author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LUIS J. PALACIO, Defendant-Appellant (James Dey, Intervener-Appellant).
    Fourth District
    No. 4 — 91—0407
    Opinion filed February 11, 1993.
    Rehearing denied March 12, 1993.

      Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant Luis J. Palacio.
    Traci E. Nally, of Professional Impressions Media Group, Inc., of Champaign, for appellant James Dey.
    Thomas J. Difanis, State’s Attorney, of Urbana (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

This case presents unrelated appeals arising out of the same litigation. The first appellant is defendant, Luis J. Palacio, whom the State charged in September 1990 with aggravated arson (Ill. Rev. Stat. 1989, ch. 38, par. 20 — 1.1(a)) and two counts of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11(a)(1)). In April 1991, a jury convicted defendant of all three charges. The trial court later sentenced him to 30 years in prison on each count and directed those sentences to run concurrently. Defendant appeals, arguing that (1) he was denied his sixth amendment right to effective assistance of counsel because his attorney failed to file a motion for discharge under the 120-day rule (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a)); (2) the prosecutor’s improper closing argument denied defendant his right to a fair trial, and (3) one of defendant’s home invasion convictions must be vacated because the two counts charging that offense were carved out of one unlawful entry. We agree only with defendant’s last argument.

The other appellant is James Dey, a reporter and columnist for the Champaign News Gazette, a daily newspaper. A few days after the jury convicted defendant, Dey wrote a column (attached to this opinion as an appendix) discussing the prosecutor’s closing argument. Defendant subsequently filed a post-trial motion in which he cited the prosecutor’s closing argument as a ground for a new trial and attached Dey’s column in support of his motion. Defendant later subpoenaed Dey to testify at the hearing on defendant’s post-trial motion. Prior to the hearing, Dey filed a motion to quash that subpoena, but the trial court denied that motion. Dey then testified at the hearing on the post-trial motion. Through counsel, Dey repeatedly objected to the questions he was asked, but the court overruled all of his objections.

Dey appeals, arguing that the trial court erred in denying his motion to quash the subpoena requiring him to testify. For the reasons that follow, we hold that the trial court erred in proceeding as it did when it addressed Dey’s motion to quash.

I. Palacio’s Appeal

A. Facts

Defendant does not challenge on appeal the sufficiency of the State’s evidence to convict him. Accordingly, we need only summarize the evidence presented at trial.

On August 2, 1990, Victoria Zettyer lived in a single-family dwelling in Urbana with Sandy Blevins (her boyfriend), and her three children, ages eight, six, and three. Zettyer divorced defendant in January 1990. In the weeks prior to August 1990, Zettyer and defendant had been having problems concerning child visitation, and he threatened to harm her.

About 11:30 p.m. on August 2, 1990, Zettyer and Blevins were in the living room of Zettyer’s residence after the children had gone to bed when she saw a flash and heard an explosion at the window. Zettyer ran to the phone to call the police, and Blevins ran to get his shotgun. While Zettyer was on the phone, she could see Blevins firing the shotgun, but she could not see at whom.

Blevins testified that he grabbed his pump shotgun, and as he went back toward the living room, he heard a “huge bang,” which was the back window in the bathroom “exploding.” Shortly thereafter, he heard a hard pounding on the front window and saw defendant standing at the window. Blevins pointed the shotgun at defendant and told him that Blevins would kill him if he came into the house. In response, defendant punched out the window, ripped the screen, and came through the window holding a gun in his right hand. Blevins told him again, “I will kill you,” and when Blevins saw defendant “start[ ] to bring his hand down,” Blevins shot him. Defendant fell to the floor and ran behind a chair. Blevins then saw a gun come out from behind the chair, so he fired into the chair. Defendant then came around the corner of the chair, and Blevins fired again. Defendant went down. Blevins yelled at him to stay down or he would shoot again. Defendant started to get up, so Blevins shot him again. Blevins explained that he feared for his life and fired every shell in the shotgun.

The first police officer arrived at Zettyer’s home shortly after 11:30 p.m. and noticed that the northeast corner of the house was on fire. He also heard “several screams and hollering from within the apartment.” As he looked through a window, the officer saw Blevins holding the shotgun and ordered him to lay it down. Blevins complied, the officer handcuffed him, and then grabbed a garden hose connected to the house to put out the fire. As he did so, he noticed a gasoline can located adjacent to the house on the sidewalk that appeared to contain gasoline.

A fire department lieutenant testified that debris recovered from the fire scene had an odor similar to gasoline. A crime scene technician recovered a .38 caliber revolver, a .38 caliber casing, and four live .38 caliber rounds from the living room of Zettyer’s residence. He also removed a .38 caliber bullet from the living room wall. He later gathered debris from the scene of the fire.

The neighbor who lived in the house just north of Zettyer testified that around 11:30 p.m. on August 2, she saw a bright light and heard a blast that appeared to be right outside her window. She looked out her window and saw flames on Zettyer’s home. She then stepped outside and saw a man standing outside Zettyer’s home holding a gun and pointing it into a window. She noticed he made no attempt to put out the fire. The neighbor then ran across the street to another neighbor’s porch. As she did so, she saw this man crawl through the window into Zettyer’s residence.

The police officers first encountered defendant inside Zettyer’s living room lying on the floor, semiconscious, bleeding from gunshot wounds. They found a silver .38 caliber revolver between his feet. The officers took defendant to a hospital, where an emergency room nurse treating him discovered three bullets in the pocket of his jacket. She also smelled gasoline on defendant.

Expert witnesses testified that (1) the debris gathered by the crime scene technician from Zettyer’s residence contained gasoline, (2) defendant’s fingerprints were on the gasoline can recovered from the scene of the fire, and (3) the .38 caliber bullet dug out of Zettyer’s living room wall was fired by the silver revolver found between defendant’s feet.

Defendant testified that he went to Zettyer’s home on the night in question in response to her invitation. He brought a gun with him because he was afraid of the man she was living with. As defendant approached her residence, the front door was completely open, and Zettyer and Blevins were standing in the living room. Defendant testified that they saw him and went back further inside the house. He thought they had gone to get his children. However, shortly thereafter Blevins came into the living room carrying a shotgun and shot defendant as he stood at the front door. Defendant ducked behind a chair and took out his pistol, but he could not hold it in his hand because of the gunshot wound he had just sustained.

Defendant denied (1) firing his gun in Zettyer’s residence; (2) trying to start a fire at Zettyer’s house; (3) going into Zettyer’s residence through the window; (4) ever touching the gasoline can found outside the residence with his fingerprints on it; (5) trying to shoot Blevins; (6) ever pointing his gun at the house; (7) calling the office of Zettyer’s lawyer on August 2; (8) arranging through that office to visit with his children the following Monday at 7 p.m.; and (9) ever speaking to Zettyer’s lawyer. Defendant also explained that as friends drove him to Champaign from Aurora, he bought gasoline and must have spilled some on himself.

In rebuttal, the State called Zettyer’s lawyer, who testified that she had discussed child visitation issues with defendant three or four times and had arranged for defendant to visit his children the following Monday around 7 p.m. The secretary for Zettyer’s lawyer testified that she received a telephone call on August 2 from defendant and explained to him that visitation was set for 7 p.m. on the following Monday.

Also in rebuttal, the State called the first officer on the scene at Zettyer’s residence in response to the shooting on August 2. He testified that the door into the living room — that defendant said stood wide open as he approached the house — was “sealed up” on August 2 and that none of the officers could get through it.

B. Defendant’s Claim of Ineffective Assistance of Counsel

Defendant first argues that he was denied his sixth amendment right to the effective assistance of counsel because his attorney did not file a motion for discharge when he was not brought to trial within 120 days after being incarcerated, as required by section 103— 5(a) of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a)). Defendant claims that he was in custody on the charges in this case for 239 days — from August 20, 1990, until trial began on April 15, 1991 — and that the only delay attributable to him was from October 31, 1990, to February 21, 1991, a period of 115 days. He thus calculates that for speedy-trial purposes, he was in custody for 123 days prior to trial. As a result, his trial attorney denied him effective assistance of counsel by failing to file a motion under section 103 — 5(a) of the Code to obtain defendant’s discharge.

The State first responds that because defendant was hospitalized as a result of his gunshot wounds, the record is not totally clear when he was “in custody” within the meaning of section 103 — 5(a) of the Code. The record shows that defendant was hospitalized on August 3, the State first filed its charges against him on August 16, he supposedly was placed under arrest in the hospital on August 20, and the formal arrest warrant was served on him August 31, when he was moved from the hospital to the Champaign County jail. Further, on August 22, the court convened in defendant’s hospital room, presented him with copies of the charges against him, appointed the public defender to represent him, and allotted his case for preliminary hearing on September 11.

