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STATE OF ILLINOIS SS: COUNTY OF COOK ThT

THE

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CIRCUIT COURT OF COOK COUNTY, ILLThTOIS COUNTY DEPARTIvIENT-CRIMINAL DIVISION

PEOPLE OF

THE

STATE OF ILLINOIS -vsNo. 10

CR

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7 ANNABEL

8092 01

IVIElDNGO

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REPJRT OF PROCEEDThTGS had at the hearing o f the above-entitled cause before

Stev~n

J. Goebel, one

of the judges of said division, on the 19th day of June, A.D., 2012. PRESENT:

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MS.

ANITA

ALVAREZ,

Cook County State's Attorney by

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MR. ROBERT roDLASEK, Assistant State's Attorney,

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on behalf of the Peoplej

MS. ANNABEL

IVIElDNGO,

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pro se.

ELIZABErn A. REYES

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CERTIFIED SHORTHAND REPJRTER 2650 SOUTH CALIFDRNIA AVENUE CHICAGO, ILLThTOIS 60608 ILLThTOIS CSR LICENSE NO. 084-001910

I N D E X

PROCEEDINGS
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PAGE
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Argument Defendant's motion to dismiss by Defendant Melongo by Mr. Pcxllasek by Defendant Melongo
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Ruling

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THE CLERK:

Armabel M elongo.
Gocx:i morrling, Judge.

DEFENDANT MELONGO: THE COURT: Podlasek.

MR. PODLASEK:

Good mOrrling, Miss Melongo.

Good morrling, Mr.

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Good morrling, Judge.

Judge, for the record

Robert Podlasek, POD LAS E K, on behalf of the State. DEFENDANT MELONGO: THE COURT: For the record Annabel Melongo, pro se. Case is up for ruling today after I

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All right.

previously had given everyone the new cites of the Federal District Appeals Court case and Miss Melongo did file a new brief in support of her position. forward?
MR. PODLASEK:

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Mr. Podlasek, are you ready to go

I am. Actually I haven't filed --

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DEFENDANT MELONGO:
MR. PODLASEK:

She didn't file any -I mean those were just notes. I prepared

DEFENDANT MELONGO:

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my argument.
THE COURT: Okay. Okay.
Go ahead briefly, Miss Melongo.

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DEFENDANT MELONGO: THE COURT: may argue. DEFENDANT MELONGO: THE COURT:

All right.

You

How many minutes?

Go ahead.

I'll tell you when. Okay.

DEFENDANT MELONGO:

Because it's going to take like 15

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minutes.
TIm COURT:

How about five or ten? Okay. Yes . Actually

DEF'EI'IDANT MELONGO:
TIm COURT:

Just hit your -- hit your main points please . Okay. Like you said Seventh Circuit

DEF'EI'IDANT MELONGO:

Federal Court of Appeal made its ruling in the case ACLU versus Alvarez.
TIm COURT:

All right.

For the record that's 211 U.S. That's the other one. That's the wrong

District Lexis 208 -- no . cite. MR. PODLASEK:

TIm COURT:

It's 2012 U.S. App. Lexis 9303. That was the one that was modified. All

Yeah.

right.
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The united States Court of Appeals per the Seventh Circuit

Number 11-1286. DEF'EI'IDANT MELONGO:

TIm COURT:

Yes.

It's entitled American Civil Liberties Union o f

Illinois, Plaintiff/Appellant, versus Anita Alvarez, Defendant/ Appellee.

Go ahead.

Proceed. At page like 23 they said that

DEF'EI'IDANT MELONGO:

Okay.

