APPELLATE COURT OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS Plaintiff-Appellee, v. MARK A. CAMPOBELLO, Defendant | ) ) ) ) ) ) ) ) ) ) ) ) | Appeal from the Circuit Court of Kane County. No. 02--CF--2718 Honorable Timothy Q. Sheldon, Judge, Presiding. |
PRESIDING JUSTICE O'MALLEY delivered the opinion of the court:
The Roman Catholic Diocese of Rockford (Diocese) appeals the judgment of the circuit courtholding the Diocese in contempt of court for refusing to comply with a discovery order requiring theDiocese to produce certain documents in its possession. We affirm the underlying discovery order,vacate the contempt order, and remand for further proceedings consistent with this opinion.
The State brought sexual assault charges against defendant, Mark A. Campobello, allegingthat he molested a young girl while acting in a position of trust as her priest in the Roman CatholicChurch (Church). The State served the Diocese with a subpoena for "any and all records regarding[defendant]," including "Personnel Files, Transfer Record, Intervention Team Records, MisconductOfficer Records, Placement at St. Luke's in Maryland, and Records kept pursuant to Canon 489." The Diocese moved to quash the subpoena on various grounds. As we describe below, the Stateclarified the scope of its subpoena at the hearing on the Diocese's motion to quash.
The Diocese attached to its motion the affidavit of Monsignor David Kagan, who explainedthe Church's procedures for investigating allegations of sexual misconduct against clergy members. In September of 1995, the Diocese adopted as canon law a document entitled, "Sexual MisconductWith Minors: Norms for Education, Prevention, Assistance to Victims and Procedures forDetermination of Fitness For Ministry/Employment" (Norms). The Norms established the positionof Diocesan misconduct officer, as well as the Diocesan intervention committee (or "interventionteam," as the State calls it in certain pleadings). The functions of the misconduct officer are toinvestigate allegations of sexual misconduct by Church priests and laity and to report findings to theintervention committee, which is comprised of 16 members, including both Church laity and clergy,who are appointed by the Diocesan bishop. According to Monsignor Kagan, the members of theintervention committee, while acting in their official capacity, "are equivalent to practitionersaccredited by the Roman Catholic Church" because they perform duties prescribed by the Diocese. After reviewing the information provided by the misconduct officer, the intervention committeerecommends to the bishop whether the clergy or lay member under investigation should remainemployed by the Church or should at least be removed from active ministry.
Monsignor Kagan explained that the United States Conference of Bishops adopted a "Charterfor the Protection of Children and Young People" (Charter) in 2002. The Charter mandates that eachdiocese have a review board that functions as a confidential consultative body to the diocesan bishopto advise and assist him with respect to allegations of sexual abuse by clergy and laity and to thesuitability for continued ministry of persons accused of such misconduct. Monsignor Kagan assertedthat the Diocese's intervention committee and misconduct officer fulfill the requirements of theCharter.
Monsignor Kagan averred that the records generated by the misconduct officer and theintervention committee contain the "religious thoughts and ideas of members of the Church"concerning "whether violations of canonical law occurred and, if so, how such violations should beaddressed and remedied" in accord with canon law. The Norms require that information generatedby the misconduct officer and the intervention committee be kept confidential. Canon 489 of theChurch's code of canon law requires the diocesan bishop to maintain an archive of documents relatingto internal Church discipline of clergy. The archive is to be "secret," with the diocesan bishop alonehaving access. Monsignor Kagan averred that the confidentiality of misconduct officer andintervention committee records encourages the free flow of information because "individuals withknowledge of misconduct would be less likely to come forward to report such acts if they thoughtthe information would not be kept private."
Monsignor Kagan averred that in October 2002, while he was serving as misconduct officer,he and the intervention committee generated documents regarding defendant. Monsignor Kaganfurther averred that the documents he generated in the course of the investigation were "the resultof communications made to [him] in [his] capacity as priest."
