People ex rel. Scott v. Silverstein

• Citation: 57 Ill.Dec. 585,87 Ill.2d 167,429 N.E.2d 483
• Decision Date: 20 November 1981
• Docket Number: No. 54313,54313
• Parties: , 57 Ill.Dec. 585 The PEOPLE ex rel. William J. SCOTT, Attorney General, Appellee, v. Herman M. SILVERSTEIN et al. (George A. Otlewis, Appellant).
• Court: Illinois Supreme Court

Page 483

429 N.E.2d 483

87 Ill.2d 167, 57 Ill.Dec. 585

The PEOPLE ex rel. William J. SCOTT, Attorney General, Appellee, v. Herman M. SILVERSTEIN et al. (George A. Otlewis, Appellant).

No. 54313.

Supreme Court of Illinois.

Nov. 20, 1981.

Feiwell, Galper & Lasky, Ltd., Chicago (George S. Feiwell, Daniel C. Meenan, Jr., and Bernard L. Rivkin, Chicago, of counsel), for appellant.

Reuben & Proctor, Chicago (Don H. Reuben, Lawrence Gunnels, Samuel Fifer, and Charles J. Sennet, Chicago, of counsel), for appellee.

RYAN, Justice:

The present appeal is ancillary to People ex rel. Scott v. Silverstein, which was brought by the Illinois Attorney General and which is now pending in the circuit court of Cook County against five individual defendants who are either officers or directors of the George F. Harding Museum in Chicago, the George F. Harding Museum, Sotheby Parke Bernet, Inc., a New York corporation, and one of its employees, seeking to enjoin the sale of certain assets of the museum, to remove its directors, and to hold the directors personally liable for losses which the museum may have sustained.

One of the defendants, a director of the George F. Harding Museum, George A. Otlewis, subpoenaed William Currie for his deposition and for the production of certain documents. Currie is a newspaper reporter for the Chicago Tribune. He is not a party to the principal action. Currie wrote a number of articles for the Chicago Tribune relating to the subject matter of the principal case. He was also assigned to report on developments in the litigation.

In response to the subpoena, Currie filed a motion to quash, contending that the enforcement of the subpoena would violate "An Act concerning disclosure of the sources of information obtained by certain persons in the news media" (the Reporter's Privilege Act) (Ill.Rev.Stat.1979, ch. 51, par. 111 et seq.), the first amendment to the United States Constitution, and article I, section 4, of the Illinois Constitution. In response to Currie's motion, defendant Otlewis argued that the subpoena should be enforced because Currie had "waived" his privilege as a result of his disclosures to Donald C. Mulack, a special assistant Attorney General and chief counsel for the plaintiff in the principal action. In the alternative, defendant argued that, even if the privilege did apply, in this case divestiture, as provided for in the Act (Ill.Rev.Stat.1979, ch. 51, pars. 116, 117), was necessary, since relevant information would be otherwise unavailable. Finally, defendant took the position that he is entitled to an opportunity to "confront" Currie as one of the individuals who instigated the litigation.

After a hearing in the circuit court of Cook County, the court denied Currie's motion to quash on the ground that Currie had "waived any and all rights to assert any privilege" under the Act or the Federal or State constitutions by virtue of his disclosure of the information to Mulack. The trial court found, however, that the defendant had failed to sustain the statutory burden of proof under the Reporter's Privilege Act necessary for an order of divestiture and ordered the scope of the deposition to be limited to "such sources and such data as William Currie divulged to Plaintiff's attorney, Donald G. Mulack, as disclosed in Mulack's deposition of June 29, 1979 and July 2, 1979."

Currie sought review of that decision in the appellate court. Preliminarily, the court found that the order requiring Currie to appear for the deposition was final and appealable under Supreme Court Rule 301 (73 Ill.2d R. 301). (89 Ill.App.3d 1039, 1042, 45 Ill.Dec. 341, 412 N.E.2d 692.) The appellate court reversed the decision of the trial court and held that Currie had not "waived" the privilege conferred by the Reporter's Privilege Act. The court also found that the defendant was "not prejudiced in the least by the lack of an opportunity to depose Currie" because the "information sought by (defendant) Otlewis from Currie is the same information defendant obtained in Mulack's deposition." 89 Ill.App.3d 1039, 1045, 45 Ill.Dec. 341, 412 N.E.2d 692.

We need not address the merits of the substantive issues raised or the issue of waiver because we hold that the order of the trial court requiring Currie to appear for the deposition was not a final and appealable order under Supreme Court Rule 301. 73 Ill.2d R. 301.

The 1970 Illinois Constitution vests in this court the authority to make rules governing appeals. (Ill.Const.1970, art. VI, §§ 6, 16.) Also, section 6 of article VI provides that appeals from final judgments of the circuit court are a matter of right to the appellate court and that the supreme court may provide by rule for appeals to the appellate court from other than final judgments of the circuit courts. (Ill.Const.1970, art. VI, § 6.) Accordingly, Supreme Court Rule 301 (73 Ill.2d R. 301) provides that "(e)very final judgment of a circuit court in a civil case is appealable as of right." (Emphasis added.) Similarly, Supreme Court Rule 304 (73 Ill.2d R. 304) provides for appeals from final judgments as to fewer than all the parties or claims. (Emphasis added.) Pursuant to the constitutional authority to provide for appeals from other than final judgments, Supreme Court Rules 306, 307, and 308 (73 Ill.2d Rules 306, 307, 308) provide for appeals from certain specified interlocutory orders of the court. Discovery orders are not made appealable under the provisions of these rules. There has been no argument made that Supreme Court Rules 306, 307, or 308 apply in this case.

A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. (Relph v. Board of Education (1981), 84 Ill.2d 436, 441, 50 Ill.Dec. 830, 420 N.E.2d 147.) Preliminary orders in a pending case are not appealable because they are reviewable on appeal from the final order. (Durkin v. Hey (1941), 376 Ill. 292, 297, 33 N.E.2d 463.) However, an order cast in terms of a contempt proceeding imposing sanctions is a final and appealable order and has been held to be an appropriate method for testing pretrial discovery orders. (People ex rel. General Motors Corp. v. Bua (1967), 37 Ill.2d 180, 189, 226 N.E.2d 6; Stimpert v. Abdnour (1962), 24 Ill.2d 26, 27, 179 N.E.2d 602; People v. Williams (1981), 87 Ill.2d 161, --- Ill.Dec. ---, 429 N.E.2d 487; People ex rel. Hawthorne v. Hamilton (1973), 9 Ill.App.3d 551, 553, 292 N.E.2d 563; Kemeny v. Skorch (1959), 22 Ill.App.2d 160, 163, 159 N.E.2d 489.) The imposition of a sanction for contempt is final and appealable because, although occurring within the context of another proceeding and thus having the appearance of being interlocutory, it is an original special proceeding, collateral to and independent of, the case in which the contempt arises. (Hill v. Jeffery Co. (1920), 292 Ill. 490, 493, 127 N.E. 124; Lester v. Berkowitz (1888), 125 Ill. 307, 308, 17 N.E. 706.) It is the end of the proceeding begun against the witness. There is nothing left to be done but enforce the judgment.

We need not determine whether Laurent v. Brelji (1979), 74 Ill.App.3d 214, 30 Ill.Dec. 164, 392 N.E.2d 929, which the appellate court relied on in reaching its decision that the pretrial discovery order in this case was final and appealable, was correctly decided because it is readily distinguishable from the instant case. In that case the superintendent of the Chester Mental Health Center had appealed from a circuit court order directing him to comply with an administrative...