Scheib v. Grant

• Decision Date: 02 June 1994
• Docket Number: No. 93-1880,93-1880
• Parties: Lynn A. SCHEIB, Benjamin Grosse, a minor, by Lynn Ann Scheib, his next friend and Carl Scheib, Plaintiffs-Appellants, v. Joan C. GRANT, Burton F. Grant, and Dorothy B. Johnson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 149

22 F.3d 149

62 USLW 2664

Lynn A. SCHEIB, Benjamin Grosse, a minor, by Lynn Ann

Scheib, his next friend and Carl Scheib, Plaintiffs-Appellants, v. Joan C. GRANT, Burton F. Grant, and Dorothy B. Johnson,

Defendants-Appellees.

No. 93-1880.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 1, 1993.

Decided April 15, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied June 2, 1994.

Arthur T. Susman, Susman, Saunders & Buehler, Aaron S. Wolff (argued) Chicago, IL, for plaintiffs-appellants.

George B. Collins (argued) Gregory A. Bedell, Collins & Bargione, Chicago, IL, for Joan C. Grant, Burton F. Grant.

Dorothy B. Johnson (argued), pro se.

Janice I. Wahnon, Johnson & Associates, Chicago, IL, for Dorothy B. Johnson.

Dennis A. Rendleman, Tom Leahy, Mary T. McDermott, Illinois State Bar Ass'n, Staff Counsel, Springfield, IL, for Illinois State Bar Ass'n amicus curiae.

Barry A. Miller, Malcolm C. Rich, Chicago Council of Lawyers, Chicago, IL, for The Chicago Council of Lawyers amicus curiae.

Before WOOD, Jr., EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

The plaintiffs, Lynn Scheib, her husband Carl Scheib, and her son Benjamin Grosse, brought this action pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III"), 18 U.S.C. Secs. 2510-2521, and the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 et seq. Defendants Joan and Burton Grant had served as the attorneys of Lynn Scheib's former husband and Benjamin Grosse's father, James Grosse, during custody proceedings in Illinois state court. Defendant Dorothy Johnson had served as Benjamin Grosse's guardian ad litem ("GAL"). The district court granted summary judgment for the defendants. For the reasons that follow, we affirm.

I BACKGROUND

A. Facts

Lynn Scheib and James Grosse were divorced in 1982. Lynn had been granted sole custody of their son, Benjamin Grosse. Mr. Grosse had visitation privileges. In January 1991, Lynn informed James that she intended to marry Carl Scheib and move to Pennsylvania, and that she planned to take eleven-year-old Benjamin with her. As a result, James contacted his attorneys, Joan and Burton Grant, who filed an emergency motion for injunctive relief in Illinois state court to prohibit Benjamin's removal without a proper proceeding. Following litigation and negotiation, the parties, including the court-appointed GAL, Dorothy Johnson, reached a written settlement. The parties agreed that Benjamin could move with Lynn to Pennsylvania, but that James would have extended summer and holiday visitation rights. Although all parties signed the settlement on June 19, 1991, it was subject to court approval. While awaiting that approval, Lynn moved to Pennsylvania, and Benjamin stayed While staying in Illinois with his father, Benjamin made telephone calls to, and received telephone calls from, his mother Lynn. According to James, on more than one occasion, Benjamin became upset and emotional after speaking with his mother. As a result, James decided to find out what was being said between Lynn and Benjamin in these calls. Unbeknownst to either Benjamin or Lynn, James used a telephone answering machine attached to an extension to record at least two conversations between Benjamin and Lynn. Because, as James tells it, the tapes of those conversations revealed that Lynn was causing emotional harm to Benjamin, he took them to his attorneys, Joan and Burton Grant. According to Joan Grant, she agreed with James that the tapes showed that harm was being done to Benjamin, and therefore informed the GAL of the tapes' contents.

with James in Illinois, where Benjamin was to stay as part of James' visitation rights until August 5, 1991.

