### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 16, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

No. 02-11799 D. C. Docket No. 00-00577 CV-C-S ELISABETH GLAZNE

R, Plaintiff-Appel lant,

versus JAMES GLAZNER, Defendant-Appellee.

Appeal from the United States District Court for th e Nort hern D istri ct of A labama (October 16, 2003) Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS and WILSON, Circuit Judges.1 In Bonner v. City of Prichard

, 661 F.2d 1206, 1209 (1 1th Cir. 1981) (en b anc), the Eleve

nth Circuit Court of Ap peals adopt ed as bindi ng pre cedent the decis ions of the former

Fifth Circuit issued before October 1, 1981.

2 The panel opinion was publ is hed in a later volume of the Federal Reporter because the original panel opinion, published at 316 F.3d 1185, was erroneously withdrawn and republished at 330 F.3d 1298. 2 DUBINA, Circuit Judge: We took this case en banc to decide the continued validity of Simpson v. Simpson , 490 F.2d 803 (5th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 pre decessor 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 a lso conclu de that the rul e we anno unce to day appl ies ret roacti vely. 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 (11t h Cir. 2002), vacated , 321 F.3d 1336 (11th Cir. 2003). 2 After being married 19 years, Jam es Glazner (“James”) filed for divorce against his wife,

Elisabeth Glazne

r (“Elisabe

th”). During the d

ivorce proceedings, James put a recording device on a telephone in the marital home. The device recorded a num

ber of conversation

s between Elisabe

th and third parties w

ithout3

the consent of any

party to the conv

ersations. Elisa

beth discovered the de

vice and filed a compla

int in the United Sta

tes District Court

for the Northern D

istrict of Alabama aga

inst James seek

ing damages as a

result of an allege

d violation of Title III, and dam

ages for a numb er of state law c laims. Elisabeth based her federal claim on the wiretapping provisions of Title III, 18 U.S.C. §§ 2510 -22. Parts of that law prohibit non-cons ensual recordings of private conversati

ons, subject to ce

rtain specified ex

ceptions, and author

ize civil remedies on behalf of tho se who suffer violati ons of the statuto ry provisions. During the course of t he litigation, James fil ed a motion for summary judgment. Notwithst anding a fi nding by th e district court that James wiretap ped Elisab eth’s conversations with t

hird parties, the d

istrict court grant

ed James’s m

otion for summary judgment base

d on Simpson, which read an inter spousal exemption

into the provisions of Title III. The district court dismissed Elisabeth’s state law claims without prejudice under 28 U.S.C. § 1367(c). Elisabeth filed a timely noti ce of appeal of the dis trict 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 overrul ed by this court sitti ng en banc or by the Supreme Cou rt. See4

Saxton v. ACF Indus., Inc. , 254 F.3d 959, 960 n.1 (11th Cir. 2001) (en banc); Smith v. GTE C

orp. , 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 affi

rmed the distri

ct court’s grant of summar y judgment

in favor of James. We

subsequently ente

red an order grant

ing Elisabeth’s pe

tition for rehearing and vacati ng the panel opini on. See Glazner , 321 F.3d at 1336. II. ISSUES The en banc court di

rected counsel to br

ief the following is sues: (1) Should the rule a

nnounced in Simpson v. Simpson , 490 F.2d 803 (5th Cir. 1974) , be overt

urned? (2) If so, should the new rule be applied in this case? III. DISCUSSION A. Simpson v. Simpson Title III broadly prohibi ts the interceptio n of wire communications. See 18 U.S.C. § 2511. To determine whether or not Jam

es’s actions const

itute a violation of Title III, we must first look to the language of t he statute itself. United States v. Kirkland , 12 F.3d 199, 202 (11 th Cir. 1994) (citi ng United States v. T

urkette , 452 U.S. 576, 580, 1 01 S. Ct. 2524, 2527, 69 L. Ed. 2d 246 (1 981)). Title II I states:5

(1) Except as otherwise specifically provided in this chapter any person who – (a) inte

ntionally intercepts, endeavors to i ntercept, or procures any other perso n to intercept or end eavor to intercept, any wire, oral, or

electronic com

munication . . . shall be punished . . . or shall be subject to s uit . . . . 18 U.S.C. § 2511 (

emphasis added) . Neither party disputes that none of th

e statutory exceptions to which subsectio n (1) refers applies in this case. See also Simpson , 490 F.2d at 804-05 (recognizing that none of the statutorily stated exceptions applied to c

ircumstances factually iden tical to the present

case). The statute expressly

gives “ any person whose wire , oral, or elec tronic comm

unication is intercepted, disclosed, or intention ally used in violat

ion of this chapter” the right to bring a civil action against “the person or entity . . . which engaged in that violation.” 18 U.S.C. § 2520(a) (emphasis added). In the present case, Elisabeth is “any person” within the meaning of § 2520(a ). James i s “any pers on” wit hin th e meaning of § 251 1(1)(a ). Final ly, Elisabeth’s conve

rsations that Jam

es caused to be inter

cepted and recorde

d are any “wire, oral, or electronic comm unication” within the meaning of § 2520(a). The language of Ti

tle III is clear and unambiguous. It makes no disti nction between married and unmarried persons or between spouses and strangers. It plainly applies to

