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No. 2--05--0348

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE HOFFMAN delivered the opinion of the court:

This interlocutory appeal arises out of a defamation action filed by the plaintiff, Robert R.Thomas, a justice of the Illinois Supreme Court, against the defendants, Bill Page; Shaw SuburbanMedia Group, Inc., a division of Shaw Newspapers, an Illinois corporation, d/b/a the Kane CountyChronicle; and Greg Rivara. In the underlying complaint, the plaintiff asserts claims for defamationand false light invasion of privacy based upon the publication of certain newspaper articles authoredby Page and published in the Kane County Chronicle relating to the supreme court's considerationand resolution of In re Gorecki, 208 Ill. 2d 350, 802 N.E.2d 1194 (2003), a disciplinary proceedinginvolving the Kane County State's Attorney, Mary Elizabeth Gorecki (hereinafter referred to as the"Gorecki Proceedings").

During the course of these proceedings in the circuit court, the defendants caused the issuanceof subpoenas which were served upon Supreme Court Justices Mary Ann G. McMorrow, Charles E.Freeman, Thomas R. Fitzgerald, Thomas L. Kilbride, Rita B. Garman, and Philip J. Rarick(hereinafter referred to as the "Non-Party Justices") and their law clerks, seeking the production ofall documents referring or relating to the Gorecki Proceedings, the three articles authored by Page,and this suit. Additionally, the defendants caused the issuance of subpoenas for the depositions ofthe Non-Party Justices and their law clerks. The Non-Party Justices filed a motion to quash thedefendants' document subpoenas, asserting the "Doctrine of Judicial Privilege." The circuit courtentered an order finding that a judicial deliberation privilege protected communications between andamong the Non-Party Justices but, nevertheless, ordered them to submit "a privilege log as perSupreme Court Rule 201(n)" (166 Ill. 2d R. 201(n)) to support their invocation of the privilege. OnDecember 6, 2004, the circuit court entered an order staying all oral discovery from the Non-PartyJustices and their law clerks. Thereafter, the circuit court entered an order finding that the judicialdeliberation privilege extends to communications between a justice and his or her law clerks, but notto communications between a justice and another justice's law clerk or to communications betweenlaw clerks. Additionally, the order provides that, by filing the instant action, the plaintiff has waivedthe judicial deliberation privilege, including the privilege as it relates to communications betweenhimself and his own law clerks and to communications between his law clerks and a fellow justice ora fellow justice's law clerk.

Subsequently, the circuit court entered a written order finding that its resolution of the mattersrelating to the existence of a judicial deliberation privilege and its application in this case involvequestions of law as to which there are substantial grounds for differences of opinion and thatimmediate appeal from its orders may materially advance the ultimate termination of this litigation. In its written order, the circuit court identified the following questions involved:

"a) Does Illinois or should Illinois recognize a judicial deliberation privilege?

b) If there is such a privilege, should it be applied in this case, which involves:

i) a sitting Supreme Court Justice's suit for defamation and false light;

ii) defendants' issuance of subpoenas to the non-party Justices, pursuant towhich defendants seek documents relating to the underlying court proceedingand the instant action; and

iii) the non-party Justices' motion to quash defendants' subpoenas based uponthe judicial deliberation privilege?

c) If there is such a privilege, does it extend to communications between or among:

i) Supreme Court Justices;

ii) a Supreme Court Justice and his or her own law clerks;

iii) a Supreme Court Justice and another Justice's law clerk; or

iv) the Supreme Court law clerks?

d) Are the movant Justices exempt from the provisions of Supreme Court Rule

201(n)? and

e) If they are not exempt from complying with Supreme Court Rule 201(n), can they

assert the claimed privilege without complying with said rule?"

The defendants and the Non-Party Justices filed a joint application for leave to appeal pursuant toSupreme Court Rule 308 (155 Ill. 2d R. 308), and we granted their application.

It is well-settled that a judge may not be asked to testify as to his or her mental impressionsor processes in reaching a judicial decision. See Fayerweather v. Ritch, 195 U.S. 276, 307, 49 L. Ed.193, 25 S. Ct. 58 (1904); Washington v. Strickland, 693 F.2d 1243, 1263 (5^th Cir. 1982), reversedon other grounds, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In this case, however,we are asked to determine whether Illinois recognizes a privilege protecting judicial deliberations. Resolution of the question necessarily involves an analysis of the scope of such a privilege. The issueis one of first impression in Illinois, and our research has revealed very few cases from otherjurisdictions analyzing the question. The majority of the foreign cases which mention the existenceof a judicial deliberation privilege do so either in dicta or as an accepted fact without any analysis. See United States v. Morgan, 313 U.S. 409, 422, 85 L. Ed. 1429, 61 S. Ct. 999 (1941); Goetz v.Crosson, 41 F.3d 800, 805 (2^nd Cir. 1994); Nixon v. Sirica, 487 F.2d 700, 717 (D.C. Cir. 1973)(Sirica). However, in the case of Matter of Certain Complaints Under Investigation by anInvestigating Committee of the Judicial Council of the Eleventh Circuit (Williams v. Mercer), 783F.2d 1488 (11^th Cir. 1986) (Williams), the United States Court of Appeals for the Eleventh Circuitaddressed the issue directly, and we find its reasoning to be particularly instructive to the questionat hand.

In Williams, members of the staff of then Judge Alcee J. Hastings commenced the action toenjoin the enforcement of subpoenas commanding their appearance before a committee of theEleventh Circuit investigating charges that Judge Hastings had, inter alia, conspired to obtain a bribein return for performing a judicial act. On appeal, the Williams Court analyzed those cases which hadfound the existence of an executive privilege and concluded that the reasoning in those casessupported the existence of a judicial deliberation privilege. The privilege recognized in Williamsencompasses "confidential communications among judges and their staffs in the performance of theirjudicial duties." Williams, 783 F.2d at 1520. The Williams Court held that the privilege wasnecessary because "[j]udges *** depend upon open and candid discourse with their colleagues andstaff to promote the effective discharge of their duties." Williams, 783 F.2d at 1519-20. TheWilliams Court further explained that "[c]onfidentiality helps protect judges' independent reasoningfrom improper outside influences *** [and] safeguards legitimate privacy interests of both judges andlitigants." Williams, 783 F.2d at 1520. We agree with the Court's rationale.

The analysis employed by the Williams Court satisfies the four-part test that Dean Wigmoreestablished for the creation of a privilege against the disclosure of certain communications; namely:

"'1. The communications must originate in a confidence that they will not bedisclosed.

2. This element of confidentiality must be essential to the full and satisfactorymaintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to besedulously fostered.

4. The injury that would inure to the relation by the disclosure of the communicationmust be greater than the benefit thereby gained for the correct disposal of litigation.'"(Emphasis in original.) 8 J. Wigmore, Evidence