(The Return of) Ignatz, by Sam Heldman

Wednesday, January 01, 2003

A word to the wise: if you live in Alabama, Florida or Georgia, don't tap your spouse's phone calls. While current Eleventh Circuit precedent allows you to do that, the handwriting is on the wall that the precedent will soon be overruled by the en banc court. That's what you learn from yesterday's Glanzer v. Glanzer. There's no direct web link, because the Eleventh Circuit, bless their souls, has the worst website of any of the federal appellate courts. (Wasn't it Molly Ivins who pointed out that if you're Southern you can say anything bad about anybody, so long as you insert the phrase "bless [his or her] soul" in the criticism?). If you're interested, go to the Circuit's site and follow a trail of complicated links, download the zip file from yesterday, unzip, open in wordperfect, and then (if your experience is like mine) find that the decision abruptly ends in the middle of a sentence ... and if you don't have wordperfect, then do something else. Here's how the opinion starts:
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.
When a court says this, the next step is for the losing party to ask the en banc court -- the whole crew, not just a randomly-chosen panel of three -- to hear the case; when sitting en banc, a court is free to overrule a wrong precedent, even when (under the rules of most courts) a panel cannot do so.

Here is another word to the wise: if you are tempted to tap your spouse's phone calls, or if you suspect that your spouse is tempted to tap yours, then perhaps you ought not be married.

posted by sam 4:22 PM 0 comments


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