“any perso

n” on both sides of the vi olation (save only

the inapplicable excep tions).6

The one circum

stance in which a court may pr operly look bey

ond the plain language of a statute

is where giving eff

ect to the language us ed by Congress would lead to a truly absu rd result. United States v. M aung , 267 F.3d 1113, 1121 (11th Cir. 2001); Merritt v. Dillar d 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 preve nt Title III’s

provisions from g

overning interspousal behavior

. The language of

Title III dem

onstrates that Congr

ess decided that one spouse

should not be perm

itted to record, w

ithout consent, electronically transmitted conversations between the other spouse and third parties. This pro

hibition is not truly

absurd. Equally com

pelling is the fact th

at, since the Fif

th Circuit decided Simpson nearly three d

ecades ago, an ove

rwhelming m

ajority of the

federal circuit and district courts, a

s well as state cour

ts, addressing the is sue have refused to i mply an exception to Titl e III liability for intersp ousal wiretapping

. See Heggy v. Heggy , 944 F.2d 1537, 1539 ( 10th Cir. 1991) (con cluding that Title I

II applies to interspousal wiret

apping); Kempf v. Kempf , 868 F.2d 970, 972-7 3 (8th Cir. 1989) (same); Pritchard v. Prit

chard , 732 F.2d 372, 374 (4 th Cir. 1984) (sam

e); United States v. Jones , 542 F.2d 661, 667 (6 th Cir. 1976) (sam

e); Gill v. Willer , 482 F. Supp. 776, 778 (W .D.N.Y. 19 80) (finding the rea soning in Simpson to be7

unpersuasive); Kratz v. Kratz , 477 F. Supp. 463, 473-75 (E.D. P a. 1979) (rejec ting Simpson as contradictory to the explicit langua

ge of the statute and clear intent of Congress) ; Remington v. R emington , 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) (s ame); People v. Otto , 831 P.2d 1178, 1185 (Cal. 1992) (same); Rickenbaker v. Rickenbaker , 226 S.E.2d 347, 352 (N.C. 1976) ( same); Pulawski v. Blais , 506 A.2d 76, 77 n. 2 (R.I. 1986) (sa me); W. Va. Dep’

t of Health &

Human Res. ex rel

. Wright v. David L. , 453 S.E.2d 646, 652 (W. Va. 1994 ) (same). But see Anonymous v. Anonymous , 558 F.2d 677, 679 (2 d Cir. 1977) (holding that the facts of that case

involving interspousal w iretapping did not const

itute 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 dom

estic relations ca

ses); Baumrind v. Ewi

ng , 279 S.E.2d 359, 360 (S.C. 1981) (same). We are persuad

ed by the reasoni

ng of all the courts w

hich have refused to find an exception for

interspousal wiret

apping either explic

itly in the text of

Title3 If Congres s had disagreed with this interpretation, it has had many opportunities to add an

explicit exception for interspousal wiretapping in the act. For whatever reason, Congress has chosen not to do so. 8 III or imp licitl y in the l egisla tive hi story. 3 While we agre e with the dissent tha

t the concept of the rule of law underlying our Constitution requires a substantial measure of co

ntinuity, cert

ainty, and res

pect for precede

nt, we must f

ollow the Supreme Court ’s instruction that stare decisis should be abandoned where, as here, “a pr

ior judicial ruling

should come to be s een so clearly as error that its enforcement was for that very reason doomed. ” Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833, 854, 112 S. Ct. 2791, 2808, 120 L. Ed. 2d 674 (1992); see also Lawrence v . Texas , – U.S. – ,123 S. Ct. 2472, 248 3-84, – L. Ed. 2d – (2003) (recognizing the essential role of stare decisis but nonetheless overruling Bowers v. Hardwick , 478 U.S. 186, 106 S. Ct. 2841, 92 L . Ed. 2d 140 (1986)). Therefore, we hold tha t no exception for inte

rspousal wiretappi

ng exists in Title III. Accordingly, we overrule Simpson. B. Prospective or Ret

roactive Applicat

ion We now turn to the question of whether we should apply the rule that we announce today retroactively or prospectively. “G enerally, new rules of law are applied retroactively as well as prospectively.” Wagner v. Daew oo Heavy Indus. Am. Corp. , 314 F.3d 541, 544 (1 1th Cir. 2002) (en ba nc). However,

in 1971, the9

Supreme Court allowed for prospective-only application of newly announced rules in civil cases. See Chevron Oil Co. v. Huson , 404 U.S. 97, 1 05-109, 92 S. Ct. 3 49, 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 p

urely prospecti

ve application: First, the decision to be applied nonretroactively must establish a new principle of law,

either by overr

uling clear past pre

cedent on which litig

ants may have r

elied or by deci

ding an issue of first

impression whos e resolution was not clearly

foreshadowed . .. . Second . . . [a court must l

ook] to the prior history of the rule in question, its purpose and effect, and whether retrospective opera tion will further or re tard its operation . . . . [Third, a court must look to] the in equity imposed by retroactive ap plication . . . . Id. at 106-107, 92 S. Ct. at 355 (internal c itations and quotations o

mitted); accord McKinney v. Pa te , 20 F.3d 1550, 1565 (11th Cir. 1994) (en banc). 1. The Continued Validit y of Pure Prospect

