Glazner v. Glazner

• Decision Date: 16 October 2003
• Docket Number: No. 02-11799.,02-11799.
• Citation: 347 F.3d 1212
• Parties: Elisabeth GLAZNER, Plaintiff-Appellant, v. James GLAZNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

347 F.3d 1212

Elisabeth GLAZNER, Plaintiff-Appellant, v. James GLAZNER, Defendant-Appellee.

No. 02-11799.

United States Court of Appeals, Eleventh Circuit.

October 16, 2003.

Jason E. Gilmore, Bruce L. Gordon, Gordon, Silberman, Wiggins & Childs, Birmingham, AL, for Plaintiff-Appellant.

Mavanee R. Bear, Bear & Homich, Birmingham, AL, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.

DUBINA, Circuit Judge:

We took this case en banc to decide the continued validity of Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974),¹ a decision of our predecessor circuit finding an implied exception in Title III of the Omnibus Crime Control and Safe Streets Acts of 1968 ("Title III") for interspousal wiretapping within the marital home. For the reasons that follow, we overrule the Simpson decision. We also conclude that the rule we announce today applies retroactively.

I. BACKGROUND

The facts and procedural history of this case are taken largely from the panel decision. See Glazner v. Glazner, 330 F.3d 1298 (11th Cir.2002), vacated, 321 F.3d 1336 (11th Cir.2003).²

After being married 19 years, James Glazner ("James") filed for divorce against his wife, Elisabeth Glazner ("Elisabeth"). During the divorce proceedings, James put a recording device on a telephone in the marital home. The device recorded a number of conversations between Elisabeth and third parties without the consent of any party to the conversations. Elisabeth discovered the device and filed a complaint in the United States District Court for the Northern District of Alabama against James seeking damages as a result of an alleged violation of Title III, and damages for a number of state law claims.

Elisabeth based her federal claim on the wiretapping provisions of Title III, 18 U.S.C. §§ 2510-22. Parts of that law prohibit non-consensual recordings of private conversations, subject to certain specified exceptions, and authorize civil remedies on behalf of those who suffer violations of the statutory provisions. During the course of the litigation, James filed a motion for summary judgment. Notwithstanding a finding by the district court that James wiretapped Elisabeth's conversations with third parties, the district court granted James's motion for summary judgment based on Simpson, which read an inter-spousal exemption into the provisions of Title III. The district court dismissed Elisabeth's state law claims without prejudice under 28 U.S.C. § 1367(c).

Elisabeth filed a timely notice of appeal of the district court's judgment. Even though the panel opinion was critical of the Simpson decision and concluded that it should be overruled, the panel recognized that under the prior panel precedent rule, the panel was bound to follow the Simpson decision unless and until it was overruled by this court sitting en banc or by the Supreme Court. See Saxton v. ACF Indus., Inc., 254 F.3d 959, 960 n. 1 (11th Cir.2001) (en banc); Smith v. GTE Corp., 236 F.3d 1292, 1300 n. 8 (11th Cir.2001); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en banc). Based on Simpson, the panel decision affirmed the district court's grant of summary judgment in favor of James. We subsequently entered an order granting Elisabeth's petition for rehearing and vacating the panel opinion. See Glazner, 321 F.3d at 1336.

II. ISSUES

The en banc court directed counsel to brief the following issues:

(1) Should the rule announced in Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974), be overturned?

(2) If so, should the new rule be applied in this case?

III. DISCUSSION

A. Simpson v. Simpson

Title III broadly prohibits the interception of wire communications. See 18 U.S.C. § 2511. To determine whether or not James's actions constitute a violation of Title III, we must first look to the language of the statute itself. United States v. Kirkland, 12 F.3d 199, 202 (11th Cir.1994) (citing United States v. Turkette, 452 U.S. 576, 580, 101 S.Ct. 2524, 2527, 69 L.Ed.2d 246 (1981)). Title III states:

(1) Except as otherwise specifically provided in this chapter any person who — (a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication... shall be punished ... or shall be subject to suit....

18 U.S.C. § 2511 (emphasis added). Neither party disputes that none of the statutory exceptions to which subsection (1) refers applies in this case. See also Simpson, 490 F.2d at 804-05 (recognizing that none of the statutorily stated exceptions applied to circumstances factually identical to the present case). The statute expressly gives "any person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter" the right to bring a civil action against "the person or entity... which engaged in that violation." 18 U.S.C. § 2520(a) (emphasis added).

