Kempf v. Kempf

• Citation: 868 F.2d 970
• Decision Date: 21 February 1989
• Docket Number: No. 88-1257,88-1257
• Parties: Jillian KEMPF, Appellant, v. Karl Gene KEMPF, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 970

868 F.2d 970

57 USLW 2564

Jillian KEMPF, Appellant, v. Karl Gene KEMPF, Appellee.

No. 88-1257.

United States Court of Appeals, Eighth Circuit.

Submitted Sept. 23, 1988.

Decided Feb. 21, 1989.

Christopher Karlen, St. Louis, Mo., for appellant.

Donald E. Heck, Clayton, Mo., for appellee.

Before HEANEY ^* and BOWMAN, Circuit Judges, and ROSS, Senior Circuit Judge.

ROSS, Senior Circuit Judge.

Jillian Kempf appeals the district court's order granting summary judgment to her ex-husband, Karl Gene Kempf, in her action seeking damages for violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Secs. 2510-2520 (Title III) (Count I) and invasion of her privacy (Count II).

On appeal, Jillian argues the district court erred in granting summary judgment; that Title III applies to interspousal wiretapping committed within the marital home. We agree and because we now explicitly hold that Title III applies to the situation at hand, we reverse and remand the case for trial.

While the parties were living together as husband and wife, Karl suspected that Jillian was having extramarital affairs. To confirm his suspicions, Karl intercepted and recorded his wife's telephone conversations between June 4, 1985, and August 9, 1985, by connecting a cassette tape recorder to the receiver of an extension phone in plain view in the basement of their home. These recorded conversations confirmed Karl's suspicions, and he filed for a dissolution of their marriage. In that dissolution proceeding, the tapes of the wife's conversations were admitted into evidence over her objection. On May 18, 1987, the state circuit court of the County of St. Louis, Missouri entered judgment dissolving the marriage, and the decree is now final.

On June 2, 1987, Jillian filed the present action against her ex-husband. On January 11, 1988, the district court granted Karl's motion for summary judgment, finding that Title III's wiretapping prohibition does not apply to interspousal wiretapping committed within the marital home, and that state courts rather than federal courts are better facilitated to handle domestic conflicts of this nature. The district court specifically relied on the Fifth Circuit's reasoning in 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), in which the court held that Title III was not intended to apply to a husband's wiretapping of his wife's phone conversations while the couple was living together as husband and wife, stating:

The Court is of the opinion that Congress did not intend to give a remedy for interspousal wiretapping when the parties involved were sharing a home and living together as husband and wife at the time the wiretap was utilized. Extending federal law into such a purely domestic matter runs counter to the tradition federal courts have followed in leaving family matters to the discretion of the state courts. * * * [I]t is an inappropriate subject for federal litigation, and the Court does not believe, in view of the congressional testimony and the historical view that state courts are better facilitated to handle domestic conflicts, that Congress meant for Title III to apply to the facts herein.

Kempf v. Kempf, 677 F.Supp. 618, 622 (E.D.Mo.1988).

Jillian argues the plain language of section 2511(1) clearly proscribes Karl's conduct because it prohibits the interception, use, or disclosure of wire communications by any person except as specifically provided in the statute, and further argues that 18 U.S.C. Sec. 2520 provides a cause of action to any person who is the victim of an 18 U.S.C. Sec. 2511 violation. Jillian specifically challenges the district court's reliance on Simpson, supra, 490 F.2d at 803.

Section 2511 of Chapter 18 of the United States Code, as amended in 1986, provides in part:

(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;

(b) intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when--

(i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication;

* * *

* * *

(c) intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or

(d) intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;

shall be punished as provided in subsection (4) or shall be subject to suit as provided in subsection (5).

The Supreme Court has stated, "[t]he purpose of the legislation * * * was effectively to prohibit * * * all interceptions of oral and wire communications, except those specifically provided for in the Act * * *." United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). No exception to the proscriptions of Sec. 2511(1)(a) is relevant to this case. See 18 U.S.C. Sec. 2511(2)-(3).

Section 2520(a), as amended, further provides in relevant part that: "[a]ny person whose wire, oral, or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate."

We agree with Jillian's reading of these sections. The remedy clearly applies to any "person" defined as "any individual." See 18 U.S.C. Sec. 2510(6).

Simpson, although relied upon by the district court, has been widely criticized. See Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (rejecting Simpson, and finding that there is no express or implied exception for willful, unconsented electronic surveillance between spouses); United States v. Jones, 542 F.2d 661, 667 (6th Cir.1976) (rejecting Simpson as contradictory of explicit language of statute and clear intent of Congress expressed in Act's legislative history); Nations v. Nations, 670 F.Supp. 1432, 1434-35 (W.D.Ark.1987); Flynn v. Flynn, 560 F.Supp. 922, 924-25 (N.D.Ohio 1983); Heyman v. Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982); Gill v. Willer, 482 F.Supp. 776, 778 (W.D.N.Y.1980) ("the reasoning of the Simpson decision is open to serious question"); Kratz v. Kratz, 477 F.Supp. 463, 467-70 (E.D.Pa.1979); Blakely, Interspousal Electronic Surveillance Immunity, 7 U.Tol.L.Rev. 185, 205 n. 85 (1975).

Karl would have us insulate him from civil liability on the basis of our ruling in White v. Weiss, 535 F.2d 1067 (8th Cir.1976), where we applied Title III to a domestic situation and found liability on the part of a third party detective....