ivity and the Chevron Oil analysis Elisabeth argues th

at the Supreme

Court has implie

dly precluded the possibility of prospective only application and, at the very least, has invalidated10

the Chevron Oil

test as the governing analytical framework for such determinations. We disagree. Although prospectivit

y appears to have

fallen into disfavor

with the Supreme Court, see Harper v. Vi rginia Dep’t of Taxat

ion , 509 U.S. 86, 9

4-99, 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, 1 07 S. Ct 708, 711-716 , 93 L. Ed. 2d 649 (1987), the Court has clearly retained the possibility of pure prospe ctivit y and, we believe, has also retained the Chevron Oil test, albeit in a modified form, as the governin g analysis for such dete rminations in civil cas es. See Harper , 509 U.S. at 94- 99, 113 S. Ct. at 2 516-18. In contrast, for n

ewly announced rules governing crim inal prosecutions, t

he Supreme Court has completely rejec ted both pure prospectivity, which occurs where a court gives a newly announced rule no retroactive effect, and modified prospectivity,

which occurs wher

e a court applies a n

ewly announced rule retroactively on a case by case b asis. Griffith v. Kentucky , 479 U.S. 314, 320-28, 107 S. Ct. 708, 711- 16, 93 L. Ed. 2d 6 49 (1987); see also United States v. Calhoon , 97 F.3d 518, 529 (11 th Cir. 1996) (holdin g that United States v. G

audin , 515 U.S. 506, 115 S. Ct. 2310, 132 L. Ed. 2d 444 (1995), which held that11

materiality

is a jury issue

under statute crim

inalizing falsific ation or concealm ent of material fact, applied retroactively to appeal of pre- Gaudin convictions). However, while Griffith and su bseq uent crimin al cas es demo nstra te the Supre me Court’s apparent disfavor of prospectivity generally, they are otherwise of limited application to the pre sent case. As w e recognized in McKinney , “[the] r ealm [of criminal case s] is wholly di stinct (as far as r etroactivity is

concerned) from

civil cases.” McKinney , 20 F.3d at 1566; see also American Trucking Assocs., Inc. v. Smith , 466 U.S. 167, 178-79, 110 S. Ct. 2323, 2331, 110 L. E d. 2d 148 (1990) (discussing inapplicability of Griffith in civil context); Griffith , 479 U.S. at 322 n.8, 107 S. Ct. a

t 713 n.8 (noting that “ [civil retroactiv ity] continues

to be governed by the st

andard announced in [ Chevron Oil ]”). Acco rdingl y, Griffith and other crim

inal cases provide li

ttle guidance to the r

etroactivity analysis in the civil context, beyond their support for the broad proposition that prospectivity is a disfavored exception to the general rule. The dissent relies

almost exclusive

ly on crimin

al cases based on its contention that Jam

es, and others sim

ilarly-situate

d, may fa ce retroactive li

ability for punitive damages. However, no district court in this circuit has assessed punitive damages

on James or any

one else, and neithe

r the statutory l

anguage of Title III, nor o

ur opinion today, compels any court to do so. The s

tatute merely12

provides that a succe ssful plaintiff in a c ivil action may

recover inter alia “punitive dam

ages in appropriate cases .” 18 U.S.C. § 2520(b)(2) (em phasis added). The quest

ion of what constitute s an “appropria te case” for puniti

ve damages under T

itle III is not pres ently before us , and we cannot add ress it without having to speculate about what relief district courts might deem “appropriate”

in this case, or in ot

her similar c ases. The dissent ’s analysis is therefore suspect

in its reliance on cr

iminal cases,

and on the speculative possibility of a di strict court in the f uture assessing punitiv

e damages on a p ast violator of Title III. Accordingly, we choose to rely on Suprem e Court pronouncements a

rising in the civil cont

ext in assessing whet

her retroactivity

is appropriate in the c

ivil context. The Supreme

Court has retreat

ed from, but ha

s not abandoned, prospe

ctivity in civil cases. See Harper , 509 U.S. at 94- 99, 113 S. Ct. at 2 516-2518; Beam , 501 U.S. at 534-544,

111 S. Ct. at 2442-

2448. In Harper and Beam , the S upreme Court rejected modified pro spectivity in civil cas es. Harper , 509 U.S. at 94- 99, 113 S. Ct. at 2516-2 518; Beam , 501 U.S. at 534-544, 111 S. Ct. at 2442-2448. Harper and Beam both dealt with the que stion of whether a r ule announced and applie d retro active ly in a pr ior cas e shoul d be app lied un der pur e retroa ctivit y ( i.e. , retroac tive in all cas es) or mod ified p rospec tivity ( i.e. , retr oacti ve on ly in s ome13

cases) in subsequent cases. The m ain principle for w

hich Harper and Beam stand is that once a court a

pplies a newly a

nnounced rule to the pa

rties before it, all other courts must apply tha t rule to all pendin g cases. Reynoldsville Casket Co. v. Hyde , 514 U.S. 749, 752, 115 S. Ct . 1745, 1748, 131 L. Ed. 2d 820 (1995). Therefore, the

limitation on pro spectivity outline d in Harper and Beam is also of limited releva

nce here where w

e are confronted w

ith the question of whe

ther to apply a newly announced rule prospectively in the first instance. Although Harper and Beam ruled out modifi ed prospectivity