The State next claims that a delay in the case attributable to defendant (under section 103 — 5(a) of the Code) began on October 15, 1990, when defendant filed a motion for the appointment of a psychiatrist, and not October 31, 1990, as defendant argues, when the motion was granted. Last, the State argues that this period of delay did not end on February 22, 1991, as defendant argues, but instead on March 6, 1991, when defendant was found fit to stand trial at the fitness hearing. Thus, according to the State’s calculations, because of delays attributable to defendant, he was “in custody” for purposes of section 103 — 5(a) of the Code a total of 97 days: from August 20, 1990, to October 15,1990; and from March 6,1991, to April 15,1991.

In People v. Strickland (1992), 154 Ill. 2d 489, 510, the Illinois Supreme Court addressed the defendant’s claim that he was denied the effective assistance of counsel and wrote the following:

“The relevant standard for judging the performance of counsel is found in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (See People v. Albanese (1984), 104 Ill. 2d 504, 526-27 (adopting standard).) To prevail on an ineffective-assistance claim, a defendant must establish that counsel’s performance was deficient. ‘This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.)”

Thus, consistent "with the above standards, this court must determine whether defendant has established that his trial counsel’s performance was deficient.

In People v. Jones (1991), 215 Ill. App. 3d 652, 575 N.E.2d 561, defendant challenged the trial court’s denial of his motion for discharge because he was not tried within 120 days as required by section 103 — 5(a) of the Code. Similar to the present case, Jones addressed how the trial court should calculate the dates defendant was in custody in view of a fitness examination defendant requested and received. (Jones, 215 Ill. App. 3d at 656-57, 575 N.E.2d at 564.) The Jones court rejected defendant’s argument and affirmed the trial court’s determination that the 76-day period at issue was a delay occasioned by defendant. (Jones, 215 Ill. App. 3d at 658, 575 N.E.2d at 564-65.) In so holding, the Jones court quoted approvingly from People v. Cabrera (1989), 188 Ill. App. 3d 369, 371, 544 N.E.2d 439, 440, as follows:

“ ‘On a motion for discharge, the defendant bears the burden of proving that he was not responsible for the delays prior to trial. (People v. Grant (1982), 104 Ill. App. 3d 183, 432 N.E.2d 1129.) A delay is considered to have been occasioned by the defendant if his acts have caused or contributed to the delay or where he has expressly agreed to a continuance on the record. (People v. DeCarlis (1980), 88 Ill. App. 3d 634, 410 N.E.2d 677.) When a defendant files a pretrial motion, he is responsible for the time naturally associated with processing the motion. (DeCarlis, 88 Ill. App. 3d at 637, 410 N.E.2d at 680.) The trial court’s decision as to the accountability for delay will be sustained on appeal absent a clear showing of abuse of discretion. People v. Sonntag (1984), 128 Ill. App. 3d 548, 470 N.E.2d 631.’ (188 Ill. App. 3d at 371, 544 N.E.2d at 440.)” (Emphasis added.) (Jones, 215 Ill. App. 3d at 657, 575 N.E.2d at 564.)

In People v. Bowman (1990), 138 Ill. 2d 131, 137, 561 N.E.2d 633, 636, the supreme court also discussed a claim that defendant was entitled to discharge under section 103 — 5(a) of the Code and wrote that “[t]he trial court’s determination as to who is responsible for the delay of trial is entitled to much deference, and should be sustained in the absence of a clear showing of the trial court’s abuse of discretion.”

In the present case, the trial court has been denied the opportunity to conduct a hearing on defendant’s speedy-trial claim and to make a decision as to the accountability for delay because defendant’s counsel did not file a motion for discharge under section 103 — 5(a) of the Code. Therefore, we have no trial court findings of fact or conclusions of law to which we can defer. The absence of such findings is particularly critical when, as here, the facts underlying defendant’s claim for discharge under section 103 — 5(a) of the Code are disputed. See People v. Clark (1986), 148 Ill. App. 3d 669, 676-77, 499 N.E.2d 701, 706 (although granting defendant’s request for fitness examination does not, of itself, raise bona fide doubt requiring fitness hearing, speedy-trial term is tolled by fitness examination for time during which examination conducted).

The appellate court is not the appropriate forum to decide contested questions of fact; accordingly, we hold that defendant’s ineffective assistance of counsel argument fails because we cannot determine if defendant was in fact entitled to be discharged. The record before us is not sufficient to permit us to conclude that trial counsel’s failure to seek defendant’s discharge under section 103 — 5(a) of the Code constituted “deficient performance.” (Strickland, 154 Ill. 2d at 510.) Because we affirm defendant’s convictions, he can (if he wishes) pursue his claim of ineffective assistance of counsel by filing a petition for post-conviction relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1991, ch. 38, pars. 122 — 1 through 122 — 8). At the hearing on such a petition, the trial court could hear evidence and make appropriate findings, correcting the deficiencies in the record now before us.

C. The Prosecutor’s Closing Argument

Defendant next argues that the prosecutor’s improper closing argument deprived him of his right to a fair trial. Defendant complains about the following remarks:

“[Defendant] finds out where she is, he hunts them down, he sets that fire to flush them out, and they run to the back, and where is the first shot made? It’s in the back of the house, in the bathroom. He missed, thank goodness. And, then he comes back around and he comes through the window and he’s got his gun in his hand, and he got shot. He’s guilty. And, the truth of the matter is, he got shot one too few times.
[Defense counsel]: Object[,] Judge.
THE COURT: Sustained. The jury will disregard the last statement made. Now again, ladies and gentlemen, it happened very quickly and right at the close of argument, but I want to be sure you understand the Court’s ruling. I have sustained the defense objection. You are not to consider in any way the State’s final argument as to their allegation that the Defendant was shot one too few times. That simply is improper. It has no place in this case, and you should not consider it in any way in resolving the issues.” (Emphasis added.)

Defendant claims that the portion of the prosecutor’s remarks emphasized above are “so inflammatory and prejudicial that admonishments could not overcome its prejudicial effect.” Calling the prosecutor’s argument a “foul blow,” defendant argues further as follows:

“[T]he prosecutor’s remark had no relevance to any of the issues in this case, but was said in order to inflame the passions of the jury against [defendant]. The statement was a thinly veiled argument that [defendant] deserved to be killed for what he had allegedly done in this case. Further, the prosecutor made no attempt at the time of the statement to argue that it was proper, and in fact, was later quoted in a newspaper article as saying: ‘I’m not too sure it’s wrong.’ ”

Defendant’s argument has no merit. At the hearing on defendant’s post-trial motion, in which the issue of the prosecutor’s argument was raised, the trial court commented that “it’s difficult to believe the statement, no matter how inappropriate, *** influenced or affected the verdict, or otherwise infringed in any way upon the [defendant's right to a fair trial.” We agree.

In People v. Morgan (1991), 142 Ill. 2d 410, 453, 568 N.E.2d 755, 770, the court wrote the following:

“[T]he trial court’s determination as to the propriety, and possible prejudicial effect, of the prosecutor’s closing argument will be followed, absent a clear abuse of discretion. [Citation.] In order for a remark to be deemed reversible error, the complained-of remark must have resulted in substantial prejudice to the accused, such that the verdict would have been different had it not been made.”

We find no abuse of the trial court’s discretion in its assessment of the prosecutor’s remark. The trial court’s prompt action cured any possible prejudicial effect resulting from that remark. Further, the overwhelming evidence of defendant’s guilt negates any effect the hyperbole of the prosecutor’s statement had on the outcome of this case.

D. Defendant’s Multiple Convictions for Home Invasion

Defendant was convicted of, and sentenced for, two separate charges of home invasion. One count of home invasion alleged that the victim was Zettyer, while the other count alleged that the victim was Blevins. Both charges were based on the same entry by defendant into Zettyer’s home.

Defendant argues that only one conviction for home invasion can stand in this case regardless of the number of people in Zettyer’s home. In support, defendant cites People v. Yarbrough (1987), 156 Ill. App. 3d 643, 646, 509 N.E.2d 747, 749. The State concedes defendant’s argument on this point, and we agree. Accordingly, we vacate defendant’s conviction for home invasion under count III, referring to Blevins, and remand with directions to the circuit court to amend the sentencing order accordingly.

II. Dey's Appeal

A. Mootness

Dey appeals the trial court’s denial of his motion to quash the subpoena requiring him to testify at the hearing on defendant’s post-trial motion. Before addressing Dey’s appeal on the merits, we must first address defendant’s motion to dismiss Dey’s appeal as moot, which we ordered taken -with the case.

