The opinion
MR. JUSTICE RYAN, dissenting:
I dissent from the majority opinion because I believe that the Illinois Constitution of 1970 creates a right of privacy which is violated by this financial-disclosure scheme.
As originally presented to the constitutional convention by the Bill" of Rights Committee, section 6 of article I was worded as follows:
“The right of the people to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, interceptions of their communications, by eavesdropping devices or other means, or invasions of their privacy shall not be violated.” 6 Proceedings 29.
In its written explanation of this proposal, the Committee stated:
“Forty-five state constitutions have provisions substantially similar to the existing Section 6 of the Bill of Rights ***. The new section supplements the existing language in two important respects. It adds a right against ‘interceptions of their communications by eavesdropping devices or other means’ and it adds a right against ‘invasions of their privacy ’. Both additions treat subjects in the forefront of present public concern, although neither is found in many state constitutions. ***
The changes incorporated in this new provision are as follows:
(1) The words ‘other possessions’ are substituted for the word ‘effects’ in the first clause. ***
(2) The words ‘interceptions of their communications by eavesdropping devices or other means’ have been inserted in the first clause. This addition is intended to create a right in respect to interception of communications that is akin to the prohibition against ‘unreasonable searches and seizures’. ***
(3) The words ‘invasions of their privacy’ were inserted in the first clause to protect people against invasions of their privacy. It is doubtless inevitable that any person who chooses to enjoy the benefits of living in an organized society cannot also claim the privacy he would enjoy if he were to live away from the institutions of government and the multitudes of his fellow men. It is probably also inevitable that infringements on individual privacy will increase as our society becomes more complex, as government institutions are expected to assume larger responsibilities, and as technological developments offer additional or more effective means by which privacy can be invaded. In the face of these conditions the Committee concluded it was essential to the dignity and well being of the individual that every person be guaranteed a zone of privacy in which his thoughts and highly personal behavior were not subject to disclosure or review. The new provision creates a direct right to freedom from such invasions of privacy by government or public officials. ” (Emphasis added.) 6 Proceedings 29 through 32.
In presenting this section to the convention on behalf of the Bill of Rights Committee Delegate Dvorak explained that the section contained three basic concepts; first, searches and seizures; second, eavesdropping and wiretapping; and third, the right to privacy. In discussing the right to privacy he stated:
“The cases that I have noted that deal with eavesdropping have pretty miich 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 every one 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.
I find it clear from this discussion and from the language of section 6 itself that as originally proposed that section created a right to privacy independent of the prohibitions against unreasonable searches and seizures and wiretapping. After lengthy debate section 6 was approved and forwarded to the Committee on Style, Drafting and Submission. That Committee rearranged the wording of section 6 and placed the provision concerning invasions of privacy before instead of after the provision concerning interceptions of communications by eavesdropping devices or other means. The majority of this court believes that the effect of this revision was to significantly limit the scope of the right to privacy to the area of eavesdropping. However, this interpretation of the stylistic alteration in the language of section 6 is inconsistent with the Committee’s own interpretation of their work. In explaining the revisions of section 6 to the convention the Committee on Style, Drafting and Submission stated that “no substantive change is made.” 6 Proceedings 217.
Moreover, in the “Address to the People” adopted by the convention on September 2, 1970, and included in the information concerning the constitution distributed to the electorate before the referendum on the adoption of the 1970 Constitution, we find the following statement concerning the Bill of Rights article:
“*** Individual rights protected by the present Constitution are retained. There are additional new protections.
*** Unreasonable invasions of privacy are prohibited; ***.” 7 Proceedings 2673.
And in the explanation to the voters of the revised version of section 6 the convention stated:
“This is an amended version of Article II, Section 6 of the 1870 Constitution expanded to include guarantees of freedom from unreasonable eavesdropping and invasions of privacy.” (Emphasis added.) 7 Proceedings 2683.