, they did not alter the underlying validity of pure prospectivity or the Chevron Oil test. First, the Court’s prim

ary reason for

rejecting m

odified prospectivity

was to prevent treating similarly-situated litigants differently by perm itting “the substantive law [to] shift a nd spring according to the part icular equ ities of [i ndividu al parties ’] claims of actu

al reliance on an ol

d rule and of harm

from a retro active application of the new rule.” Harper , 509 U.S. at 97, 113 S. Ct. at 2517 (

internal quotations omitted). T

he initial determ

ination of whether t

o apply a new ru

le purely prospectively or

retroactively

does not implicat

e such concerns bec ause both approaches treat a

ll similarly

-situated litigants t

he same and nei

ther results in the “erection of s elective temporal barriers to t he application of fe

deral law in noncriminal cases.” Id. , 509 U.S. at 97, 113 S. Ct. at 25 17. Therefore, we14

conclude that the re

asoning behind the Court ’s rejection of modified prospe

ctivity in Harper and Beam does not impact t he availability

of pure prospectivit

y in civil

cases. Furthermore , both Harper and Beam implicitly affirmed the continuing relevance of the Chevron Oil test in initially

determining w

hether 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 altog ether. See Beam , 501 U.S. at 548 -549, 111 S. Ct. a t 2450-2451 (Scalia, J.,

concurring). Justi

ce Souter’s opini

on, joined by Jus

tice Stevens, implicitly recognized the continuing validity of the Chevron Oil test by recognizing the lim

iting 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 determ

ine the choice of la

w by relyi

ng on the equities of the part

icular 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. a t 2448-2449. Finally

, Justice O’Co

nnor filed a dissenting opini

on joined by Chief Justice Rehnquist a nd Justice Kennedy15

wherein she specifically retained the option of prospectivity and reaffirmed that Chevron Oil

was the analysis governi ng such determination s. Id. , 501 U.S. at 549

- 553, 111 S. Ct. at

2451-53. Therefo

re, a maj ority of the Justi ces 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 m

ajority said “

reflect[ed] t

he position of a maj ority of [the] Justices in Beam . . . .” Harper , 509 U.S. at 97, 113 S. Ct. at 2517. In doing so, the majority m erely reiterated the rule that once a court retroactive

ly applies a new

ly announced rule

in one case, the ru

le must be applied retroactiv ely to all pending cases

. Id., 509 U.S. at 97, 113 S. Ct. at 25 17. In announcing this rule , the major ity relied on lan

guage from and c

itations to Griffith that would tend to indicate a strong statement against prospectivity given the Court’s whole sale abandonme nt of prospectivity

in criminal ca

ses in Griffith. Id. , 509 U.S. at 95, 113 S. Ct. at 2516. However, despite the ma jority’s reliance

on Griffith , the Court in Harper did not reject the

possibility of pure

prospectivity and, in fact, app ears to have im plicitly reaff

irmed the conti

nuing validity of th

e Chevron Oil

test by recognizing the manner in which Harper and Beam altered its application. Id. , 509 U.S. at 95 n .9, 113 S. Ct. a t 2516 n.9. Most signif

icant is the fact that, although

the Court adopted a po sition and language wh ich moved the16

Court away fr

om prospectivity

, the Court did not ta

ke the final step tow

ard a regime of pure

retroactivity

in all civil cases. Furthermore , the only opinion t o take that step, a concurrence writt en by Justice Sc alia, was not joined by any of the other Justices. See id. , 509 U.S. at 102-110, 113 S. Ct. at 2520-24 (Scalia, J ., concurring). For the foregoing reasons, we conclude that we must still determine whether a newly announc ed rule in civil case s should apply retr oactively or pr

ospectively in the first instance

and that Chevron Oil governs such a determination. Therefore, we now turn to the Chevron Oil analysis to dete

rmine whethe

r the rule overruling Simpson , which we announce today, should a pply retroacti

vely or prospe ctivel y. 2. Chevron Oil analysis As an initial ma

tter, we recogn

ize that both Harper and Beam preclude the use of subjective r

eliance by par

ticular litigants or

the subjective eva

luation of the equities in specif

ic cases to resolve qu estions of prospe ctivity. Harper , 509 U.S. at 97, 113 S. Ct. a

t 2517 ; Beam , 501 U.S. at 543 , 111 S. Ct. at 244 7 (“Because t he rejection of m

odified prospectivity

precludes retroa

ctive 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.”)