Defendant argues that because Dey answered the questions put to him after the trial court denied his motion to quash, this court can grant Dey no relief even if the trial court’s order was incorrect.. Citing Condon v. American Telephone & Telegraph Co. (1990), 136 Ill. 2d 95, 99, 554 N.E.2d 206, 208, and Harris v. Education Officers Electoral Board of Community Consolidated School District 110 (1990), 203 Ill. App. 3d 917, 919-20, 561 N.E.2d 204, 205, defendant argues that Dey in effect is asking this court to decide a moot question. Defendant further argues that by addressing Dey’s appeal, we would be rendering an advisory opinion, without granting any effective relief.

In response, Dey argues that the narrow exception to the mootness doctrine regarding matters of public interest applies to the present case. In support, Dey cites In re A Minor (1989), 127 Ill. 2d 247, 257-59, 537 N.E.2d 292, 296-97, wherein the supreme court discussed this exception as follows:

“[A] case which normally would be considered moot may qualify for review if it involves a question of great public interest. [Citations.] The criteria for application of the public interest exception are: (1) the public nature of the question, (2) the desirability of an authoritative determination for the purpose of guiding public officers, and (3) the likelihood that the question will generally recur. [Citations.] This case falls within the public interest exception. The interests involved — the State’s interest in the minor’s physical safety, and appellant’s interest in the publication of newsworthy information — are both of surpassing public concern. ***
Similarly, this case, even if otherwise moot, involves an event of short duration which is ‘ “capable of repetition, yet evading review.” ’ [Citation.] To receive the benefit of this exception, the complaining party must demonstrate that: (1) the chailenged action is in its duration too short to be fully litigated prior to its cessation and (2) there is a reasonable expectation that the same complaining party would be subjected to the same action again. (People v. Bailey (1983), 116 Ill. App. 3d 259, 261-62[, 452 N.E.2d 28, 30-31], citing Gannett Co. v. DePasquale (1979), 443 U.S. 368, 377, 61 L. Ed. 2d 608, 620, 99 S. Ct. 2898, 2904.) *** In similar cases involving court-ordered restrictions on the reporting of judicial proceedings, the United States Supreme Court has regularly found the restrictions to be ‘capable of repetition, yet evading review.’ (See, e.g., Gannett Co., 443 U.S. at 377-78, 61 L. Ed. 2d at 620, 99 S. Ct. at 2904 (lifting of order closing pretrial hearing to the press does not deprive Court of jurisdiction since underlying criminal proceeding will not normally last long enough to permit full appellate review); Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 602-03, 73 L. Ed. 2d 248, 254-55, 102 S. Ct. 2613, 2617-18 (order excluding press and public during testimony of minor victim in a rape trial capable of repetition, yet evading review because criminal trials are typically of short duration).) Just as in these cases it was reasonably likely that the newspapers involved would again be subjected to the challenged restrictions in future criminal trials, so here it is reasonably likely that appellant [newspaper] will be subjected to similar orders in the future ***.” (Emphasis added.)

In re A Minor is similar to the present case because in both cases representatives of the news media claimed that they were improperly subjected to court orders. In In re A Minor, the trial court entered an order banning reporters from attending juvenile proceedings until their newspaper agreed to comply with court orders to not disclose the names of minors in newspaper reports. In the present case, a court order (namely, a subpoena that the trial court refused to quash) required Dey to testify about a column he wrote and the conversations he had concerning the subject matter of the column.

We conclude, based on the concerns expressed by the supreme court in In re A Minor, that the great public interest exception to the mootness doctrine applies to the present case. In so holding, we particularly note the supreme court’s statement that “[t]he interest[ ] involved — *** [the newspaper’s] interest in the publication of newsworthy information — [is] *** of surpassing public concern.” (In re A Minor, 127 Ill. 2d at 257, 537 N.E.2d at 296.) Further, we hold that (1) the public nature of the question before us — subpoenaing a newspaper columnist to testify against his wishes regarding a column he wrote about a case on trial — is beyond question; (2) authoritative guidance is needed for trial courts on how to proceed when news media representatives, like Dey, have been subpoenaed; and (3) this question will recur because of litigants’ increasing attempts to drag news media representatives into court and question them when those litigants are unhappy about the media’s portrayal of them or their case.

Last, we hold that the issue before us is one that involves an event of short duration, capable of repetition yet evading review. Although Dey could have ensured review of this issue by refusing to testify and suffering the consequences of a contempt judgment (see People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171-72, 429 N.E.2d 483, 485-86), given the important stakes involved, we decline to require a news media representative to subject himself or herself to the penalties of contempt when challenging an order like the one before us in the blind hope that an appellate court will conclude the underlying order was erroneous and vacate those penalties. Accordingly, we deny defendant’s motion to dismiss Dey’s appeal as moot and address it on the merits.

B. Applicability of the Reporter’s Privilege

In Illinois, reporters have a statutory, qualified privilege that protects the anonymity of their sources, whether confidential or nonconfidential. (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 901; In re Subpoena Duces Tecum to Arya (1992), 226 Ill. App. 3d 848, 852-53, 589 N.E.2d 832, 835.) That statutory privilege, also known as the reporter’s privilege, is found in section 8 — 901 of the Code of Civil Procedure (Civil Code), which reads as follows: “Source of information. No court may compel any person to disclose the source of any information obtained by a reporter except as provided in *** this Act.” Ill. Rev. Stat. 1989, ch. 110, par. 8 — 901.

In his motion to quash subpoena, Dey primarily argued that the reporter’s privilege prohibited defendant from calling Dey to the stand and questioning him about either the article he wrote or his conversations with the prosecutor. However, the trial court concluded that the reporter’s privilege did not apply because defendant was not going to ask Dey to reveal any sources; instead, defendant was going to ask Dey to confirm the conversation Dey had already written about in his column and, perhaps, to answer questions about Dey’s conversation with the prosecutor beyond what Dey wrote in his column.

Dey argues that the trial court erred because his “mere assertion of the privilege made the procedural aspects of the [reporter’s privilege statutes] applicable.” Dey points out that section 8 — 903(a) of the Civil Code provides that a person seeking to divest a reporter of the reporter’s privilege shall apply in writing to the circuit court for an order requiring the reporter to disclose the source of the information, and that sections 8 — 904 through 8 — 907 of the Civil Code govern the procedures applicable at such a hearing. (Ill. Rev. Stat. 1989, ch. 110, pars. 8 — 903 through 8 — 907.) Dey argues that the trial court must follow the mandatory procedural requirements of these statutes whenever a reporter claims the protections of the reporter’s privilege. To make this point even more clear, Dey argues that “[i]mplicit in this statute [(section 8 — 903 of the Civil Code)] is that the applicability of the [reporter’s privilege] is created not by the nature of the information requested from the reporter, but by the reporter’s claim of privilege.”

We disagree with Dey’s analysis and hold that the trial court correctly determined that the reporter’s privilege did not apply to Dey’s situation. The plain language of section 8 — 901 of the Civil Code makes clear that the legislature has determined to protect reporters from disclosing their sources. That statute does not, as Dey seems to argue, constitute a wholesale ban on ever calling reporters to testify unless the trial court has complied with the divestment procedures of the reporter’s privilege. Ill. Rev. Stat. 1989, ch. 110, pars. 8 — 904, 8— 907.

The interpretation Dey asks this court to make of section 8 — 901 of the Civil Code is as if it read, “No court can compel a reporter to disclose any information.” If we accepted Dey’s interpretation, then a reporter could claim the benefits of the reporter’s privilege if he were subpoenaed to testify in his own divorce case or in a civil case totally unconnected to his employment — such as an automobile accident — in which he was a party. We decline to read out of section 8 — 901 of the Civil Code the phrase “to disclose the source of any information.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 110, par. 8 — 901.

Our conclusion is consistent with decisions from other jurisdictions which, while not interpreting Illinois statutory provisions, nonetheless addressed similar issues. In In re Shain (4th Cir. 1992), 978 F.2d 850, 851, four members of the South Carolina press who obtained statements from a State legislator regarding allegations that he engaged in corrupt practices were held in contempt when they refused to testify about those statements after the prosecutor subpoenaed them to do so. The reporters had published their interviews and news stories, purporting to quote the legislator. The prosecutor claimed that he needed the testimony of the reporters because the statements the legislator made to them were inconsistent with a videotape the prosecutor had of the legislator’s activities. (Shain, 978 F.2d at 852.) The prosecutor said that he needed the reporters to testify for no more than five minutes each to confirm that the legislator had in fact made the statements they had reported. Shain, 978 F.2d at 852.