This history of the origins of section 6 leads to what I consider the inescapable conclusion that our constitution creates a right to privacy independent of the constitutional protection against searches and seizures and wiretapping.
This conclusion is buttressed by our decision in Stein v. Howlett, 52 Ill.2d 570 . In Stein we were confronted with a number of challenges to the Illinois Governmental Ethics Act (Ill. Rev. Stat., 1971 Supp., ch. 127, par. 604A—101 et seq.), including a contention that the Act was an unconstitutional invasion of privacy. The majority opinion in this case makes scant reference to the language of Stein. Immediately preceding the sentence which the majority quotes from Stein we find this language:
“The confirmation of the right of privacy as a constitutional right is found in section 6 of article I of the 1970 constitution which expressly states, for the first time in our State charters, that people ‘have the right to be secure in their persons, houses, papers and other possessions against *** invasions of privacy ***.” (Italics in reported opinion.) 52 Ill.2d at 574 .
Then following a detailed analysis of the statute under consideration we stated in Stein:
“The purpose of the legislation supports the necessity for broad statutory coverage in this area. We believe that the statute as cast reflects the compelling governmental interest which is paramount to the rights of the individual, and that the statute is not overbroad as an unconstitutional invasion of privacy.” (Emphasis added.) 52 Ill.2d at 578 .
Our detailed analysis would have been unnecessary if no right of privacy in one’s financial affairs had been created by section 6 of article I of the 1970 Constitution. Therefore, I believe that in Stein not only did we recognize but also we impliedly held that such a right was created by section 6. The majority opinion has not effectively dealt with Stein. We must either hold that our constitution creates a right of privacy embracing one’s financial affairs or we must overrule Stein to the extent that it so holds.
The majority believes that any doubt existing as to the ultimate meaning of section 6 has been dispelled by the rejection by the constitutional convention of an amendment which would have stricken section 2 of article XIII which authorizes economic disclosures. In support of the amendment one of its co-sponsors stated that he opposed section 2 of article XIII because he believed that it is an invasion of the right of privacy and referred to the discussion by the California Supreme Court in City of Carmel-by-the-Sea v. Young, 2 Cal. 3d 259 , 466 P.2d 225 , 85 Cal. Rptr. 1 . In referring to that decision the delegate stated that it isn’t all disclosure that the court held to be within the unconstitutional category. In concluding he stated: “I suggest that this is a matter for legislation and does not belong within the constitution, and that I therefore urge support of this amendment.” (3 Proceedings 1800.) It should be remembered that this amendment was offered at the time that the original section 2 provided “Each candidate for or holder of a state office created by this Constitution shall declare his and his immediate family’s income, the sources thereof, their assets and liabilities, and any significant non-economic interest.” 6 Proceedings 605.
Before the amendment to delete section 2 was debated that section had been amended and the words “declare his and his immediate family’s income, the source thereof, assets and liabilities, and any significant non-economic interest” had been deleted and in lieu thereof the words “file a statement of interest, which shall include a list of significant economic and noneconomic interests, as prescribed by law” had been inserted. (3 Proceedings 1772.) Thus when the proposal to delete section 2 was debated the delegates would have had no way of knowing the nature of the disclosures which would subsequently be required by statute and whether or not they would infringe upon the right of privacy. As above noted the delegate that spoke in favor of the deletion of all of section 2 acknowledged that it isn’t all disclosures that fall within the category of being unconstitutional as an invasion of the right of privacy. It is further suggested that the delegates suggestion that it is a matter for legislation and does not belong within the constitution may well have been thought by the other delegates to have already been accomplished by the previously adopted amendment to section 2. Furthermore the other co-sponsor of this amendment in his closing summation urging its adoption made no reference at all to the right of privacy. After having read and reread the debates relating to section 2 of article XIII I can find no basis for concluding that the defeat of the amendment to delete all of section 2 was based upon the rejection of the idea that section 2 invaded the right of privacy. The mere mention of the right of privacy by one delegate speaking on behalf of the amendment, which comment was not entirely relevant, does not indicate to me that the right of privacy question was the reason for the rejection of the amendment.
