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KRATZ v. KRATZ

August 23, 1979

MILDRED FRANCES SANDS KRATZ AND WALTER ROEHRS, JR. v LOWELL F. KRATZ AND FRED T. CADMUS, III


The opinion of the court was delivered by: LORD, III

This is a suit to recover damages caused by the allegedly illegal interception of the plaintiffs' telephone communications by the defendants. The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, and the plaintiffs have moved for summary judgment as to liability. For the following reasons, we will deny both motions.

I. FACTS: *fn1"

 The plaintiff Mildred Kratz, and the defendant Lowell Kratz, were married in 1947. In 1975, Mildred filed for divorce, and though she and Lowell were estranged, they continued to live in the same house. *fn2"

 Sometime in early 1976, Lowell began to suspect that Mildred was not giving him his telephone messages. He also became suspicious of his wife's extra-marital activities. He therefore asked his attorney, defendant Fred Cadmus, whether it would be legal for him to place a wiretap on his family phone. *fn3"

 Cadmus claims to have researched the applicable Pennsylvania and federal electronic surveillance statutes, and to have discovered the cases of Commonwealth v. Goldberg, 208 Pa.Super. 513, 224 A.2d 91 (1966), and Simpson v. Simpson, 490 F.2d 803 (5th Cir.), Cert. denied, 419 U.S. 897, 95 S. Ct. 176, 42 L. Ed. 2d 141 (1974). From these cases Cadmus concluded that Lowell's proposed wiretapping would be legal under both Pennsylvania and federal law, and he so advised his client. *fn4"

 Lowell hired one William Fitch to install the tap in February 1976. The tap was voice-activated, and recorded all incoming and outgoing calls. The tap intercepted Mildred's calls, and Lowell made notes of all his wife's conversations which he felt relevant to the divorce proceedings; he reported these conversations to Cadmus at least every other week.

 From the wiretap, the defendants learned, among other things, that Mildred Kratz was involved in an extra-marital relationship with the plaintiff Walter Roehrs, and that the plaintiffs were planning to spend a week in London together. The defendants hired a private detective to follow the plaintiffs to London. As a result of what the defendants learned from the wiretap about the plaintiffs' relationship, Cadmus filed, on Lowell's behalf, a counter-suit for divorce. *fn5"

 After the tap had been in place for several months, Lowell concluded that he had gathered enough information from the interceptions, and wanted to remove the tap from his phone. Cadmus advised him to leave the tap on so that they could gather more information about Mildred's "activities" to use in the divorce proceedings.

 In July 1976, Mildred experienced difficulties with the phone and called the telephone company for repairs. The phone company's repair people discovered the tap and reported it to the police. *fn6" Mildred Kratz and Walter Roehrs then each sued Lowell Kratz and Fred Cadmus for damages caused by the interception of their telephone communications; *fn7" the two cases have been consolidated. *fn8"

 A. Introduction

 The plaintiffs have brought this suit pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, ("Title III"), 18 U.S.C. §§ 2510-2520. Specifically, they allege that the defendants have violated 18 U.S.C. § 2511(1)(a) which decrees that:

 
"(1) Except as otherwise Specifically provided in this chapter Any person who
 
(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication; . . .
 
shall be fined not more than $ 10,000 or imprisoned not more than 5 years or both."

 (emphasis added). *fn9" The plaintiffs' cause of action is provided by 18 U.S.C. § 2520, which in pertinent part states that:

 
"Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications, and (2) be entitled to recover from any such person
 
(a) actual damages but not less than liquidated damages computed at the rate of $ 100 a day for each day of violation or $ 1,000, whichever is higher;
 
(b) punitive damages; and
 
(c) a reasonable attorney's fee and other litigation costs reasonably incurred."

 The basis of the defendants' motion to dismiss is their claim that Congress, in enacting Title III, did not intend to prohibit one spouse from intercepting the wire communications of the other spouse in their own home. However, the plain and explicit language of Title III effectively refutes the defendants' argument. The clear and unambiguous meaning of § 2511(1)(a) is to prohibit the interception of All wire communications by Any person except as Specifically provided by Congress. And § 2520 plainly provides a cause of action to Any person who is the victim of a § 2511(1)(a) violation.