The Fourth Circuit Court of Appeals affirmed the district court’s finding of contempt and explained its holding as follows:

“[W]e hold that the incidental burden on the freedom of the press in the circumstances of this case does not require the invalidation of the subpoenas issued to the reporters, and absent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about knowledge relevant to a criminal prosecution. Our decision is directed by the holdings of Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), and United States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977) (en banc).
In Branzburg the Supreme Court refused to recognize a reporter’s privilege not to testify in criminal prosecutions about relevant evidence known to the reporter, regardless of whether the information was obtained during newsgathering. The court stated, ‘We are asked to create [a privilege] by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.’ Branzburg, 408 U.S. at 690, 92 S. Ct. at 2661. Reaffirming First Amendment protections of newsgathering, however, the Supreme Court cautioned that if information is sought from the press other than in good faith, a different issue is presented: ‘Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter’s relationship with his news sources would have no justification.’ [Citation.]” (Emphasis added.) (Shain, 978 F.2d at 852.)

The emphasized portions of the above quotation demonstrate the Supreme Court’s concern, as well as that of the Fourth Circuit, about harassment of the press and efforts to disrupt a reporter’s relationship with his news sources. Although we cite Shain at this point of our opinion because of its pertinence to our rejection of Dey’s interpretation of the reporter’s privilege, we note that these expressions of concern pertain to the next section of this opinion.

Since the Supreme Court decided Branzburg v. Hayes (1972), 408 U.S. 665, 690, 33 L. Ed. 2d 626, 644, 92 S. Ct. 2646, 2661, the Illinois legislature has enacted the reporter’s privilege “to grant newsmen a testimonial privilege that other citizens do not enjoy.” However, that 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. Ill. Rev. Stat. 1989, ch. 110, par. 8 — 901.

C. The Applicability of the Special Witness Doctrine to Reporters

Despite our holding that Dey possessed no privilege from testifying under the reporter’s privilege statute, that conclusion does not end our inquiry on how the trial court should have treated his motion to quash subpoena. We must still address whether persons engaged in gathering or disseminating news for the print or broadcast media (hereafter just called “reporters”) should be treated differently than other witnesses when subpoenaed to testify. For the reasons that follow, we hold that reporters are entitled to special protections when subpoenaed to testify and that the trial court here erred by not providing Dey with those special protections.

A common law doctrine has developed nationwide that requires trial courts to treat efforts by criminal defendants to subpoena prosecutors and judges differently than those courts would treat defense subpoenas of other witnesses. Although this doctrine has existed for many years, no one (to our knowledge) has ever labeled it. Thus, for ease of reference, we will call it the “special witness doctrine.”

The Illinois Supreme Court discussed the special witness doctrine in People v. Gendron (1968), 41 Ill. 2d 351, 357-58, 243 N.E.2d 208, 213, a case in which the defendants claimed that the trial court erred when it denied their request to call the State’s Attorney as their witness. The supreme court rejected their claim and explained its decision as follows:

“The trial court did not err, as the defendants argue, when it refused their request, made after the State rested its case, to call the State’s Attorney of Alexander County, the prosecutor, as a witness. While a prosecuting attorney is not incompetent to be a witness (People v. Gerold, 265 Ill. 448, 480), there is an understandable reluctance to permit an attorney to appear in the same cause as both an advocate and a witness. Considering a situation resembling the one here the United States Court of Appeals for the 8th Circuit in Gajewski v. United States, 321 F.2d 261, at 268, stated: ‘Generally, a trial court has wide discretion respecting examination of witnesses. [Citations.] More particularly, under appropriate circumstances, a court may refuse to even allow a witness to take the stand. [Citations.] Courts are especially reluctant, and rightfully so, to allow lawyers, including prosecuting attorneys, to be called as witnesses in trials in which they are advocates. [Citations.] Although, as the above authorities indicate, such judicial discretion is generally exercised to prevent testimony by an advocate in favor of the party whom he represents, a court may, without abusing its discretion, refuse to allow the defense to call as a witness the United States Attorney trying the case. Fisher v. United States (9th dr.), 231 F.2d 99, 104 (1956).’ *** The testimony of the prosecuting attorney was not necessary for the presentation of a defense and the trial court’s refusal to permit defendants to call him as a witness was not an abuse of discretion. (Cf. Gajewski v. United States (8th cir.) 321 F.2d 261; People v. Nelson, 89 Ill. App. 2d 84, 89, 90[, 233 N.E.2d 64, 67].)” (Emphasis in original.) (Gendron, 41 Ill. 2d at 357-59, 243 N.E.2d at 213.)

Although the supreme court did not discuss the nature of the proceeding in which the trial court determined that it would not permit the defendants to call the Alexander County State’s Attorney as their witness, the above quotation makes clear that the trial court must have conducted some sort of hearing on the matter, and the supreme court thought the trial court acted appropriately in doing so.

In People v. Rosenberger (1984), 125 Ill. App. 3d 749, 765, 466 N.E.2d 608, 619, this court wrote the following:

“Although a prosecuting attorney is generally competent to be a witness, courts are reluctant to allow an attorney to appear in the same case as both an advocate and a witness. (People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208, cert. denied (1969), 396 U.S. 889, 24 L. Ed. 2d 164, 90 S. Ct. 179.) Accordingly, ‘the trial court has wide discretion in refusing to permit attorneys to testify at a trial wherein they also serve as advocates.’ (People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, 841.) There is no abuse of discretion in the court’s refusal where the testimony of the prosecuting attorney is not necessary for the presentation of a defense.”

More recently, in People v. Janes (1985), 138 Ill. App. 3d 558, 567-68, 486 N.E.2d 317, 323, the court wrote the following about subpoenaing a prosecutor:

“[T]he traditional rule in Illinois is that a prosecuting attorney may testify in a criminal case in which he is engaged if, in the discretion of the trial court, such testimony is necessary. (People v. Langdon (1980), 91 Ill. App. 3d 1050, 1056[, 415 N.E.2d 578, 583]; see People v. Cannon (1975), 25 Ill App. 3d 737, 744[, 323 N.E.2d 846, 851-52].) A court of review will not overturn that determination absent an abuse of discretion.” (Emphasis added.)

In People v. Ernest (1990), 141 Ill. 2d 412, 422, 566 N.E.2d 231, 235, the supreme court recently wrote the following about the special witness doctrine in the context of the subpoenaing a judge:

“[Allowing a party to require a judge presiding in a case to testify or to submit to a discovery deposition in the proceeding, without the party’s first asking leave to do so, would compromise the authority and dignity of the court. *** [To hold otherwise] ‘would lead to the most obvious mischief.’ ” (Emphasis added.)

The above quotes (particularly the emphasized language from Janes) further support the special witness doctrine, which provides that when the defendant in a criminal case has subpoenaed the prosecutor or judge, the trial court ought to conduct a hearing to determine whether it will permit those subpoenas to stand. See also People v. Flaugher (1992), 232 Ill. App. 3d 864, 875, 598 N.E.2d 391, 399 (citing Rosenberger and holding that trial court did not abuse its discretion in denying defendant’s request to call State’s Attorney who was prosecuting the case).

We note that Illinois is hardly alone in its embrace of the special witness doctrine. See United States v. Roberson (11th Cir. 1990), 897 F.2d 1092, 1098 (trial court did not err in declining to permit defendant to call prosecutor as defense witness); United States v. Dack (7th Cir. 1984), 747 F.2d 1172, 1176 n.5 (trial court did not err in quashing defense subpoena seeking to compel prosecutor to testify as expert witness); People v. Frazer (1991), 172 A.D.2d 558, 558-59, 567 N.Y.S.2d 883, 884 (trial court properly exercised its discretion in denying defendant’s request to call prosecutor to testify as defense witness); People v. Simmons (1989), 155 A.D.2d 893, 893, 548 N.Y.S.2d 955, 956 (trial court properly exercised its discretion in denying defendant’s request to call prosecutor as defense witness because defendant did not show necessity for prosecutor’s testimony, particularly in view of prosecutor’s offer to stipulate to facts defendant sought to prove by prosecutor’s testimony).

Concerning the constitutional bases supporting this doctrine, we agree with the views of the Sixth Circuit Court of Appeals in United States v. Hughes (6th Cir. 1990), 895 F.2d 1135, 1145 n.15, where that court cited United States v. Valenzuela-Bernal (1982), 458 U.S. 858, 867-72, 73 L. Ed. 2d 1193, 1202-06, 102 S. Ct. 3440, 3446-49, as holding that a defendant must at least make a plausible showing that testimony sought was material and favorable to his defense in order to establish a violation of the sixth amendment’s compulsory process guarantees. (See also Buie v. Sullivan (2d Cir. 1990), 923 F.2d 10, 11 (right to present a defense, and its concomitant right to compulsory process, are not unqualified; they are subject to “ ‘countervailing public interests,’ ” quoting Taylor v. Illinois (1988), 484 U.S. 400, 414, 98 L. Ed. 2d 798, 814, 108 S. Ct. 646, 656).) In none of the cases that we have cited regarding the special witness doctrine did the defendant come close to showing the testimony he sought from the judge or the prosecutor was both material and favorable.

