ACLU v Alvarez: The Eavesdropping Case Continues

Jul 6, 2012

 by Mickey Osterreicher and tagged , , , , , , , ,

For those of you following the case of ACLU v Alvarez regarding the constitutionality of the Illinois Eavesdropping act the case is far from over despite the opinion by the United States Court of Appeals for the 7th Circuit on May 8, 2012.

Three days later, Appellee Anita Alvarez filed a motion to extend time to file a petition for rehearing and the ACLU filed a response in opposition. Interestingly enough, both parties used the approaching NATO Summit as the justification for their motion: the State’s Attorney, because her staff was busy preparing for it; and the ACLU, because it wished the preliminary injunction immediately put into effect to prevent the enforcement of the Act during the Summit. On May 15, 2012 the court granted the motion to extend the time to file and on May 29, 2012 in accordance with that order the Appellee filed a petition for an en banc rehearing.

As part of its petition, the State’s Attorney claimed that “[t]he panel majority decision . . . creates [an] unlimited First Amendment right of the public to engage in audio-recording and surveillance of public officials encountering private civilians regardless of whether the persons speaking consent to such recording.” Arguing that the Act “requires the recorder to obtain consent from the putative speakers as a prerequisite to recording,” the State’s Attorney maintains that the Act ultimately “regulates conduct (i.e., failing to obtain consent) not speech.”

Following denial of that motion by the 7th Circuit on June 14, 2012 and the transfer of the case to District Judge Sharon Johnson Coleman, the ACLU filed for entry of its amended complaint and for the implementation of the preliminary injunction on June 25, 2012. The next day it moved for summary judgment. Not surprisingly, on June 28, 2012 the State’s Attorney once again moved “to stay all proceedings in the District Court so that State’s Attorney Alvarez may prepare and file a petition for writ of certiorari in the instant case to the United States Supreme Court. Alternatively, State’s Attorney Alvarez moves to stay briefing of Plaintiff’s motion for summary judgment and allow discovery.”

The ACLU entered its opposition to that motion on July 2, 2012, asserting that “Alvarez does not meet any of the requirements for a stay pending the filing and disposition of a writ of certiorari;” and citing Hollingsworth v. Perry, 130 S. Ct. 705 (2010) for the proposition that “To obtain a stay pending the filing and disposition of a petition for a writ of certiorari, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.”

Among other things, the ACLU argued that the State’s Attorney cannot “meet her burden of proving . . . a reasonable probability that four Justices will vote to grant certiorari;” “that she cannot meet her separate burden of proving ‘a likelihood that irreparable harm will result from the denial of a stay;’” and that she did not articulate with specificity (or in any way whatsoever) facts necessary to overcome  a motion for summary judgment.

Stay tuned for further developments in this ongoing case.