Nations v. Nations

• Decision Date: 09 October 1987
• Docket Number: Civ. No. 87-5102.
• Citation: 670 F. Supp. 1432
• Parties: Margie NATIONS, Plaintiff, v. Horace O. NATIONS, Defendant.
• Court: U.S. District Court — Western District of Arkansas

670 F. Supp. 1432

Margie NATIONS, Plaintiff, v. Horace O. NATIONS, Defendant.

Civ. No. 87-5102.

United States District Court, W.D. Arkansas, Fayetteville Division.

October 9, 1987.

W.H. Taylor and Jenniffer Morris Horan of Mashburn & Taylor, Fayetteville, Ark., for plaintiff.

David R. Matthews of Matthews, Campbell & Rhoads, Lowell, Ark., for defendant.

MEMORANDUM OPINION

H. FRANKLIN WATERS, Chief Judge.

This is a civil action brought pursuant to section 2520 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (hereinafter "Title III" or "the Act") which provides:

any 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.

18 U.S.C. § 2520. The plaintiff is Margie Nations, a citizen and resident of Benton County, Arkansas. The defendant is Mrs. Nations' husband, Horace O. Nations, who is also a citizen and resident of Benton County, Arkansas. The court has jurisdiction of the matter by virtue of the federal question presented. 28 U.S.C. § 1331.

The facts appearing in the record to date are as follows: Mr. and Mrs. Nations were married in 1974. Presumably, marital discord was apparent as early as 1985 when Mrs. Nations alleges Mr. Nations placed a recording device on the telephone at the parties' marital residence. According to Mrs. Nations, the wiretap recorded all incoming and outgoing calls until approximately January of 1987, without her knowledge or consent. The couple separated in April of 1987, and Mrs. Nations filed for divorce on May 12, 1987, in Benton County Chancery Court. The divorce action is currently pending in that court as Case No. E 87-539-2.

On August 18, 1987, Mrs. Nations filed a complaint in this court alleging Mr. Nations "caused an electric recording device to be installed on Plaintiff's phone, from which device Defendant took tape recordings of conversations between Plaintiff and certain third-parties without their permission or knowledge." In addition, plaintiff alleges:

that the Defendant has made known to his attorney the contents of said recordings; that he may have played the recordings for other persons; and that Defendant and his attorney have indicated their intent to utilize the recordings in a divorce proceeding which is now pending between Margie Nations and Horace O. Nations; namely, Benton County Chancery No. E 87-539-2.

For relief, plaintiff prays for an injunction prohibiting use of the tapes or transcripts thereof in the divorce proceeding in addition to actual and punitive damages.

At the same time this lawsuit was initiated, plaintiff filed a motion for impoundment of tape recordings. Defendant responded to the motion on September 4, 1987, and also filed a motion to dismiss. Plaintiff declined to respond to defendant's motion for dismissal.

The court has considered the arguments of the parties and believes, for the reasons set forth below, that both the motion to dismiss and the motion for impoundment of tape recordings should be denied.

Initially, the defendant requests dismissal under Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint fails to state a cause of action upon which relief can be granted. Mrs. Nations filed suit under section 2520 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. Specifically, Mrs. Nations claims that her husband violated section 2511 of Title III by recording her personal telephone conversations within their marital home through the use of a phone tap recording device. Similar husband-wife scenarios have occupied federal courts since the inception of the Act with varying conclusions as to the intent of Congress to include interspousal wiretapping in domestic relations conflicts within the conduct prohibited by Title III. See 55 A.L.R.Fed. 936 (1981).

The seminal opinion on the question is Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974), where the court of appeals held that the interception by a husband using electronic equipment of the conversations of his wife with a third party over the telephone in the marital home is not prohibited conduct under the Act. After a detailed analysis of the legislative history of the Act, the panel concluded that even though the "naked language of Title III, by virtue of its inclusiveness, reaches this case ... Congress did not intend such a far-reaching result, one extending into areas normally left to the states, those of the marital home and domestic conflicts." Id. at 805. Several times within its opinion, the court of appeals recognized the difficulty of the question presented for its review. For example, the panel affirmed the district court's dismissal "although the language and legislative history of the Act leaves the question in considerable doubt," and Judge Bell limited the opinion to the specific facts of the case with the following preface: "As should be obvious from the foregoing, we are not without doubts about our decision." Id. at 804, 810. Of one thing the court of appeals was certain, and that was the distinction between interspousal wiretapping and the situation where one spouse arranges for a third party to place the recording device within the marital home. The latter "is an offense against a spouse's privacy of a much greater magnitude than is personal surveillance by the other spouse." Id. at 809.