We have discussed the special witness doctrine, heretofore applicable solely to prosecutors and judges (and, in limited circumstances, criminal defense attorneys), because we now hold that reporters who have been subpoenaed by either side in a criminal case should similarly benefit from that doctrine to the same extent as judges and prosecutors. Indeed, based upon specific statutory protections the legislature has granted to reporters, they arguably have a better claim to the protections of the special witness doctrine than do prosecutors and judges. For instance, earlier in this opinion we discussed the protections the legislature accorded to reporters in the reporter’s privilege (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 901). Further, section 108 — 3(b) of the Code, governing when a judge may issue a search warrant, provides statutory protections that no other category of persons receives. (Ill. Rev. Stat. 1989, ch. 38, par. 108 — 3(b).) Section 108 — 3 of the Code reads as follows:

“Grounds for Search Warrant, (a) Except as provided in subsection (b), upon the written complaint of any person under oath or affirmation which states facts sufficient to show probable cause and which particularly describes the place or person, or both, to be searched and the things to be seized, any judge may issue a search warrant for the seizure of the following:
(1) Any instruments, articles or things which have been used in the commission of, or which may constitute evidence of, the offense in connection with which the warrant is issued.
(2) Any person who has been kidnap[p]ed in violation of the laws of this State, or who has been kidnap[p]ed in another jurisdiction and is now concealed within this State, or any human fetus or human corpse.
(b) When the things to be seized are the work product of, or used in the ordinary course of business, and in the possession, custody, or control of any person known to be engaged in the gathering or dissemination of news for the print or broadcast media, no judge may issue a search warrant unless the requirements set forth in subsection (a) are satisfied and there is probable cause to believe that:
(1) such person has committed or is committing a criminal offense; or
(2) the things to be seized will be destroyed or removed from the State if the search warrant is not issued.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, par. 108 — 3.

The Illinois General Assembly formulates public policy for this State, and the General Assembly’s enactment of these special statutory protections for reporters (the reporter’s privilege and section 108 — 3(b) of the Code) makes clear that the General Assembly views reporters as playing important, special roles in our society — roles that deserve special protection. Thus, our conclusion in the present case that reporters also deserve the special protection of the special witness doctrine is fully consistent with the General Assembly’s enactments. Indeed, earlier in this opinion we used the term “reporter” as a shorthand method of referring to “persons engaged in the gathering or dissemination of news for the print or broadcast media,” a lengthy description of the persons we now hold covered by the special witness doctrine, and a description we have lifted almost verbatim from the description the General Assembly used in section 108 — 3(b) of the Code.

The very case before us reveals the need to provide special protections to reporters. In this case, the jury convicted defendant of home invasion and aggravated arson on April 18, 1991. On April 22, 1991, Dey wrote the column in question in which he quoted the prosecutor, William Gaston. Dey’s column contained in part the following:

“Gaston, however, found [defendant’s] approach irritating [in making a pitch for sympathy for defendant because he was shot] and, in his final address to jurors, told them exactly why.
‘The only thing that was bad about this case was that the defendant was shot one too few times,’ said Gaston.
The argument, of course, was improper. Gaston was quickly admonished by Associate Judge John DeLaMar, who instructed jurors to disregard the comment.
But Gaston, a veteran trial lawyer and prosecutor, remains unbowed. Legal niceties aside, he said, ‘I’m not too sure it’s wrong.’
‘This (defendant) is a mean, evil man,’ he said. ‘This guy makes my all-star team in evil.’
Palacio was convicted of aggravated arson and home invasion. He faces a May 31 sentencing.” Dey, Defendant Makes Prosecu tor’s “All-star Team in Evil,” Champaign News-Gazette, Apr. 22,1991.

On May 17, 1991, defendant filed his post-trial motion, arguing in part that the prosecutor’s closing argument was improper and constituted prosecutorial misconduct. Defendant asserted that the trial court should grant defendant a new trial despite the fact that the court sustained his objections to the prosecutor’s improper argument at the time it was made. In his motion, defendant mentioned that Dey had interviewed the prosecutor about the statement and quoted him as saying that his statement was not wrong. The motion further asserted that the prosecutor did not make the improper statement as an inadvertent slip during the heat of argument, but instead knowingly planned and timed it to prevent counterargument. Defendant attached a copy of Dey’s article to his motion as an exhibit.

On May 30, 1991, Dey received a defense subpoena requiring him to testify the following day at the hearing on defendant’s post-trial motion. That same day, Dey filed a motion to quash subpoena, asserting that his status as a reporter and columnist with a daily newspaper of general circulation gave him a privilege against testifying under the reporter’s privilege statute. Although Dey primarily relied upon the reporter’s privilege, he asserted a “qualified privilege” as well.

On May 30, 1991, the trial court conducted a hearing on Dey’s motion to quash subpoena. At that hearing, defense counsel explained his subpoenaing Dey as follows:

“The arguments of counsel [regarding the reporter’s privilege statute] don’t apply to my subpoena, Judge. I already know who the source is, and in fact, Mr. Dey printed who the source was, quoted him, and I am hoping accurately. So, my subpoena has to do not with the source of the information, which is not confidential and has been printed for anyone who has twenty-five cents to read, but rather, with the actual information, that is, the statements that were made. ***
I know this is a little abstract because your Honor doesn’t know exactly what we’re going to ask, but it’s, I think it’s fair to say we’re going to interview or question Mr. Dey about the article, a copy of which was attached to my motion and is attached to this motion. I also intend not only to establish the facts of the statements made by the prosecutor, but any others statements that may have been made that weren’t reported. ***
In answer to the policy argument, I stand behind no one in my defense of the First Amendment. However, we also have Fifth and Six[th] Amendments that guarantee a person a right to a fair trial. And, in terms of policy, I think it’s a bad policy for newspapers to print legal arguments or legal discussions about on-going cases, on very serious points that are raised, and in this particular case weren’t even raised yet, but everyone knew it would be, before the Court, let alone the public, has had a chance to examine those points and to rule on those points. *** It’s bad policy for the press to write about these things while they’re going on, when it’s not a report of merely what’s happened. I am not talking about today this person testified and said this. What I am talking about is, here’s a legal argument, here’s my position on the legal argument, here’s my position in the press, before literally, before I have even had a chance to put it in writing and put it before the Court.
So, in terms of policy, Judge, I think the better policy is to guarantee [defendant] the [fair] trial, not to have his post-trial motions heard in the press.” (Emphasis added.)

In response, the trial court stated the following:

“There may well be relevancy issues [created by Dey’s subpoena]. As I understand the thrust of the post-trial motion of the Defendant, it is that the defense is relying upon the article which was allegedly printed, to establish that the comment to which they objected in closing argumentQ was not inadvertent nor made in the heat of the moment. If that’s the direction which this line of inquiry is designed to take, I am not sure it would be relevant what other statements may have been made in a conversation with someone which were not reported.”

The court then denied the motion to quash, holding that the reporter’s privilege statute did not apply. The court did not further address any relevancy concerns.

After the trial court denied Dey’s motion to quash, Dey’s counsel pointed out that Dey did not know what questions defense counsel was going to ask him. His counsel then asked the court whether Dey could invoke any privilege when he testified the next day. The court responded that counsel could accompany Dey at the hearing if he wished and could respond to questions as counsel deemed fit. As the hearing ended, the court asked defense counsel if he had anything further he wished to say, and he stated the following:

“If Mr. Dey would deign to have a chat with me before we go into this, maybe I will know what he knows and doesn’t know, and I can narrow my examination accordingly.”

The following day, the trial court conducted a hearing on defendant’s post-trial motion. Defendant called Dey as his first witness. Dey again objected to being required to testify but the court overruled his objections. Defense counsel asked Dey about his conversation with the prosecutor as discussed in Dey’s column, and Dey confirmed the prosecutor’s quotes that Dey had "written in his column. Defense counsel essentially asked Dey nothing else.

The same prosecutor who made the argument in question (and whom Dey quoted in his article) cross-examined Dey at the hearing on the post-trial motion. He asked Dey if it would be fair to characterize the phone call in question as Dey light-heartedly jabbing the prosecutor for getting crossways with the court. Dey responded that it would. Defense counsel had no redirect examination.