.17

The requirement for objective evaluation of the impact of newly announced rules flows from th e poli cy of tr eatin g all s imilar ly-si tuate d lit igan ts in the sa me

manner. This new analy

tical regime presents a problem for the question befo

re us because both the second and third factors of the Chevron Oil test have traditionally be

en subjective in na

ture and, theref

ore, incompat

ible 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 contrave

ne the purpose and oper

ation of the provision be

ing interpreted” and th

at the third factor

requires that the “

application of the ne

w rule in the instant case

must be inequitable” (emphas is added)). But see Beam , 501 U.S. at 543, 111 S. Ct. at 2447 (“[T]he Chevron Oil test cannot determ

ine the choice of law by

relying on the eq

uities of the partic

ular 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 C ourt’s move to ward objectivity

. By doing so, w

e recognize that the second and third prongs of Chevron Oil are properly v

iewed today as

objective inquiries that exam

ine the impact o f a newly annou nced rule on the entir

e class of persons potentially

affected by t

he new rule, rat

her than the imp act on any speci fic18

litigant. See Beam , 501 U.S. at 543, 111 S. Ct. at 2448 (“The applicability of rules of law is not to be swit ched on and off accord ing to individu al hardship . . . . Of course, the gener

alized enquiry permits litigan ts to assert, and the

courts to consider, the equit

able and reliance interests of partie s absent but simil arly situated.”). Therefore, we now turn to an analysis of the Chevron Oil factors. We first look to w

hether our decision t

oday “announce[s] a new prin ciple of law, either by

overruling clear pa

st precedent or by

deciding an issue of f

irst impression the resolution of which was not clearly foreshadowed.” McKinney , 20 F.3d at 1565. Simpson has been th e law of this circuit si nce 1974, a nd today’s ruling unequivocally abandons our previous interpretation of Title III. Therefore, the first prong of Chevron Oil is satisfied and we

ighs in favor of prospe

ctivity because our decision today overrules “clear past precedent.” Id. Second, we examine whether “retrospective operation will further or r etard [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 w

iretapping and elec

tronic surveillance by persons other than duly authorized law enforcement officials . . ..” 1968 U.S.C.C. A.N. 2112, 2113.Title III partl y effectuate s this purpose by providing for a civil damages action for victims of illegal wiretapping. 18 U.S.C. § 2520. Applying the ne w Glazner rule retroactive

ly would unquestion

ably19

further the purpose

and operation of Ti

tle III by com

pensating past victim

s of illegal interspousal

wiretapping and, a

t the same tim

e, deterring those persons who are either currently wiretapp ing their spouses or planning to do so in the future. Furthermore , we fail to see h ow applying the st

atute retroactive

ly would, in any way, retar

d its operation or purpose. In fact, w e see more dan

ger of retarding T

itle III’s operation and pu rpose by applying it pros pectively-only. Therefore, we conclude that the second prong of the Chevron Oil analysis clear

ly weighs in fav

or of retroactive appli cation. We next turn to the third prong of the Chevron test: whether m aking the rule retroactive would be inequitable. Chevron Oil , 404 U.S. at 107, 92 S. Ct. at 35 5. In applying the ru

le that we announce

today retroac

tively, the pri

mary inequ

ity is the potential for suc

h retroactive appli

cation to create li

ability where

none previously existe

d. If this were t

ruly a situation w

here the class of pe

rsons affected by the new rule would suddenly face a strong likelihood of liability when they faced no pos sibility of liabil ity before, w

e would be inclined to

view the equities as weighing heavily in favor of pure prospective application. However, such is not the case here. Every state i

n this circuit has made wireta pping of the sort Jam

es engaged in a crime. A LA . C ODE § 13A-11-31 (1994); O .C.G.A. § 16 -11-62 (1999); F LA . S TAT .20

ANN . § 934.03(1) (2001). Violation of the Georgia wiretap statute is a felony that carries the penalty of one to five years in prison, u p to a $10,000 fine, o r both. O.C.G.A. § 16-11-69 (1999). V iolation of the Flori

da statute is also a f

elony and carries a penalty

of up to five yea

rs in prison, up to a $5, 000 fine, and possible additional penal ties for habitual fel ony offenders. F LA . S TAT . ANN . §§ 934.03(4)(a) & 775. 082 to .083 (2001). F urthermore,

neither Georgia n

or Florida appear to recogniz

e a spousal exception to their wiretap st atutes. See Middleton v. Middleton , 376 S.E.2d 368, 368-69 (Ga. 1989); Markham v. Mark ham , 272 So. 2d 813, 814 (Fla. 1973). Likewise, Ala

bama has m

ade the recording of

private comm

unications a misdemeanor, A LA . C ODE § 13A-11-31 (1994), and the installation of a wiretapping device a felony, A LA . C ODE § 13A-11-33 (1994). A person violating these provisions fac es up to one year in jail for the m

isdemeanor, a

nd ten years in prison for the felon y. A LA . C ODE § 13A-5-6, 7 (1994). No Alabama state court has construed either

of these statutes to e

ncompass a spousa

l privilege , and

the statutory language ap pears to preclude th e existence of any such pri vilege. See A LA . C ODE § 13A-11-31, -33 (1 994). Alabam a law also allows a

n injured party

to sue a tortfeasor f

or the comm

ission of a crim

e amounting to a f

elony, even if

the government does not p rosecute the tortfeas or for the criminal violat ion. A LA .4 Compare 18 U.S.C. § 2511 (“[A]n

y person who

– (a) intentionall

y intercep ts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication . . . shall be punished . . .”), with A LA . C ODE § 13A-11-31(a) (“[A] person commits the crime of criminal eavesdropping if he intentionally uses any device to eaves dro p, whether or not he is present at the time.”) and A LA . C ODE § 13A-11-33 (“[A] person commits the crimeof installing an eavesdropping device if he intentionally installs or places a device in a priva

te place with k nowledge 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.”) and F LA . S TAT . ANN . § 934.03 (“[A]ny person who: (a) Intentionally intercepts, endeavor s to intercept, or p rocures any other person to intercept or endeavor to intercept any wire, oral, or elec tronic communication . . . shall be punished

