Illinois Educational Labor Relations Bd. v. Homer Community Consol. School Dist. No. 208

• Decision Date: 25 October 1989
• Docket Number: No. 66250,66250
• Citation: 547 N.E.2d 182,132 Ill.2d 29,138 Ill.Dec. 213
• Parties: , 138 Ill.Dec. 213, 135 L.R.R.M. (BNA) 2154, 57 Ed. Law Rep. 513 The ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, Appellant, v. HOMER COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 208 et al.,Appellees.
• Court: Illinois Supreme Court

Page 182

547 N.E.2d 182

132 Ill.2d 29, 138 Ill.Dec. 213, 135

L.R.R.M. (BNA) 2154,

57 Ed. Law Rep. 513

The ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD, Appellant, v. HOMER COMMUNITY CONSOLIDATED SCHOOL DISTRICT NO. 208 et al.,Appellees.

No. 66250.

Supreme Court of Illinois.

Oct. 25, 1989.

Rehearing Denied Dec. 4, 1989.

Neil F. Hartigan, Atty. Gen., Springfield (Shawn W. Denney and Robert J. Ruiz, Solicitors Gen., Valerie J. Peiler and Rosalyn B. Kaplan, Asst. Attys. Gen., and Randi Hammer Abramsky and Julie K. Hughes, Chicago), for appellant.

Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., Decatur (Jack T. Taylor and Michael J. Foley, of counsel), for appellee Homer Community Consolidated School District No. 208.

Gregory J. Malovance, Winston & Strawn, Chicago, for appellee Homer Association of Teachers, IEA-NEA.

Brian A. Braun, Miller, Tracy, Braun & Wilson, Ltd., Monticello, for amicus curiae Illinois Association of School Boards.

Justice RYAN delivered the opinion of the court:

During a labor strike, intervenor Homer Education Association (Association) and respondent/appellee Homer Community Consolidated School District No. 208 (school district) filed cross charges of bad-faith bargaining with petitioner/appellant, the Illinois Educational Labor Relations Board (Board). At a hearing on the matter, the Association requested production of certain evidence relating to the school district's bargaining strategy, objectives and tactics. The school district filed a motion in limine, seeking to bar this information from discovery, claiming that the evidence sought was privileged. The Board denied the motion, issued a subpoena to compel production of the evidence, and moved to enforce the subpoena in the circuit court of Champaign County. The circuit court ordered the subpoena enforced and the school district appealed.

The appellate court reversed, holding that the evidence was subject to a privilege. (160 Ill.App.3d 730, 112 Ill.Dec. 802, 514 N.E.2d 465.) A majority of the court held that the privilege was a qualified one, to be applied by the circuit court via in camera examination of the evidence. We granted the Board's petition for leave to appeal under our Rule 315 (107 Ill.2d R. 315). We affirm the decision of the appellate court. More detail concerning the proceeding is given below.

The paramount issue this appeal presents is whether certain information pertaining to a party's collective-bargaining strategy is privileged from disclosure during unfair labor practice proceedings conducted under the Illinois Educational Labor Relations Act (Act) (Ill.Rev.Stat.1987, ch. 48, par. 1701 et seq.) The primary issue argued in this court is whether the circuit court or the Board should apply the qualified privilege.

During a labor dispute, the Association and the school district each filed charges of unfair labor practices with the Board. After investigating the charges, the Board issued a series of complaints alleging that both parties violated section 14 of the Act (Ill.Rev.Stat.1987, ch. 48, par. 1714) by refusing to bargain in good faith. The Board consolidated the complaints and set a hearing date before a hearing examiner.

During the adjudication of the complaints, the Association requested that the school district produce certain documents relating to its bargaining strategy. Among other things, the Association requested:

"1. All bargaining notes or minutes which have been taken by the District.

2. All bargaining proposals made by the Association or the District upon which the District made any mark or notation.

3. All documents (excluding bargaining notes and proposals) which relate to the District's bargaining objectives, strategy or tactics.

4. All documents which relate to any plan or action of the District in the event of a strike by the Association or the effectuation or implementation of any such plan or action.

5. All documents which relate to any discussion or communication by the District concerning bargaining, any grievances which were filed by the Association or any of its members since April 10, 1986, or the strike by the Association."

