Johnston v. Weil

• Citation: 920 N.E.2d 494,336 Ill. Dec. 285
• Decision Date: 02 December 2009
• Docket Number: No. 1-08-2861.,1-08-2861.
• Parties: Heather JOHNSTON, William Johnston and Jane Johnston, Plaintiffs-Appellees, v. Andrew WEIL, Sean McCann, Dorothy B. Johnson, Marta Coblitz, Burton Hochbert, Karen Pinkert-Lieb, Andrea Muchin, Debra DiMaggio and Leslie Fineberg, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

920 N.E.2d 494

920 N.E.2d 494

336 Ill. Dec. 285

Heather JOHNSTON, William Johnston and Jane Johnston, Plaintiffs-Appellees, v. Andrew WEIL, Sean McCann, Dorothy B. Johnson, Marta Coblitz, Burton Hochbert, Karen Pinkert-Lieb, Andrea Muchin, Debra DiMaggio and Leslie Fineberg, Defendants-Appellants.

No. 1-08-2861.

Appellate Court of Illinois, First District, Third Division.

December 2, 2009.

Sonnenschein, Nath & Rosenthal, LLP, of Chicago (John C. Koski and Terance A. Gonsalves, of counsel), Tressler, Soderstrom, Maloney & Priess, LLP, of Chicago (Andrew J. Purcell, of counsel), Monahan & Cohen, of Chicago (Joseph T. Monahan, Amy E. McCarty and Linda A. Bryceland, of counsel) and Konicek & Dillon, of Geneva (Daniel Francis Konicek, of counsel), for Appellants.

Law Office of Miriam F. Solo, PC, of Chicago (Miriam F. Solo, of counsel), for Appellees.

Justice QUINN delivered the opinion of the court:

Plaintiffs filed a complaint against defendants alleging, inter alia, that defendants¹ violated the Mental Health and Developmental Disabilities Confidentiality Act (Confidentiality Act) (740 ILCS 110/1 et seq. (West 2006)) by disseminating, or causing to be disseminated, information obtained by a professional witness who was appointed by the circuit court pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/604(b) (West 2006)). The circuit court denied defendants' motion to dismiss plaintiffs' complaint and defendants filed a motion to reconsider or, in the alternative, to certify for appeal the issue of whether the evaluations, communications, reports, and information obtained pursuant to section 604(b) of the Marriage Act are confidential where the professional witness employed by the court is a psychiatrist or mental health care provider. On October 2, 2008, the circuit court, pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308), certified the following question for interlocutory appeal:

"Whether evaluations, communications, reports and information obtained pursuant to section 750 ILCS 5/604(b) of the Illinois Marriage and Dissolution of Marriage [Act] are confidential under the Mental Health and Developmental Disabilities Confidentiality Act 740 ILCS 110/1 et seq. where the 604(b) professional personnel [sic] to advise the court is a psychiatrist or other mental health professional."

This court granted defendants' application for leave to appeal on November 26, 2008.

On appeal, defendants argue that the evaluations, communications, reports and information obtained pursuant to section 604(b) of the Marriage Act are not confidential under the Confidentiality Act where the section 604(b) expert witness is a court witness whose findings are necessarily disclosed to the court and parties. Defendants also maintain that no confidential relationship exists between a section 604(b) expert witness and the participants involved in the court-ordered evaluation. Plaintiffs argue that a section 604(b) expert is a mental health provider who provides mental health services to participants within the meaning of the Confidentiality Act. For the following reasons, we agree with defendants and answer the certified question in the negative.

I. BACKGROUND

Plaintiff Heather Johnston was married to defendant Sean McCann and the parties had a son together prior to defendant McCann filing a petition for dissolution of marriage on May 22, 1998 (McCann divorce). McCann was represented by defendants Debra DiMaggio and Leslie Fineberg during divorce proceedings. Defendant Marta Coblitz was the appointed child's representative in those proceedings.

Plaintiff subsequently married defendant Andrew Weil and the parties had a daughter together prior to defendant Weil filing a petition for dissolution of marriage on January 24, 2002 (Weil divorce). Weil was represented by defendants Burton Hochberg, Karen Pinkert-Lieb and Andrew Muchin during divorce proceedings. Defendant Dorothy Johnson (attorney Johnson) was the appointed child's representative in those proceedings.

