Thursday, March 20, 2014

Eavesdropping Statute

People v. Clark (PDF) and People v. Melongo (PDF)

Today, in two separate decisions, People v. Clark, 2014 IL 115776, and
People v. Melongo, 2014 IL 114852, the Illinois Supreme Court considered
the constitutionality of several sections of the eavesdropping statute, 720
ILCS 5/14-2.  In each case, the Court unanimously held that the current
eavesdropping statute is unconstitutional because it is overly broad.

In Clark, the defendant recorded courtroom conversations involving himself,
his attorney and the presiding judge.  He also recorded a hallway
conversation with the adverse party's counsel.  Clark did not obtain
consent from any of the parties to record the conversations.  He was
indicted under the Illinois eavesdropping statute.  He filed a motion to
dismiss the indictment and argued that the section under which he was
charged violated his First Amendment rights and his right to substantive
due process.  The circuit court agreed and dismissed the indictment,
bringing the matter before the Supreme Court in the State's direct appeal
in defense of the legislation.

Writing for the Court, Chief Justice Garman noted that the Legislature
amended the eavesdropping statute in 1994 to prohibit the recording of any
conversation unless all parties consented, even if there were no
expectation of privacy.  Because this criminalizes the recording of a whole
range of conversations that cannot be deemed in any way to be private, and
because the legislation covers a broad array of wholly innocent conduct, it
is overly broad.  Having held that a substantial number of the statute's
applications are unconstitutional, the Court found it unnecessary to
address the remaining arguments.

In Melongo, which was not consolidated with Clark, but had been argued on
the same day, Chief Justice Garman, again writing for a unanimous Court,
stated that the Court's analysis was guided by its holding in Clark.
Again, the strictures of the statute were not found to serve any legitimate
interest in protecting conversational privacy, rendering the statute
unconstitutional on its face.

Best Regards, 

Jon D. McLaughlin
Bloomington Law Group LLC
Flanagan State Bank Building
2401 East Washington Street
Bloomington Illinois 61704
Skype: jmclaug2