I also believe, contrary to the majority, that personal financial affairs are within the realm of the right to privacy created by the Federal Constitution. In Roe v. Wade, 410 U.S. 113, 152 , 35 L. Ed. 2d 147, 176 , 93 S. Ct. 705 , the United States Supreme Court observed that the roots of the right to privacy have been found in the First Amendment, the Fourth and Fifth Amendments, the Ninth Amendment, and in the penumbras of the Bill of Rights. The court concluded in Roe that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty” are included in this guarantee of personal privacy. Although the United States Supreme Court has not yet decided whether a person’s financial affairs fall within the protected right of privacy under the Federal Constitution, it was recently stated by Mr. Justice Powell of that court: “Financial transactions can reveal much about a person’s activities, associations, and beliefs. At some point, governmental intrusion upon these areas would implicate legitimate expectations of privacy.” California Bankers Association v. Shultz, 416 U.S. 21, 78-79 , 39 L. Ed. 2d 812, 850 , 94 S. Ct. 1494, 1526 (Powell, J., concurring, joined in by Blackmun, J.).
Although I believe that section 6 of article I creates a right to privacy embracing one’s financial affairs, I also realize that this right is not absolute. Regulations limiting this right may be justified by a compelling State interest but such limitations must be narrowly drawn to express only the legitimate State interests at stake and the compelling interest may not be achieved by unnecessarily broad measures. Roe v. Wade, 410 U.S. 113 , 35 L. Ed. 2d 147 , 93 S. Ct. 705 ; Stein v. Howlett, 52 Ill.2d 570 ;Bates v. City of Little Rock, 361 U.S. 516 , 4 L. Ed. 2d 480 , 80 S. Ct. 412 .
The obvious purpose of Executive Order No. 4 is to instill in the public trust and confidence in the State government and to disclose or prevent possible conflicts of interest which may involve State employees. As we stated in Stein such a purpose reflects a compelling State interest and justifies a limited intrusion into the financial privacy of the employees affected. However, even though the State has a compelling interest in this area, and has more latitude in regulating the affairs of its employees than those of private citizens (Broadrick v. Oklahoma, 413 U.S. 601 , 37 L. Ed. 2d 830 , 93 S. Ct. 2908 ; United States Civil Service Com. v. National Ass’n of Letter Carriers, 413 U.S. 548 , 37 L. Ed. 2d 796 , 93 S. Ct. 2880 ), a balance must still be struck between the legitimate objectives of the State and the privacy expectations of the employee. Pickering v. Board of Education, 391 U.S. 563 , 20 L. Ed. 2d 811 , 88 S. Ct. 1731 .
As a basic premise I agree with the State that a person’s private financial affairs may exert an influence on the performance of his official functions. This would most obviously be true if an employee had a financial interest in a business or organization having dealings with the government agency employing him. Inquiry directed to disclosing such potential conflict is' certainly proper. Furthermore, because financial ties to organizations or businesses apparently unrelated to a person’s official position might be a potential source of conflict, inquiry into such affairs also seems proper. As we noted in Stein, “It would be an anomaly to enact a statute, designed to eliminate conflicts of interest between public trust and private gain, in such manner that the person affected is permitted to decide when a financial interest relates to his public employment. The purpose of the legislation supports the necessity for broad statutory coverage in this area.” ( 52 Ill.2d at 578 .) This is particularly true of a disclosure scheme which is designed not only to disclose actual conflicts, but also to instill public confidence in government. Achieving this goal would be difficult if substantial financial ties of public employees were not disclosed. Executive Order No. 4 and the Financial Disclosure Statement issued to implement the Order, however, are not limited to an inquiry into financial ties which might conflict with an employee’s official duties. The Order demands disclosure of every aspect of a person’s financial life. It requires that the Statement include “a current net worth statement, disclosing all assets and liabilities of the person.” (Emphasis added.) The Order also requires that the Statement contain a statement of income (including capital gains) received during the preceding calendar year, disclosing: “(1) each source of income, (2) the total amount received from the source, and (3) the nature of the income transactions involving the source.” (Emphasis added.) Subject to rule of the Board, the Statement shall also disclose the interests of the spouse and immediate family living with the person making the statement.
