Fischer v. Hooper

• Citation: 732 A.2d 396,143 N.H. 585
• Decision Date: 16 June 1999
• Docket Number: No. 94–438.,94–438.
• Court: Supreme Court of New Hampshire
• Parties: Carol FISCHER (formerly Hooper) v. David HOOPER.

143 N.H. 585

732 A.2d 396

Carol FISCHER (formerly Hooper)

v.David HOOPER.

No. 94–438.

Supreme Court of New Hampshire.

June 16, 1999.

Douglas & Douglas, of Concord (C. Kevin Leonard and Susanna G. Robinson on the brief, and Mr. Leonard orally), for the plaintiff.

Dorothy F. Silver, of Manchester, by brief and orally, for the defendant.

HORTON, J.

This appeal arises in the context of a jury verdict finding the defendant, David Hooper, liable for both a violation of the New Hampshire wiretapping and eavesdropping statute, RSA ch. 570–A (1986 & Supp.1991) (amended 1995, 1996, 1998), and the common law tort of invasion of privacy. The defendant asserts that the Superior Court (Groff , J.) made the following errors: (1) denying the defendant's request for a jury instruction and motion for a directed verdict based on the plaintiff's lack of reasonable expectation of privacy; (2) denying the defendant's motion for a directed verdict based on insufficient evidence for the jury to find emotional distress; (3) instructing the jury that the willful conduct required for a violation of RSA chapter 570–A is synonymous with the mens rea of "knowingly" in RSA 626:2, II(b) (1996) rather than the definition of willfulness formerly required under the Federal Wiretapping Statute, 18 U.S.C. § 2511(1) (1982) (amended 1986, 1994, 1996); (4) denying the defendant's motion to assert a blanket privilege of his Fifth Amendment right against self-incrimination and requiring him to invoke the privilege before the jury; and (5) declining to include the term "acquiescence" in the jury instruction on implied consent. The plaintiff, Carol Fischer, filed a cross-appeal asserting the following errors made by the trial court: (1) failing to adequately consider the factors for granting attorney's fees when the trial court awarded less than the amount requested by the plaintiff; and (2) granting the defendant's motion for remittitur and reducing the jury's verdict from $25,000 to $15,000 based on double recovery. We reverse and remand for a new trial.

I. Facts

The plaintiff and defendant were divorced in 1991. They were granted joint custody of their daughter, who spent the school year with the defendant and vacations with the plaintiff. In addition, a guardian ad litem and a therapist were appointed for her. After consulting the therapist, the guardian ad litem wrote a letter to both parties seeking to clarify the basis of friction that had arisen regarding their daughter's visitation. The guardian ad litem recommended that telephone calls between each of the parties and their daughter, as well as between the parties themselves, be recorded solely for the purpose of assisting the therapist in resolving the communication problems that had arisen between the parties. She cautioned that the parties would have to agree to the recording. Although the defendant never obtained the plaintiff's permission to record the telephone conversations, he nonetheless did so without her knowledge. During a meeting with the plaintiff, the guardian ad litem, and the therapist, the defendant revealed that he had been taping the plaintiff's telephone conversations.

The plaintiff took a copy of a tape to the New Hampshire Attorney General's office. The attorney general's investigation revealed that the defendant had made four or five tapes. The defendant, however, was not arrested for violating RSA 570–A:2 (1986 & Supp.1991) (amended 1992, 1995, 1996).

The plaintiff sued the defendant, seeking damages for, inter alia , violations of the State wiretapping and eavesdropping statute, RSA ch. 570–A, and the common law tort of invasion of privacy. The jury awarded the plaintiff damages of $10,000 for a violation of RSA chapter 570–A and $15,000 for a violation of her right of privacy. Pursuant to RSA 570–A:11 (1986) (amended 1995), the plaintiff sought $37,371 in attorney's fees and $1,287.27 in costs. The court awarded $5,000 in attorney's fees and $176.71 in costs. The defendant moved for judgment notwithstanding the verdict, and to set aside the jury verdict and for remittitur. The trial court reduced the verdict from $25,000 to $15,000, reasoning that the jury had awarded double recovery on the emotional distress damage element which was common to both RSA chapter 570–A and the tort of invasion of privacy. Both parties have appealed.

II. Mens Rea

We begin with the defendant's third ground for appeal: that the trial court erred in instructing the jury that a violation of RSA 570–A:2, I, required the mens rea of "knowingly." See RSA 626:2, II(b). The defendant contends that we should look to the pre–1986 federal wiretapping statute, 18 U.S.C. § 2511(1), the language of which closely tracks that of RSA 570–A:2, I(a). The federal statute required willful conduct, which had been interpreted to require a showing that the defendant knew he was violating the law. See Citron v. Citron , 722 F.2d 14, 16 (2d Cir.1983), cert. denied , 466 U.S. 973, 104 S.Ct. 2350, 80 L.Ed.2d 823 (1984) ; see also Young v. Young , 211 Mich.App. 446, 536 N.W.2d 254, 257–58 (1995).