"Audio and audiovisual recording are media of expression ccmnonly used for the preservation and dissemination of information and idea and thus are included within the free speech and free press guaranty of the First and 14th Amendment." that's irrportant, the First Amendment issue. So that is one point

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At Page 24 we have another point where it's stated, "The eavesdropping statute operates at the front end of the speech process by restricting the use of a common, indeed ubiquitous, instnrrnent of canrnunication. Restricting the use of an audio or

audiovisual recording device suppresses speech just as effectively as restricting the dissemination of the resulting recording." Then at Page 26 we have this: "Audio and audiovisual

recording are canrnunication techno logy and as such they enable speech. criminalizing all non -consensual audio recording

necessarily limits the information that might be published or broadcast whether to the general public or to a single family member or friend and thus burden First .Amendment right." So at Page 28 we have this: "Moreover, the First

Amendment goes beyond protection of the press and self-expression of individual to prohibit gove:rnment fran limiting the stock of information from which member of the public might draw." And then at Page 39 we have this: You have it? TIIE COURT: Yes.
Go ahead, Miss Melongo.

"Either way" - - Page

DEFENDANT MElDNGO:

"Either way it should be clear by now that

its effects on First .Amendment interests is far from incidental. To the contrary, the statute specifically targets a communication technology; the use of an audio recorder, a medium of expression, triggers criminal liabilities. The law's legal sanction is

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directly leveled against the expresslve element of an expressive activity.

As

such, the statute burdens First .Amendment right

directly, not incidentally." last but not least, "The Illinois eavesdropping statute obliterates the distinction between private and non-private by criminalizing all non-consensual audio recording regardless of whether the communication is private in any sense. If protecting

privacy is the justification for this law, the law must be closely tailored to serve that interest in order to avoid trampling on speech and press right." So, Judge, verbatim everything I say in my amended motion to dismiss has been echoed in this ruling. So at this

point I would ask you to dismiss the case because the Illinois eavesdropping law is unconstitutional on its face on the First and 14 th .Amendment and as applied to the Defendant trampled on her freedom of the press, speech, petition and due process right.
'IBE

COlJRT:

Thank you, Miss Melongo.

Mr. Pocilasek, you may

respond. MR. PODLASEK: Just briefly, Judge. The court in this case

was very specific and they limited the question raised and the question as the court stated, "The question is here villether the First .Amendment prevents Illinois prosecutors from enforcing the eavesdropping statute against people villo openly record police officers performing their official duties in public." And it goes

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on to state that, "Openly making audiovisual recordings of police officers performing their duties in public places and speaking at a volume audible to bystanders." needs to be looked at, Judge. this ruling. They did not address prlvacy issues. What you have here That's the first issue that

That's what the court addressed In

lS the ACID has three points that - - that were addressed by the court. They were openly recording police officers performing

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their public duties in a public place where third parties were present, in this case the general public whether they were walking by incidentally or standing around listening. They were speaking

l oud enough for others in the public way to hear. In Miss Melongo's case, she surreptitiously recorded a private conversation, a conversation that but for that recording would not have been audible to anybody else besides the speaker and the listener. them. That was a telephone conversation, three of

That's what this case is a1::Dut. All right.

Mr. Pocilasek, though if the statute is

THE COURT:

unconstitutional in part, how do -- how do you say a court of law can hold it constitutional as to certain facts but not other facts? MR.
PODLASEK:

Well, first of all, Judge, in this case the

court did not specifically find that the statute was unconstitutional. In this case -- their ruling was that -- I'm

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just going to read specifically what the last paragraph of this ruling is. THE COURT:
Go ahead.

MR. PODLASEK:

"For those reasons we conclude that the ACID

has a strong likelihood of success on the merits of its First Amendment claim. The Illinois eavesdropping statute restricts an

expressive medium used for the preservation and dissemination of information and ideas.
On

the factual premise of this case, the

statute," the premise of this case, Judge, not Miss Melongo' s case," the statute does not serve the important governmental interest of protecting conversational privacy. Applying the

statute in the circumstances alleged here," again this case, "is likely unconstitutional," but they never at any point state that this statute is unconstitutional. THE COURT: No. They say Here -They say it's likely unconstitutional.

MR. PODLASEK: THE COURT:

Hold on.

MR. PODLASEK : THE COURT:

Likely but --

So that's a Federal District Appeals Court telling

essentially me that this statute is likely unconstitutional. MR. PODLASEK: No. A very narrow portion of the statute, The Court went They

Judge, not the entire statute if that's the case. on to say in their ruling what they -- they did.

