Elisabeth GLAZNER, Plaintiff-Appellant, v. James GLAZNER, Defendant-Appellee.
No. 02-11799.
United States Court of Appeals, Eleventh Circuit.
Oct. 16, 2003.
347 F.3d 1212
AFFIRMED.
Mavanee R. Bear, Bear & Homich, Birmingham, AL, for Defendant-Appellee.
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.
DUBINA, Circuit Judge:
We took this case en banc to decide the continued validity of Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974),1 a decision of our predecessor circuit finding an implied exception in Title III of the Omnibus Crime Control and Safe Streets Acts of 1968 (“Title III“) for interspousal wiretapping within the marital home. For the reasons that follow, we overrule the Simpson decision. We also conclude that the rule we announce today applies retroactively.
I. BACKGROUND
The facts and procedural history of this case are taken largely from the panel decision. See Glazner v. Glazner, 330 F.3d 1298 (11th Cir.2002), vacated, 321 F.3d 1336 (11th Cir.2003).2
Elisabeth based her federal claim on the wiretapping provisions of Title III,
Elisabeth filed a timely notice of appeal of the district court‘s judgment. Even though the panel opinion was critical of the Simpson decision and concluded that it should be overruled, the panel recognized that under the prior panel precedent rule, the panel was bound to follow the Simpson decision unless and until it was overruled by this court sitting en banc or by the Supreme Court. See Saxton v. ACF Indus., Inc., 254 F.3d 959, 960 n. 1 (11th Cir.2001) (en banc); Smith v. GTE Corp., 236 F.3d 1292, 1300 n. 8 (11th Cir.2001); United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir.1998) (en banc). Based on Simpson, the panel decision affirmed the district court‘s grant of summary judgment in favor of James. We subsequently entered an order granting Elisabeth‘s petition for rehearing and vacating the panel opinion. See Glazner, 321 F.3d at 1336.
II. ISSUES
The en banc court directed counsel to brief the following issues:
(1) Should the rule announced in Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974), be overturned?
(2) If so, should the new rule be applied in this case?
III. DISCUSSION
A. Simpson v. Simpson
Title III broadly prohibits the interception of wire communications. See
(1) Except as otherwise specifically provided in this chapter any person who—
(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication ... shall be punished ... or shall be subject to suit....
In the present case, Elisabeth is “any person” within the meaning of
The language of Title III is clear and unambiguous. It makes no distinction between married and unmarried persons or between spouses and strangers. It plainly applies to “any person” on both sides of the violation (save only the inapplicable exceptions).
The one circumstance in which a court may properly look beyond the plain language of a statute is where giving effect to the language used by Congress would lead to a truly absurd result. United States v. Maung, 267 F.3d 1113, 1121 (11th Cir.2001); Merritt v. Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir.1997). Neither the court in Simpson nor any of the parties in this case suggest that the absurdity exception applies to prevent Title III‘s provisions from governing interspousal behavior. The language of Title III demonstrates that Congress decided that one spouse should not be permitted to record, without consent, electrоnically transmitted conversations between the other spouse and third parties. This prohibition is not truly absurd.
Equally compelling is the fact that, since the Fifth Circuit decided Simpson nearly three decades ago, an overwhelming majority of the federal circuit and district courts, as well as state courts, addressing the issue have refused to imply an exception to Title III liability for interspousal wiretapping. See Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir.1991) (concluding that Title III applies to interspousal wiretapping); Kempf v. Kempf, 868 F.2d 970, 972-73 (8th Cir.1989) (same); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (same); United States v. Jones, 542 F.2d 661, 667 (6th Cir.1976) (same); Gill v. Willer, 482 F.Supp. 776, 778 (W.D.N.Y.1980) (finding the reasoning in Simpson to be unpersuasive); Kratz v. Kratz, 477 F.Supp. 463, 473-75 (E.D.Pa.1979) (rejecting Simpson as contradictory to the explicit language of the statute and clear intent of Congress); Remington v. Remington, 393 F.Supp. 898, 901 (E.D.Pa.1975) (finding that a husband had asserted a valid civil cause of action against his wife for the installation of a wiretapping device); Ex parte O‘Daniel, 515 So.2d 1250, 1253 (Ala.1987) (same); People v. Otto, 2 Cal.4th 1088, 9 Cal.Rptr.2d 596, 831 P.2d 1178, 1185 (1992) (same); Rickenbaker v. Rickenbaker, 290 N.C. 373, 226 S.E.2d 347, 352 (1976) (same); Pulawski v. Blais, 506 A.2d 76, 77 n. 2 (R.I.1986) (same); W. Va. Dep‘t of Health & Human Res. ex rel. Wright v. David L., 192 W.Va. 663, 453 S.E.2d 646, 652 (1994) (same). But see Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977) (holding that the facts of that case involving interspousal wiretapping did not constitute a violation of Title III, but noting that the court did not suggest “that a plaintiff could never recover damages from his or her spouse under the Federal wiretap statute“); Stewart v. Stewart, 645 So.2d 1319, 1321 (Miss.1994) (concluding that Title III does not apply to domestic relations cases); Baumrind v. Ewing, 276 S.C. 350, 279 S.E.2d 359, 360 (1981) (same).