At the hearing on the Diocese's motion to quash, the State clarified that its subpoena covered:(1) defendant's personnel files, (2) transfer records reflecting defendant's various parish assignmentswithin the Church, (3) misconduct officer and intervention committee records of investigations withinthe Church of allegations of impropriety against defendant, and (4) reports indicating why the Diocesehad defendant admitted to St. Luke's Hospital, a mental health facility in Maryland. The Stateemphasized that it was not seeking "actual mental health records," such as "psychological tests" or"statements [defendant] made to a therapist." The State explained:
"MS. GLEASON [Assistant State's Attorney]: Your Honor, *** the State certainlybelieves we would have a right to records, if there were any records, which would indicatethat the Diocese sent [defendant] to St. Luke's because they were aware of some kind ofsexual misconduct with a child.
So if there is a report that, you know, so-and-so said that there was some kind of sexual misconduct with a child and then they took the action and said, 'therefore we aresending him to St. Luke's,' I think I would be entitled to that; but I'm not saying that we areentitled to any kind of records from St. Luke's regarding mental health."
Specifically, the State sought any "report" indicating why defendant was placed at St. Luke's formental health treatment, including "notes or records of communications between the hospital and theDiocese regarding the reasons for [defendant]'s admission." With respect to the request for recordsof the Diocese's internal investigation, the State emphasized that it was not seeking "defendant'sadmissions in a priest/penitent situation."
The Diocese argued that records indicating the reasons for defendant's admission to St. Luke'swere privileged from disclosure under the Mental Health and Developmental DisabilitiesConfidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2002)). The Diocese alsoclaimed that it was protected against compelled disclosure of the records of its internal investigationby the religion clauses of the first amendment to the United States Constitution (U.S. Const., amend.I) and by the clergy member privilege (735 ILCS 5/8--803 (West 2002)). The Diocese also urgedthe trial court to recognize a "critical self-analysis" privilege under Illinois law and hold that theprivilege protected the Diocese's records of its investigation.
The trial court issued a written order disposing of all issues. Therein, the trial court orderedthe Diocese to provide the State all personnel files and transfer records relating to defendant. Thetrial court added that the State had agreed that "mental health records" in the possession of theDiocese are protected by the Confidentiality Act. The trial court quashed the State's subpoena to theextent that it covered "mental health records protected under [the Confidentiality Act]." However,the trial court ordered the Diocese to produce for in camera inspection all records concerningdefendant's "placement at St. Luke's in Maryland."
The trial court rejected the Diocese's argument that the religion clauses of the first amendmentprohibited compelled disclosure of the records of the Diocese's internal investigation of defendant. Regarding the Diocese's claim of protection under the clergy member privilege, the trial court adoptedthe following remarks from the Pennsylvania Superior Court in the case of Hutchison v. Luddy, 414Pa. Super. 138, 146, 606 A.2d 905, 909 (1992):
"This privilege protects 'priest-penitent' communications; it does not protect informationregarding the manner in which a religious institution conducts its affairs or informationacquired by a church as a result of independent investigations not involving confidentialcommunications between priest and penitent."
The trial court also held that the clergy member privilege applies to statements made by a party to aclergy member on a "one-to-one" basis, not to statements made "before a panel or group." Finally,the trial court rejected the argument that the records of the internal investigation of defendant wereprotected by a "critical self-analysis" privilege. The trial court ordered the Diocese to produce allrecords of the internal investigation of defendant for in camera inspection to determine whether therecords are protected by the clergy member privilege.
The Diocese's attorney represented to the court that the Diocese did not intend to complywith the discovery order and respectfully requested a contempt order. The court entered such anorder, from which the Diocese appeals.
Generally, nonfinal discovery orders are not appealable. Norskog v. Pfiel, 197 Ill. 2d 60, 69(2001). However, it is well settled that the correctness of a discovery order may be tested throughcontempt proceedings. Norskog, 197 Ill. 2d at 69. A pretrial discovery order is subject to appellatereview when a party appeals a contempt sanction for refusing to comply with the order. Norskog,197 Ill. 2d at 69.
The standard of review applicable to a discovery order depends on the nature of the questionanswered in the trial court. Norskog, 197 Ill. 2d at 70. The Diocese challenged the subpoena ongrounds of privilege and constitutionality. Constitutional interpretations are reviewed de novo(Quantum Pipeline Co. v. Illinois Commerce Comm'n, 304 Ill. App. 3d 310, 314 (1999)), as arequestions about the applicability of discovery privileges (Berry v. West Suburban Hospital MedicalCenter, 338 Ill. App. 3d 49, 53 (2003)).
