People v. Melongo

• Decision Date: 20 March 2014
• Docket Number: No. 114852.,114852.
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Annabel MELONGO, Appellee.
• Court: Illinois Supreme Court

2014 IL 114852

6 N.E.3d 120

379 Ill.Dec. 43

The PEOPLE of the State of Illinois, Appellant,

v.Annabel MELONGO, Appellee.

No. 114852.

Supreme Court of Illinois.

March 20, 2014.

Held Unconstitutional

S.H.A. 720 ILCS 5/14–2(a)(1, 3)

Lisa Madigan, Attorney General, Springfield, and Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

Gabriel Bankier Plotkin, Daniel M. Feeney and Alexandra K. Block, Miller Shakman & Beem LLP, Chicago, for appellee.

Harvey Grossman and Adam Schwartz, Roger Baldwin Foundation of ACLU, Inc., Chicago, and Richard J. O'Brien and Sean Siekkinen, Sidley Austin LLP, Chicago, for amicus curiae American Civil Liberties Union of Illinois.

OPINION

Chief Justice GARMAN delivered the judgment of the court, with 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.

¶ 4 BACKGROUND

¶ 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)).

¶ 8 In 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 asserted, 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).

¶ 15 ANALYSIS

¶ 16 Section 14–2 of the Criminal Code provides that:

“(a) A person commits eavesdropping when he:

(1) Knowingly and intentionally uses an eavesdropping device for the purpose of hearing or recording all or any part of any conversation or intercepts, retains, or transcribes electronic communication unless he does so (A) with the consent of all of the parties to such conversation or electronic communication or (B) in accordance with Article 108A or Article 108B of the ‘Code of Criminal Procedure of 1963’, approved August 14, 1963, as amended; or

* * *

(3) Uses or divulges, except as authorized by this Article or by Article 108A or 108B of the ‘Code of Criminal Procedure of 1963’, approved August 14, 1963, as amended, any information which he knows or reasonably should know was obtained through the use of an eavesdropping device.” 720 ILCS 5/14–2 (West 2008).

¶ 17 As appellant, the State argues in its opening brief that the statute does not violate due process on its face because it does contain a culpable mental state requiring both knowledge and intent. The State further argues that the statute is not unconstitutional as applied to defendant because she admits having recorded and divulged the contents of the conversations knowingly and intentionally. The State's opening brief does not address defendant's first amendment claim, stating that although the circuit court cited extensively to Alvarez, a first amendment case, the court “relied exclusively on the substantive due process clause” in reaching its conclusion.

¶ 18 Defendant frames four issues. She argues that section 14–2(a)(1), the “recording provision,” is unconstitutional on both first amendment and due process grounds; similarly, she argues that section 14–2(a)(3), the “publishing provision,” also violates the first amendment and due process. In the alternative, she argues that if the statute is not found unconstitutional on its face, it is nevertheless unconstitutional as applied to her recording of a public official who was acting in her official capacity when she engaged in the recorded conversation.

¶ 19 The State responds to the first amendment arguments in its reply brief, arguing that the statute is a content-neutral restriction on the time, place, and manner of the exercise of first amendment rights and that it is narrowly tailored. However, the State reiterates its position that no first amendment issue is at stake.

¶ 20 The constitutionality of a statute is a question of law that we review de novo. People v. Madrigal, 241 Ill.2d 463, 466, 350 Ill.Dec. 311, 948 N.E.2d 591 (2011). We presume that a statute is constitutional and, thus, the party challenging its constitutionality bears a burden of clearly establishing that the statute violates the constitution. People v. Kitch, 239 Ill.2d 452, 466, 347 Ill.Dec. 655, 942 N.E.2d 1235 (2011). In addition, if it is reasonably possible to construe the challenged statute in a manner that preserves its constitutionality, we have a duty to do so. People v. Hollins, 2012 IL 112754, ¶ 13, 361 Ill.Dec. 402, 971 N.E.2d 504.

¶ 21 As an initial matter, we reject the State's suggestion that the trial court's ruling in the present case was based entirely on due process. The defendant's motion raised a first amendment challenge. The trial court gave careful consideration and significant weight to the Seventh Circuit's opinion in Alvarez, a first amendment case. Finally, in its written order, the trial court specifically described the statute as “vague” and noted that it subjects innocent conduct to prosecution; in effect, the court found the statute to be overbroad. While vagueness and overbreadth may be considered in a due process challenge, they are also properly applied in the first amendment context. See, e.g., People v. Sharpe, 216 Ill.2d 481, 527, 298 Ill.Dec. 169, 839 N.E.2d 492 (2005) (if first amendment rights are not at stake in a vagueness challenge, “due process is satisfied if: (1) the statute's prohibitions are sufficiently definite, when measured by common understanding and practices, to give a person of ordinary intelligence fair warning as to what conduct is prohibited, and (2) the statute provides sufficiently definite standards for law enforcement officers and triers of fact that its application does not depend merely on their private conceptions” (internal quotation marks omitted)); City of...