. . . .”) and O.C.G.A. § 16-11-62 (“It shall be unlawful for: (1) Any person in a clandestine manner intentionally

to overhear, tra

nsmit, or record o

r attempt to overhe

ar, transmit,

or record the private conversation of another which shall originate in any private plac e.”). 21 C ODE § 6-5-370 (1994). Fu rthermore,

the Alabama S

upreme Court ha

s held that interspousal wiret apping violates Ti tle III. Ex parte O’Daniel , 515 So. 2d 1250, 1252-53 (Ala. 1987)

. Based on the law of

every state in this circuit, any individuals falling w

ithin the class of persons a

ffected by the

rule we announce today would already necessarily ha

ve exposed themse

lves to significant cr

iminal and potent

ial civil liability under s

tate law for enga

ging in the wiretap a

ctions that would expos e them to additional liability under Title III. 4 Even though retroac tive application of the rule we announc e today may result in alternative liability in fede ral court for this class, we con

clude that this extens

ion of liability is

not sufficiently

inequitable to justify prosp ective-only app lication given that the

class would alrea

dy be facing felony prosecut

ion, imprisonm

ent, fines, and pot

ential civil liabilit

y under state law.5 “[R]es judicata and procedural bar

riers su ch as statu

tes of limitations” n

ecessarily circumscribe the retroactive application of the rule we announce today. Beam , 501 U.S. at 535, 111 S. Ct. at 2443. And we express no view o n whether the rule would apply retroactively insofar as criminal liability is concerned. 22 On balance, we conclude that the Chevron Oil test does not weigh in favor of prospective-on ly application of the n ew Glazner rule. Although the first part of Chevron Oil

leans in favor of pr

ospective-only a

pplication, the second part weighs in favor of retroa

ctive application an

d the third part does no

t weigh sufficient

ly in favor of prospectiv

e-only applicat

ion to justify a

bandoning the “pre sumptively retroactive effect” of ou r decision today. Harper , 509 U.S. at 96, 113 S. Ct. at 2517. Accordingly, we appl y the new Glazner rule retroactive

ly 5 and hold that the former spousal privilege available under Simpson does not bar Elisabe th’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 int

erspousal exception i

n Simpson applies retroactive ly. Accordingly,

we REVERSE

the district court’ s grant of Jame s’s motion for summary judgment and R

EMAND this cas e for further proceedings consistent with this opinion. REVERSED and REMANDED.23

CARNES, Cir

cuit Judge, concurr

ing: I join all of the Co

urt’s opinion and wr

ite separately

to respond to the dissenting position, w

hich is spelled out in C

hief Judge Edmo

ndson’s and Judge Black’s opinions. Because the foundat

ion of the dissenting posi tion is laid upon reliance and fairness interests, it must stand or fall with the presumption that everyone, including Mr. Glazner , knows the law. T hat is a great and hoa

ry presump

tion underlying much of our law. The pr oblem is not with

the presumption b

ut with the dissenters’ unwi

llingness to embr

ace it fully,

instead of giving it only

a little squeeze. They would have us presume that a

t the time Mr. Glazner decided to electronically

invade his wife’ s privacy, he k new the law insofa

r as it includes our Simpson decision but he did not kno w the more fu

ndamental law

that any of our decisions, including Simpson , are subject to being overruled at a

ny time by

the Supreme Court or by this Court sitting en banc. The dissenters would have us presume that the mythical lawyer Mr. Glazner did not actually vi sit for advice, but could have, would ha

ve advised him to wiretap without w

orry. That a

dvice apparently

would have been base

d on the belief that although Simpson was a badly re

asoned decision rej ected by virtua lly every other ci

rcuit to consider it,

nonetheless Simpson

was unshakable law

in this1 Judge Black’s dis s enting opinion says that an argument, about which she disavows any

view, could be made that Mr. Glazner’s misconduct may not have constituted the crime of installing aneavesdropping

device, which is

a felony in

Alabama. See Dissenting op. of Black, J. at 4. That argument, if it were made, would be based upon the owner exception con ta ined in the statute that prohibits installation of an eavesdropping device. Id .; see ALA CODE § 13A-11-33 (“...and without permission of the owner...” ). However, the

re clearly is no “owner” exce

ption in the other Al

abama criminal statute Mr. Glazner’s misconduct violated. That statute provides: “A person commits the crimeof criminal eavesdropping if he intentionally uses any device to eavesdrop, whether or not he is present at

the time.” ALA. CODE § 13A-11-31. “Eavesdrop” is defined to include recording any part of the private co

mmunication of othe

rs without the c onsent of at least one of the persons engaged in the c ommunication

. See ALA. CODE § 13A -11-30(1). A viol

ation of that statut

e is a Class A misdemeanor, wh ich is punishable by

a term of imprisonm

ent of up to a y

ear in jail. ALA CODE §§ 13A-11-31; 13A-5-7(a)(1). 24 circuit that could ne

ver be changed; and e

ven if it were cha

nged some day

, the new rule could neve

r be applied retroa

ctively 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 wir

etapping spouses, had sought out legal advice they would have received bad advic e. The fundam ental flaw in their reasoning becomes even more apparent when one considers that to make it work we mus t also presume t

he mythical la

wyer would not have advised Mr. G lazner that the ac

tivity he wante

d a green ligh t to p ursu e is a c rime in Alaba ma . SeeALA. CODE §§ 13A-11-31; 13A-11-33 (1994). Or perhaps we should indulge the equally untenable presumption that