We are persuaded by the reasoning of all the courts which have refused to find an
B. Prospective or Retroactive Application
We now turn to the question of whether we should apply the rule that we announce today retroactively or prospectively. “Generally, new rules of law are applied retroactively as well as prospectively.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 544 (11th Cir.2002) (en banc). However, in 1971, the Supreme Court allowed for prospective-only application of newly announced rules in civil cases. See Chevron Oil Co. v. Huson, 404 U.S. 97, 105-109, 92 S.Ct. 349, 354-356, 30 L.Ed.2d 296 (1971). Under Chevron Oil, a court must look to the following factors to determine whether to reject retroactive application of a new decision in favor of purely prospective application:
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed.... Second ... [a court must look] to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.... [Third, a court must look to] the inequity imposed by retroactive application....
Id. at 106-107, 92 S.Ct. at 355 (internal citations and quotations omitted); accord McKinney v. Pate, 20 F.3d 1550, 1565 (11th Cir.1994) (en banc).
1. The Continued Validity of Pure Prospectivity and the Chevron Oil analysis
Elisabeth argues that the Supreme Court has impliedly precluded the possibility of prospective only application and, at the very least, has invalidated the Chevron Oil test as the governing analytical framework for such determinations. We disagree.
Although prospectivity appears to have fallen into disfavor with the Supreme Court, see Harper v. Virginia Dep‘t of Taxation, 509 U.S. 86, 94-99, 113 S.Ct. 2510, 2516-18, 125 L.Ed.2d 74 (1993); James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 534-544, 111 S.Ct. 2439, 2442-2448, 115 L.Ed.2d 481 (1991); Griffith v. Kentucky, 479 U.S. 314, 320-328, 107 S.Ct. 708, 711-716, 93 L.Ed.2d 649 (1987), the Court has clearly retained the possibility of pure prospectivity and, we
In contrast, for newly announced rules governing criminal prosecutions, the Supreme Court has completely rejected both pure prospectivity, which occurs where a court gives a newly announced rule nо retroactive effect, and modified prospectivity, which occurs where a court applies a newly announced rule retroactively on a case by case basis. Griffith, 479 U.S. at 320-28, 107 S.Ct. at 711-16; see also United States v. Calhoon, 97 F.3d 518, 529 (11th Cir.1996) (holding that United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), which held that materiality is a jury issue under statute criminalizing falsification or concealment of material fact, applied retroactively to appeal of pre-Gaudin convictions). However, while Griffith and subsequent criminal cases demonstrate the Supreme Court‘s apparent disfavor of prospectivity generally, they are otherwise of limited application to the present case. As we recognized in McKinney, “[the] realm [of criminal cases] is wholly distinct (as far as retroactivity is concerned) from civil cases.” McKinney, 20 F.3d at 1566; see also American Trucking Assocs., Inc. v. Smith, 496 U.S. 167, 178-79, 110 S.Ct. 2323, 2331, 110 L.Ed.2d 148 (1990) (discussing inapplicability of Griffith in civil context); Griffith, 479 U.S. at 322 n. 8, 107 S.Ct. at 713 n. 8 (noting that “[civil retroactivity] continues to be governed by the standard announced in [Chevron Oil]“). Accordingly, Griffith and other criminal cases provide little guidance to the retroactivity analysis in the civil context, beyond their support for the broad proposition that prospectivity is a disfavored exception to the general rule.
The dissenters rely almost exclusively on criminal cases based on their contention that James, and others similarly-situated, may face retroactive liability for punitive damages. However, no district court in this circuit has assessed punitive damages on James or anyone else, and neither the statutory language of Title III, nor our opinion today, compels any court to do so. The statute merely provides that a successful plaintiff in a civil action may recover inter alia “punitive damages in appropriate cases.”
