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The federal appeals court for Georgia, Florida and Alabama has thrown out its 29-year-old precedent that said wiretap laws do not apply to a husband secretly recording his wife’s telephone conversations. Removing the marital exception to wiretap laws was a unanimous decision by the 11 judges of the 11th U.S. Circuit Court of Appeals. But the court split 7-4 in deciding that their ruling should apply retroactively to an Alabama man, James Glazner, who secretly placed a recording device on a telephone in his home, which he was sharing with his soon-to-be ex-wife, Elisabeth. The division produced a particularly sarcastic concurring opinion from one member of the majority, Judge Edward E. Carnes. That opinion mocked Chief Judge J.L. Edmondson’s dissenting argument that the retroactive application of the new precedent was unfair because “some spouses might have chosen to live in the Eleventh Circuit because they could wiretap their own telephone without being liable under federal law.” Edmondson wrote that this possibility, while unlikely, was not made in jest. But Carnes, whose opinion last month in a case involving former boxing champion Roberto Duran showed the flair of a sportswriter, appeared to have fun with Edmondson’s suggestion that anyone would move to the 11th Circuit because the 1974 opinion in Simpson v. Simpson, 490 F.2d 803, was still the law of the land. Carnes imagined a couple sitting around their breakfast table in Colorado, when the husband says he thinks they should move to Alabama. “What’s troubling you, Sweetie?” the wife in Carnes’ scenario asks. “Well, Punkin, Colorado is in the Tenth Circuit, and its federal appeals court has held that if I wiretap your private conversations without your knowledge and consent, I may have to pay you damages if you find out and sue me in federal court,” the husband responds. “But if we move to Alabama, which is in the Eleventh Circuit, its Simpson decision will allow me to invade your privacy electronically without having to worry about having a civil claim against me in federal court.” Carnes concluded, “Only in a world where conversations like that take place does concern about reliance on the Simpson decision by James Glazner and other wiretapping spouses make sense.” Glazner v. Glazner, No. 02-11799. WHEN SPYING IS OK At issue before the full court was the viability of Simpson, which came about when Georgia, Florida and Alabama 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. In Simpson, 5th Circuit Judges Griffin B. Bell, James Plemon Coleman and Paul H. Roney held that Congress did not intend for its 1968 wiretap law to prohibit a person from intercepting a family member’s telephone conversation by use of an extension phone. Accordingly, Bell wrote for the panel, Congress may not have intended for the law to reach into the intimate relationships between spouses, so such matters should be decided by the states. Bell left the bench in 1976, went on to be U.S. attorney general and is now a senior partner at King & Spalding. Coleman died in 1991, and Roney is a senior judge on the 11th Circuit. Nearly 30 years after Simpson, the 11th Circuit heard the case of the Glazners, 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 the 11th Circuit’s decision. During that time, James thought Elisabeth was having an affair, said his lawyer, Birmingham litigator Mavanee R. Bear. Elisabeth’s lawyer, Bruce L. Gordon, also of Birmingham, responded that there’s no evidence to support any accusation of wrongdoing by his client. James went to RadioShack, bought a recording device, attached it to a phone line in the house and hid the device under an oak display case, according to the 11th Circuit’s decision. The next day, while James was out of town on business, Elisabeth noticed that the phone “sounded hollow.” She checked 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 Simpson, ruled for James. A three-judge panel of the 11th Circuit reviewed the trial judge’s decision. Carnes, joined by Judge Frank M. Hull and 9th Circuit Senior Judge Arthur L. Alarcon, sitting by designation, agreed Simpson controlled the situation, but they argued the full court should overrule that decision. A ‘TERRIBLY UNFAIR’ DECISION Last week, the full court unanimously followed the panel’s suggestion. Judge Joel F. Dubina explained that the law “makes no distinction between married and unmarried persons or between spouses and strangers,” so no marital exemption was appropriate. Dubina argued that the U.S. Supreme Court has been applying more situations such as this one retroactively. He added that the 11th Circuit’s new ruling should be applied retroactively because, among other reasons, it wouldn’t affect anyone who was not already breaking state wiretap laws. Carnes, Hull and Judges Gerald B. Tjoflat, R. Lanier Anderson III, Rosemary Barkett and Stanley Marcus joined Dubina’s opinion. None joined Carnes’ concurrence. But Edmondson and Judges Stanley F. Birch Jr., Charles R. Wilson and Susan H. Black dissented. Edmondson wrote that it was “terribly unfair” to punish James for actions that were lawful, if not necessarily honorable, at the time he made them. James now could have to pay Elisabeth $1,000 for each day the wiretap was in place, plus punitive damages and attorney fees. “Even if we think it is unlikely that someone would live in our Circuit to avoid liability under federal law for wiretapping their spouse, it is our job to ensure that someone cannot be punished retroactively for doing so, as the act was clearly lawful,” Edmondson added. Birch and Wilson joined Edmondson’s dissent. Black penned her own, in which she dismissed the majority’s argument that it was fair to apply the rule retroactively because state laws barring wiretaps put James Glazner on notice. “The law of another sovereign simply could not give fair warning to Mr. Glazner that he could be hailed into federal court for punitive damages under a federal statute that, until today, we interpreted not to apply to his conduct,” Black wrote. Elisabeth Glazner’s lawyer, Gordon, credited his associate, Jason E. Gilmore, with crafting the arguments that won the case. Gordon said the retroactive application of the wiretap statute was “consistent with the current movement in the law.” Bear, James Glazner’s lawyer, could not be reached to discuss the case.

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