We address first the applicability of the Confidentiality Act to the State's discovery requests. Section 3(a) of the Confidentiality Act (740 ILCS 110/3(a) (West 2002)) provides that "[a]ll recordsand communications shall be confidential and shall not be disclosed except as provided in this Act." Section 10 the Confidentiality Act (740 ILCS 110/10 (West 2002)) provides in relevant part:
"(a) Except as provided herein, in any civil, criminal, administrative, or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf andin the interest of a recipient, has the privilege to refuse to disclose and to prevent thedisclosure of the recipient's record or communications."
The parties agree that none of the exceptions of section 10 apply. They disagree over whetherthe records the State seeks are "records" or "communications" protected by the Confidentiality Actand whether defendant, as "recipient" of mental health services, has exercised his privilege undersection 10 to refuse to disclose such "records" or "communications."
We do not reach these questions. The State agreed that it was not entitled to any "mentalhealth" records protected by the Confidentiality Act, and the trial court quashed the subpoena insofaras it covered such records. As for the records concerning the reasons for defendant's placement atSt. Luke's, the trial court has not yet ruled whether they are privileged under the Confidentiality Act. The trial court will make that determination after it views the records in camera.
We recognize that, when the trial court announced its written decision on the record, it said:
"The sum and substance of the ruling is that I denied the motion to quash, but I will review the discovery in camera, and I will separate anything that is irrelevant from the thingsthat are relevant and then tender the relevant material. That is the sum and substance."
The trial court's announced intention of reviewing the documents for relevancy does not imply thatit had already ruled that the documents concerning the reasons for defendant's placement at St. Luke'sare not privileged and that relevancy was the only standard to be applied during the in camerainspection. In its written order, the trial court granted the motion to quash with respect to all mentalhealth records protected under the Confidentiality Act. However, as is obvious, the trial court wouldnot leave the determination of privilege to the Diocese and allow it to withhold whatever it deemedwas protected. Rather, the trial court ordered the Diocese to submit all of the records to the courtso that it could determine the issues of privilege and relevancy. Because the trial court has not yetheld whether the records are discoverable, we cannot review the issue. See Blaszczak v. City ofPalos Hills,123 Ill. App. 3d 699, 703 (1984) (issues not ruled on by trial court are not properly beforeappellate court).
The Diocese argues that the trial court had no authority to order the records produced evenfor in camera inspection. We disagree. The Diocese relies on section 10(d) of the Confidentiality Act(740 ILCS 110/10(d) (West 2002)), which provides that no "records" or "communications," asdefined by the Confidentiality Act, may be subjected to a subpoena without a written court order. Here, the trial court's discovery order served as the required written order.
The trial court must examine the discoverability of the documents in question with therecognition that the Confidentiality Act is a " 'strong statement' " by the legislature about theimportance of keeping mental health records confidential. Norskog, 197 Ill. 2d at 71-72, quotingMandziara v. Canulli, 299 Ill. App. 3d 593, 599 (1998). The courts must "zealously guard againsterosion of the confidentiality privilege." Norskog, 197 Ill. 2d at 72. "Consequently, anyone seekingthe nonconsensual release of mental health information faces a formidable challenge and must showthat disclosure is authorized by the Act." Norskog, 197 Ill. 2d at 72.
Next, the Diocese advances several reasons why forced disclosure of the records of theintervention committee and misconduct officer would violate the religion clauses of the firstamendment to the United States Constitution. The first amendment provides in relevant part:"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercisethereof[.]" U.S. Const., amend. I. The first amendment is applicable to the states through the dueprocess clause of the fourteenth amendment. U.S. Const., amend. XIV; People v. Jones, 188 Ill. 2d352, 356 (1999).
