Genealogy in the Court Room: Morse v. Department of Professional Regulation

Morse v. Department of Professional Regulation, 316 Ill.App.3d 664, 667, 250 Ill.Dec. 56, 737 N.E.2d 678, 680 (2000).

There are not that many cases out there in the all the courts both state and federal about genealogy per se and finding suitable ones to talk about is quite a task. This lawsuit touches on an issue that may affect some genealogists who do what is commonly called an "heir finder." Here is one definition of an heir finder from the National Association of Unclaimed Property Administrators entitled, "Opposing Reducing Restrictions on Contracts to Locate Unclaimed Property."

What is an heir finder? Many businesses, sometimes called heir finders or locators (“Locators”), find legitimate lost property for owners and offer to inform them of how to obtain it for a fee, usually a percentage of the total. Sometimes, companies will hire these firms to find the owner before they turn the funds over to the state. Ultimately the finder will ask the owner to sign a contract. Locators provide a service to the public in locating owners who either can't be found by the states or who haven’t determined through their own efforts that the state is holding their property. Locators may be sole proprietors working part time from their homes, or very substantial companies engaging hundreds of people and generating millions of dollars in revenue.

I had to read this case a couple of times to understand what the court did. Apparently the owner of Morse Genealogical Services, LLC was found to be working as a private detective without a license by the Illinois Department of Professional Regulation. The Court made the following observation in the body of the opinion.

We must determine if Morse's business activities are subject to the Private Detective, Private Alarm, Private Security, and Locksmith Act of 1993(Act) (225 ILCS 446/1 through 299 (West 1998)). Section 5 of the Act defines "private detective" as:
"any person who by any means, including but not limited to manual or electronic methods, engages in the business of, accepts employment to furnish, or agrees to make or makes investigations for fees or other valuable consideration to obtain information with reference to: 

680*680 * * *
(3) The location, disposition, or recovery of lost or stolen property." 225 ILCS 446/5 (West 1998). 

In response to the cease and desist order, Morse filed a motion to vacate with the Department, arguing that he was not acting as a private detective; rather, he was engaging in genealogy, an exempt practice under the Act. Section 30(a) of the Act provides: 

"(a) This Act does not apply to:
* * *
(9-5) A person, firm, or corporation engaged solely and exclusively in tracing and compiling lineage or ancestry." 225 ILCS 446/30(a) (West 1998).

Here is what happened:

On March 23, 1998, the Department issued a cease and desist order to Morse, finding that Morse "was operating as a private detective in Illinois by contacting individuals regarding locating personal property for a fee." The Department's action was prompted by a September 24, 1996, letter that Morse, a Florida resident, sent to an Illinois resident promoting his "International Genealogical Research" firm. Morse stated, "[w]e wish to inform you that we have been conducting research and investigation that indicate that you might be entitled to receive money or assets of which you are currently unaware." Morse's firm specializes in what is commonly referred to as "heir hunting," which typically involves locating persons who are entitled to recover unclaimed estate assets. Morse identifies unclaimed assets, uses genealogical research to trace the potential claimants, and then offers to assist the claimant in retrieving the assets for a 40% contingent fee.

Morse appealed the ruling and the following occurred.

Defendants, the Illinois Department of Professional Regulation and Leonard A. Sherman, Director (collectively referred to as Department), appeal from the circuit court's reversal of the Department's finding that Harvey Morse was unlawfully working as a private detective without a license.

The circuit court's reversal was appealed by the Department. In course of reviewing the decision, the appeals court made the following observation:

In 1998, the General Assembly amended the Act, providing a specific exemption for individuals who engage exclusively in tracing and compiling lineage and ancestry. 225 ILCS 446/30(a)(9-5) (West 1998). Morse argues that he falls within this exception. In support of this claim, he emphasizes that his letterhead plainly refers to his line of work as "International Genealogical Research." Morse also argues that the body of the letter establishes that he is merely in the business of locating people (which is what genealogy is all about), not necessarily in the business of locating property. Genealogy is defined as "[t]he summary history or table of a family, showing how the persons there named are connected together." Black's Law Dictionary 682 (6th ed.1990). Morse argues that his business is precisely what the legislature had in mind when it enacted the exception provided in section 30(a)(9-5). We disagree. 

Genealogical research does involve "detective" type activities necessary to trace a family's lineage. Morse, however, does more than simply create family trees. His incentive is the financial payoff after tracing unclaimed assets to the proper heirs. We cannot conclude that the General Assembly intended to specifically exempt "heir finding" through this exception in the Act. Morse's activities do not fall squarely within the confines of the exception as he does more than "exclusively" engage in "tracing and compiling lineage or ancestry." 225 ILCS 446/30(a)(9-5) (West 1998). We agree with the circuit court that Morse's business falls somewhere between private detective work and exclusive genealogy.

Finally, the Appeals Court affirmed the lower court's ruling and you can see that Morse is still in business from the link to his website above.

What the case does point out is that genealogists who conduct this kind of business are getting dangerously close to other regulated professions and should be careful to obtain all the proper licenses required. It is possible that the state of Illinois has since modified their statutes to clarify this situation.