e vidence is not otherwise ava ilable; and (3) nondisclosure infring es upon a constitutional rig ht of an acc used, or there is

a need for the evidenc e that s u b s t an t i ally outweig hs the interest in protec ting confide ntiality

. (c) Th e co u rt m ay impose such sanctions as are nece ssary to enfor ce its order .” (Emphasis adde d.) 735 I L CS 5/ 8-802.3 (West 2010). ¶ 13 Well-established principles g uide us in resolving an issue of statutory construction. The primary rule of statutory construction is to asce rtain and g ive eff ect to the leg islature’s intent. In re Marriage of

Mitchell
, 181 I ll. 2d 169, 173 (1998). To deter mine the leg islature’s intent,
a court first should look to the s tatute’s langua g e and should acc ord t he l an gu age i t s plain and commonly understood meaning

. Departme nt of Public Aid ex rel. Davis v. Brewer
, 183 I l l

. 2d 540, 554 (1998). The court must not rea d into the plain languag e ex ce p t i o n s , limit ations, or conditions that the leg islature did not express. The statute should be rea d as

a whole and construed so that no word, phrase
, or section i s re n d ered meaning less or superf luous. K r aft, Inc. v. Edgar
, 138 I ll. 2d 178, 189 (1990). An issue of statutory

-4-construction is a question of law, to which we apply a de novo standard of revie w. Brewer
,

183 I ll. 2d at 554. ¶ 14 The confide ntial informant’s privileg e app l i es wh er e an i n d ividual submits to a law enfor ceme nt ag ency information conce rnin g a cr i minal act and the individual reque sts anony mity

. Her e, the various court filings, the arg uments of counsel, and the trial court ’s
comments afte r its in came ra revie w of the subpoenae d documents leave no doubt that those documents showed that an indiv i dual did submit to Depa rtment officia ls information

conce rning criminal activity

. Fur ther, in s up p o rt o f its motion to vaca te, the Depa

rtment submitt ed the a ffidavit of James Hollenbec k, a De partment investig ator who was assig ned
to investigate the alleg ed murder- for- hire plot. Hollenbec k aver red th at he spoke with the informant and that the informant stated that he wished his identity to remain c onfidential. ¶ 15 Assuming that t h e De p ar t m en t t i m el y established that the confide ntial informant’s identity is privileg ed, the answe r to the first cer tified question turns on whether the exception contained in section 8-802.3(b) applies. For the exception to apply
, the party s ee k ing discovery must show that, inter alia
, the identity of the confide ntial informant is soug ht “in

a court proceeding involving a felony or misdemeanor.” 735 I L CS 5/8-802.3(b)( 1) (West 2010). ¶ 16 The Depa

rtment arg

ues that the exception does not compel disclosure beca use this c ourt proce eding does not involve a felony or misdemeanor. W e agr ee. Conspiracy to commit murder is a criminal offe nse only when char g ed in a criminal proce eding

. The plain languag e chosen by the leg islature limit ed the exception to those case s involving felonies or misdemeanors as opposed to any acts that could be cate g orized as criminal. To interpre t this exception as apply

ing to all civ i l ca s es wher e the plaintiff alleg es a tortious act that could also be a criminal ac t woul d disreg ard the plain and ordinary meaning of the words in the
statute. ¶ 17 Her e, Mahoney ’s complaint alleg ed civil conspirac y to commit murder and commence d

a civil tor t a ction. This is not a criminal action involving a felony or misdemeanor, or even

a civil action involving a felony or misdemeanor, e.g. , a habeas corpus petition or a petition seeking relief from judgme nt (735 I L C S 5/2-1401 (West 2010)), challeng ing a criminal defe ndant’s convic tion of a fe lony or misdemeanor

. ¶ 18 T h e l eg islature’s decision to limit the exception to those court proce eding s in v o l v i n g felonies or misdemeanors is signific ant. “Ac tions for a crime and for a tort are separ ate and distinct from each other both with respe ct t o the i ntere sts eac h addre sses and the remedies

eac h aff ords.” Departme nt of

Law Enforceme nt v. W

illis
, 61 I ll. App. 3d 495, 498-99 (1978). A tort constitutes an invasion of a private interest for which the plaintiff seeks compensation for the damag e he has persona lly suffe red and a judgme nt to fairly allocate the loss. W illis
, 61 I ll. App. 3d at 499. On the other hand, a crime is an invasion of the interests of the people

as a whole, and a criminal prosec ution acts to protec t and vindi cate the publ ic i ntere st and

a judgme nt there on functions to punish and reha bilitate the defe nder. W

illis
, 61 I ll. App. 3d
at 499. By compelling disclosure only if the court proce eding involves a felony or misdemeanor, section 8-802.3(b) ref lects the distinction betwee n a tort and a crime and the
p ri n ci p l e t h at an informant’s privileg e is “ ‘ar g uably g reater’ ” in a civil case than in a

-5-criminal one. Cochrane’s of C h a mp aign, Inc. v. Illinois Liquor Control Comm’n
, 285 I ll. App. 3d 28, 32 (1996) (quoting Dole v. Local 1942
, 870 F.2d 368, 372 (7th Cir. 1 989)). Mahoney ’s complaint sounds in tort and thus involves the invasion of a p ri v at e interest, wher e the infor

mant’s privileg e would be greater. ¶ 19 In view of the above discussion, we answe r the first cer tified question in the aff

irmative, with a qualification. We hold that the proce eding on the civil complaint alleg ing conspirac y to commit murder does not involve a felony or misdemeanor, and there fore the exception to the confi d en t i al informant’s privileg e (see 735 I L CS 5/8-802.3(b) (West 2010)) does not compel disclosure of the informant’s ident i t y

. Our answe r that the statute preclude s disclosure is qualified in that it assumes that the informant’s privileg e would otherwise apply based on evidenc e that the informant submitt ed t o a l aw enfor ceme nt ag ency information

conce rning a criminal act and that the informa n t re quested anony mity

. See 735 I L CS 5/8- 802.3(a) (W es t 2010). Whether the Depa rtment timely established that the informant’s identity is privileg ed under section 8-802.3(a ) is a fac tual question for the trial court. Having

answe red the fi rs t cer

tified question in the aff irmative, we need not addre ss the second

cer tified question. We emphasize that our analy sis is limit ed to the cer tified ques t ion

answe red a

nd does not otherwise addre ss plaintiff’s ac tion.

¶ 20 First ce rtified question answe red; c ause r emande d.

-6-