Johnston v. Weil

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Johnston v. Weil

State: Illinois

Docket No: 109693 Rel

Case Date: 02/25/2011

Preview:Docket No. 109693.

IN THE SUPREME COURT OF THE STATE OF ILLINOIS

HEATHER JOHNSTON et al., Appellants, v. ANDREW WEIL et al., Appellees. Opinion filed February 25, 2011.

JUSTICE FREEMAN delivered the judgment of the court, with opinion. Justices Thomas, Garman, Karmeier, and Burke concurred in the judgment and opinion. Chief Justice Kilbride dissented, with opinion. Justice Theis took no part in the decision. OPINION The circuit court of Cook County certified the following question of law for interlocutory appeal pursuant to Supreme Court Rule 308 (Ill. S. Ct. R. 308 (eff. Feb. 26, 2010)): "Whether evaluations, communications, reports and information obtained pursuant to section *** 604(b) of the Illinois Marriage and Dissolution of Marriage [Act] [citation] are confidential under the Mental Health and Developmental Disabilities Confidentiality Act [citation] where the 604(b) professional personnel to advise the court is a psychiatrist or other mental health professional." The appellate court answered this question in the negative. 396 Ill.

App. 3d 781. We allowed leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we likewise answer the certified question in the negative, and remand the cause to the circuit court for further proceedings. I. BACKGROUND Heather Johnston was married to Sean McCann and, in 1998, they had a son. Their marriage was dissolved. Johnston subsequently married Andrew Weil and, in 2002, they had a daughter. In June 2005, their marriage was dissolved. In each dissolution proceeding, McCann and Weil were represented by several attorneys, and an attorney was appointed as the child's representative. McCann filed a postdissolution petition to modify the joint parenting agreement with Johnston. In January 2006, the circuit court entered an order appointing Dr. Phyllis Amabile, a psychiatrist, to conduct an independent evaluation and assist the court in determining custody of the McCann son, pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/604(b) (West 2006)). Pursuant to the order, Johnston, her parents, McCann and Weil, among others, participated in the evaluation. The order required them to fully cooperate with Dr. Amabile in conducting her evaluation, including their submission to any tests administered by Dr. Amabile, her agents, or her recommended third parties. Dr. Amabile advised each of the parties that the information obtained through the evaluation would be disclosed to the court, all parties, and their attorneys. Dr. Amabile completed her evaluation and sent a report to the circuit court. The record does not show that Johnston or her parents sought a protective order regarding either the information they provided to Dr. Amabile or her report. Contemporaneous with the McCann postdissolution proceedings, Weil filed a motion seeking temporary possession or custody of his daughter, and seeking leave to subpoena Dr. Amabile. In response, Johnston asserted that Dr. Amabile's report was privileged under the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2006)). In December 2006, the circuit court in the Weil postdissolution proceeding found that Dr. Amabile's section 604(b) report in the -2-

McCann proceeding was privileged under the Confidentiality Act and not discoverable in the Weil proceeding. In January 2007, plaintiffs, Johnston and her parents, filed the instant complaint, which named as defendants McCann, McCann's attorneys, the McCann child representative, Weil, Weil's attorneys, and the Weil child representative. The complaint alleged that Dr. Amabile was a therapist within the meaning of the Confidentiality Act; Dr. Amabile engaged in confidential communications with plaintiffs; and the information she obtained and included in her 604(b) report in the McCann proceeding was privileged under the Confidentiality Act. Further, the complaint alleged, "upon information and belief," essentially that the McCann defendants "individually and/or jointly" disclosed the confidential information to the Weil defendants "individually and/or jointly." The complaint sought $200,000 in damages for each plaintiff in addition to costs and attorney fees. McCann, the McCann attorneys and child representative, Weil, and the Weil attorneys filed motions to dismiss pursuant to section 2

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