When defendant later argued in support of his post-trial motion, he extensively discussed the prosecutor’s argument but made no reference to Dey’s testimony or article. In arguing the State’s response, the same prosecutor stated that the comment in question was not a planned or prepared statement, but instead, “[i]t came to me as I stood there before the jury and finished up. I think it was the last thing I said.”

The impact of this experience on Dey or any other reporter — its extreme unpleasantness and its expense (fees for counsel to seek to quash the subpoena and to impose other objections; lost time away from the job) — might well result in the reporter’s “getting the message” that if he “messes with” a particular attorney’s case or sensibilities, he might again find himself subject to an equally frivolous and groundless subpoena.

We are mindful of the concerns expressed in Shain and Branzburg about harassing reporters and efforts to disrupt their relationships with news sources. (Shain, 978 F.2d at 852.) And one often hears media lawyers “crying wolf” in their claims that various governmental actions might have a “chilling effect” upon their clients’ abilities to gather and write the news. However, in the present case, we clearly have the real thing. We view Dey’s subpoena here as having both a harassing and disrupting effect.

We emphasize that we need not and do not conclude that defense counsel in the case before us in fact had any hidden agenda in subpoenaing Dey to testify. Whatever defense counsel’s true intentions may have been, we merely observe that the outcome, as measured by the likely or potential effect upon Dey (and other local reporters who hear of this matter), is precisely the same: an implicit threat that if the reporter speaks or writes something about the attorney’s client or case, the attorney will find “some ground” to subpoena the reporter to force him to testify under oath on the witness stand. Such an outcome is intolerable in a free society that depends on a vigorous, untrammeled press, and we hold that courts have a duty not to permit their process — which, after all, a subpoena is — to be abused, as it was here.

We hold that the special witness doctrine extends to reporters, as we have defined that term, as well as to judges and prosecutors. Thus, the court should require either party in a criminal case to cross the following threshold before permitting that party to call a reporter to testify over the reporter’s objection. First, the party subpoenaing the reporter must specifically state the testimony the party expects to elicit from the reporter. Second, that party must specifically state why that testimony is not only relevant, but necessary to the party’s case. Finally, that party must specifically state the efforts that party has made to secure the same evidence through alternative means.

Regarding the last requirement, we note that in the present case, the defendant could have asked the prosecutor whether he would stipulate to the accuracy of Dey’s column. Assuming arguendo Dey’s column had any relevance, the prosecutor’s willingness to stipulate to its accuracy would have eliminated any need for Dey’s testimony at the hearing on defendant’s post-trial motion.

We have distilled the above requirements from the decisions cited earlier in this opinion, and we conclude that the balancing of these factors should be left to the sound discretion of the trial court. Further, a court of review ought not overturn the trial court’s determination on this issue absent an abuse of that discretion.

In sum, we hold that the trial court in the present case erred by not conducting the hearing on Dey’s motion to quash subpoena in the fashion we have now described. However, out of fairness to the trial court, we point out that (1) prior to this opinion, the law on this point was not clear, and (2) Dey’s argument in support of his motion to quash subpoena was based almost entirely on the reporter’s privilege.

III. Conclusion

For the reasons stated, we affirm defendant’s conviction and sentence for aggravated arson and for home invasion under count II (referring to Zettyer). We vacate defendant’s conviction for home invasion under count III (referring to Blevins) and remand with directions to the circuit court to amend the sentencing order accordingly.

Affirmed in part; vacated in part and remanded with directions.

McCULLOUGH and COOK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE McNULTY

license: Public Domain

text:
    FRANK CORGIAT, Petitioner-Appellee, v. POLICE BOARD OF THE CITY OF CHICAGO et al., Respondents-Appellants.
    First District (5th Division)
    No. 1—90—3587
    Opinion filed July 10,1992.

      Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Nina Puglia, Assistant Corporation Counsel, of counsel), for appellants.
    Joseph V. Roddy, of Chicago, for appellee.
   PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

The Chicago police board and the superintendent of police appeal the circuit court’s reversal of the police board’s decision to discharge Chicago police officer Frank Corgiat. We affirm the judgment of the circuit court.

On May 24, 1989, the superintendent of police filed charges with the Chicago police board, stemming from Officer Corgiat’s conduct on July 30 and 31, 1987, when the officer refused two direct orders to report to the medical services station for a urinalysis, and subsequently failed to report to work without securing authorized leave. Prior to this alleged misconduct, Corgiat had been under investigation by the internal affairs division of the police department for suspected distribution of cocaine. On July 30, Corgiat had requested emergency leave so that he could be admitted into the alcohol unit of a hospital. When Lieutenant Brogue told him (over the phone) that his leave was denied and that he was supposed to report for the urinalysis testing, the phone connection was broken abruptly, and Corgiat later testified that he never received these orders. Following this phone call and several unsuccessful attempts to reestablish the connection, Lieutenant Sandberg went to Corgiat’s home to speak with him. There he not only notified Corgiat of the pending drug charges, but also informed the officer that he was being relieved of his police powers. At this time, Sandberg again ordered Corgiat to report to the medical services section for a urinalysis. Corgiat refused, stating that he was going to a hospital instead. That Corgiat entered the alcoholism unit of Lutheran General Hospital later in the day on July 30 was corroborated by the testimony of two alcoholism counselors, one from the Chicago police board itself. Nevertheless, because Corgiat did not show up for work on July 30 or July 31, his absences were reported as unexcused.

The aforementioned events led to the charges of May 24, 1989, and ultimately to Corgiat’s discharge from the police force for violation of the following departmental rules:

“Rule 2: Any action or conduct which impedes the Department’s efforts to achieve its policy and goals or brings discredit upon the Department.
* * *
Rule 6: Disobedience of an order or directive, whether written or oral.
* * *
Rule 28: Being absent from duty without proper authorization.”

Although Corgiat requested that the charges before the police board be dismissed because he had never been given his administrative warnings before being ordered to report to the medical services unit for urinalysis testing, such request was denied. On November 19, 1990, this matter was reviewed by the trial court, which ruled that because administrative warnings were not given, Corgiat’s motion to dismiss should have been allowed. It therefore reversed the decision of the police board in its entirety.

On appeal, the police board maintains that in making its determination that Corgiat was entitled to be advised of his administrative rights at the time of the order to report to the medical services unit, the circuit court incorrectly relied on City of Springfield Department of Public Affairs v. Civil Service Comm’n (1983), 112 Ill. App. 3d 856, 446 N.E.2d 284, which construed section 10 — 1—18 of the Illinois Municipal Code Oil. Rev. Stat. 1987, ch. 24, par. 10 — 1—18). Section 10 — 1—18 of the Illinois Municipal Code states:

“Before any officer or employee in the classified service of any municipality may be interrogated or examined by or before any disciplinary board, or department agent or investigator, the results of which hearing, interrogation or examination may be the basis for filing charges seeking his removal or discharge, he must be advised in writing as to what specific improper or illegal act he is alleged to have committed; he must be advised in writing that his admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his removal or discharge; and he must be advised in writing that he has the right to counsel of his own choosing present to advise him at any hearing, interrogation or examination; and a complete record of any hearing, interrogation or examination shall be made and a complete transcript thereof made available to such officer or employee without charge and without delay.” Ill. Rev. Stat. 1987, ch. 24, par. 10 — 1—18.

The City of Springfield court found that based on the abovementioned statutory authority, an accused police officer cannot be disciplined for failure to submit to a breathalyzer test when the order given him to submit was not preceded by administrative warnings. This court reasoned that although the words “interrogation” and “examination” are sometimes used with almost the same meaning, “examination” is a broader term and would include an inspection of an individual’s body fluids to determine the alcohol content of the individual’s blood. (City of Springfield, 112 Ill. App. 3d 856, 446 N.E.2d 284.) Relying on this decision, the trial court in the case at bar found that administrative warnings must be provided to a police officer ordered to undergo urinalysis because he was suspected of dealing cocaine.

In arguing the inapplicability of City of Springfield to the instant action, the police board initially contends that the Illinois Municipal Code, relied upon by the City of Springfield court, does not apply to the City of Chicago. In support of this argument, the police board cites the broad home rule powers granted by the Illinois Constitution of 1970 (Ill. Const. 1970, art. VII, §6(a)) and the Municipal Code of the City of Chicago, which does state that its general purpose is to “substitute a public employment system superseding the Civil Service System now operating within the City of Chicago pursuant to the law of the state of Illinois.” (Chicago Municipal Code §25.1 — 1 (1976).) What the police board neglects to note is that even if the city’s Municipal Code controls, the language of this code tracks the language of the Hlinois Municipal Code and provides identical rights to the police officer at issue. Thus the outcome of the instant action would be the same under either of the pertinent statutory authorities.