The Diocese's primary argument is that compelled disclosure of the documents would be "anintrusion by the State into the internal workings of the Catholic Church." The Diocese invokes the"church autonomy" doctrine, which is derived from both the free exercise clause and theestablishment clause of the first amendment. Newport Church of the Nazarene v. Hensley, 335 Or.1, 12, 56 P.2d 386, 392 (2002). The doctrine "bars any secular court from involving itself in theecclesiastical controversies that may arise in a religious body or organization." Abrams v.Watchtower Bible & Tract Society, 306 Ill. App. 3d 1006, 1011 (1999). Accordingly, a courtoversteps its bounds:
"where a subject-matter of dispute, strictly and purely ecclesiastical in its character--amatter over which the civil courts exercise no jurisdiction--a matter which concernstheological controversy, church discipline, ecclesiastical government, or the conformity of themembers of the church to the standard of morals required of them--becomes the subject ofits action." Watson v. Jones, 80 U.S. (13 Wall.) 679, 733, 20 L. Ed. 666, 678 (1871).
The religious freedom guaranteed by the first amendment encompasses "the power [of religiousbodies] to decide for themselves, free from state interference, matters of church government as wellas those of faith and doctrine." Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116, 97 L. Ed. 120,136, 73 S. Ct. 143, 154 (1952).
The Diocese analogizes the case at hand to cases applying the church autonomy doctrine toenforce government separation from involvement in matters of church administration. See, e.g.,Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 49 L. Ed. 2d 151, 96 S. Ct. 2372(1976) (declining to address defrocked bishop's claim that his removal from office was unlawful underthe church's constitution and penal code); Presbyterian Church v. Mary Elizabeth Blue Hull MemorialPresbyterian Church, 393 U.S. 440, 21 L. Ed. 2d 658, 89 S. Ct. 601 (1969) (refusing to adjudicatelocal church's claim that the central church had violated its constitution and departed from accepteddoctrine and practice, thereby relinquishing its authority over property of local church); Kedroff, 344U.S. 94, 97 L. Ed. 120, 73 S. Ct. 143 (striking down statute purporting to transfer control of theRussian Orthodox Church from the central governing hierarchy located in the Soviet Union to achurch organization limited to the diocese of North America); Watson, 80 U.S. (13 Wall.) 679, 20L. Ed. 666 (refusing to adjudicate property dispute between factions within a local church where eachclaimed superior rights because it was doctrinally the "true" church); McClure v. Salvation Army, 460F.2d 553 (5th Cir. 1972) (refusing to apply federal nondiscrimination law to the employmentrelationship between a religious organization and the minister it employed).
We fail to see the relevance of these cases. The Diocese reiterates throughout its briefs thatthe State's subpoena is an intrusion into the Diocese's religious activity that runs afoul of the baragainst government "review [of] decisions that were reached upon ecclesiastical considerations" and"involve[ment] in the inner workings of churches." However, the Diocese cites not one aspect of itsadministration that the State threatens to commandeer. The State seeks records from the Diocese,defendant's employer, for the purpose of gathering evidence in a criminal prosecution againstdefendant under the laws of Illinois. The State has neither expressed nor implied an aim to determinefor itself whether defendant violated canon law, much less to override any determination of theDiocese on that point. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1397 (9th Cir. 1994)(holding that first amendment was not violated by city's investigation into whether the religious viewsof assistant police chief compromised his job duties, because the investigation "clearly had a validsecular purpose--to determine whether there was any basis to the allegations that Vernon's religiousviews were affecting his job performance in such a way as to violate either LAPD policies andregulations or the civil and constitutional rights of both police officers and citizens"); United Statesv. Freedom Church, 613 F.2d 316, 320 (1st Cir. 1979) (IRS subpoena for church financial recordshad no potential to violate the first amendment: "[T]he IRS does not seek to regulate or in any waybecome involved in the religious activities or control the financial matters of the church. It merelyseeks to make a determination, based on all available and pertinent data, of the church's tax exemptstatus"); In re Rabbinical Seminary, 450 F. Supp. 1078, 1081 (E.D.N.Y. 1978) (rejecting seminary'sfirst amendment challenge to subpoena for financial records: "The Seminary makes no claim that thesubpoena was issued as part of an attack on its students', faculty members', or administrators' Jewishbeliefs. Nor does it appear that production of the demanded records would violate any tenet ofJudaism. The grand jury has not required compliance with the subpoena in a manner at odds withJewish law or belief by, for instance, requiring Seminary officials to appear on a holiday").