The Supreme Court has retreated from, but has not abandoned, prospectivity in civil cases. See Harper, 509 U.S. at 94-99, 113 S.Ct. at 2516-2518; Beam, 501 U.S. at 534-544, 111 S.Ct. at 2442-2448. In Harper and Beam, the Supreme Court rejected modified prospectivity in civil cases. Harper, 509 U.S. at 94-99, 113 S.Ct. at 2516-2518; Beam, 501 U.S. at 534-544, 111 S.Ct. at 2442-2448. Harper and Beam both dealt with the questiоn of whether a rule announced and applied retroactively in a prior case should be applied under pure retroactivity (i.e., retroactive in all cases) or modified prospectivity (i.e., retroactive only in some cases) in subsequent cases. The main principle for which Har-
Although Harper and Beam ruled out modified prospectivity, they did not alter the underlying validity of pure prospectivity or the Chevron Oil test. First, the Court‘s primary reason for rejecting modified prospectivity was to prevent treating similarly-situated litigants differently by permitting “the substantive law [to] shift and spring according to the particular equities of [individual parties‘] claims of actual reliance on an old rule and of harm from a retroactive application of the new rule.” Harper, 509 U.S. at 97, 113 S.Ct. at 2517 (internal quotations omitted). The initial determination of whether to apply a new rule purely prospectively or retroactively does not implicate such concerns because both approaches treat all similarly-situated litigants the same and neither results in the “erection of selective temporal barriers to the application of federal law in non-criminal cases.” Id., 509 U.S. at 97, 113 S.Ct. at 2517. Therefore, we conclude that the reasoning behind the Court‘s rejection of modified prospectivity in Harper and Beam does not impact the availability of pure prospectivity in civil cases.
Furthermore, both Harper and Beam implicitly affirmed the continuing relevance of the Chevron Oil test in initially determining whether a newly announced rule applies prospectively or retroactively. Although the Court splintered in Beam, producing no clear majority opinion, only Justice Scalia, joined by Justices Marshall and Blackmun, rejected the concept of pure prospectivity altogether. See Beam, 501 U.S. at 548-549, 111 S.Ct. at 2450-2451 (Scalia, J., concurring). Justice Souter‘s opinion, joined by Justice Stevens, implicitly recognized the continuing validity of the Chevron Oil test by recognizing the limiting effect that Beam had on the test. Id., 501 U.S. at 543, 111 S.Ct. at 2447 (“Because the rejection of modified prospectivity precludes retroactive application of a new rule to some litigants when it is not applied to others, the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case.“). Justice White filed a concurring opinion in which he explicitly reaffirmed the relevance and applicability of the Chevron Oil test. Id., 501 U.S. at 544-547, 111 S.Ct. at 2448-2449 (White, J., concurring). Finally, Justice O‘Connor filed a dissenting opinion joined by Chief Justice Rehnquist and Justice Kennedy wherein she specifically retained the option of prospectivity and reaffirmed that Chevron Oil was the analysis governing such determinations. Id., 501 U.S. at 549-553, 111 S.Ct. at 2451-53 (O‘Connor, J., dissenting). Therefore, a majority of the Justices in Beam, albeit in two concurring opinions and in one dissenting opinion, reaffirmed, either implicitly or explicitly, the continuing validity of the Chevron Oil test.
In Harper, the Court adopted a rule that the majority said “reflect[ed] the position of a majority of [the] Justices in Beam....” Harper, 509 U.S. at 97, 113 S.Ct. at 2517. In doing so, the majority merely reiterated the rule that once a court retroactively applies a newly announced rule in one case, the rule must be applied retroactively to all pending cases. Id., 509 U.S. at 97, 113 S.Ct. at 2517. In announcing this rule, the majority relied on language from and citations to Griffith that would tend to indicate a strong statement against prospectivity given the Court‘s wholesale aban-
For the foregoing reasons, we conclude that we must still determine whether a newly announced rule in civil cases should apply retroactively or prospectively in the first instance and that Chevron Oil governs such a determination. Therefore, we now turn to the Chevron Oil analysis to determine whether the rule overruling Simpson, which we announce today, should apply retroactively or prospectively.