In the present case, Elisabeth is "any person" within the meaning of § 2520(a). James is "any person" within the meaning of § 2511(1)(a). Finally, Elisabeth's conversations that James caused to be intercepted and recorded are any "wire, oral, or electronic communication" within the meaning of § 2520(a).

The language of Title III is clear and unambiguous. It makes no distinction between married and unmarried persons or between spouses and strangers. It plainly applies to "any person" on both sides of the violation (save only the inapplicable exceptions).

The one circumstance in which a court may properly look beyond the plain language of a statute is where giving effect to the language used by Congress would lead to a truly absurd result. United States v. Maung, 267 F.3d 1113, 1121 (11th Cir.2001); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir.1997). Neither the court in Simpson nor any of the parties in this case suggest that the absurdity exception applies to prevent Title III's provisions from governing interspousal behavior. The language of Title III demonstrates that Congress decided that one spouse should not be permitted to record, without consent, electronically transmitted conversations between the other spouse and third parties. This prohibition is not truly absurd.

Equally compelling is the fact that, since the Fifth Circuit decided Simpson nearly three decades ago, an overwhelming majority of the federal circuit and district courts, as well as state courts, addressing the issue have refused to imply an exception to Title III liability for interspousal wiretapping. See Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir.1991) (concluding that Title III applies to interspousal wiretapping); Kempf v. Kempf, 868 F.2d 970, 972-73 (8th Cir.1989) (same); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (same); United States v. Jones, 542 F.2d 661, 667 (6th Cir.1976) (same); Gill v. Willer, 482 F.Supp. 776, 778 (W.D.N.Y.1980) (finding the reasoning in Simpson to be unpersuasive); Kratz v. Kratz, 477 F.Supp. 463, 473-75 (E.D.Pa.1979) (rejecting Simpson as contradictory to the explicit language of the statute and clear intent of Congress); Remington v. Remington, 393 F.Supp. 898, 901 (E.D.Pa.1975) (finding that a husband had asserted a valid civil cause of action against his wife for the installation of a wiretapping device); Ex parte O'Daniel, 515 So.2d 1250, 1253 (Ala. 1987) (same); People v. Otto, 2 Cal.4th 1088, 9 Cal.Rptr.2d 596, 831 P.2d 1178, 1185 (1992) (same); Rickenbaker v. Rickenbaker, 290 N.C. 373, 226 S.E.2d 347, 352 (1976) (same); Pulawski v. Blais, 506 A.2d 76, 77 n. 2 (R.I.1986) (same); W. Va. Dep't of Health & Human Res. ex rel. Wright v. David L., 192 W.Va. 663, 453 S.E.2d 646, 652 (1994) (same). But see Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977) (holding that the facts of that case involving interspousal wiretapping did not constitute a violation of Title III, but noting that the court did not suggest "that a plaintiff could never recover damages from his or her spouse under the Federal wiretap statute"); Stewart v. Stewart, 645 So.2d 1319, 1321 (Miss.1994) (concluding that Title III does not apply to domestic relations cases); Baumrind v. Ewing, 276 S.C. 350, 279 S.E.2d 359, 360 (1981) (same).

We are persuaded by the reasoning of all the courts which have refused to find an exception for interspousal wiretapping either explicitly in the text of Title III or implicitly in the legislative history.³ While we agree with the dissenters that the concept of the rule of law underlying our Constitution requires a substantial measure of continuity, certainty, and respect for precedent, we must follow the Supreme Court's instruction that stare decisis should be abandoned where, as here, "a prior judicial ruling should come to be seen so clearly as error that its enforcement was for that very reason doomed." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 854, 112 S.Ct. 2791, 2808, 120 L.Ed.2d 674 (1992); see also Lawrence v. Texas, ___ U.S. ___, 123 S.Ct. 2472, 2483-84, 156 L.Ed.2d 508 (2003) (recognizing the essential role of stare decisis but nonetheless overruling Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986)). Therefore, we hold that no exception for interspousal wiretapping exists in Title III. Accordingly, we overrule Simpson.

B. Prospective or Retroactive Application

We now turn to the question of whether we should apply the rule that we announce today retroactively or prospectively. "Generally, new rules of law are applied retroactively as well as prospectively." Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 544 (11th Cir.2002) (en banc). However, in 1971, the Supreme Court allowed for prospective-only application of newly announced rules in civil cases. See Chevron Oil Co. v. Huson, 404 U.S....