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Illinois Polygraph Society v. Pellicano

OPINION FILED DECEMBER 1, 1980.

ILLINOIS POLYGRAPH SOCIETY ET AL., APPELLANTS,

v.

ANTHONY PELLICANO, APPELLEE.



Appeal from the Circuit Court of Cook County, the Hon. Nathan Cohen, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Illinois Polygraph Society, an Illinois not-for-profit corporation, Carl S. Klump and Richard Needham, brought an injunctive action in the circuit court of Cook County. The plaintiffs sought to enjoin the defendant, Anthony Pellicano, from administering detection-of-deception examinations or from holding himself out as a detection-of-deception examiner since the defendant was not licensed under "An Act to provide for licensing and regulating detection of deception examiners * * *" (the Act) (Ill. Rev. Stat. 1975, ch. 38, par. 202-1 et seq., now Ill. Rev. Stat. 1979, ch. 111, par. 2401 et seq.). The defendant filed a motion to dismiss the complaint, alleging that the Act is unconstitutional and that the plaintiffs lacked standing to sue. After a hearing the circuit court denied the motion and certified that there was no just reason to delay an appeal from its order. The appellate court reversed, deciding that section 3 of the Act (Ill. Rev. Stat. 1975, ch. 38, par. 202-3, now Ill. Rev. Stat. 1979, ch. 111, par. 2403) is special legislation in violation of article IV, section 13, of the 1970 Illinois Constitution. (78 Ill. App.3d 340.) We allowed the plaintiffs' petition for leave to appeal. (73 Ill.2d R. 315.) We reverse.

From our review of the record, the briefs and appendices of the parties and the amicus curiae brief of the Attorney General, the following facts emerge.

The defendant uses a device known as a psychological stress evaluator (PSE) in conducting detection-of-deception examinations. A PSE is an instrument which detects, measures and graphically displays certain stress-related components of the human voice. (A. Moenssens & F. Inbau, Scientific Evidence in Criminal Cases 638 (2d ed. 1978).) A PSE records microtremors or what the manufacturer of one brand calls "guilt-revealing sound variations" in a person's voice which, according to its proponents, enable an examiner to discern the stress a person is under. From that data, an examiner is purportedly able to tell whether a person is telling the truth.

The allegations in the complaint, which must be taken as true (Collier v. Wagner Castings Co. (1980), 81 Ill.2d 229, 232), show that the plaintiff, Illinois Polygraph Society, is a not-for-profit corporation whose membership consists of detection-of-deception examiners licensed by the Department of Registration and Education (Department). The individual plaintiffs, Carl S. Klump and Richard S. Needham, are licensed, practicing detection-of-deception examiners. They are also members of the plaintiff Society. The defendant presently conducts examinations using the PSE. He has not applied for, and does not possess, a license as a deception-detection examiner as required by the Act (Ill. Rev. Stat. 1975, ch. 38, par. 202-4, now Ill. Rev. Stat. 1979, ch. 111, par. 2404). Nor does the defendant possess an internship license as provided for under the Act (Ill. Rev. Stat. 1975, ch. 38, par. 202-12, now Ill. Rev. Stat. 1979, ch. 111, par. 2413). Further, the complaint alleges that the plaintiffs' and the public's rights are being infringed by defendant's failure to comply with the Act. Also, it is alleged that the governmental officers charged with enforcing the Act have failed to do so against the defendant, leaving the plaintiffs to suffer irreparable harm without an adequate remedy at law.

The defendant's motion to dismiss the complaint alleged that: (1) the plaintiffs' lacked standing to maintain this suit because (a) no property right in a license was established, (b) only the Director of Registration and Education may enjoin violations under the Act; and (c) the plaintiffs have an adequate remedy at law; (2) section 1 of the Act (Ill. Rev. Stat. 1975, ch. 38, par. 202-1, now Ill. Rev. Stat. 1979, ch. 111, par. 2401), defining "Detection of Deception Examiner" is impermissibly vague and thus violates due process; (3) the same section is overbroad and therefore unconstitutional; (4) section 11 of the Act (Ill. Rev. Stat. 1975, ch. 38, par. 202-11, now Ill. Rev. Stat. 1979, ch. 111, par. 2412), permitting an examiner committee to conduct examinations without also prescribing standards, is unconstitutional; and (5) "the Statute" violates the special legislation provision of the Illinois Constitution (Ill. Const. 1970, art. IV, sec. 13) in that it confers special privileges upon licensed examiners granting them an arbitrary and exclusive right to determine who may be licensed under the Act. Also, since section 1 requires that an intern be examined for a license without requiring the examiner to conduct an examination, it grants a "monopolistic special privilege" to examiners.

The circuit court, in a cogent and exhaustive memorandum opinion, disagreed with the defendant and, on February 8, 1978, denied that motion to dismiss as well as a subsequent motion to dismiss the defendant had filed.

Initially, it is argued by the plaintiffs that the appellate court should not have considered the constitutionality of section 3 because that issue was not raised by the defendant at the trial level. We disagree because the defendant alleged in his motion to dismiss that "the Statute" was special legislation. Section 3 would be included in this broad statement. Moreover, in his memorandum in support of his motion to dismiss, the defendant argued the precise point considered by the appellate court, saying in effect that section 3 gave a monopoly in perpetuity to polygraph operators. Therefore, the issue was properly before the appellate court.

The appellate court based its reversal of the circuit court on the ground that section 3 of the Act is special legislation. That provision reads:

"Every examiner shall use an instrument which records permanently and simultaneously the subject's cardiovascular and respiratory patterns as minimum standards, but such an instrument may record additional physiological changes pertinent to the detection of deception. An examiner shall, upon written request of a person examined, make known the results of such test to the person examined within 5 days of receipt of the written request." (Ill. Rev. Stat. 1979, ch. 111, par. 2403.)

The parties state that the only instrument which records both a subject's cardiovascular and respiratory patterns is what is commonly called a polygraph machine.

The appellate court held that section 3 of the Act is defective as special legislation because it grants a statutory preemption of the field of detection of deception to those persons trained to use a polygraph machine. (78 Ill. App.3d 340, 344.) The court continued that a statute which grants a monopoly is not special legislation if it is reasonable, but that this act is unreasonable since it permits a licensed examiner to ignore the results of a polygraph test, thereby making superfluous the requirement that an examiner use a polygraph.

The court also concluded that the Act is special legislation because it creates an unreasonable classification which is not reasonably related to the detection of deception or the protection of the public health, safety or welfare. That is because the Act requires the use of the polygraph, which favors polygraph operators and discriminates against those who use other deception-detection devices. The appellate court further held that the statute is unreasonable because, to be licensed under the Act, a person must complete a six-month course of study prescribed by the Department of Registration and Education which includes "History of Polygraph" and "Polygraph Technique." The appellate court ...


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