"Accordingly we reverse and rerrand with the following

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instructions:

The District Court shall reopen the case and allow

the amended corrplaint, enter a preliminary injunction enjoining the State's Attorney from applying the Illinois eavesdropping statute against the ACLU and its employees or agents who openly audio record the audible communications of law enforcement officers or others whose communications are incidentally captured when the officers are engaged in their official public duties In public places and conduct such further proceedings as are consistent with this opinion." They're not stating that everybody now has the right to go ahead and start recording private conversations and then publishing them. THE COURT: Which gets back to my first question. If the

statute is unconstitutional in part, how could it be enforced? Does it sense facts specific? MR. PODLASEK:
TIill

In this case, Judge

COURT:

Does the judge have to then decide what facts - That's exactly -there are before -That's exact 1y vvhat this Court has to do. hearing whether or not the statute
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MR. PODLASEK: THE COURT: MR. PODLASEK: THE COURT:

unconsti tutional or not? MR. PODLASEK: that issue, Judge.

In

point of fact the court I think addresses

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(Pau s e in proceedings) MR. PODLASEK:

TI-IE mURT:

TIle court does

First of all r let me just say the last paragraph

you read from is the remedy the court gave -MR. PODLASEK:
TI-IE mURT:

That's correct. because they found the statute is likely

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unconstitutional so the remedy they gave is specifically against the statute as its written right now. MR. PODLASEK:
TI-IE mURT:

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It's specific

So that shows that their remedy is modifying the

statute and disregarding the statute and they issued and granted that injunction and said the State could not enforce that section of the statute. MR. PODLASEK: That section of the statute which applies to That's not the section of the statute The court specifically

police officers r Judge.

that we're dealing with in this case. says DEFENDANT MELONGO:

TI-IE mURT:

Judger may I?
Go ahead.

Not yet.

MR. PODLASEK:

"That unlike the federal wiretapping statute

and the eavesdropping laws of most other states the gravamen of the Illinois eavesdropping offense in this case lS not the secret interception or surreptitious recording of private conmunication." That's - - that's not what they're addressing in this case.

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They're addressing the public recording of police officers, public employees who are doing their duty publicly in a public place where others can see them and hear them. factually In this case. The court did not find the statute unconstitutional. They didn't overturn the statute. The statute still exists. And That's not what we have

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the only thing that they've done, the only remedy they gave the ACLU was for that specific limited section of the statute which goes strictly to not recording audio -- audio -- audible recordings of police officers. That's what they did. In this

case, they were very, very careful to structure this in a very limited way. We don't believe that this case applies to Miss Melongo's case and her case should go forward and the next step should be a trial in this case, a retrial. THE COURT: All right. Miss Melongo.
Go

ahead.

DEFENDANT MElONGO:

Judge, I think Mr. Podlasek is living like

in his own world, you know, because everything -- first, the Defendant conversation with Mrs. Taylor was not a private conversation. It was about the transcript being forged by Mrs.

la.udien who is a Court Reporter, so there was nothing private in that conversation. husband. The conversation was not about Mrs. Taylor It was not about sane thing So it was a

It was not about her family.

she does outside of her professional occupation.

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public conversation discussing about a public matter and Mrs. Taylor was speaking at a volume audible to any unassisted ear. was on the phone and she was in her office and she was speaking loudly. So there was not a private conversation. And the second issue is actually -- believe me, Judge, I was actually surprised by this ruling myself because what the the Seventh Circuit Court of the state did it went beyond of the - - the issue that ACID asked them to address. ask can we speak speaker. ACID come and It

ACLU come with the issue of the willing

ACLU come with the issue of police officer but the

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Seventh Circuit Federal Court of Appeal actually went beyond that. It didn't even address the issue of a willing speaker. It went on

and addressed the -- the defect of the statute itself because it say the statute -- what is wrong about the statute is that it target a communication device regardless of whether the person being recorded is a police officer or Pamela Taylor or anybody. The -- the -- the Seventh Circuit Court of Appeal restricted its judgment on the communication device itself. Actually it went to the core of the matter. So it

really doesn't matter in this case who is being recorded as long as the conversation is not private. So Mr. Podlasek bringing the It was

issue of police officer or whoever, it was not about that. the substance of the law. The law should not target a
Thank

communication technology - - technology device.

you, Judge.