The Diocese relies on Surinach v. Pesquera de Busquets, 604 F.2d 73 (1st Cir. 1979). InSurinach, Puerto Rico's Department of Consumer Affairs (Department), which was responsible forimplementing price controls, issued a subpoena for documents from schools operated by the CatholicChurch. The government specifically requested documents concerning the operating costs of theschools. The Church refused to comply with the subpoena and sued the Department, claiming thatthe Church's religious autonomy was threatened. The appellate court agreed, holding that thesubpoena constituted "a palpable threat of state interference with the internal policies and beliefs of*** church related schools." Surinach, 604 F.2d at 76-77. The court found that the government'sinvestigation could result in a subversion of the Church's express aim of providing superior educationboth in religious doctrine and secular subjects:
"We think it clear that the eventual use to which the school's cost information couldbe put could interfere seriously with these religious duties and objectives. The Department,sifting through the details of the schools' budgets and holding its hearings, may conclude thatcosts are rising too fast and must be contained to a specified level. While such adetermination might be consistent with the Department's mandate, it surely could clash withwhat is a religious belief and practice of those who administer these schools, namely that thehighest quality education possible must be provided to their students. We do not suggest thatquality of education and the expenditure of money invariably are linked, but it would beunrealistic to assume that the curricula and facilities of these schools would not be curtailedand hence religious objectives affected if they were forced to contain their costs." Surinach, 604 F.2d at 77.
The subpoena in this case does not threaten the kind of state involvement with religion thatthe court in Surinach foresaw. There is no potential for state subversion of religious objectives. TheState seeks Diocesan records to determine whether defendant violated secular law. The State evincesno desire to co-opt any judgment of the Diocese regarding defendant's compliance with canon law,or even to examine canon law. There simply is no substance to the Diocese's assertion that thesubpoena is an insidious attempt to "force upon the Diocese the government's view about how itshould discipline priests accused of misconduct."
We understand that the Diocese cannot comply with the subpoena without violating Canon489. However, the Diocese points to nothing in the record suggesting that Canon 489 is rooted ina religious value. The Diocese has not satisfied us that a violation of Canon 489 for the sake of acriminal investigation is anything like the imposition of price controls in Surinach that had thepotential of undermining the quality of doctrinal instruction in Catholic schools. Surinach itselfrecognized that its analysis would have been different had the subpoena been issued in a criminalinvestigation: "This is not a case in which records of a religious organization are subpoenaed pursuantto a criminal investigation, a situation in which the state's interest unquestionably is strong." Surinach, 604 F.2d at 80.
We reject the Diocese's attempt to conjure a right to secrecy, and with it immunity from theState's subpoena power, simply by pointing to the veil it has cast over itself. "Merely because Canon489 is controlling in the internal operation of the affairs of the Church does not mean that it permitsevidence pertaining to sexual molestation of children by priests to be secreted and shielded fromdiscovery which is otherwise proper." Hutchison, 414 Pa. Super. at 145, 606 A.2d at 908. Notably,the Diocese's use of Canon 489 as a shield against disclosure of records pertaining to criminalallegations against Church clergy is difficult to reconcile with the lofty civic spirit of the Charter, inwhich the Church promises to "comply with all applicable civil laws with respect to the reporting ofallegations of sexual abuse of minors to civil authorities and *** cooperate in their investigation inaccord with the law of the jurisdiction in question."
The Diocese also claims a first amendment interest in not exposing to the public the "religiousthoughts and ideas of members of the Church" that supposedly are contained in the interventioncommittee and misconduct officer records. Like the State, we cannot quite envision what theologycould add to the investigation of alleged acts whose heinousness is obvious to the naked moral sense. In any event, the Diocese cites no authority for the proposition that a religious organization may resista criminal subpoena simply for fear of exposing its religious beliefs.