2. Chevron Oil analysis
As an initial matter, we recognize that both Harper and Beam preclude the use of subjective reliance by particular litigants or the subjective evaluation of the equities in specific cases to resolve questions of prospectivity. Harper, 509 U.S. at 97, 113 S.Ct. at 2517; Beam, 501 U.S. at 543, 111 S.Ct. at 2447 (“Because the rejection of modified prospectivity precludes retroactive application of a new rule to some litigants when it is not applied to others, the Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case.“). The requirement for objective evaluation of the impact of newly announced rules flows from the policy of treating all similarly-situated litigants in the same manner. This new analytical regime presents a problem for the question before us because both the second and third factors of the Chevron Oil test have traditionally been subjective in nature and, therefore, incompatible with the holdings of Harper and Beam. See McKinney, 20 F.3d at 1565 (stating that the second Chevron Oil factor requires that “the application of the old rule in the instant case must not contravene the purpose and operation of the provision being interpreted” and that the third factor requires that the “application of the new rule in the instant case must be inequitable” (emphasis added)). But see Beam, 501 U.S. at 543, 111 S.Ct. at 2447 (“[T]he Chevron Oil test cannot determine the choice of law by relying on the equities of the particular case.“). Elisabeth suggests that this analytical shift toward objectivity counsels in favor of a wholesale rejection of Chevron Oil. We disagree.
In our view, the proper approach is to reconcile the Chevron Oil test with the Supreme Court‘s move toward objectivity. By doing so, we recognize that the second and third prongs of Chevron Oil are properly viewed today as objective inquiries that examine the impact of a newly announced rule on the entire class of persons potentially affected by the new rule, rather than the impact on any specific litigant. See Beam, 501 U.S. at 543, 111 S.Ct. at 2448 (“The applicability of rules of law is not to be switched on and off according to individual hardship.... Of course, the generalized enquiry permits litigants to assert, and the courts to consider, the equitable and reliance interests of parties absent but similarly situated.“). Therefore, we now turn to an analysis of the Chevron Oil factors.
Second, we examine whether “retrospective operation will further or retard [the rule‘s] operation.” Chevron Oil, 404 U.S. at 107, 92 S.Ct. at 355. We first note that the purpose of Title III is to “prohibit[] all wiretapping and electronic surveillance by persons other than duly authorized law enforcement officials....” 1968 U.S.C.C.A.N. 2112, 2113. Title III partly effectuates this purpose by providing for a civil damages action for victims of illegal wiretapping.
We next turn to the third prong of the Chevron test: whether making the rule retroactive would be inequitable. Chevron Oil, 404 U.S. at 107, 92 S.Ct. at 355. In applying the rule that we announce today retroactively, the primary inequity is the potential for such retroactive application to create liability where none previously existed. If this were truly a situation where the class of persons affected by the new rule would suddenly face a strong likelihood of liability when they faced no possibility of liability before, we would be inclined to view the equities as weighing heavily in favor of pure prospective application. Howеver, such is not the case here.
Every state in this circuit has made wiretapping of the sort in which James engaged a crime.
Likewise, Alabama has made the recording of private communications a misdemeanor,
Based on the law of every state in this circuit, any individuals falling within the class of persons affected by the rule we announce today would already necessarily have exposed themselves to significant criminal and potential civil liability under state law for engaging in the wiretap actions that would expose them to additional liability under Title III.4 Even though retroactive application of the rule we announce today may result in alternative liability in federal court for this class, we conclude that this extension of liability is not sufficiently inequitable to justify prospective-only application given that the class would already be facing felony prosecution, imprisonment, fines, and potential civil liability under state law.
On balance, we conclude that the Chevron Oil test does not weigh in favor of prospective-only application of the new Glazner rule. Although the first part of Chevron Oil leans in favor of prospective-only application, the second part weighs in favor of retroactive application and the third part does not weigh sufficiently in favor of prospective-only application to justify abandoning the “presumptively retroactive effect” of our decision today. Harper, 509 U.S. at 96, 113 S.Ct. at 2517. Accordingly, we apply the new Glazner rule retroactively5 and hold that the former spousal privilege available under Simpson does not bar Elisabeth‘s suit against James under Title III.
C. Conclusion
For the foregoing reasons, we overrule Simpson and hold that no interspousal wiretapping exception exists in Title III. We also hold that this new rule abolishing the interspousal exception in Simpson applies retroactively. Accordingly, we REVERSE the district court‘s grant of James‘s motion for summary judgment and REMAND this case for further proceedings consistent with this opinion.
