Illinois Eavesdropping Law Overturned, Get Your Cell Phones Out

Here is the summary of the opinion:

2014 IL 114852


(Docket No. 114852)

Opinion filed March 20, 2014
CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the
judgment and opinion

¶ 1 Defendant Annabel Melongo was charged with violations of section 14-2 of the Criminal Code of 1961 (720 ILCS 5/14-2 (West 2008) ), which defines the offense of eavesdropping. The circuit court of Cook County found the statute unconstitutional. Thus, appeal lies directly to this court. Ill. S. Ct. R. 302 (eff. Oct. 4, 2011).

¶ 2 We allowed the American Civil Liberties Union of Illinois to file a brief amicus curiae pursuant to Supreme Court Rule 345. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 3 For the following reasons, we affirm the judgment of the circuit court.


¶ 5 Defendant was charged with computer tampering in an unrelated case. The arraignment was set for June 18, 2008. The docket sheet, the judge’s half sheet, and the court call sheet for that date indicate that defendant was not in court and that the  arraignment did not take place.

¶ 6 Defendant later obtained an official court transcript of the June 18, 2008, proceeding, which stated that she was present and was arraigned on that date. Her efforts to have the court reporter change the transcript were unsuccessful. The court reporter referred defendant to her supervisor, Pamela Taylor, the Assistant Administrator of the Cook County Court Reporter’s Office, Criminal Division. In their first telephone conversation, Taylor explained to defendant that any dispute over the accuracy of a transcript should be presented to the judge for resolution.

¶ 7 Defendant surreptitiously recorded three subsequent telephone conversations with Taylor and posted the recordings and transcripts of the conversations on her website. She was charged with three counts of eavesdropping (720 ILCS 5/14-2(a)(1)(West 2008)), and three counts of using or divulging information obtained through the use of an eavesdropping device (720 ILCS 5/14-2(a)(3)(West 2008))

¶ 8In a motion to dismiss, she stipulated that she recorded the conversations and posted them on her website, but claimed her conduct was permitted under an exception to the statute. Specifically, she claimed she was allowed to record a conversation “under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person ***and there is reason to believe that evidence of the criminal offense may be obtained by the
recording.” 720 ILCS 5/14 -3(i)(West 2008).

¶9 The State argued that the exception did not apply in this case because the court reporter whom
defendant accused of creating a forged transcript was not a party to the recorded conversations. Thus,
the State assert ed, defendant should not be allowed to claim that the exception of section 14-3(i) applied to her recordings of Taylor. The trial court granted the State’s motion in limine to preclude defendant from raising this defense at trial.

¶ 10 In her motion to reconsider, defendant argued that Taylor was a party to a criminal
conspiracy and, thus, the statutory exception should be available to her at trial. The trial
court denied her motion to reconsider.

¶ 11 Defendant then filed a motion to dismiss on the basis that the eavesdropping statute is unconstitutional under the due process clauses of both the Illinois and United States Constitutions because there is “no rational relationship between requiring two party consent and a legitimate state interest.”  Two days later, this motion was argued and denied.

¶ 12 The matter proceeded to trial. The jury was unable to reach a unanimous verdict,  and the court declared a mistrial. The matter was assigned to a second judge.

¶ 13 Thereafter, defendant filed a pro se motion to declare the statute unconstitutional, raising first amendment and due process claims. The State filed a response arguing that the statute does not  violate either the first amendment or due process and that it is constitutional as applied to defendant.

¶ 14 After a hearing on the motion, the court found the statute both facially unconstitutional and unconstitutional as applied to defendant. The court’s subsequent written order stated that “the statute appears to be vague, restrictive and makes innocent conduct subject to prosecution.”  Further, the court observed, the statute “lacks a culpable mental state, subjects wholly innocent conduct to prosecution, and violates substantive due process” under both the United States and Illinois Constitutions. In reaching this decision, the circuit court relied in part on American Civil Liberties Union v. Alvarez , 679 F.3d 583 (7th Cir. 2012) (finding that plaintiff had a strong likelihood of  success in its first amendment claim that the Illinois eavesdropping statute was unconstitutional as applied to its plan to record police officers performing their duties in public places).

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The whole decision can be found here.

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