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09/14/87 Lisa Small Et Al., v. Stanley T. Kusper

September 14, 1987





513 N.E.2d 1108, 161 Ill. App. 3d 42, 112 Ill. Dec. 499

Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding. 1987.IL.1337


JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.


Plaintiffs, voters in the March 1986 primary election in Chicago, appeal from the dismissal of their complaint which sought to have various provisions of the Illinois Election Code (Ill. Rev. Stat. 1985, ch. 46, par. 1-1 et seq.) declared unconstitutional and to have defendants, local and State election officials, enjoined from enforcing those provisions. Plaintiffs alleged that the challenged provisions violated their right to privacy guaranteed by article I, section 6, of the 1970 Illinois Constitution.

The statutes in question require that each primary voter disclose his party affiliation (Ill. Rev. Stat. 1985, ch. 46, pars. 5-30, 6-67, 7-43); that one of the election Judges "announce the same in a distinct tone of voice, sufficiently loud to be heard by all persons in the polling place" (Ill. Rev. Stat. 1985, ch. 46, par. 7-44); and that local election authorities code the list of registered voters in each precinct to indicate the primary ballot selected by registrants and deliver copies of these coded lists to the chairman of each established political party within 60 days following the election. Ill. Rev. Stat. 1985, ch. 46, pars. 5-29, 6-66.

The trial court, after finding no precedent or support for plaintiffs' position, concluded that the right to privacy under section 6 does not encompass party affiliation, and therefore dismissed plaintiffs' complaint and granted defendants' motion for summary judgment. For the reasons outlined below, we affirm.

Article I, section 6, of the 1970 Illinois Constitution is entitled "Searches, Seizures, Privacy and Interceptions" and provides:

"The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means." Ill. Const. 1970, art. 1, sec. 6.

The courts of this State have not yet defined with certainty what privacy protections are afforded persons under this section. In Stein v. Howlett (1972), 52 Ill. 2d 570, 574, 289 N.E.2d 409, 411, the court observed, "No limiting definition of the type of privacy is stated in the constitution." (See also Ill. Ann. Stat. 1970 Const., art. I, sec. 6, Constitutional Commentary, p. 317 (Smith-Hurd 1971) (while recognizing that the protection against invasion of privacy was new and stated broadly, it also points out that no definition of the "types" of privacy was offered).) That observation was qualified, however, in Illinois State Employees Association v. Walker (1974), 57 Ill. 2d 512, 523, 315 N.E.2d 9, 15), where the court noted that the constitutional right to privacy merely gave individuals protection from eavesdropping devices or other means of interception. In a Dissent, Justices Ryan and Goldenhersh reviewed the history of section 6, from the time that section was originally presented by the Bill of Rights Committee until the time it was enacted in final revised form, and concluded that it revealed an intent to create a substantive right of privacy independent of the constitutional protections from searches, eavesdropping or the use of highly intrusive information-gathering devices. (57 Ill. 2d 512, 531-34, 315 N.E.2d 9, 19-21.) In reaching this Conclusion, the Dissenting Justices considered Bill of Rights Committee Delegate Dvorak's Discussion of that section relevant. Dvorak, commenting on the right to privacy, stated:

"'The cases that I have noted that deal with eavesdropping have pretty much intruded into the area of privacy because now the area of privacy that once was thought to be a complete area in and of itself mostly is the reason given for why eavesdropping, wire-tapping, and bugging activities are unconstitutional. But there is the area of privacy still existing in very particular instances. For instance, we have now the concept of a general information bank whereby the state government or the federal government can take certain pertinent information about each and everyone of us based on, for instance, our social security number -- know our weight, height, family ages, various things about us -- and this is not acceptable to -- was not acceptable -- or the theory or the thought of such a thing -- was not acceptable to the majority of our committee in approving section 6.' (Emphasis added.) 3 Proceedings 1525." 57 Ill. 2d 512, 533, 315 N.E.2d 9, 20.

With these differing views of the scope of section 6 in mind, it is necessary to determine whether one's political affiliation is a privacy right secured in Illinois. While we agree with the Dissenting Justices in Walker and plaintiffs here that the privacy right extends beyond traditional fourth amendment protections, the history of section 6's enactment and subsequent supreme and appellate court decisions require that we reject its expansion in this case.

Excerpts from the proceedings of the Sixth Illinois Constitutional Convention indicate the delegates' intention to make no change in the requirement that voters disclose their party affiliation in a primary election. For example, during the report of the Suffrage and Constitution Amending Committee, one delegate, referring to open primaries, stated they were rejected because they were "not a matter for constitutional action." (II Proceedings of the Sixth Illinois Constitutional Convention, Verbatim Transcripts, at 978 (1970).) Likewise, in ...

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