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Illinois Polygraph Society v. Pellicano





APPEAL from the Circuit Court of Cook County; the Hon. NATHAN COHEN, Judge, presiding.


May polygraph operators halt the use of a competitive technique for detecting deception by enjoining a competitor from holding himself out as a qualified examiner and from administering exams to detect deception? In this case the plaintiffs sought to accomplish this by invoking the Illinois detection-of-deception-examiners act (Ill. Rev. Stat. 1977, ch. 111, pars. 2401-2432) (the Act), which provides for the licensing and regulation of detection-of-deception examiners. To resolve this appeal, it is necessary to consider only the defendant's contention that section 3 of the Act, which mandates that every examiner licensed under the Act use a polygraph machine, is special legislation which violates the State constitution. The provision of section 3 of the Act which the defendant challenges states:

"Every examiner shall use an instrument which records permanently and simultaneously the subject's cardio-vascular and respiratory patterns as minimum standards, but such an instrument may record additional physiological changes pertinent to the detection of deception." (Ill. Rev. Stat. 1977, ch. 111, par. 2403.)

Section 1 of the Act defines the word "examiner" as used in the Act as "any person who uses any device or instrument to test or question individuals for the purpose of detecting deception."

The polygraph instrument, commonly known as the lie detector, as required by the Act records simultaneously the cardiovascular and respiratory patterns of the person being examined to determine whether he is being truthful. It is the only instrument in commercial use which can be used to satisfy the minimum standards set forth in section 3 of the Act.

The individual plaintiffs are trained polygraph operators, licensed under the Act by the Illinois Department of Registration and Education (the Department) as detection-of-deception examiners (examiners). The plaintiff, Illinois Polygraph Society, to which the individual plaintiffs belong, is an organization of licensed examiners who use the polygraph instrument.

The defendant is engaged in the occupation of detecting deception. He is neither licensed as an examiner, nor has he sought to be licensed. Instead of the polygraph instrument, he uses a patented device known as the Dektor PSE-1 (PSE) to detect deception. The defendant's device is a psychological stress evaluator, which detects, measures and graphically displays inaudible frequency modulations of the human voice, the strength and pattern of which indicate the degree of psychological stress in the speaker. Unlike the polygraph, the PSE does not require that the person being interrogated be attached to the instrument by wires, and does not record either cardiovascular or respiratory patterns as section 3 of the Act requires. The PSE did not come into commercial use until 1970, 7 years after the Act was passed.

The controversy between PSE operators and polygraph operators has been waged for several years. Former directors of the Department have issued conflicting opinions on whether the use of the PSE without a polygraph would be grounds for revocation of an examiner's license. Prior to August 10, 1974, Director Barringer said it would; on October 8, 1975, Director Stackler said it would not. The defendant himself was the subject of a suit in the circuit court of Cook County instituted by the Department to enjoin his use of the PSE alone to detect deception. That suit, People ex rel. Ronald Stackler v. Anthony J. Pellicano, was voluntarily dismissed by the Department after Director Stackler filed an affidavit in which he expressed his opinion that to enjoin use of the PSE based on the licensing act here at issue would be an unreasonable restraint of trade.

The present complaint, which the defendant sought to dismiss, alleges that without a license Pellicano holds himself out as a detection-of-deception examiner and administers detection-of-deception examinations, and in doing so is violating the Act. Alleging that the defendant's activities have reduced the income of the plaintiffs and the members of the plaintiff society, the plaintiffs sought to enjoin the defendant from administering exams or holding himself out as an examiner. The circuit court denied the defendant's motion to dismiss the complaint, ruling that the defendant was subject to the Act, that the Act was constitutional, that plaintiffs were licensed members of a profession subject to license pursuant to the Act and, therefore, had standing to sue, and that they lacked an adequate remedy at law. The defendant was allowed to file an interlocutory appeal under Rule 308.

The effect of section 3 of the Act is to ban the use in Illinois of all instruments for detecting deception, including the PSE, unless they are used in conjunction with the polygraph machine. (1976 Op. Atty. Gen. No. S-1082.) Since sole reliance on other devices is not outlawed, provided they are used in conjunction with the polygraph, we must assume that the legislature meant to make no statement in providing for the licensing of detection-of-deception examiners about the comparative reliability of the polygraph in detecting deception. It should be noted, by comparison, that other States, when concerned about reliability of devices for detecting deception, have taken direct steps, and have not resorted to regulation through a licensing statute. (See, for example, N.Y. Labor Law §§ 733-739 (McKinney 1978) (use of the PSE not allowed in employment situations); Cal. Labor Code § 432.2 (West 1978) (use of polygraph not allowed in employment situations); Mass. Ann. Laws, ch. 149, § 19B (Michie/Law. Co-op 1976) (use of any lie detector not allowed in employment situations); Cal. Penal Code § 637.3 (West 1978) and 18 Pa. Cons. Stat. § 7507 (1978) (use of the PSE without consent of the examinee an offense).) The Illinois legislature, while not forbidding use of deception detectors, did cast doubt on their reliability when it enacted the lie-detector-tests act (Ill. Rev. Stat. 1977, ch. 38, par. 155-11) and section 54.1 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 54.1). The former bars the use of any lie detection device, including the polygraph, in a criminal trial; the latter forbids the use of the results of a polygraph test or of the questioning of a witness under the effect of a chemical substance in a civil trial. Even though the licensing act at issue here requires that a licensed examiner who chooses to use another device must also use a polygraph, the Act permits the examiner to rely on the test results produced by the other equipment, to the complete exclusion of the polygraph results. By permitting an examiner, who wishes to do so, to ignore the polygraph results, the Act makes use of the polygraph by such an examiner superfluous.

The Act also requires anyone seeking to use the PSE or any device other than the polygraph to be trained in the use of the polygraph. This requirement is imposed regardless of whether the examiner desires to use the polygraph. To comply with the Department's regulations for becoming a licensed examiner, an applicant must undergo formalized instruction which is focused on use of the polygraph to the exclusion of all other devices. The potential licensee who wishes to use the PSE is therefore required to take training which is irrelevant to his area of professional expertise.

Article IV, section 13 of the 1970 Illinois Constitution forbids the passage of special laws when general laws can be made applicable, and leaves to the courts> the task of determining whether a general law can be made applicable. This provision has recently received attention in Anderson v. Wagner (Docket Nos. 50880, 50980, 50981 cons., filed Oct. 2, 1979), ___ Ill.2d ___, ___ N.E.2d ___ The court reviewed the history of the special legislation provision and referred to the analysis in G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 203-26 (1969), saying:

"* * * [Braden & Cohn] pointed out the difference between `real' special legislation, such as that specifically prohibited in the prior constitution which had ceased to be a problem, and nonreal special legislation. Nonreal special legislation was simply general legislation challenged on equal protection grounds. They felt that, though the legislature no longer attempted to enact `real' special legislation, the prohibition against the enactment of special legislation should be retained in the constitution in general terms to guard against any attempt to do so." (Anderson, ___ Ill.2d ___, ___)

The court in Anderson noted that the drafters of the Illinois Constitution of 1970 closely followed ...

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