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Atlanta’s federal appeals court looks ready to strike down one of its precedents — a 1974 decision authored by then-Judge Griffin B. Bell concluding that federal wiretap laws did not apply to a husband secretly recording his wife’s telephone conversations. Late last year, Judge Edward E. Carnes of the 11th U.S. Circuit Court of Appeals wrote on behalf of a three-judge panel that Bell’s decision was wrong. “It ought to be overruled, and we would if we could,” wrote Carnes, joined by Judge Frank M. Hull and 9th Circuit Senior Judge Arthur L. Alarcon, sitting by designation. Only the full 11th Circuit can overrule a precedent, so Carnes urged his colleagues to take up the case in one of its rare en banc reviews. The court obliged on Feb. 20 to hear the case of Glazner v. Glazner, No. 02-11799, but an argument date has not been announced. The issue stems from the bitter breakups of two Alabama couples, Beverly Camp Simpson and John G. Simpson III in 1974 and Elisabeth and James Glazner in 1999. In 1974, Alabama, Florida and Georgia were still part of the 5th Circuit, from which the 11th Circuit was carved in 1981. Decisions from the 5th Circuit that predate the 11th Circuit’s birth are considered binding precedent in the 11th Circuit. The Simpson case came before Bell, a 1961 appointee of President John F. Kennedy, and 5th Circuit Judges James Plemon Coleman and Paul H. Roney. Bell left the bench in 1976, went on to be U.S. attorney general and is now a senior partner at Atlanta-based King & Spalding. Coleman died in 1991, and Roney is a senior judge on the 11th Circuit. ‘UNCERTAINTIES’ ABOUT FAITHFULNESS According to Bell’s decision, John Simpson harbored “uncertainties as to his wife’s faithfulness.” He attached a device for tapping and recording telephone conversations to the lines in his home and intercepted conversations between his wife and another man. The conversations were “mildly compromising,” Bell wrote, “establishing that the other man was making advances, and that while the wife was resisting, she was not doing so in a firm and final fashion.” John played the tape for his wife, neighbors, family members and a lawyer, on whose advice the wife agreed to an uncontested divorce. Beverly then sued her ex-husband, claiming he violated Title III of the 1968 Omnibus Crime Control Act, which prohibited the interception of wire communication. The criminal penalties went as high as a $10,000 fine and five years in prison; civil penalties went as high as $1,000 for each day the wiretap was in place, plus punitive damages and attorney fees. A federal judge found that the law did not cover a husband secretly taping his wife’s conversations from their shared home. Beverly appealed, arguing her claim was bolstered “by constitutional protections of privacy and emerging concepts of women’s rights,” according to Bell. Bell added that the court would review the case in a more “pedestrian” fashion, reviewing the statute and its history to find out whether Congress intended to subject husbands to penalties for wiretapping their wives when it passed the 1968 law. TRIAL JUDGE UPHELD The 5th Circuit upheld the trial judge, but Bell wrote “the language and legislative history of the Act leaves the question in considerable doubt.” The court did extensive research, but the results were “inconclusive,” according to Bell. Nonetheless, he added, “we are of the opinion that Congress did not intend such a far-reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts.” He noted later that Congress did not intend for the law to prohibit a person from intercepting a family member’s telephone conversation by use of an extension phone. That exemption, Bell added, “is indicative of Congress’ intention to abjure from deciding a very intimate question of familial relations, that of the extent of privacy family may expect within the home vis-�-vis each other.” Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974). Nearly 30 years later, the 11th Circuit heard the case of Elisabeth and James Glazner, an Alabama couple with three children who were married about 20 years. James, a businessman, filed for divorce in February 1999, but he continued to live with Elisabeth for some time, according to Carnes’ decision. During that time, James thought Elisabeth was having an affair, said his lawyer, Birmingham, Ala., litigator Mavanee R. Bear. “That’s a nice excuse” for what happened next, said Elisabeth’s lawyer, Bruce L. Gordon, also of Birmingham. “There’s no evidence to support any accusation of any wrongdoing” by his client, Gordon added. James went to Radio Shack, bought a recording device, attached it to a phone line in the house and hid the device under an oak display case, according to Carnes’ decision. The next day, while James was out of town on business, Elisabeth noticed that the phone “sounded hollow,” checked the phones and discovered the recording device, according to the decision. Before the divorce was finalized in June 2000, Elisabeth sued James in federal court, claiming he violated her rights under the federal wiretap law by recording her telephone conversations without consent. A federal judge, relying on the Simpson decision, ruled for James. Carnes and the panel agreed Simpson controlled the situation, but he argued passionately why it should not. The Simpson decision could not preserve marital peace and harmony, Carnes wrote. When “one spouse gives the other a basis for a Title III claim,” Carnes added, “it is all over but the shouting, and there has probably been a good bit of that, too.” Carnes cited the inconclusive results of Bell’s legislative research and said, as a result, the 5th Circuit should have just interpreted the plain meaning of the statute. Congress is not required to “lard the legislative history with statements proving that it really, really did mean what it said in each statute,” Carnes wrote. Carnes noted that the 4th, 6th, 8th and 10th Circuits, plus many state supreme courts, have disagreed with Simpson. “That the Simpson decision has managed to survive as the law of this circuit for nearly three decades shows that inertia is more than just a law of physics,” Carnes concluded. “The time has come to overturn that decision … .” Glazner v. Glazner, 316 F.3d 1185 (11th Cir. Dec. 31, 2002). Bear, James Glazner’s lawyer, said she has “about a zero” chance of convincing the 11th Circuit to save Simpson as good law. Instead, she said she will argue that the new law should be applied in future cases. Her client, she added, “didn’t know it was illegal” to record his wife’s calls, she said, arguing the Simpson case made it legal. Gordon, Elisabeth Glazner’s lawyer, declined to discuss many aspects of his argument before briefs were filed, but he said he was happy the 11th Circuit decided to hear the case en banc. Bell declined to discuss the issue while it was under consideration by the 11th Circuit, an assistant said.

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