It should be remembered, that this Financial Disclosure Statement, as provided by the Executive Order, shall be open to reasonable public inspection. The Order authorizes the Board to provide by rule for the time, place and manner of the inspection of these documents.
The Order and the Financial Disclosure Statement are designed to reveal an employee’s net worth. Since these statements are open to public inspection the State employee must bare to the world the minute details of his financial affairs for whatever use the curious may wish to make of this information. I do not believe that this expansive intrusion into the privacy of the employees is necessary to achieve the State’s legitimate objectives. It is not necessary that the public know the net worth of an employee, since there is no reason to believe that a wealthy public servant will be less truthworthy than one of more modest means or vice versa. It is therefore unnecessary that the value of personal assets not in the form of business interests be disclosed.
While the State has a legitimate interest in knowing the nature of an employee’s financial holdings in corporations or business ventures which might possibly influence his conduct, I do not think it is necessary that the dollar value of those holdings be revealed. The disclosure of the financial relationship by itself will illuminate areas of possible conflicts of interest. For purposes of general disclosure the State’s interest in discovering the monetary extent of these interests is outweighed by the employee’s interest in privacy. Thus, I am of the opinion that the requirement of the Order that an employee list the actual dollar value of outside income or business interests constitutes an unreasonable intrusion upon the privacy of the individual and is invalid.
Furthermore, for the same reason I find offensive the requirement of Executive Order No. 4 that a copy of the employees’ State and Federal income tax returns be filed with the statement. Although it is true, as the majority observes, that under current Rule 7 of the Board of Ethics these returns are not open to public inspection, nothing in the Executive Order prevents an alteration of the rules by the Board to permit public inspection or limited public inspection of these income tax returns.
In concluding that this disclosure scheme does not infringe upon the right of privacy of State employees, the majority cites as support Fritz v. Gorton (1974), 83 Wash. 2d 275 , 517 P.2d 911 . I find that decision to be of little assistance to the majority opinion because the financial disclosure scheme which was upheld in that decision by the Supreme Court of Washington bears little resemblance to the scheme before us. The Washington disclosure scheme requires much more general disclosure than that required under this Order. Section 24 of the Washington law requires elected officials to disclose financial interests and obligations only in general categories. Under that scheme it would not be necessary to disclose one’s exact net worth. The Washington Supreme Court considered this aspect of the disclosure requirement in determining whether the right of privacy was invaded. The court observed:
“The provisions of section 24 do not sweep so broadly as to be constitutionally impermissible. Section 24 does not cavalierly mandate a picayune itemization of personal affairs, but requires only the listing of financial data and relationships with amounts to be designated, not in specific amounts, but by general categories of varying monetary degree.” ( 83 Wash. 2d at 299 , 517 P.2d at 925 .)
Because of these important differences in the disclosure requirements of the Washington law, the decision of the Washington Supreme Court sustaining that law is of no persuasive value here.
I must also disagree with the statement of the majority that, “whether a particular disclosure is necessary to accomplish the purposes of the Executive Order is primarily a matter for the executive branch to determine.” While this statement is a natural conclusion from the majority position that there exists no right to privacy in one’s financial affairs, believing as I do that such matters are embraced by a constitutional right to privacy, I must conclude that deciding the validity of disclosure provisions is primarily a function of this court.
For these reasons I believe that Executive Order No. 4 is an unconstitutional invasion of the right of privacy of the State employees who are subject to its disclosure requirements.
MR. JUSTICE GOLDENHERSH joins in this dissent.