REVERSED and REMANDED.
I join all of the Court‘s opinion and write separately to respond to the dissenting position, which is spelled out in Chief Judge Edmondson‘s and Judge Black‘s opinions.
Because the foundation of the dissenting position is laid upon reliance and fairness interests, it must stand or fall with the presumption that everyone, including Mr. Glazner, knows the law. That is a great and hoary presumption underlying much of our law. The problem is not with the presumption but with the dissenters’ unwillingness to embrace it fully, instead of giving it only a little squeeze. They would have us presume that at the time Mr. Glazner decided to electronically invade his wife‘s privacy, he knew the law insofar as it includes our Simpson decision but he did not know the more fundamental law that any of our decisions, including Simpson, are subject to being overruled at any time by the Supreme Court or by this Court sitting en banc.
The dissenters would have us presume that the mythical lawyеr Mr. Glazner did not actually visit for advice, but could have, would have advised him to wiretap without worry. That advice apparently would have been based on the belief that although Simpson was a badly reasoned decision rejected by virtually every other circuit to consider it, nonetheless Simpson was unshakable law in this circuit that could never be changed; and even if it were changed some day, the new rule could never be applied retroactively to Mr. Glazner‘s intended misconduct even though the law strongly favors making new rules of decisional law retroactively applicable.
In other words, the dissenters would have us presume that if Mr. Glazner, or other would-be wiretapping spouses, had sought out legal advice they would have received bad advice. The fundamental flaw in their reasoning becomes even more apparent when one considers that to make it work we must also presume the mythical lawyer would not have advised Mr. Glazner that the activity he wanted a green light to pursue is a crime in Alabama. See
Whatever one may think of the quality of the Bar in Alabama, if we are going to indulge presumptions about everyone knowing the law and getting legal advice, we should presume accurate knowledge of the law and competent legal advice. If Mr. Glazner is presumed to have known the law—and the dissenting position teeters atop that presumption—he must be
Footnote 13 of that opinion illustrates the strange nature of the half-way presumptiоn world into which the dissenters would take us. In that footnote we are told that some people may have chosen to live in the Eleventh Circuit because the Simpson decision allowed them to covertly wiretap their spouses. It actually says (and all the emphasis is in the original): “I am not trying to be facetious; but before today, some spouses might have chosen to live in the Eleventh Circuit because they could wiretap their own telephone without being liable under federal law.” Dissenting op. of Edmondson, C.J., at n. 13.
I suppose, then, a conversation between a couple sitting around their breakfast table in, oh say, Colorado (the Tenth Circuit having rejected Simpson years ago) might have gone something like this:
Jim: Honey, I‘ve been thinking, we ought to move to Alabama.
Liz: But Sweetheart, I thought you liked living in Colorado.
Jim: I do, Sugar, but there‘s a problem.
Liz: What‘s troubling you, Sweetie?
Jim: 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. 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 your having a civil claim against me in federal court.
Liz: But Honeybun, doesn‘t Alabama‘s criminal eavesdropping stаtute make it a crime to covertly record conversations without the consent of at least one of the parties to the conversation?
Jim: It does, Snookums, but all I‘m worried about is the potential civil cause of action in federal court, not having to serve time in the state slammer.
Liz: You‘ll look so good in jailhouse stripes, my Love. When do we move?
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.
EDMONDSON, Chief Judge, dissenting, in which BIRCH and WILSON, Circuit Judges, join:
Federal law should give fair warning before it imposes new penalties on a person. So, although I accept that Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974), should be overturned, I must dissent from the retroactive application of today‘s decision that does away with the interspousal wiretap exception.