Mr. Glazner w

ould have been mor

e concerned about c

ivil liability than cr

iminal prosecut

ion. 125

Whatever one may think of the quality of the Bar in Alabam a, 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 presum ed to have known the la

w – and the dissenting position teeters atop that presumption – he must be presumed to have known that the Simpson

decision was not im

mutable, and t

hat not only could it be changed but also that the change could be applied retroactively. And he must be presumed to have known that the conduct he was engag ing in is a crime

in Alabama; n

o change in the law is

needed for that. W

ith accurate and complete underst anding of the law presum

ed, as it must be , any relianc e interest Mr. G lazner may

claim is too unreasonable to figur

e into the decisional calculus of this case . We should not pause to weep for one who thought that he was simply committing a crime and potentially subjecting himself to civil liability in state court, only to learn later that his conduct had also give n rise to civil liability in fed eral court. To me, that r esult does not seem “

terribly unfai

r,” as the Chief Judge characteriz es it in his dissenting opi nion. Footnote 13 of that opinion illustrates the strange nature of the half-way presumption world into which the dissenters would take us. In that footnote we are told that som

e people may

have chosen to live in t

he Eleventh Circui

t because26

the Simpson

decision allowed the

m to covertly

wiretap their spou

ses. It actually says (and all the

emphasis is in the

original): “I

am not tryi

ng to be facetious; but before today,

some spouses m

ight have chosen to live

in the Eleventh Cir

cuit because they could wiretap their own telephone without being liable under federal law.” Dissentin

g op. of Edmondson, C.J., at n. 13. I suppose, then, a conversation betwe en a couple sitting ar

ound their breakfast table in

, oh say, Color

ado (the Tenth Cir

cuit having rejec

ted Simpson years ago) m

ight have gone some

thing like this: Jim: Honey, I’ve been thinking, we ought to move to Alabama. Liz: But Sweet

heart, I thought y

ou liked living in Colora

do. Jim: I d o, Sug ar, bu t ther e’s a p roble m. Liz: What’s troubling you, Sweetie? Jim: Well, Punkin’, Colorado is in the Tenth Circuit, and its federal appeals court has he

ld that if I wireta

p your private conversations without your knowledge and consent, I may have to pay y ou damages if you find out and

sue me in feder

al court. But if w

e move to Alabama, w

hich is in the Eleven

th Circuit, its Simpson

decision will allow me to inva

de your privacy

electronically

without having to worry about your having a civil claim aga inst me in feder

al court.

Liz: But Honeybun, do esn’t Alabam a’s crimina

l eavesdropping statute make it a crim

e to covertly re

cord conversations w

ithout the consent of at least one of the

parties to the conver

sation?27

Jim: It does, Snookum

s, but all I’m

worried about is the

potential civil cause of action in f

ederal court, not

having to serve tim

e in the state slammer. Liz: You’ll look so good in jailhouse stripes, my Love. When do we move? Only in a world

where conversati

ons like that take place does concern about reliance on the Simpson

decision by James Glazner and other wiretapping spouses make sense.1 A l l decisions by the former Fifth Circuit issued before 1 October 1981 are binding as precedent on the Eleventh Circuit. See Bonner v. City of Prichard, Ala. , 661 F.2d 1206, 1207 (11th Cir. 1981)(en banc).

2 18 U.S.C. § 2520 allow

s the victim

of wiretapping to bring a civil suit against the alleged violator. In addition to equitable relief as may be appr opriate, the par

ty may receive not only 28 EDMONDSON

, Chief Judge, diss enting, in which BI RCH and WILS ON, Circuit Judges, join: Federal law should

give fair warning

before it impos es new penalties on a person. So, althou

gh I accept that Simpson v. Sim pson , 490 F.2d 803 (5th Cir. 1974), should be overt

urned, I must d

issent from the

retroactive appli

cation of today’s decis

ion that does away

with the interspousa

l wiretap excepti

on. Today we overturn our precedent, clearly established since 1974, which allows for an inter

spousal exception to T

itle III of the Om

nibus Crime Cont

rol and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-22 (“Wireta p Act”). See Simpson v. Simpson , 490 F.2d 803 (5th Cir. 1974). 1 But the adversarially-presented arguments in this

case also present a

controversy abo

ut whether today ’s decision will be given a prospe

ctive or retroact

ive application. T

hus, we are faced with the question of whether

we should retroact

ively apply t

he new interpreta

tion of the law to Mr. Glaz

ner and, thereby

, subject him

in federal court t

o pay not only compensatory

damages, att

orney fees and court costs, but also to pay punitive damages for committing a n act that was law

ful under the pertine

nt federal law of our Circuit when he

acted. 2 I believe that the answer to the question is “No.” Istatutory

or actual damag es (whichever is greater), but also attorney f ees and court costs, and punitive damages. § 2520(b)(1)-(3). By the way, 18 U.S.C. § 2511(4)(a) seems to allow the government to bring criminal charg

es: “Except as provided in paragra

ph (b) of this subsection or in subsection (5), whoever violates subsection(1) of this section shall be fined under this title or imprisoned not more than five year s, or both.” Because the pertinent stat

ute is part of the Omnibus Crime Control and Safe Streets Act of 1968 and seems to make the condu ct h ere in question a crime (under our new construction of the statute), it might be more ac curate to analy

ze the appli cation of any part of the Act as a matter of criminal law, not

civil. But I will do as

the Court has done (

since the case be

fore us is a civil case) and will not approach the case as purely a criminal law matter,although I will look to criminal law cases for guid

ance, because

this case involves

quasi-criminal e

lements.

