This matter arises from the divorce of Loretta and Robert Scott. The Scotts were married in 1975, and three children were born of the marriage, the eldest being emancipated. Mrs. Scott filed her complaint for divorce on grounds of extreme cruelty in 1992. Her account of the marriage, as detailed in the complaint and as testified to at trial, was that of a relationship scarred by Mr. Scott's excessive use and abuse of alcohol and of her husband's mental problems.
The second count of Mrs. Scott's complaint for divorce alleges that on three occasions in 1991, Mr. Scott surreptitiously and without knowledge and consent of the plaintiff, recorded Mrs. Scott's telephone communications from within the marital home. It is further alleged that Mr. Scott himself connected mechanical eavesdropping devices to the phone which enabled him to make cassette tape recordings of telephone conversations in the home.
In New Jersey, the transgressions which Mr. Soctt is accused of committing are covered by N.J.S.A. 2A:156A-1, the "New Jersey Wiretapping and Electronic Surveillance Control Act." N.J.S.A. 2A:156A-3 states in pertinent part: "Any person who: a. Purposely intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication. . .; shall be guilty of a crime in the third degree." The law also provides a civil remedy for persons seeking relief from violators.
N.J.S.A. 2A:156A-2 defines a "wire communication" to include communications made via telephone. The statute defines "intercept" to mean "the aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical, or other device."
A trial in this matter was held, at which time all issues were disposed of with the exception of the wiretap issue. Limited testimony was given by both parties with regard to the wiretapping allegations and counsel for both sides were instructed to submit briefs on the issue. It is this court's task to decide whether Mr. Scott is liable for violation of the New Jersey wiretap statute, and if he is found to have violated it, what penalty should be imposed on him.
N.J.S.A. 2A:156A-24 deals with the penalties which may be imposed on an individual found to have violated the wiretapping statute. The section states in pertinent part: "Any person whose wire, electronic or oral communication is intercepted . . . shall have a civil cause of action against any person who intercepts . . . and shall be entitled to recover from any such person: a. Actual damages. . . b. Punitive damages and c. A reasonable attorney's fee and other litigation costs reasonably incurred."
Mr. Scott, in brief submitted by his counsel, admits to tapping the phone in the marital home on three separate occasions. He did this while still residing in the home with his wife. In Mrs. Scott's brief, it is also stated that Mr. Scott tapped phones in the marital home three different times. The dates on which the tapping took place differ in each brief, but it is agreed by the parties that the phones were tapped on three occasions in 1991. After reviewing the briefs and various certifications submitted by the parties in support thereof , this court finds that Mr. Scott did tap the phones in the marital home on three separate instances in 1991.
18 U.S.C. 2510 is the federal statute dealing with wiretapping, and it is," . . . virtually identical in language to the New Jersey Statute." M.G. v. J.C., 254 N.J. Super. 470,473 (Ch.Div. 1991). In the past, some federal courts have held that there exists a marital exemption which prevents liability under the federal statute. Simpson v. Simpson, 490 F.2d 803 (5th Cir.) cert. denied 419 U.S. 897, 42 L. Ed. 2d 141, 95 S. Ct. 176 (1974). The Simpson court was of the opinion that Congress, in drafting the statute, was concerned with combating organized crime and "to protect individuals against invasions of their privacy by sophisticated surveillance devices." Id. at 806. The court was apprehensive about applying the federal statute to the interspousal situation because to do so would override the interspousal immunity for personal torts accorded by the majority of states. Id. at 806. The court was able to rationalize its decision by finding that the legislative history behind the statute was inconclusive with regard to wiretapping in the marital setting. Id. at 807.
More recently, the rationale restricting interspousal liability under the federal wiretapping statute has come under fire from various state and federal courts. U.S. v. Jones, 542 F.2d 661 (6th Cir. 1976); Kratz v. Kratz, 477 F. Supp. 463 (E.D. Pa.1979); Pritchard v. Pritchard, 732 F.2d 372 (4th cir. 1984); Standiford v. Standiford, 89 Md. App. 326, 598 A.2d 495 (1990); People v. Otto, 2 Cal. 4th 1088, 831 P.2d 1178 (Cal.Sup.Ct. 1992). The Jones court held that the legislative history of the federal statute left no doubt that the law was intended to prohibit ". . . all wiretapping and electronic surveillance by persons other than authorized law enforcement officers engaged in the investigation or prevention of specified types of serious crimes, and only after authorization of a court order obtained after a showing and finding of probable cause." Jones supra, 524 F.2d at 688. Furthermore, the court noted that in drafting the statute Congress was well aware that a major area of use for Surveillance techniques was in the preparation of domestic relations cases. Id.
The sole New Jersey case dealing with the issue of wiretapping in the marital setting, M.G. v. J.C., 254 N.J. Super. 470, 603 A.2d 990 (Ch.Div.1991), followed the rationale of Jones and its progeny. The M.G. court stated: "it is clear that the language of the N.J. Wiretapping Act contains no explicit exemption for any wiretapping by an aggrieved spouse. It is not the function of the courts to graft an exemption where the legislature has not seen fit to provide one." Id. at 477.
Counsel for Mr. Scott argues that this court should follow the rationale propounded by the Simpson court and find that Mr. Scott did not violate the New Jersey wiretapping statute. Counsel states: "the crux of Simpson is 'family status,' not spousal immunity, but immunity extended to all family members, who are living in the family home." Counsel for Mr. Scott cites Scheib v. Grant, 814 F. Supp. 736 (N.D.Ill.1993) to stand for the premise that a family status exemption should apply in the instant case. This reasoning is faulty for several reasons.
First, Scheib can be distinguished from the instant case in that it deals with a father's use of an extension phone to record his son's phone conversations with his mother. The court held that such actions were not prohibited as they fell within the "extension phone exception" of the federal statute. This exception permits a parent to intercept a minor child's telephone conversations by use of an extension phone in the family home. Newcomb v. Ingle, 944 F.2d 1534 (10th Cir. 1991), cert. denied, U.S. , 112 S. Ct.903, 116 L. Ed. 2d 804 (1992); Anonymous v. Anonymous, 558 F.2d 677 (2nd Cir. 1977). Clearly the behavior of Mr. Scott is not analogous to the actions of the fathers in any of the aforementioned cases. It is undisputed that Mr. Scott utilized an eavesdropping device to record the phone conversations of his wife on three separate occasions.
Second, counsel's dichotomy between family status and marital status is unfounded. Current case law makes it crystal clear that the majority of courts have held that, in the absence of an explicit exemption for electronic surveillance by one spouse directed against another, the federal statute reaches interspousal wiretapping. Scheib, supra, 814 F. Supp. at 738; Heggy v. Heggy, 944 F.2d 1537, 1538-41 (10th Cir. 1991), cert. denied, U.S., , 112 S. Ct. 1514, 117 L. Ed. 2d 651 (1992); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir. 1989): Pritchard, 732 F.2d 372; Jones, supra, 542 F.2d 661; Heyman v. Heyman, 548 F. Supp. 1041, 1044-47 (N.D.Ill. 1982). The state of the law in New Jersey, as previously cited in M.G. v. J.C., dictates that the language of the New Jersey statute does not exempt wiretapping carried out by a spouse. M.G., supra, 254 N.J. Super. at 477.
Third, the Simpson court was concerned that to prohibit interspousal wiretapping under federal law would override the interspousal immunity for personal torts accorded by a majority of the states. Simpson, supra, 490 F.2d at 806. New Jersey, however, has abolished interspousal immunity for intentional ...