When faced with a question of statutory interpretation, we look first to the language of the statutory provisions at issue. See Appeal of Town of Newmarket , 140 N.H. 279, 282, 665 A.2d 1088, 1091 (1995). RSA 570–A:11 allows recovery of damages in a civil action for a violation of RSA chapter 570–A. In this case, the plaintiff proceeded under a theory that the defendant had violated RSA 570–A:2, I, which provides that a person is guilty of a class B felony if he wilfully intercepts a wire communication without the consent of all of the parties. The term "wilfully" is not defined in RSA chapter 570–A. RSA 626:2 (1996), however, defines the culpable mental states for violations of criminal statutes. RSA 626:2, IV states: "A requirement that an offense be committed wilfully is satisfied if the person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears." The trial court rejected the defendant's argument that "wilfully" in RSA 570–A:2, I, requires a showing of bad faith or ill will, and instructed the jury based on the mental state of "knowingly" as defined in RSA 626:2, II(b).

The defendant argues that although ordinarily "wilfully" should be the same as "knowingly," the structure and legislative background of RSA 570–A:2 demonstrate "a purpose to impose further requirements." We agree.

Prior to 1988, the "wilful" interception of wire communications without the consent of all parties was a class B felony. See Laws 1977, 588:16 (codified as RSA 570–A:2, I (1986)). In 1988, RSA 570–A:2 was amended to also prohibit as a misdemeanor the "knowing" interception of a wire communication with the consent of one, but not all, of the parties. See Laws 1988, 25:3 (codified as RSA 570–A:2, I–a (Supp.1991)). The legislature, therefore, has used two different words to describe the mens rea for felony and misdemeanor conduct. If the legislature intended the same mens rea to be applied in both paragraphs I and I–a, we cannot explain why it used different words to describe the same mental state. "All statutes upon the same subject-matter are to be considered in interpreting any one of them." State v. Farrow , 140 N.H. 473, 475, 667 A.2d 1029, 1031 (1995) (quotation and brackets omitted). Accordingly, we hold that the legislature did not intend to impose a mens rea of "knowingly" in RSA 570–A:2, I. We must therefore determine what mental state the legislature intended to impose for a violation of RSA 570–A:2, I.

"RSA chapter 570–A resembles Title III, the federal law forbidding the interception and disclosure of wire communications, and we look to federal cases interpreting that statute to assist us in construing the New Hampshire statute." State v. Telles , 139 N.H. 344, 346, 653 A.2d 554, 556 (1995) (citation omitted). While the defendant contends that "wilfully" in the pre–1986 federal wiretapping statute requires that the defendant act with bad faith or ill will, we do not believe that this is the standard adopted by most federal courts. In the leading case on point, the United States Court of Appeals for the Second Circuit held that the term "willfully" "denote[s] at least a voluntary, intentional violation of, and perhaps also a reckless disregard of, a known legal duty." Citron , 722 F.2d at 16; see Young , 536 N.W.2d at 258 (noting that prior to the 1986 amendments to 18 U.S.C. § 2511(1), federal courts interpreted "willfully" to mean that a good faith belief that one's conduct was lawful was a valid defense). In other words, "liability under [the pre–1986] Title III—be it civil or criminal—cannot be established against any defendant without showing that he acted with intentional or reckless disregard of his legal obligations." Citron , 722 F.2d at 16–17 (quotation omitted). Because RSA 570–A:2, I, closely tracks the language of former 18 U.S.C. § 2511(1), we believe that "wilfully" in RSA 570–A:2, I, means that the defendant must act with an intentional or reckless disregard for the lawfulness of his conduct. In other words, the defendant has not violated RSA 570–A:2, I, if he has "a ‘good faith’ belief that [his] conduct was lawful." Young , 536 N.W.2d at 258.

"[T]he test of adequacy of any charge is whether, taken as a whole, it fairly presented the case to the jury in such a manner that no injustice was done to the legal rights of the litigants." Rawson v. Bradshaw , 125 N.H. 94, 100, 480 A.2d 37, 41 (1984) (quotation omitted). Since the trial court failed to instruct the jury properly on the appropriate mens rea for a violation of RSA 570–A:2, I, we reverse and remand for a new trial. While we reverse the jury verdict based on the improper jury instructions, we will address the defendant's remaining arguments to the extent that they may arise in a new trial. See State v. Marcano , 138 N.H. 643, 647, 645 A.2d 661, 664 (1994).

III. Reasonable Expectation of Privacy

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