Glazner v. Glazner

• Decision Date: 31 December 2002
• Docket Number: No. 02-11799.,02-11799.
• Citation: 330 F.3d 1298
• Parties: Elisabeth GLAZNER, Plaintiff-Appellant, v. James GLAZNER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

330 F.3d 1298

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

No. 02-11799.

United States Court of Appeals, Eleventh Circuit.

December 31, 2002.

Jason E. Gilmore, Gordon, Gibbons & Peacock, LLC, Bruce L. Gordon, Gordon, Silberman, Wiggins & Childs, P.C., Birmingham, AL, for Plaintiff-Appellant.

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

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

Before CARNES, HULL and ALARCON,^* Circuit Judges.

CARNES, Circuit Judge:

While their divorce proceeding was pending, a husband put a recording device on a telephone in the marital home. The device recorded a number of conversations between his wife and third parties without the consent of any party to the conversations. She discovered the device and filed a lawsuit against her husband. In contrast to her husband's successful effort to obtain a divorce, the wife's lawsuit against him for covertly recording her conversations with others has not succeeded thus far.

The federal claim alleged in the wife's lawsuit is based on the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22. Parts of that Act outlaw 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. The plain language of the statute prohibits "any person" from making recordings of private conversations in which no party consents and authorizes "any person" whose conversation is recorded in violation of the prohibition to recover damages. Despite those clear statutory provisions, Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974), a twenty-eight year old decision of this Court's predecessor, held that the statute does not apply if the "any persons" are spouses of each other, the conversations that are covertly recorded occur over a telephone in the marital home, and the recording is accomplished without the connivance of any outside party.

Applying the Simpson decision in this case, the district court dismissed the wife's Title III claim against her husband. We think it clear that the district court was required to take that action by the Simpson decision, and just as clear that the Simpson decision is wrong. It ought to be overruled, and we would if we could.

I. BACKGROUND

James and Elisabeth Glazner were married in July of 1980. James filed for divorce in February of 1999. Before the divorce was finalized on June 6, 2000, but while he was still living with Elisabeth, James bought a recording device from Radio Shack, attached it to a phone line in the marital home, and hid the device underneath an oak display case. The next day he left on a trip. While he was gone, his wife used the phone and her conversations with others were recorded without the consent of any party to the conversations. (The nature of the conversations that were recorded is not disclosed in the record.)

During one of those conversations, Elisabeth Glazner noticed the phone "sounded hollow" which prompted her to check all of the phones in the house. The resulting search turned up the recording device. She removed the tape and took it to her neighbors to see if they knew how to erase it. They advised her to keep the tape as it was, which she did. She called the police, who came and removed the recording device from the telephone line.

Before the divorce was finalized, Elisabeth Glazner filed suit against James in the United States District Court for the Northern District of Alabama, claiming that he had violated her rights under 18 U.S.C. § 2511 by recording her telephone conversations with other parties without consent, and seeking damages from him under 18 U.S.C. § 2520. The Simpson decision read an interspousal exemption into those provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, and it was on that basis the district court entered summary judgment against Elisabeth on her sole federal claim. She also had a number of state law claims which the district court dismissed without prejudice under 28 U.S.C. § 1367(c).

II. DISCUSSION

Elisabeth Glazner argues that her case is distinguishable from Simpson because James had already filed for divorce when he recorded her conversations, while in the Simpson case neither party filed for divorce until after the recording occurred.¹ In support of her argument, Elisabeth points out that the Simpson opinion expressly limits its holding to the facts presented in that case: "Our decision is, of course, limited to the specific facts of this case." 490 F.2d at 810. But that is a characteristic, whether expressed or not, of every decision (hence the Simpson opinion's "of course" notation). See, e.g., United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir.2000) ("The holdings of a prior decision can reach only as far as the facts and circumstances presented to the court in the case which produced that decision.") (citation omitted). The rub comes in determining which facts are material to a decision and thereby frame the rule that decision establishes. The Simpson court thought that the facts material to the rule of its decision were that the recording occurred in the marital home and no one was involved in it other than the spouse of the victim. Immediately after cautioning that its decision was limited to the specific facts of the case, the Simpson opinion states by negative implication what those facts are: "No public official is involved, nor is any private person other than [the husband], and the locus in quo does not extend beyond the marital home of the parties." 490 F.2d at 810.

Having studied the Simpson decision carefully, we agree with that panel's own appraisal of the rule established by the results of the appeal read against the facts of that case. The rule of the Simpson decision is that there is an interspousal exemption to Title III's prohibitions against non-consensual recordings, at least where the recording device is attached to a phone in the marital home and no outside parties are involved in making the recording. The fact that a divorce proceeding was not pending at the time of the recording in Simpson is not necessary to the result in that case, either from any indication in the opinion itself or logically. If preservation of marital peace and harmony were the rationale of Simpson, there would be little point to the result reached, because when the lawsuit in that case was filed the parties were already divorced. That case and this one illustrate the obvious about the state of matrimony in these kind of cases: by the time one spouse gives the other a basis for a Title III claim it is all over but the shouting, and there has probably been a good bit of that, too.

James Glazner, like John Simpson, recorded his wife's conversations over a phone line in the home where the two of them were living together and sharing a common phone line, and while they were still married. Under the Simpson decision, James' actions did not violate 18 U.S.C. § 2511, so Elisabeth may not recover any damages from him under 18 U.S.C. § 2520.

Elisabeth Glazner argues that the Simpson decision ought to be overruled. We as a panel cannot do that. Under the prior panel precedent rule we, no less than the district court, are bound to follow the Simpson decision unless and until it is overruled by this Court sitting en banc or by the Supreme Court. Saxton v. ACF Indus., Inc., 254 F.3d 959, 960 n. 1 (11th Cir.2001) (en banc); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en banc); Smith v. GTE Corp., 236 F.3d 1292, 1300 n. 8 (11th Cir.2001); see also Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc) (adopting as binding precedent Fifth Circuit decisions issued prior to October 1, 1981). As Elisabeth points out, the Simpson court did express doubts about its conclusion, id. at 810 ("we are not without doubts about our decision"), but we do not subtract from the force of the prior precedent rule the weight of any doubts expressed at the time the earlier decision was announced or since. For purposes of the rule, a prior decision has either been overruled or it has not, and the Simpson decision has not.

Although we are bound by the prior panel precedent rule to follow Simpson regardless of our misgivings about it, we are not required to agree with that decision, see, e.g., Saxton v. ACF Indus., Inc., 239 F.3d 1209, 1215 (11th Cir.2001), rev'd en banc, 254 F.3d 959 (11th Cir.2001); Turner v. Beneficial Corp., 236 F.3d 643, 649-50 (11th Cir.2000), rev'd en banc, 242 F.3d 1023 (11th Cir.2001), cert. denied, 534 U.S. 820, 122 S.Ct. 51, 151 L.Ed.2d 21 (2001), and we don't.

The plain language of Title III clearly encompasses the factual circumstances of this case, it manifestly forbids what James Glazner did to Elisabeth Glazner, and it unequivocally gives her a cause of action against him. The pertinent provisions state that: "[e]xcept 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" violates the Act. 18 U.S.C. § 2511(1)(a) (emphasis added). It is undisputed that none of the statutory exceptions referred to in the introductory clause of that provision applies in this case. See also Simpson, 490 F.2d at 804-05 (recognizing that none of the statutorily stated exceptions were relevant to the identical factual circumstances in that case). And 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) (...