The Diocese also argues that the subpoena is improper because the Diocese has not beencharged with a crime. The Diocese cites no authority recognizing a first amendment right of an entityto defy a prosecutor's subpoena simply because the entity has not been charged with a crime. Certainly, the law of Illinois recognizes no such right. See People v. Nohren, 283 Ill. App. 3d 753,754-55 (1996) (State may exercise its subpoena power in the course of criminal investigation, beforecharges are filed). Here, the State seeks to enforce a neutral, generally applicable criminal law towhich there can be no first amendment objection. See Minersville School District v. Gobitis, 310U.S. 586, 594-95, 84 L. Ed. 1375, 1379, 60 S. Ct. 1010, 1013 (1940) ("Conscientious scruples havenot, in the course of the long struggle for religious toleration, relieved the individual from obedienceto a general law not aimed at the promotion or restriction of religious beliefs"); Cantwell v.Connecticut, 310 U.S. 296, 306, 84 L. Ed. 1213, 1219, 60 S. Ct. 900, 904 (1940) ("Even the exerciseof religion may be at some slight inconvenience in order that the state may protect its citizens frominjury"); United States v. Moon, 718 F.2d 1210, 1227 (2d Cir. 1983) ("The First Amendment doesnot insulate a church or its members from judicial inquiry when a charge is made that their activitiesviolate a penal statute").
Next, the Diocese argues that the State "has utterly failed to show that it cannot obtain theinformation it seeks through sources other than the Diocese." The Diocese does not cite any statelaw requiring that the State make such a showing. Instead, the Diocese supports its argument byciting to Surinach, which applied not only the church autonomy doctrine but general free exerciseprinciples set forth in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963), andsubsequent cases. According to these cases, the government "may justify an in-road on religiousliberty [only] by showing that it is the least restrictive means of achieving some compelling stateinterest." Thomas v. Review Board of the Indiana Employment Security Division, 450 U.S. 707, 718,67 L .Ed. 2d 624, 101 S. Ct. 1425, 1432 (1981). The Diocese's point is that the State has not shownit is pursuing the least restrictive means of pursuing its investigation. We disagree that the State mustmake that showing. In Employment Division, Department of Human Resources v. Smith, 494 U.S.872, 878-79, 108 L. Ed. 2d 876, 885-86, 110 S. Ct. 1595, 1602 (1990), the Supreme Court limitedthe applicability of the Sherbert/Thomas test, holding that a law is valid under the free exercise clause,despite its effect on religion, if it is neutral and generally applicable. A law is not "neutral" if theobject of the law is to infringe upon or restrict practices because of their religious motivation. Smith,494 U.S. at 878-79, 108 L. Ed. 2d at 885-86, 110 S. Ct. at 1599-1600. Both the substantive andprocedural laws under which the State is prosecuting defendant and seeking discovery are unquestionably neutral and generally applicable. Therefore, we see no constitutional requirement thatthe State show the impossibility of obtaining the information it seeks from sources other than theDiocese.
Finally, in answer to the Diocese's claims that its practice of religion is jeopardized by thesubpoena, we echo the remarks of the Pennsylvania Superior Court in Hutchison:
"[W]here the only action required of a religious institution is the disclosure ofrelevant, non-privileged documents to an adversary in *** litigation, such action, withoutmore, poses no threat of government interference with the free exercise of religion. In theinstant case, there is not one iota of evidence that court ordered discovery will 'chill' the rightsof appellants in the conduct of their religious affairs or inhibit their parishioners from engagingfreely in the practice of their religious beliefs and activities. As the trial court appropriatelyobserved, '[t]he relevant inquiry is not whether the church gives a file a particular name, butwhether disclosure of the information requested from that file interferes with the exercise ofreligious freedom." Hutchison, 414 Pa. Super. at 152, 606 A.2d at 912.
The Diocese's final constitutional argument against the trial court's discovery order is that theState's use of its subpoena power is unlawful as an "effort to circumvent the fourth amendment'sprohibition against unreasonable searches and seizures." The Diocese cites no authority for thisargument. "Mere contentions, without argument or citations of authority, do not merit considerationon appeal." McCleary v. Board of Fire & Police Commissioners, 251 Ill. App. 3d 988, 995 (1993);See Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001(points not argued on appeal are waived).