Today we overturn our precedent, clearly established since 1974, which allows for an interspousal exception to Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
As a rule, retroactivity is strongly favored in judicial decisionmaking. I agree with this approach: prospective lawmaking is more like what legislatures generally do. But never has the Supreme Court or our Court ruled out altogether prospective decisions as being beyond the lawful power of federal courts. And I think, if prospective decisionmaking is ever justified, this kind of case—the explicit overruling of a long-established, statutory-construction precedent impacting on рrivate parties, with punitive consequences arising as a result—is one where it is appropriate.4
“Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 295, 122 S.Ct. 754, 765, 151 L.Ed.2d 755 (2002), quoting Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 101 S.Ct. 2748, 2759, 69 L.Ed.2d 616 (1981).5
On punitive damages, the Supreme Court has said that “[t]he very labels given ‘punitive’ or ‘exemplary’ damages, as well as the rationales that support them, demonstrate that they share key characteristics of criminal sanctions. Retroactive imposition of punitive damages would raise a serious constitutional question [under the Due Process Clause].” Landgraf v. USI Film Products, 511 U.S. 244, 281, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994) (statutory case) (declaring that defendants did not have to pay compensatory and punitive damages for acts that occurred before such penalties were established) (emphasis added). The Fifth Amendment‘s Due Process Clause provides protection and repose, demanding fair notice. See id. at 266, 114 S.Ct. at 1497. We have not found, nor has anyone brought to our attention, an instance where the Supreme Court changed the established construction of a federal statute to make penalties apply retroactively to conduct that clearly appeared not to carry that penalty under federаl law when the act was committed.
The United States Constitution prohibits both Congress and the States from passing an ex post facto law, that is, from passing a law to make unlawful earlier conduct that was lawful when done.
In the present case, the wife admits in her brief that Simpson “provide[s] immunity” for interspousal wiretapping; and she concedes that the overturning of Simpson would create new law for the Circuit. Even if we think Mr. Glazner‘s wiretap was not right, it seems very wrong for a federal court to subject him to punishment for committing an act that was clearly lawful under the pertinent federal law in the Eleventh Circuit when he committed the act.7 See generally Landgraf, 511 U.S. at 283 n. 35, 114 S.Ct. at 1506 n. 35 (“Even when the conduct in question is morally reprehensible or illegal, a degree of unfairness is inherent whenever the law imposes additional burdens where there clearly were none before.“).
Law is not static. It can change. But the Constitution sets some limits on how the law can be changed and on whom the
II.
I question whether Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), controls this case. I have already set out my view that the Constitution directly bars a retroactive application of today‘s new interpretation of the pertinent statute. I also suspect that the circumstances here (a case involving a change in substantive law with quasi-criminal aspects) are too different from Chevron Oil,8 but I will accept that it does apply for discussion‘s sake. Applying the Chevron Oil analysis to this case, I believe that today‘s new edict removing the interspousal wiretap exception should not be applied retroactively.
Briefly stated, Chevron Oil considered three elements in deciding whether to apply a rule retroactively: (1) whether a new principle of law has been established; (2) whether retroactive application of that new law would “further or retard” the purpose and effect of the rule in question; and (3) whether substantial inequity would result from its retroactive application. Chevron Oil, 404 U.S. at 106-07, 92 S.Ct. at 355.9
Everyone agrees that the first element—whether new law has been established—is clearly met with the overturning of Simpson. In my view, the second element also does not support retroactive application. The retroactive application of the new interpretation—which removes the interspousal wiretap exception—does not retard the рurpose of the pertinent statute, but neither does it further the purpose more than applying the old Simpson interpretation to the instant case. The statute‘s core goal is not to punish wiretapping, but instead to prevent (prohibit by deterrence) wiretapping.10
Here, the wiretap has already occurred; and neither the law of the Simpson case nor the law of today‘s case can prohibit or prevent wiretaps that have already happened. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 17-18, 96 S.Ct. 2882, 2893, 49 L.Ed.2d 752 (1976) (“hesitat[ing] to approve the retrospective imposition of liability on any theory of deterrence or blameworthiness“) (internal citations omitted).
Given the nature of our federalism, the nonexistence of an interspousal wiretap exception under state law does not make the retroactive removal of the federal exception and the application of federal penalties just or lawful. We are bound to apply the federal law of our Circuit, even if there is a contrary state law in a state where we sit.12 That wiretapping one‘s spouse is unlawful under an Alabama statute does not make it unlawful under a federal statute. That a person is subject to be penalized under a state statute by the state sovereign does not mean that he is subject to penalties by the federal sovereign under a federal statute.13
I need to stress the sweep of the Court‘s decision today. If we retroactively apply this new rule, it will not just be Mr. Glazner who will be treated unfairly, but also anyone else who has already completed a similar act, including those persons who—before undertaking to wiretap—first sought competent legal аdvice about federal law, then directly relied on Simpson, and took pains to stay within the federal law‘s proverbial “causeway.”14 Once we decide to apply a rule retroactively, we, as I understand the law, must apply the rule retroactively to all whose cases are still pending. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 544 (11th Cir.2002).
III.
