2015 IL App (1st) 134048
Ill. App. Ct.2015Background
- McNally, a clinical psychologist, obtained an emergency and then a two-year plenary stalking no-contact order under the Stalking No Contact Order Act (740 ILCS 21/1 et seq.) against her former patient, Scott Bredemann, after nearly five years of repeated unwanted contacts (emails under aliases, phone calls, Internet postings, Facebook friend attempts, and an unannounced visit to her home).
- McNally testified she had instructed Bredemann not to contact her unless he obtained psychiatric treatment; an expert warned she faced a risk and advised a protection order.
- The trial court found Bredemann not credible, concluded his contacts were private (not part of a therapeutic relationship), and that his course of conduct would cause a reasonable person fear or emotional distress, thus constituting stalking under the Act.
- The trial court awarded McNally $7,500 in costs/attorney fees; McNally filed a separate (later) petition seeking approximately $73,000 but that challenge is the subject of a cross-appeal.
- On appeal, Bredemann argued the Act did not apply to patient-to-therapist contact, he lacked knowledge that his conduct was unwelcome or threatening, his online speech was First Amendment protected, and therapist-patient communications were improperly admitted. McNally cross-appealed the fee award and sought sanctions for a frivolous appeal.
- The appellate court affirmed the protective order, rejected Bredemann’s legal defenses, found therapist disclosures were permissible under exceptions, dismissed McNally’s cross-appeal on fees as untimely (no jurisdiction), and declined to impose Rule 375 sanctions.
Issues
| Issue | Plaintiff's Argument (McNally) | Defendant's Argument (Bredemann) | Held |
|---|---|---|---|
| Does the Stalking No Contact Order Act apply to a former patient contacting a therapist? | Act applies to protect victims of nonconsensual course of conduct; no exception for patient-therapist contacts. | Act should not cover a patient attempting to reinitiate treatment with a therapist. | The Act applies; no patient-therapist exception. |
| Did defendant’s conduct meet the Act’s "course of conduct" and "knows or should know" standards (fear or emotional distress)? | Repeated aliases, emails, postings, calls, family contact, and doorstep visit would cause a reasonable person fear/emotional distress; McNally credibly testified she feared and altered routine. | Conduct was innocuous or aimed at resuming therapy; he did not know his conduct was unwelcome or threatening. | Trial court’s finding was not against manifest weight; conduct constituted stalking. |
| Were the online postings and emails protected by the First Amendment? | Speech integral to stalking and harassment is not protected. | Online statements and friend requests are protected speech. | Speech as part of unlawful stalking is not protected; First Amendment claim rejected. |
| Were therapist-patient communications improperly admitted under the Confidentiality Act? | Disclosure was necessary to prevent harm to the therapist and fell under statutory exceptions. | Communications were confidential and must be excluded. | Issue forfeited for not raising posttrial; alternatively, disclosure permitted under the exception for preventing clear, imminent risk. |
| Was McNally’s cross-appeal on attorney fees timely and reviewable? | Cross-appeal filed after a motion to compel release of judgment; she argues time tolled. | Cross-appeal untimely because the motion was not a postjudgment motion attacking the final judgment. | Cross-appeal untimely; appellate court lacked jurisdiction to review fee challenge. |
| Should Rule 375 sanctions be imposed against defendant for frivolous appeal? | Appeal is frivolous and continues harassment; sanctions warranted. | (Implicit) Appeal raises colorable issues under a new statute. | Court declines sanctions in exercise of discretion given novelty of statute, though appeal had little merit. |
Key Cases Cited
- Harris Trust & Savings Bank v. Village of Barrington Hills, 133 Ill. 2d 146 (Ill. 1990) (standard for when a factual finding is against the manifest weight of the evidence)
- People v. Bailey, 167 Ill. 2d 210 (Ill. 1995) (speech integral to unlawful conduct receives no First Amendment protection)
- D.C. v. S.A., 178 Ill. 2d 551 (Ill. 1997) (therapist-recipient privilege is not absolute and may yield to fairness or justice considerations)
- Heiden v. DNA Diagnostics Center, Inc., 396 Ill. App. 3d 135 (Ill. App. 2009) (postjudgment motion tolling rule requires a motion attacking the final judgment)
- People v. Gemeny, 313 Ill. App. 3d 902 (Ill. App. 2000) (therapist may disclose to prevent clear, imminent risk of serious harm)
- Kheirkhahvash v. Baniassadi, 407 Ill. App. 3d 171 (Ill. App. 2010) (imposition of appellate sanctions under court rule is discretionary)