Next, the Diocese argues that all records of the misconduct officer and intervention committeepertaining to defendant are categorically protected by the clergy member privilege. The Dioceseargues that the trial court interpreted the clergy member privilege too narrowly. Section 8--803 ofthe Code of Civil Procedure (Code) (735 ILCS 5/8--803 (West 2002)) provides:
"Clergy. A clergyman or practitioner of any religious denomination accredited by thereligious body to which he or she belongs, shall not be compelled to disclose in any court, orto any administrative board or agency, or to any public officer, a confession or admissionmade to him or her in his or her professional character or as a spiritual advisor in the courseof the discipline enjoined by the rules or practices of such religious body or of the religionwhich he or she professes, nor be compelled to divulge any information which has beenobtained by him or her in such professional character or as such spiritual advisor." (Emphasisadded).
Relying on the emphasized language, the Diocese suggests that section 8--803 of the Codenot only specifically protects "admissions" or "confessions" made to a clergy member in his capacityas "spiritual advisor in the course of the discipline enjoined by the rules or practices of [the] religiousbody or of the religion which [the clergy member] professes"; it also contains a catchall phraseprotecting not only such "admissions" or "confessions" but also "any information" obtained by aclergy member in his "professional character." Accordingly, the Diocese argues that "it matters notwhether those whom the Intervention Team or Misconduct Officer interviewed made confessions oradmissions; so long as the Diocese's clergy and practitioners obtained 'any information' from witnessesor others in either their 'professional capacities' or as 'spiritual advisers,' the information is statutorilyprotected against compelled disclosure."
The primary purpose of statutory construction is to determine and give effect to thelegislature's intent. In re B.L.S., 202 Ill. 2d 510, 514-15 (2002). The primary indicator of thelegislature's intent is the statutory language itself. Carver v. Sheriff of La Salle County, 203 Ill. 2d497, 507 (2003). We do not read section 8--803 as broadly as the Diocese. In our view, the clergymember privilege extends only to information that an individual conveys in the course of making anadmission or confession to a clergy member in his capacity as spiritual counselor. We reject theDiocese's suggestion that a clergy member's "professional character" is broader than his role as"spiritual advisor" under section 8--803. In People v. Bole, 223 Ill. App. 3d 247 (1991), thedefendant argued that a conversation with his minister, during which he confessed to a crime andsought "spiritual help," was privileged under section 8--803. This court rejected the claim of privilegebecause the minister testified that he had told the defendant prior to the conversation that thedefendant was ineligible for counseling because he had previously lied to the minister. This courtconcluded that the defendant's admissions "were not obtained by the minister in his professionalcharacter or as a spiritual advisor." Bole, 223 Ill. App. 3d at 263. (Emphasis added.)
Significantly, we did not conclude in Bole that the defendant's statements were not obtainedby the minister in his professional character as spiritual advisor, and then proceed to determinewhether the minister received the defendant's statements in some other professional character. Rather, we equated the minister's professional character with his capacity as "spiritual advisor."
A textual analysis of section 8--803 supports Bole's reasoning. The first clause of section 8--803 accords protection to any "admission" or "confession" made to a clergy member "in his or herprofessional character or as a spiritual advisor in the course of the discipline enjoined by the rules orpractices of [the] religious body or of the religion which [the clergy member] professes." Notwithstanding the disjunctive between "professional character" and "spiritual advisor," we believethe requirement that a "confession" or "admission" to the clergy member be made "in the course ofthe discipline" applies to all confessions and admissions received by the clergy member.
"Course of discipline" is the crucial phrase. No Illinois case or statute defines it. " 'Inconstruing an Illinois statute, decisions of other States construing similar laws are entitled to respectand consideration.' " Urban v. Loham, 227 Ill. App. 3d 772, 776 (1992), quoting In re Marriage ofHunt, 78 Ill. App. 3d 653, 660 (1979). Several states have enacted a statutory clergy memberprivilege protecting confessions or admissions made to a clergy member "in the course of thediscipline" imposed by the religion that the clergy member professes. See, e.g., Ariz. Rev. Stat. Ann.