The police board also argues that even if City of Springfield does apply, this appellate court decision’s interpretation of the word “examination” is too broad, and that the statute at issue should not be read to encompass physical examinations such as a urinalysis. As support for this contention, the police board urges this court to rely on Washington v. Civil Service Comm’n (1981), 98 Ill. App. 3d 49, 423 N.E.2d 1136, which found that administrative rights were not required prior to a polygraph examination, as such examination was far different from the type of adversarial examination which was intended by the statute. While Washington does support a narrower reading of statutory administrative rights, it is not applicable to the case at bar. In Washington, unlike the instant action, the totality of evidence considered supported the opinion expressed by the trial judge. In the instant action, there is no other evidence to be considered other than the urinalysis itself. Furthermore, Washington involved a lesser deprivation of rights than the case at bar, as the officer at risk was suspended rather than discharged. (Furthermore, the appellate court reduced the suspension itself from 29 to 5 days.) For these reasons, we decline to apply the Washington analysis to the case at bar.

The police board further maintains that under the Illinois Public Labor Relations Act (Illl. Rev. Stat. 1989, ch. 48, par. 1615), the collective bargaining agreement of the Fraternal Order of Police would regulate the conduct of disciplinary investigations. This act does provide that in case of conflict between the provisions of the Act and any law or ordinance or any collective bargaining agreement, the collective bargaining agreement shall control. However, the collective bargaining agreement relied upon by the police board, which is entitled “Sworn Member Bill of Rights,” does not conflict with any other statute or ordinance in its provisions for rights of police officers under investigation. In fact this agreement provides in pertinent part as follows: “If the allegation under investigation indicates a recommendation for separation is probable against the officer, the officer will be given the statutory administrative proceedings rights ***.” (Chicago Municipal Code §2 — 84—330 (1990).) We interpret this reference to “statutory administrative rights” as encompassing the panoply of rights provided by either section 2 — 84—30 of the Municipal Code of Chicago or section 10 — 1—18.1 of the Illinois Municipal Code (EL Rev. Stat. 1987, ch. 24, par. 10 — 1—18.1), both of which provide the right to counsel, which Corgiat never received.

The police board finally contends that the order of the trial court should be reversed as it never addressed the police board’s finding that Corgiat failed to report for duty without permission from his commanding officer. We disagree. Although the trial court made no independent findings regarding Corgiat’s failure to report for work, it reversed his dismissal “in its entirety.” Implicit in this order is the finding that the individual charges against the police officer were against the manifest weight of the evidence. Additionally, our review of the record supports this determination. Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

LORENZ and MURRAY, JJ., concur.

       Although section 10 — 1—18.1 (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 1—18.1) and not section 10 — 1—18 is involved in the instant action, the language of these two sections is identical. While the former section applies to police discipline in municipalities with populations over 500,000, the latter governs cities with populations under 500,000.

      Section 11 — 3 of the 1976 Chicago Municipal Code, which has been updated to section 2 — 84—030 of the 1990 Chicago Municipal Code, provides as follows:
      “Before any such officer or employee may be interrogated or examined by or before the police board, or any member or hearing officer designated by it, or departmental agent or investigator, the results of which hearing, interrogation or examination may be the basis for filing charges seeking his removal or discharge, he must be advised in writing as to what specific improper or illegal act he is alleged to have committed; he must be advised in writing that his admissions made in the course of the hearing, interrogation or examination may be used as the basis for charges seeking his removal or discharge; and he must be advised in writing that he has the right to counsel of his own choosing present to advise him at any hearing, interrogation or examination; and a complete record of any hearing, interrogation or examination shall be made and a complete transcript thereof made available to such officer or employee without charge and without delay”;
      and it is virtually identical to section 10 — 1—18.1 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 10 — 1—18.1) as quoted on page 4.


author: JUSTICE COOK JUSTICE LUND,

text:
      In re MARRIAGE OF RUTH H. WALDSCHMIDT, Petitioner-Appellee, and DENIS V. WALDSCHMIDT, Respondent-Appellant.
    Fourth District
    No. 4—92—0390
    Opinion filed February 25,1993.

      LUND, J., specially concurring.
    Bradley W. Swearingen, of Moehle, Swearingen & Associates, Ltd., of Washington, for appellant.
    Richard W. Leiken, of Leiken, Leiken & Leiken, of Eureka, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Denis Waldschmidt appeals an order denying his motion to terminate, or in the alternative reduce, his maintenance obligation. We reverse and remand.

Denis and Ruth Waldschmidt were married September 10, 1955. The trial court entered a bifurcated order dissolving the marriage on October 5, 1979. On March 20, 1980, the trial court entered a supplemental order dividing the parties’ property and ordering Denis to pay 17% of his gross income per month as maintenance to Ruth. The parties had four children, all of whom had reached majority by the time the supplemental order went into effect. The order of maintenance was indefinite and subject to modification both as to amount and term.

On February 8, 1989, Denis filed a petition to terminate or reduce maintenance based on a substantial change in circumstances. Denis alleged that Ruth’s income increased after she inherited a large parcel of farmland and that his income decreased following his retirement. On April 27 the trial court entered the following docket order: “Evid hrd — no basis to change because of any factor but her inherited income of $10,0000/yr. [sic] Memos to be sub, 14 days ***.” Following that order Denis submitted a memorandum of law arguing that Ruth’s inheritance was a substantial change in circumstances which warranted modification or termination. The trial court entered an order on May 31 reducing maintenance to 7/2% of Denis’ gross income, based on a finding that Ruth’s increased income constituted a sufficient change in circumstances to warrant reduced maintenance. The trial court stated in its order, “I conclude that the additional inherited income of Mrs. Waldschmidt may provide a basis for the substantial change element. I find this level of increase to constitute a substantial change in circumstances.” Neither party appealed.

On November 21, 1990, Denis filed another petition (amended February 24, 1992) to terminate maintenance based on Ruth’s increased income and his own reduced income. At a hearing on the petition, the parties testified regarding their gross income (excluding maintenance payments) as follows:

Ruth Denis

1988 farm earnings 10,059 1988 pension 0

wages 12,150 wages 44,145

miscellaneous 1,904 miscellaneous 1,720

GROSS INCOME $24,113 GROSS INCOME $45,865

1989 farm earnings 12,449 1989 pension 17,100

wages 14,051 wages 6,756

miscellaneous 2,596 miscellaneous 3,181

GROSS INCOME $29,096 GROSS INCOME $27,037

1990 farm earnings 12,881 1990 pension 18,300

wages 15,130 wages 404

miscellaneous 3,513 miscellaneous 2,714

GROSS INCOME $31,524 GROSS INCOME $21,418

1991 Ruth testified her 1991 pension 19,200

gross income in 1991 wages 120

would be no less than miscellaneous 2,391

it was in 1990. GROSS INCOME $21,711

The evidence also showed that Ruth’s net income, less living expenses, plus maintenance received, yielded a surplus of $1,066 per month; Denis’ net income, less living expenses, less maintenance paid, yielded a surplus of only $203 per month. At the hearing the trial court determined that maintenance should not be terminated based on Denis’ retirement, stating: “That isn’t the issue here today. That issue is long behind us. That’s been decided. It hasn’t been appealed, it’s final.” On April 13, 1992, the trial court issued an order denying Denis’ petition to modify or terminate maintenance finding as follows:

“The additional income of [Ruth] which results from her earlier inheritance continues to be a relevant factor in determining the level of maintenance ***.
Once again, it seems appropriate in this particular situation to consider a percentage rate for maintenance. This eliminates the need to consider ‘substantial’ changes in [Denis’] income since that issue is self[-] adjusted by the percentage order.
That leaves the issue of whether or not there has been a substantial change in [Ruth’s] income ***. *** Since this rate of increase is only slightly above the rate of inflation, I do not conclude that it qualifies as a substantial increase.
Therefore, the percentage allocation is adequate adjustment for the changes of income of [Denis], if any.” (Emphasis in original.)

On appeal, Denis alleges the trial court abused its discretion by failing to either terminate or reduce his maintenance obligation. Although section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)) refers to modification, not termination, the section has been read to allow termination of maintenance. (Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 488, 509 N.E.2d 729, 733-34.) The decision to modify or terminate maintenance is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 323, 480 N.E.2d 147, 150; In re Marriage of Lenkner (1993), 241 Ill. App. 3d 15, 18.) A maintenance award can be modified either when the needs of the spouse receiving support change or the ability of the other spouse to pay maintenance changes. (In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 326, 522 N.E.2d 738, 742.) The party seeking modification of a maintenance order bears the burden of showing a substantial change in circumstances. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 287, 469 N.E.2d 167, 176; Lenkner, 241 Ill. App. 3d at 18-19.) In order to determine whether and to what extent maintenance should be modified, a trial court should consider the same factors it considers in making an initial award. In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 792, 566 N.E.2d 429, 437.