 In addition, the statute defines "person" as "any employee, or agent of the United States or any State or political subdivision thereof, And any individual, partnership, association, joint stock company, trust, or corporation." 18 U.S.C. § 2510(6) (emphasis added). This definition unquestionably includes the defendants. And since none of the exceptions to the proscriptions of § 2511(1)(a) is relevant to this case, See 18 U.S.C. §§ 2511(2) and (3), the statute clearly is applicable. Furthermore, when Congress has enacted a statute in such unambiguously inclusive language, And has listed Specifically the exceptions to that statute's prohibitions, the only rational conclusion which a court can draw is that the statute means what it says, and prohibits All interceptions of wire communications, by Any person, unless otherwise Expressly provided.

 Nevertheless, say the defendants, although the comprehensive and unambiguous language of Title III renders it applicable to the instant case, the statute is in fact inapplicable because there is no specific indication in its legislative history that Congress intended it to apply to cases such as ours. We would summarily dismiss such a fallacious approach to statutory interpretation had it not been the one adopted by the Fifth Circuit Court of Appeals in Simpson v. Simpson, 490 F.2d 803 (5th Cir.), Cert. denied, 419 U.S. 897, 95 S. Ct. 176, 42 L. Ed. 2d 141 (1974).

 B. Simpson v. Simpson

 (1) Resort to legislative history.

 Judge Bell began his opinion by recognizing that the "naked language of Title III, by virtue of its inclusiveness, reaches this case." 490 F.2d at 805. Despite such language, he refused to "extend" Title III to the Simpson facts absent a positive expression of congressional intent (in the legislative history) to include such cases within the ambit of the statute. Judge Bell's reluctance stemmed from his perception of Title III as creating a novel "federal remedy for persons aggrieved by the personal acts of their spouses within the marital home" and as providing "severe" remedies for such acts. Id. at 805-806.

 Judge Bell therefore embarked upon a "voyage to seek congressional intent for the "naked' language of section 2520 by reviewing the legislative history, hearings, and debate. . . ." Comment, Interspousal Electronic Surveillance Immunity, 7 U. of Tol.L.Rev. 185, 200 (1975) (hereinafter cited as Interspousal Surveillance ). His travels through the legislative history of Title III convinced him that "Congress has not, in the statute, committee reports, legislative hearings, or reported debates indicated either its positive intent to reach so far (into the marital home) or an awareness that it might be doing so." 490 F.2d at 805. Judge Bell summarized his "search of (the) legislative materials" as "long, exhaustive, and inconclusive" with respect to Congress's intention to include "interspousal wiretapping" *fn10" within the proscriptions of Title III. Therefore, he held that Title III was not "sufficiently definite and specific to create a federal cause of action for the redress of appellant's grievances against her former husband." Id. at 810.

 It is difficult to imagine a statutory prohibition more "definite and specific" than that of § 2511(1)(a). Even assuming, Arguendo, that Judge Bell's reading of Title III's legislative history was correct, the result reached in Simpson was erroneous, and a product of Judge Bell's most unusual and improper method of statutory analysis. In Simpson, Judge Bell seized upon an admittedly "inconclusive" legislative history as a reason for holding a statute inapplicable to a situation clearly encompassed by that statute's plain and unambiguous language. As a result, Judge Bell created, of his own accord, an exception to Title III not found in the statute, and did so in flagrant disregard of 18 U.S.C. § 2511(1), which states that all exceptions to Title III have been Provided specifically in the statute.