After learning of the existence and content of the tapes from James' attorneys, Lynn's attorneys filed a motion in limine on July 24, 1991 to prevent James or the GAL from introducing the tapes at the hearing on the removal settlement. On August 2, 1991, the state court granted Lynn's motion in limine, apparently because the tapes were made in violation of the Illinois Eavesdropping Statute. The court's ruling was never issued as a written order because, after the court's oral ruling, the parties and the court agreed that the court would enter the removal settlement as an agreed order. Such an order was issued on August 5, 1991. Before the state court entered the settlement order, however, it asked Lynn whether she planned to bring a lawsuit against James in connection with the tapes. She stated that she would not bring such a lawsuit against James and, indeed, she did not do so. Instead, she filed this action against James' attorneys, Joan and Burton Grant, and against Benjamin's GAL, Dorothy Johnson. The complaint alleged violations of Title III, 18 U.S.C. Secs. 2510-2521, and the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 et seq.

B. District Court Proceedings

In resolving Joan and Burton Grant's motion for summary judgment, the district court first addressed Title III, the federal wiretapping statute. The court stated that, if the facts at issue had presented a scenario of so-called "interspousal" wiretapping, i.e., if the facts showed James to have recorded the conversations to obtain information about Lynn, the plaintiffs' federal wiretapping cause of action would have had merit under the caselaw of a majority of the courts of appeals. See, e.g., Heggy v. Heggy, 944 F.2d 1537, 1538-41 (10th Cir.1991) ("We hold that Title III does apply to interspousal wiretapping within the marital home."), cert. denied, --- U.S. ----, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992). However, the district court stated that the "undisputed facts" in this case demonstrated that the tapes James made of telephone conversations between Benjamin and Lynn presented the court "with a parent who recorded the conversations of a minor child while that child resided in the parent's home." Scheib v. Grant, 814 F.Supp. 736, 739 (N.D.Ill.1993). The only question before the district court, then, was whether Title III should apply to such a situation.

Relying upon Second and Tenth Circuit cases, the district court stated that the statute's exemption for phone extensions used by a "subscriber or user in the ordinary course of its business" applies to the home as well as the marketplace. See 18 U.S.C. Sec. 2510(5)(a)(i); Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991) (holding that "a custodial parent tapping a minor child's conversations within the family home" is "permitted by a broad reading of the exemption contained in Sec. 2510(5)(a)(i)"), cert. denied, --- U.S. ----, 112 S.Ct. 903, 116 L.Ed.2d 804 (1992); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977) (same). Thus, the district court held that James' recording of Benjamin's conversations was exempted from Title III. As a result, no unlawful use or disclosure violation could be established against Joan and Burton Grant or Dorothy Johnson.

The district court then turned to the plaintiffs' claim that the defendants had violated

                the Illinois Eavesdropping Statute, 720 ILCS 5/14-1 et seq. 1  Assuming arguendo that the defendants had violated the statute, the district court held that, because the defendants' disclosure of the tapes' contents was "intimately associated" with the state court proceedings, the defendants were entitled to absolute immunity under Illinois law.  Scheib, 814 F.Supp. at 740.   The need for advocates to press vigorously their clients' cases in court without fear of a lawsuit, the district court stated, was too great not to grant absolute immunity for judicially-related disclosures.  The district court therefore granted Joan and Burton Grant's motion for summary judgment, and sua sponte granted summary judgment in favor of the GAL, Dorothy Johnson
                

II DISCUSSION

On appeal, the plaintiffs submit two issues for review. First, the plaintiffs assert that Title III admits of no exceptions applicable to this case. Therefore, they contend, James' activity violated the statute, regardless of whether that activity was motivated by a concern for Benjamin's welfare or by a desire to obtain unfavorable information about his former wife Lynn. The plaintiffs argue in the alternative that, even if there is an exception in the statute for attending to a child's welfare, an issue of triable fact exists in this case concerning the impetus behind James' taping. Second, the plaintiffs contend that the district court erred in concluding that the defendants were entitled to absolute immunity in this case and thus could not be held liable under the Illinois statute. We now review the district court's decision de novo to determine whether any genuine issue of material fact exists and whether the defendants were entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In so doing, we must take all facts in the light most favorable to the plaintiffs. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986).

A. Title III

Section 2511 of Title III states in part that, except as provided elsewhere in the chapter, any person who:

(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 provide in subsection (5).

18 U.S.C. Sec. 2511(1)(c) & (d). Title III provides a private cause of action in 18 U.S.C. Sec. 2520, which provides in part:

Except as provided in ...