A maintenance award is res judicata of the then-existing facts, and changed circumstances justifying modification of maintenance must occur after the award. (In re Marriage of Zeman (1990), 198 Ill. App. 3d 722, 733, 556 N.E.2d 767, 773; Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, 932, 424 N.E.2d 957, 960.) Courts in modification proceedings allow the parties to present only the evidence going back to the latest petition for modification in order to avoid relitigation of matters already settled, at least where modification was allowed on the last petition. (In re Marriage of Pedersen (1992), 237 Ill. App. 3d 952, 957.) Maintenance payments have already been modified once to reflect the fact that Ruth inherited an interest in a farm which has generated a substantial yearly income. When the trial court modified maintenance on May 8, 1989, it relied on facts presented showing Ruth earned income of approximately $10,000 per year from the farm she inherited. That figure is reflected in her 1988 tax return as farm income of $10,059. Although the hearing was held in May 1989, the last tax return considered was the 1988 tax return, which had just been filed. When considering Denis’ current petition in April 1992, therefore, the trial court should have considered the increases in Ruth’s income shown in her 1989 and 1990 tax returns, the most recent income information presented. Based on those figures, Ruth’s gross income (excluding maintenance received) increased 21% from $24,113 in 1988 to $29,096 in 1989, and increased another 8/2% in 1990 to $31,524. In this petition, the trial court only considered the 8V2% increase in Ruth’s income in 1990.

While the concept of res judicata does apply to modifiable orders, it must be carefully applied. Where a petition to modify is heard late in the year, the parties could present evidence of their income subsequent to the period covered by their latest tax return, but may choose not to, because that information is uncertain or is not believed to be worth updating. The fact that developments after the filing of the return could have been presented does not necessarily require that those developments not be considered on a subsequent petition. The import of events occurring shortly before the filing of a petition to modify may not be fully ascertainable at the time the petition is argued. Further, reduced income of a party may not be a substantial change in circumstances when it occurs, but may be a substantial change in circumstances after it has continued for several years. While a court should not allow parties a second opportunity to argue that facts previously presented now justify a modification of maintenance, neither should a court refuse to consider facts not previously presented to it unless the parties had a fair opportunity to present them.

Although Denis had recently retired when maintenance was modified on May 8, 1989, the trial court stated it did not base the modification on any expected decrease in Denis’ gross income; the decrease in maintenance was based solely on Ruth’s increased income. Nevertheless, at the hearing on the February 24, 1992, petition the trial court emphatically stated the issue of Denis’ decreased income due to his retirement had previously been decided, and denied Denis’ motion to modify or terminate. The trial court further held there was no need to consider substantial changes in Denis’ income “since that issue is self[-]adjusted by the percentage order.” The trial court’s determination that res judicata barred any consideration of Denis’ retirement is contrary to the manifest weight of the evidence. Even were we to find the fact of Denis’ retirement to be res judicata, there has been a decrease in Denis’ gross income from $27,037 in 1989 to $21,418 in 1990, caused by a decrease in his wages for part-time work, which must be considered by the trial court.

We reject the trial court’s ruling that there is no need to consider any substantial changes in Denis’ income because maintenance self-adjusts as a percentage of Denis’ gross income. Under that reasoning maintenance could never be terminated; even if Denis had an annual income of only $500 Ruth would be entitled to 71/2% of it. A trial court may not escape its duty to determine whether maintenance should be terminated or otherwise modified by ordering maintenance as a percentage of income. In determining whether to modify or terminate maintenance, the trial court must consider all relevant factors, including the ability of a spouse to pay maintenance and meet his needs. (Krupp, 207 Ill. App. 3d at 792-93, 566 N.E.2d at 437; see Ill. Rev. Stat. 1989, ch. 40, par. 504(b)(6).) By its self-adjusting order the trial court may have determined what it felt an appropriate level of maintenance should be, but it certainly did not consider whether maintenance should be terminated in its entirety. There comes a point when a payor’s income decreases to such a level that it would be an abuse of discretion not to terminate a maintenance award. Maintenance awards set as a percentage of a payor’s income present many problems; among other things, it is difficult to compute the dollar amount of maintenance owed each month, especially in an enforcement action for long delinquent payments. The practice should be discontinued, as it has been with child support orders. See Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(5); In re Marriage of Wassom, (1988), 165 Ill. App. 3d 1076, 1082, 519 N.E.2d 1147, 1151.

Maintenance should be terminated, even after a long-term marriage, when the spouse receiving the maintenance has become virtually self-sufficient. (Henzler, 134 Ill. App. 3d at 322, 480 N.E.2d at 149-50.) As of 1990 (the most recent year in which income figures were available for both parties) Ruth’s gross income (excluding maintenance received) had risen to $31,524, while Denis’ gross income had dropped to $21,418. The parties’ living expenses were approximately equal. The record also shows that Ruth owned substantially greater assets than Denis. Furthermore, although Denis had retired and Ruth still worked, Ruth’s gross income will be approximately the same as Denis’ gross income upon her retirement. A maintenance order requiring the financially disadvantaged spouse to pay maintenance to the financially advantaged spouse cannot be justified, at least not in the facts of this case, and the order here should have been terminated. There is no indication in the evidence that the situation of the parties is uncertain, which might justify an order abating, rather than terminating, maintenance.

We must also consider the claim that Denis’ retirement was in bad faith. Employment changes that are voluntary must be made in good faith and not prompted by a desire to avoid maintenance obligations. (See In re Marriage of Eisenstein (1988), 172 Ill. App. 3d 264, 270, 526 N.E.2d 496, 500; In re Marriage of Colombo (1990), 197 Ill. App. 3d 767, 769, 555 N.E.2d 56, 57; In re Marriage of Lavelle (1990), 206 Ill. App. 3d 607, 611, 565 N.E.2d 291, 293.) The record shows that Denis retired at age 55, after 30 years at Caterpillar. Caterpillar established a program which encouraged employees to retire after 30 years. Denis took advantage of this option after considering his long working hours and minor health concerns. No evidence has been presented indicating that Denis’ retirement was in bad faith or that it was for the purpose of evading his maintenance obligations.

For the foregoing reasons, we reverse the trial court’s denial of Denis’ petition and remand to the trial court with instructions to enter an order terminating maintenance in accordance with this order.

Reversed and remanded.

KNECHT, J., concurs.

JUSTICE LUND,

specially concurring:

I concur with Justice Cook’s results, but do not readily accept his suggestion that percentage awards of maintenance be discontinued. Percentage awards were approved by our court in In re Marriage of Stegbauer (1980), 84 Ill. App. 3d 83, 404 N.E.2d 1140. In my opinion, the following from the text of H. Joseph Gitlin on divorce suggests the benefits of percentage agreements and the problems with court-ordered percentage maintenance awards:

“Certainly, the goal of eliminating the need for modification proceedings for an increase or decrease in maintenance is a desirable one. There is no reason why the parties, by agreement, cannot have automatic adjustments in the maintenance level based on the obligor’s income, the recipient’s income, a combination of the two, the Consumer Price Index, or such other creative conditions as agreed to by the parties. A function of a well-drafted marital settlement agreement is to avoid future litigation between the parties. Automatic adjustments in the maintenance level, as in the child support level, serve that function. The court, however, when it imposes its judgment upon the parties, is bound by different rules than are the parties when they make an agreement. Modifications in maintenance are governed by section 510(a), which requires that there be proof of a change of circumstances since the entry of the last maintenance order before maintenance can be modified. To support a request for increased maintenance, the recipient must show increased expenses and the ability of the obligor to pay an increased amount of support. The mere fact that the obligor’s income has increased substantially since the divorce is not a basis for the recipient to receive an increase in maintenance, since the life[-]style amount to which the recipient is entitled is measured by the life[-]style that was established during the marriage, and not the life[-]style in which the obligor can afford to keep the recipient after the divorce. Thus, basing an increase in support merely on the increased income of the maintenance obligor, as will occur when maintenance is based on a percentage of the income of the obligor, violates the rule that the wife must show an increased need.” (1 H. Gitlin, Gitlin on Divorce §15.12(F), at 359-60 (1991).)

Perhaps in the proper case we should carefully reconsider Justice Trapp’s dissent in Stegbauer (84 Ill. App. 3d at 86, 404 N.E.2d at 1142 (Trapp, J., dissenting)).