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THE COURT:

Okay.

On Page 47 of the United States District

Court of Appeals opinion, it does say, and I quote, "Of course, the First ..Amendment does not prevent the Illinois General Assembly from enacting greater protection for conversational privacy than the common law tort remedy provides nor is the legislature limited to using the Fourth ..Amendment reasonable expectation of privacy doctrine as a benchmark, but by legislating this broadly by making it a crime to audio record any conversation, even those that are not in fact private, the State has severed the link between the eavesdropping statute's means and its end. Rather than attempting

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to tailor the statutory prohibition to the important goal of protecting personal privacy Illinois has banned nearly all audio recording without consent of the parties including audio recording that implicates no privacy interests at all." The Court is relying on that language as well as the Court does not believe that it can be severed out. This case

obviously -- the appeals case from the Federal District Court obviously dealt with recording police officers and not specifically to the facts of this case; however, I do not believe that the statute can be severed out like that. And addi tionally this Court is adopting Judge Sacks' opinion in the People of the State of Illinois versus Christopher Drew. Obviously not the facts 'cause the facts are different, but

I'm adopting Judge Stacks - - Judge Sacks', SAC K S, opinion in

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10 CR 00046 In People of the State of I llinois versus Christopher Drew. And thus Miss Melongo's motion to declare the statute -eavesdropping statute unconstitutional is granted. DEFENDANT MELONGO:
rv1R. PODLASEK:
TIm COURT:

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Thank you, Judge.

We're asking for a 30 day appeal date.

Where are we with discovery on the other case

'cause we're going to now move this case to the forefront and get the computer tampering case to trial.
rv1R. PODLASEK:

Judge, we're not going to be ready to go to I have four major

trial until sometime in November or October. trials that go right into September.
TIm COURT:

No.

This case is gOlng to have to go. Judge, there's no way I can get it ready. Well, Judge , actually the case has a

rv1R. PODLASEK:

DEFENDANT MELONGO:

pending motion to dismiss so Mr. Podlasek has to respond to that motion to dismiss.
TIm COURT:

All right.

Do you have a motion to dismiss on

that case? DEFENDANT MELONGO: Yes. He has a pending motion to dismiss.

(Pause in proceedings) DEFENDANT MELONGO: of the motion. So I think Mr. Albukerk sent you the copy

I'm not going to rewrite the motion so you can

just answer that motion and then we argue it.

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MR. PODLASEK:

How al:xJut July 19th , Judge?

We will not be

answering that motion at that time.

We're asking for that date to

determine whether or not we're taking this up on appeal.

TIffi

COURT:

Oh, I understand.

I fully expect obviously the

State's Attorney's office would appeal this matter. MR. PODlASEK :

TIffi

July --

COURT:

But that's not going to delay the other case.

We're still going MR. PODlASEK:

TIffi

I understand that, Judge.

COURT:

We're still going to move with very -- speed to How many of

get this done 'cause this is on the old case call. your other cases are on the old case call? MR. PODlASEK:
TIffi

Roberto Rivera, July 9th.

COURT:

That's a bench trial. 35 witnesses. I have a second trial that month Carl Ogelsby is being

MR. PODlASEK:

before Judge Joyce, People versus Rafino.

set before Judge Linn in the middle of August and I have a Lake County case that's going ahead on the 13th in August.
TIffi

COURT:

I know, MY. Podlasek, these cases can be somewhat

canplicated. MR. PODlASEK: THE COURT: Well, Judge, it's more than that.

We still need to move this along. It's a matter of gathering all the witnesses

MR. PODlASEK: for this case too.

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THE COURT:

All right.

Well, start now and we're going to set

this obviously for Miss Melongo's motion to dismiss and we'll hear -- we'll hear that on July 19th. with for motion. DEFENDANT MEIDNGO: THE COURT: He hasn't answered the motion yet. So it's going to be set

I thought you said you had a motion on file. The motion has been filed by the

DEFENDANT MEIDNGO: Defendant.

