Flynn v. Flynn
Decision Date | 21 April 1983 |
Docket Number | No. C82-3465A.,C82-3465A. |
Citation | 560 F. Supp. 922 |
Parties | Sharon FLYNN, Plaintiff, v. Michael J. FLYNN, Defendant. |
Court | U.S. District Court — Northern District of Ohio |
James L. Wagner, Akron, Ohio, for plaintiff.
Don E. Lombardi, Akron, Ohio, for defendant.
Before the Court is the defendant's motion for summary judgment filed January 28, 1983. The plaintiff's brief in opposition was filed February 22, 1983. For the reasons stated below, the motion is denied.
The defendant asserts that he is entitled to summary judgment because the statute under which the plaintiff makes her claim, 18 U.S.C. § 2520, does not apply to the interception by one spouse using electronic equipment of the conversations of the other spouse with a third party over the telephone in the marital home. In the alternative, the defendant contends that he is entitled to summary judgment because he did not act "willfully" in violation of the law.
In pertinent part, 18 U.S.C. § 2520 provides:
Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall ... have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications....
This section thus incorporates the provisions of 18 U.S.C. § 2511(1), which states in pertinent part:
The defendant relies primarily upon the Fifth Circuit case of Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974), which held that § 2520 was not intended to prohibit purely interspousal wiretaps placed on telephones in the marital home. The Simpson Court reached this conclusion by analyzing legislative history, despite its finding that the "naked language" of the statute by virtue of its inclusiveness reached the fact situation before the Court.
In a case involving the criminal prosecution of a husband who had wiretapped his wife's telephone, United States v. Jones, 542 F.2d 661 (6th Cir.1976), the Sixth Circuit held that the criminal section of the statute did indeed apply to interspousal wiretaps. The Jones Court stated:
The language of § 2511(1)(a) quite clearly expresses a blanket prohibition on all electronic surveillance except under circumstances specifically enumerated in the statute ....
542 F.2d at 667. Moreover, even though the Court made this finding and recognized the principle that legislative history will not ordinarily be referred to in construing a statute which is clear on its face, it further stated:
Our review of the legislative history of this section, testimony at congressional hearings, and debates on the floor of Congress, inescapably lead to the conclusion that 18 U.S.C. § 2511(1)(a) establishes a broad prohibition on all private electronic surveillance and that a principal area of congressional concern was electronic surveillance for the purposes of marital litigation.
It appears from the evidentiary material offered in support of and in opposition to the motion for summary judgment that the facts of the instant case are more similar to those of Simpson than to those of Jones. Both Simpson and the instant case involve civil actions between people who were still married and living together in the marital home at the time of the wiretapping. On the other hand, the husband in Jones had moved out of the house, and that case, as noted above, was a criminal action. The Jones Court thoroughly analyzed the Simpson decision, however, and questioned its correctness on its own facts. The Sixth Circuit stated:
542 F.2d at 671-72 (footnotes and citations omitted).
Thus, in conformity with the Sixth Circuit's opinion, the Court concludes that the doctrine of interspousal immunity, although still recognized in Ohio,1 should have no part in determining whether a violation of 18 U.S.C. § 2520 has occurred. In light of this holding and the Sixth Circuit's ruling that § 2511 applies to interspousal wiretaps, the clear language of § 2520 leads to the...
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