The school district objected to the Association's requests, claiming that the documents sought were privileged information. The school district filed a motion in limine at the consolidated hearing to prevent disclosure of its bargaining strategy. The motion asked the hearing examiner to prohibit the Association from eliciting any information, by either written or oral means, concerning the closed-session deliberations of the district school board during its bargaining-strategy meetings.

The hearing examiner denied the school district's motion and ordered production of the documents that the Association requested. The school district refused to produce the documents and instructed its members not to answer any questions concerning its closed-session meetings. Subsequently, the Board issued a subpoena directing the school district to produce the requested documents. The subpoena also stated that members of the district school board would be expected to testify concerning closed-door bargaining-strategy sessions.

When the school district still refused to comply with the information requests, the Board filed a petition to enforce the subpoena in circuit court pursuant to section 15 of the Act (Ill.Rev.Stat.1987, ch. 48, par. 1715). The court granted the Association leave to intervene. The school district filed a motion to quash the subpoena, again claiming that the information sought was privileged.

The circuit court found that no privilege existed, and granted the Board's petition to enforce the subpoena. On appeal, the appellate court reversed, creating a qualified privilege that the circuit court, on remand, must apply through an in camera proceeding. 160 Ill.App.3d at 732, 112 Ill.Dec. 802, 514 N.E.2d 465.

We begin by noting that privileges are an exception to the general rule that the public has "a right to every man's evidence." (8 J. Wigmore, Evidence § 2192, at 70 (McNaughton rev. ed. 1961).) Privileges "are designed to protect weighty and legitimate competing interests" and are not to be "lightly created nor expansively construed, for they are in derogation of the search for truth." (United States v. Nixon (1974), 418 U.S. 683, 709-10, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1065.) This court, in declining to expand the statutory privilege for interspousal communications in criminal cases, stated:

"The expansion of existing testimonial privileges and acceptance of new ones involves a balancing of public policies which should be left to the legislature. A compelling reason is that while courts, as institutions, find it easy to perceive value in public policies such as those favoring the admission of all relevant and reliable evidence which directly assist the judicial function of ascertaining the truth, it is not their primary function to promote policies aimed at broader social goals more distantly related to the judiciary. This is primarily the responsibility of the legislature. To the extent that such policies conflict with truthseeking or other values central to the judicial task, the balance that courts draw might not reflect the choice the legislature would make." (People v. Sanders (1983), 99 Ill.2d 262, 271, 75 Ill.Dec. 682, 457 N.E.2d 1241.)

Furthermore, if one claims to be exempt from disclosing information by reason of a privilege, then that party has the burden of establishing the privilege. (See Krupp v. Chicago Transit Authority (1956), 8 Ill.2d 37, 42, 132 N.E.2d 532.) Nevertheless, this court will recognize a privilege to protect communications in certain rare instances where the following four conditions are present:

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

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

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

4. The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.' " (Emphasis in original.) In re October 1985 Grand Jury No. 746 (1988), 124 Ill.2d 466, 475, 125 Ill.Dec. 295, 530 N.E.2d 453, quoting 8 J. Wigmore, Evidence § 2285, at 527 (McNaughton rev. ed. 1961).

The communications at issue here, deliberations among school board members concerning collective-bargaining strategy, do "originate in a confidence that they will not be disclosed." Disclosure of these deliberations to a teachers' union with whom the school board is engaged in collective bargaining would seriously undermine the board's negotiating position. School board members would be reluctant to discuss bargaining strategy if they thought their discussions would be disclosed to the union. Similarly, union negotiating teams might be hampered in their planning sessions if a school board could subpoena information contained within such strategy meetings.

Moreover, we find that this confidentiality is "essential to the full and satisfactory maintenance of the relation between the parties." Fear of disclosure would alter the atmosphere of free discussion necessary to formulating bargaining strategy, and thus crimp the collective-bargaining process. Also, the damage that would result from disclosing these communications would be greater than the benefit gained by using this information to discover and punish unfair labor practices.

Therefore, having found that three of the four prongs of the test for creating a privilege exist, we must examine whether "the relation [is] one which in the opinion of the community ought to be sedulously fostered." Initially, the parties in the courts below raised the issue of whether the General Assembly created a statutory privilege for collective-bargaining matters discussed...