If it isn't surreptitious, it isn't eavesdropping

If you know someone is listening in, you can't accuse them of eavesdropping. That was the gist of a Supreme Court ruling overturning the conviction of a man fined for tape recording the conversation of two police officers while they were in the process of arresting him for speeding. But in a special concurrence Justice Seymour Simon and Chief Justice William G. Clark said that the ruling makes it legal for a law enforcement officer to secretly record a conversation to which he is a party without first obtaining a warrant. Justice Howard C. Ryan wrote the majority opinion handed down December 19 in People v. Robert Beardsley (Docket No. 63079).

At issue was the definition of eavesdropping under the Illinois Criminal Code (Ill. Rev. Stat. 1983, ch. 38., sec. 14-2(a)0). The code does not specifically state that a conversation must be private or secret. It says that eavesdropping is committed when a person records a conversation without the consent of all the parties involved or without the consent of one of the parties involved plus a court order. The court, however, agreed with the defendant's interpretation that "eavesdropping can occur only when the parties intend their conversation to be secret or private.'' It based its ruling on the common law definition of eavesdropping and on several previous rulings, including People v. Klingenberg (1975), People v. Kurth (1966) and Lopez v. United States (1963).

Ryan said that the main issue in the case was not whether all of the parties consented to the recording of the conversation but whether the officers intended and expected their conversation to be private. Pointing out that the officers could have moved out of range of the defendant's tape recorder, he concluded: "Because there was no surreptitious interception of a communication intended by the declarants to be private, secret, or confidential, under circumstances justifying such expectation, there was no violation of the eavesdropping statute."

Justice Simon and Chief Justice Clark agreed with the majority that the defendant did not commit eavesdropping since the conduct of the police officers indicated "at least implied consent." But Simon said that the majority's interpretation of the eavesdropping statute ignores the General Assembly's intention when it changed the law in 1975 to require the consent of "all" the parties to a conversation rather than the consent of "any one" party — except in cases where a court order is obtained.

Guardian can't sue for divorce on behalf of ward

Plenary guardianship of a disabled adult does not include authority to sue for divorce on behalf of the ward. Justice Thomas J. Moran wrote the majority opinion for the Illinois Supreme Court's decision in In re Marriage of Herbert I. Drews and Sue Ann Carruthers Drews (Docket No. 63005), handed down December 19. Justice Seymour Simon dissented.

Seven months after Herbert Drews received a disabling head injury in an automobile accident, his wife moved out and abandoned him to his parents' care. Drews' mother received plenary guardianship and brought action to dissolve the marriage on the grounds of desertion and mental cruelty. She asked for equitable distribution of marital property and maintenance payments from the wife.

The court ruled that the mother does not have status to dissolve the marriage. It noted that a large number of other jurisdictions have held the same view and cited Illinois case law going back to 1897 supporting that position. Justice Simon cited jurisdictions that take the opposite view and argued that the majority's reading is too restrictive and is based on cases from a bygone era.

Federal law does not preempt state on retaliatory discharge

The right of Illinois workers to file retaliatory discharge claims against their employers is not preempted by a recent federal law. In its December 19 ruling the Supreme Court affirmed an earlier decision and continued its efforts to clarify the controversial legal issues surrounding the firing of employees who file Workers' Compensation claims. Chief Justice William G. Clark wrote the majority opinion in Gonzalez v. Prestress Engineering Corporation (Docket nos. 62644, 62645 cons.) Justices Howard C. Ryan and Thomas J. Moran dissented.

The court heard the present case to determine if its previous ruling was preempted by section 301 of the Federal Labor Management Relations Act (29 U.S.C. sec. 185(a) (1982)), and by an even more recent U.S. Supreme Court decision (Allis-Chalmers Corp. v. Lueck 1985, 471 U.S____, 85 L. Ed. 2d 206, 105 S. Ct. 1904).

As in a number of earlier cases, the plaintiffs here complained that they were illegally fired for filing Workers' Compensation claims. They then filed retaliatory discharge suits against their employer, Prestress Engineering Corp., without first exhausting grievance procedures contained in their union's collective bargaining agreement with the company. In an earlier action consolidated with other cases, the Illinois Supreme Court upheld their right to do this. The court ruled that the workers could sue regardless of their failure to exhaust union grievance procedures because the public policy of the state was involved (Midgett v. Sackett-Chicago, Inc. ((1984), 105 Ill. 2d 143, cert. denied (1985), 474 U.S.____88 l. Ed. 2d 243, 106 S. Ct. 278; cert, denied (1985), 472 U.S. 1032, 87 L. Ed. 2d 642, 105 S Ct. 3513).

Section 301 provides that jurisdiction over suits for a breach of collective bargaining agreements belongs only in the federal district courts. In the current case, Prestress argued that the firing for "just cause" terms of the collective bargaining agreement would cause section 301 to preempt state law on these claims. But Chief Justice Clark concluded that "under the principles announced in Allis Chalmers," the workers' claims cannot be preempted by section 301 because they are "firmly rooted in the clearly mandated public policy of the state."

That policy, Clark said, protects employees who exercise their rights under the Workers' Compensation Act regardless of whether they belong to a union. "Were it otherwise," he said, "the public policy of this state would become a mere bargaining chip, capable of being waived or altered by the private parties to a collective bargain."

Justices Ryan and Moran took the directly opposite position. In the dissent, Ryan said that the majority view "violates the clear command of Allis-Chalmers by placing a State law gloss on the terms of a collective bargaining agreement." The result, he said, will be to encourage "the precise mischief condemned in Allis-Chalmers: end runs around the grievance and arbitration process, and varying interpretations of ostensibly universal terms in labor contracts. If Illinois is free to decide what 'just cause' means or does not mean, any and all contract provisions are apparently fair game."

State taxes can't discriminate against South Africa

Hands-off foreign policy is the rule for the state, according to a decision of the Illinois Supreme Court handed down December 19. Specifically, the General Assembly cannot show its disapproval of apartheid by putting South African gold Krugerrands in a special unfavorable tax class. Justice Howard C. Ryan wrote the opinion in Springfield Rare Coin Galleries v. Johnson (Docket No. 62552).

In the ruling the court struck down portions of recent amendment to The Use Tax Act and the Retailers' Occupation Tax Act that exempts from these taxes all legal tender, medallions and gold or silver coins sold for investment or election — except those issued by the Republic of South Africa (///. Rev. Stat. 1985, ch. 120, sec. 439.3 and 441). The tax exemption was designed to make Illinois precious metal dealers more competitive with those in other states. The provision excluding South Africa was added to the original bill.

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The effect, according to the plaintiff, was a sharp drop in the sale of Krugerrands, previously the best seller. The plaintiff challenged the exception on a number of grounds, but the high court limited its consideration to the question of constitutionality. Article IX, section 2 of the Illinois Constitution provides that in non-property taxes "the classes shall be reasonable and the subjects and objects within each class shall be taxed uniformly." Ryan said the excepton is unconstitutional because "disapproval of the political and social policies of a foreign nation does not provide a valid basis for a tax classification by this State." Besides violating the state Constitution, the classification "is an impermissable encroachment upon a national prerogative — the authority of the Federal government to conduct foreign affairs," he said. The court also held that the provision excluding South Africa is "severable" from the rest of the amendment because of the inclusion of a severability clause (apparently arising from some doubt in the minds of legislators about its constitutionality).                      F. Mark Siebert

30/March 1987/Illinois Issues