Mr. Albukerk filed the motion so I don't want to

rewrite the motion so if he can just answer to the motion and then we argue it. THE COURT: Right. We're gOlng to set it for argument. You

filed it already or Mr. Albukerk filed it so we're setting it for July 19th for argument. DEFENDANT MEIDNGO:
fv1R. PODLASEK:

For argument? I haven't responded.

For my response?

DEFENDANT MEIDNGO: THE COURT:

He hasn't responded.

We can hear it. Pardon me? What's your motion?

fv1R. PODLASEK:

THE COURT:

It's not that complicated. No, Judge.

DEFENDANT MEIDNGO:

He has to respond to it so I'm not going to argue out

that I know how to make the argument. of the blue. THE COURT: All right.

Both sides seem to want to - - to delay

this so we'll set it for State's response 'til July 19th.

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DEFENDANT MELONGO:
fv1R. PODlASEK:

Okay.

By agreement?

THE COURT:

By agreement.

There's a motion on file. I want

DEFENDANT MELONGO:

And, Judge, what about my I oond?

my I oond reinstated because I was put on - - sent to j ail and now

put on E.M. because I violated a condition of my I oond by catching a new case but now that the case has been dismissed I want the condition of my I bond reinstated. THE COURT:
Mr. Podlasek.

fv1R. PODlASEK:

State, would object to that, your Honor.

On what basis?

DEFENDANT MELONGO: THE COURT:

Well, you're not to address Mr. Podlasek, but

Do you wish to address that

she's obviously asking me what basis. on July 19th as well?

fv1R. PODlASEK:

I'll address it then, Judge. If you have any response to that Miss Melongo, we'll address all

THE COURT:

All right.

motion, file that on July 19th. those matters on July 19th. DEFENDANT MELONGO:

So I still have to stay on E.M.?

So,

Judge, it really doesn't make sense. THE COURT: Well, she is on E.M. All right. I've just

declared the statute unconstitutional, in effect dismissing it. State obviously has a right to appeal that. that decision. They're going to make Even if they

I fully expect them to appeal it.

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did appeal it, at this point I still could require you to remain on E. M. during that period of time and that I s what the State objecting to. that IS pending. So they're asking that you stay on E.M. while I don't see that there's a reason to do that. Yes.
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DEFENDANT MElDNGO: TI1E COURT:

Mr. Podlasek, I I m going to let you make your

argument now as to whether or not Miss Melongo DEFENDANT MElDNGO: TI1E COURT: MR. PODLASEK: obj ection. TI1E COURT: to strike E.M. Just a general objection? I bond will be reinstated.
Thank you, Judge.

Yes.

should stay on E.M. Judge, we I re just going to make a general

All right.

11m going

DEFENDANT MElDNGO: TI1E COURT:

And Miss Melongo will be of f E. M.

Thank you.

MR. PODLASEK: TI1E COURT:

Thank you.

DEFENDANT MElDNGO:

Judge, you don I t have a ruling?

You

should give us a ruling that I can read about your ruling. TI1E COURT: oral only.
As I stated, 1 1m also adopting as it applies to the law

No.

I did not issue a written ruling.

Mine

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Christopher Drew and 11m basing it on the United States Appellate District's opinion. So thatls my ruling.

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DEFENDANT MELONGO: THE COURT: Okay?

Okay .

DEFENDANT MElDNGO:
E.M.

Thank you, Judge.

Should I have to call

or go to E.M.?
THE COURT:

Stuart, you have to prepare something for Miss

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Melongo that she's off E.M.

THE CLERK: THE COURT:

Yes, I will do that.

Thank you. Thank you.

DEFENDANT MELONGO:

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(Which were all the proceedings had)

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STATE OF ILLINOIS ) ) COUN1Y OF COOK )

SS:

I, ELIZABETH A. REYES, Offi cial Shorthand Reporter of the Circuit Court of Cook County, County Department-Criminal Division, do hereby certify that I reported in shorthand the evidence had in the above-entitled cause and that the foregoing is a true and correct transcript of all the evidence heard.

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Dated this

ClO

day of June, 2012.

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