 Judge Bell reached the result he did by ignoring traditional principles of statutory interpretation. First, he failed to heed the maxim that "(ordinarily) a court will not refer to legislative history in construing a statute which is clear on its face. See e.g., United States v. Oregon, 366 U.S. 643, 648, 81 S. Ct. 1278, 6 L. Ed. 2d 575 . . . (1961)." United States v. Jones, 542 F.2d 661, 667 (6th Cir. 1976). The reason for this fundamental precept is obvious; the function of a court in interpreting a statute is to determine the intent of Congress in enacting the statute and to give effect to that intent. United States v. American Trucking Ass'ns, Inc., 310 U.S. 534, 542, 60 S. Ct. 1059, 84 L. Ed. 1345 (1940). "(Beyond) doubt, the best evidence of that intent is the text of the statute itself." Patagonia Corp. v. Board of Governors of Federal Reserve System, 517 F.2d 803, 813 (9th Cir. 1975). Accord, United States v. Allen, 574 F.2d 435, 438 (8th Cir. 1978); Sierra Club v. Train, 557 F.2d 485, 489 (5th Cir. 1977). Thus, when the text of a statute is unambiguous, it is unnecessary for a court to go beyond the statute in search of "meaning" for its language.

 We recognize, of course, that there may be circumstances in which a literal reading of a statute might conflict with, and must then yield to, a "clear contrary evidence of legislative intent". National R. Passenger Corp. v. National Ass'n of R. Passengers, 414 U.S. 453, 458, 94 S. Ct. 690, 693, 38 L. Ed. 2d 646 (1974). It must thus be permissible for "a court . . . (to) use available aids to construction no matter how clear the statute may appear at first inspection." Brigham v. United States, 539 F.2d 1312, 1316 n.8 (3d Cir. 1976).

 However, " "the plainer the language (of a statute), the more convincing contrary legislative history must be' to overcome the natural purport of a statute's language." C. Sands, Sutherland's Statutory Construction § 48.01 at 21 (4th ed. Cum.Supp.1979) (Quoting United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.), Cert. denied, 414 U.S. 909, 94 S. Ct. 229, 38 L. Ed. 2d 147 (1973)). This last rule prescribing caution in the use of legislative history as an interpretive tool is a salutary one, for legislative history is at best an imprecise barometer of congressional intent. Hundreds of persons are involved in the writing and ultimate enactment of a statute, and they may have many different opinions as to the meaning of the statute they have created. A statute's legislative history will likely reflect the differences in motive and intent of its framers, and the statements made in congressional hearings, debates and reports, by witnesses and legislators alike, may be susceptible of varying interpretations. *fn11"

 On the other hand, the statute itself, as enacted, is the unitary voice of the legislative body. Therefore, when the statutory language is unambiguous, its "plain words and meaning . . . cannot be overcome by a legislative history which, through strained processes of deduction from events of wholly ambiguous significance, may furnish dubious bases for inference in every direction." Gemsco v. Walling, 324 U.S. 244, 260, 65 S. Ct. 605, 614, 89 L. Ed. 921 (1945). As our Court of Appeals recently has cautioned, "(w)here the statutory language is unambiguous, . . . the legislative history would have to point Emphatically to a different construction before the courts could rewrite the law." United States v. Wander, 601 F.2d 1251 at 1258 (3d Cir. 1979) (emphasis added).

 When a statute is as clearly comprehensive as Title III, and when its exceptions are Specifically defined, it is improper for a court, relying upon an "inconclusive" legislative history, to read into that statute an exception not contained therein. Yet that is precisely what Judge Bell did in Simpson. In effect, the Simpson court engaged in judicial legislation by reading the plain words of Title III ("any person") to mean something other than what they said. But judges are not legislators, and this Humpty-Dumpty *fn12" method of jurisprudence has no place in our constitutional system. An invitation to engage in such judicial legislation was properly rejected decades ago in the analogous case of United States v. Gruber, 39 F. Supp. 291 (S.D.N.Y.1941), a prosecution brought under the Federal Communications Act of 1934 (a forerunner of Title III). The applicable statute, 47 U.S.C. § 605, was written in plain language:

 
"No person . . . shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person . . ."

 (emphasis added). Nevertheless, the defendants argued that the statute prohibited the interception of telephone communications Only by employees of common carriers engaged in interstate communications. In rejecting this argument, the court recognized that:

 
"(T)he statute states "no person . . .', and "person' is defined as anyone including an individual . . . The language of the statute is so plain, that to construe it as the defendants request would be tantamount to inserting something in the statute which is not there. It is not the province of the courts to misconstrue plain language; nor is there any ...

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