Following the McCann divorce, McCann filed a petition to modify provisions of the joint parenting agreement with plaintiff Johnston. As a result of that petition, on January 27, 2006, the circuit court entered an order stating that "Dr. Phyllis Amabile [a psychiatrist] shall conduct a 604[(b)] evaluation of the family" and "Both Parties * * * shall fully cooperate with Dr. Amabile in conducting her evaluation, including without limit submitting to any testing or evaluations administered by Dr. Amabile or her agents or by third parties recommended by Dr. Amabile." Pursuant to the circuit court's order, plaintiff Johnston and her parents, plaintiffs William Johnston and Jane Johnston, participated in Dr. Amabile's evaluation. Dr. Amabile advised each of the plaintiffs that the information she obtained in the interviews would be disclosed to the court, all parties and their attorneys. Dr. Amabile completed her evaluation and sent a report to the circuit court pursuant to section 604(b) of the Marriage Act. The record does not show that plaintiffs sought a protective order regarding the information provided to Dr. Amabile or her report.

Contemporaneous with the McCann postdecree proceedings, former defendant Weil filed a motion for temporary possession and an emergency motion seeking leave to subpoena Dr. Amabile. After receiving notice of Weil's motion, on December 6, 2006, attorney Johnson, as the court-appointed child representative in the Weil divorce, contacted Dr. Amabile in an effort to determine whether Dr. Amabile's section 604(b) evaluation had any relevance to the minor child in the Weil divorce matter. In an affidavit, attorney Johnson stated that Dr. Amabile advised her of three issues that she evaluated, but did not provide any information regarding her communications with plaintiffs or any opinions or conclusions she formed as a result of the section 604(b) evaluation. Plaintiff Johnston filed a response objecting to Weil's motion and asserting that Dr. Amabile's report was privileged under the Confidentiality Act. On December 19, 2006, the circuit court presiding in the Weil divorce matter issued a written order finding that Dr. Amabile's section 604(b) report in the McCann divorce matter was subject to the Confidentiality Act and not discoverable in the Weil divorce matter.

On January 30, 2007, plaintiffs filed their complaint against defendants alleging, in counts I and II, that plaintiffs' communications with Dr. Amabile, information she obtained from them, and her resulting evaluation/report were confidential and had been disseminated by defendants in violation of the Confidentiality Act. Plaintiffs alleged that because the section 604(b) professional in this case was a psychiatrist, any information she obtained and her resulting report were confidential.

Defendants filed motions to dismiss plaintiffs' complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619) (West 2006)), arguing that the evaluation and report of the section 604(b) professional was neither privileged nor confidential under the Confidentiality Act. Defendants also denied possessing, distributing, disclosing or redisclosing the records and communications at issue.

Plaintiffs' counsel was absent from the initial hearing on the motions to dismiss and the circuit court granted defendants' motions and dismissed counts I and II of plaintiffs' complaint pursuant to section 2-615 of the Code. The circuit court subsequently granted the motion to vacate the dismissal order filed by plaintiffs' counsel on the grounds that counsel had been hospitalized on the date of the initial hearing. No new pleadings were filed. Following oral arguments, the circuit court issued an order on April 18, 2008, denying defendants' motion to dismiss counts I and II of the complaint.

On May 16, 2008, defendants filed a motion requesting that the circuit court reconsider its April 18, 2008, order or, in the alternative, certify the question of law at issue in this case. With the agreement of the parties, the circuit court certified the question of law at issue in this case and stayed the proceedings below pending this court's resolution of the certified question.

II. ANALYSIS

We review a question of law certified by the circuit court pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308) de novo. Thompson v. Gordon, 221 Ill.2d 414, 426, 303 Ill.Dec. 806, 851 N.E.2d 1231 (2006).

The issue raised by the certified question of law is whether a section 604(b) court-appointed expert psychiatrist or other mental health professional who is providing an evaluation falls under the Confidentiality Act (740 ILCS 110/1 et seq. (West 2006)). The fundamental rule of statutory construction is to give effect to the intention of the legislature. Exelon Corp. v. Department of Revenue, 234 Ill.2d 266, 274-75 (2009). The most reliable indicator of the legislature's intent is the language of the statute, which must be given its plain and ordinary meaning. Taylor v. Pekin Insurance Co., 231 Ill.2d 390, 395, 326 Ill.Dec. 34, 899 N.E.2d 251 (2008). Where the statutory language is clear and unambiguous, the court must give effect to the language without resort to other tools of interpretation. In construing a statute, it is never proper for a court to depart from plain language by reading into the statute exceptions, limitations, or conditions that conflict with the clearly expressed legislative intent. Exelon Corp., No. 105582, slip op. at 6.

Section 604(b) of the Marriage Act provides:

"The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness." 750 ILCS 5/604(b) (West 20...