My decision on retroactivity has an impact on my decision on whether Simpson ought to be overruled at all. If I believed a retroactive application was truly required, I would not overrule Simpson.
I reluctantly go along with overruling Simpson. My colleagues think that the court got it wrong about Congress‘s intent when Simpson, in 1974, construed the statute to exempt interspousal wiretaps in the marital residence. I think my colleagues’ interpretation of the statute today is more likely correct. But we are not writing on a blank slate in this case. And stability and certainty in the law are extremely important. Overruling long-established precedents undercuts stability and certainty. So, I tend to think that leaving precedents undisturbed, unless they are very obviously mistakes, is best (especially long-made precedents construing statutes).
I do not regard Simpson as absurd. And, after all, if the courts in the Fifth and Eleventh Circuits have very badly misread the statute, Congress and the Supreme Court have had nearly thirty years to correct this error—an “error” that befоre today governed more than one out of every five people in the United States15; but neither the Supreme Court nor Congress has acted to correct what we now see as the Simpson fallacy. Still, I do not dissent from today‘s new construction of the stat-
On this basis, I would affirm the district court‘s judgment.
BLACK, Circuit Judge, dissenting:
I agree with Chief Judge Edmondson that, although Simpson v. Simpson, 490 F.2d 803 (5th Cir.1974),1 should be overturned, the Court‘s new rule clearly overruling prior circuit precedent should not be applied retroactively. I write separately, however, to state that, in my view, the retroactivity analysis turns on the punitive damages to which the Court‘s decision subjects Mr. Glazner,2 and to illustrate how Mr. Glazner‘s sudden retroactive exposure to punitive damages violates fundamental ex post facto principles incorporated into the Due Process Clause.
Courts repeatedly have recognized punitive damages are quasi-criminal in nature. See Landgraf v. USI Film Prods., 511 U.S. 244, 281, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994) (“The very labels given ‘punitive’ or ‘exemplary’ damages, as well as the rationales that support them, demonstrate that they share kеy characteristics of criminal sanctions.“); In re Exxon Valdez, 270 F.3d 1215, 1245 (9th Cir.2001) (stating that “punitive damages are quasi-criminal“); cf. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 19, 111 S.Ct. 1032, 1044, 113 L.Ed.2d 1 (1991) (“[Punitive damages] have been described as quasi-criminal.” (citation omitted)). Retroactively applying the Court‘s new rule would subject Mr. Glazner to quasi-criminal liability. Consequently, I think the Supreme Court‘s Due Process Clause jurisprudence in the criminal context counsels against retroactivity.
In the criminal context, the Supreme Court has stated the Ex Post Facto Clause “does not of its own force apply to the Judicial Branch of government.” Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 992, 51 L.Ed.2d 260 (1977) (citation omitted). Nevertheless, “the principle on which the Clause is based[,] the notion that persons have a right to fair warning of that conduct which will give rise to criminal penalties[,] is fundamental to our concept of constitutional liberty.” Id. at 191, 97 S.Ct. at 992-93 (citations omitted). Ex Post Facto principles are “protected against judicial action by the Due Process Clause of the Fifth Amendment.”
In Simpson, the Court held that Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
Moreover, state law did not provide any fair warning. 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. Cf. Bouie v. City of Columbia, 378 U.S. 347, 359-60, 84 S.Ct. 1697, 1705-06, 12 L.Ed.2d 894 (1964) (“It would be a rare situation in which the meaning of a statute of another State sufficed to afford a person ‘fair warning’ that his own State‘s statute meant something quite different from what its words said.“). To hold otherwise would open floodgates to numerous interpretive questions. Could fair warning be deemed given only by state statutes, or could it also be deemed given by state common law, regulatory law, and county and municipal ordinances? Must a court considering the fair warning issue interpret state statutes and common law? Would such courts have to certify questions of state law to state supreme courts?
The state statutes potentially implicated by Mr. Glazner‘s conduct illustrate the problems inherent in such an approach. For example,
A person commits the crime of installing an eavesdropping device if he intentionally installs or places a device in a private place with knowledge it is to be used for eavesdropping and without permission of the owner and any lessee or tenant or guest for hire of the private place.
In conclusion, Mr. Glazner simply had no fair warning that his conduct would subject him in federal court to the quasi-criminal sanction of punitive damages. Consequently, the Court‘s opinion denies due process to Mr. Glazner. On this basis, I respectfully dissent.