This distinction was examined and rejected two years later in a criminal prosecution under section 2511 of the Act. United States v. Jones, 542 F.2d 661 (6th Cir.1976). The Sixth Circuit reasoned that:

For purposes of federal wiretap law, it makes no difference whether a wiretap is placed on a telephone by a spouse or by a private detective in that spouse's employ. The end result is the same — the privacy of the unconsenting parties to the intercepted conversation has been invaded. It is important to recognize that it is not just the privacy of the targeted spouse which is being violated but that of the other party to the conversation as well.

Id. at 670. The court in Jones declared the conclusion drawn by the Fifth Circuit in Simpson to be "untenable because it contradicts both the explicit language of the statute and the clear intent of Congress expressed in the Act's legislative history." 542 F.2d at 667. Five pages of the Jones opinion are dedicated to quotations from the legislative history of Title III evidencing Congress' intent to establish an "across-the-board prohibition on all unauthorized electronic surveillance." Id. at 668. In addition, there is no doubt, as the legislative history conclusively demonstrates, that Congress was aware of the use of surveillance techniques in the preparation of domestic relations cases. The author of Title III, Professor Robert Blakey, testified before the Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee that "private bugging in this country can be divided into two broad categories, commercial espionage and marital litigation." United States v. Jones, 542 F.2d at 669. During the hearings, the subcommittee heard testimony from various sources including a district attorney who stated:

it is routine procedure in marital disagreements and other civil disputes for private detective agencies, generally with full knowledge of the lawyers, to tap telephones.

Id. at 668 n. 12. The Simpson court discounted the importance of these statements and many others in the same vein because the court distinguished between unaided surveillance by a spouse and surveillance by a third party, even if instigated by the spouse. This court agrees with the Sixth Circuit, as noted above, that this is a classic "distinction without a difference." Id. at 670.

In addition to further review of the legislative history of Title III, Jones renounced the applicability of Simpson to that case because it was a criminal matter and the Simpson court's desire to "avoid a conflict between the civil remedies granted by the federal statute and the doctrine of interspousal immunity" was simply not a factor. Such a concern is not a factor in the Nations' dispute either, though for an entirely different reason. As the court in Jones noted, "state law is far from uniform on the doctrine of interspousal immunity." Id. at 672. Therefore, the controlling Arkansas precedent on the issue becomes an important consideration. It is well settled in this state that "a spouse may maintain a tort action against his or her spouse." Gorchik v. Gorchik, 10 Ark.App. 331, 336, 663 S.W.2d 941 (1984). See also Spitzer v. Barnhill, 237 Ark. 525, 374 S.W.2d 811 (1964), and Leach v. Leach, 227 Ark. 599, 300 S.W.2d 15 (1957). This being the case, the federalism concerns of the Simpson court are, for the most part, irrelevant.

The court now turns to the circuit court opinions written in the wake of the opposing views of Simpson and Jones. The Second Circuit Court of Appeals defined the issue of whether the Act applies to interspousal wiretapping as follows: "At what point does interspousal wiretapping leave the province of mere marital disputes, a matter left to the states, and rise to the level of criminal conduct proscribed by the federal wiretap statutes." Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977). In Anonymous, a divorced wife brought an action against her former husband to recover damages on the basis of her husband's alleged violation of federal wiretap statutes in recording the wife's telephone conversations with her eight year old daughter, who was in the husband's custody. Id. at 677. The court found these facts to present a purely domestic conflict — a dispute between a wife and her ex-husband over custody of their child — a matter to be handled by the state courts. The Second Circuit panel distinguished this fact situation from one where the defendant spouse intercepts all...