The Glazner's divorce was pending in the late 1990s, but they were still living in the same house. James put a recording device on a telephone in their home, and it recorded a number of conversations between Elizabeth and third parties. She filed a lawsuit against her (soon-to-be-ex-) husband in federal court for violating a federal law that made wiretapping illegal.
The problem, as she discovered, was that a 1974 case, Simpson v. Simpson (no . . . not those Simpsons) that was still binding in the Eleventh Circuit, had created an "implied exception" to the federal law for "interspousal wiretapping." (The judges apparently thought that married folks might have good reasons to bug their spouses, so that they couldn't sue each other when the other party - like Elizabeth - found out.) The first three judges who heard the case in 2002 agreed and upheld the dismissal of Elizabeth's case.
But then a larger panel of the Eleventh Circuit took up the case again, , and decided to revisit that 1974 decision to decide whether it had been correct. This time, in 2003, a majority of the judges who heard the case decided that the 1974 case was wrong - the wiretapping law had no explicit exception for spouses, and they not only overruled that case, but also made their decision retroactive. This meant that even though what James had done hadn't been illegal (for a damages lawsuit) when he did the wiretapping, Elizabeth's case against him could go forward.
Three judges dissented... (more)