3 I focus on the punitive damages provision of the statute, but

I do not mean to suggest that the retroactive application of our judicial enlargement of the Wiretap Act would be right if punitive damages were not involved. In either event, tod ay’s decision adds a new and burdensome legal consequence to Mr. Glazner’s 1999 conduct: a federal c ause of action fo r damages. For

me, this situation is the m ain cause for concern. Then, in addition, the cause of action is one that allows p unitive damag es per the statute. Whether Mr. Glazner, in fact, will win or lose this lawsuit and whether, if

he loses, he will have to pay punitive damages, besides other damages, is spec ulative. But what is, as a matter of law, definite now i s this idea: today’s decision allows Mr. Glazner to be lawfully sued for all the remedi es allowe d by the statute. Mrs. Glazner has expressly pray ed for punitive damages in her complaint in this action, which the Court today allows to go on against Mr. Glazner. 29 believe that we ar

e not required by

the law to subjec

t Mr. Glazner - - and all similar ly-situ ated pe rsons - - to ret roacti ve liab ility an d penal ties. To the con trary, the Supreme C ourt, I believe, has indicated that w

e should not apply the new a nd expans ive int erpreta tion in that way. 3 As a rule, retroactivity is s trongly favored in judi cial 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 decision

s as being beyond th

e lawful power of

federal courts. And I4 Ina kind of criminal law counterpart to Chevron Oil v. Huson , 404 U.S. 97, 92 S.Ct. 349 (1971), the Supreme Court h as said that new c

onstitu tional ru les governing

criminal procedure should be applied retroactively to cases not y et final. See Griffith v. Kentucky , 479 U.S. 314, 107 S.Ct. 708 (1987). That decision does not, however, affect the retroactive or prospective application of a new substantive change in criminal law. Griffith is not controlling here.

5 Punitive damages are commonl y viewed as quasi-

criminal. The Rest

atement 2d Torts § 908(1) defines “punitive damages” as “damages, other than compensatory or nomina l damages, awarded against a person to punish him for his outrageous c

onduct and to

deter him and others like him fromsimilar conduct in the future.” Most jurisdictions view punitive damages in that way. See U.S. E.E.O.C. v. W&O, Inc. , 213 F.3d 600, 616 (11th Cir. 2000) (“We start from the principle that punitive damages are a

warded solely

to punish defendants

and deter future wrongdoing.”) (internal quota tio ns omitted); Pacific Mut. L ife Ins. Co. v.

Haslip , 499 U.S. 1, 19, 111 S.Ct. 1032, 1044 ( 1991 ) (“It is true, of course, that under Alabama law, as under the law of most States, punitive damages are imposed for the purposes of retribution anddeterrence. They have been descr ibed as quasi-criminal.”) (internal citatio n omitted); Smith v. Wade , 461 U.S. 30, 54, 103 S.Ct. 1625, 1639 (1983) (stating that the purposes of puni tive damag es are to punish and to deter, quoting the definition from Restatement (Second) of Torts § 908(1)); McKinnon v. Kwong Wah Restaurant , 83 F.3d 498, 508 (1st Cir. 1996) (same); Ciraolo v. City of New York , 216 F.3d 236, 246 (2d Cir. 2000) 30 think, if prospective decision making is ever j ustified, this kind of case -- the explicit overruling o f a long-established , statutory-construction precede nt impacting on priv

ate parties, wit

h punitive consequence s arising as a result -- is one where it is appropriate. 4

I.

“Punitive damages by definition are not intended to compensate the injured party, but rather to punish the tortfeasor.” E.E.O.C. v. Waffle Ho use, Inc , 534 U.S. 279, 295, 122 S.Ct. 75 4, 765 (2002), quoting Newport v. Fact Concerts, Inc. , 453 U.S. 247, 266-67, 101 S.Ct. 2748, 2759 (1981). 5(same); Dunn v. HOVIC , 1 F.3d 1371, 1404 (3rd Cir. 1993) (same), modified , 13 F.3d 58 (3rd Cir. 1993); Belk v. Charlotte-Mecklenburg Bd. of Educ. , 269 F.3d 305, 346 ( 4th Cir. 200 1) (same); Matter of P&E Boat Renta

ls, Inc. , 872 F.2d

642, 652 (5th Cir. 1989) (same) ; In re Sallee , 286 F.3d 8 78, 903 (6th Cir. 2002) ( same); Calhoun v. DeTella , 319 F.3d 936, 942 (

7th Cir. 2003) (sa

me) ; Denesha v. Farmers Ins. Exchange , 161 F.3d 491, 503 (8th Cir. 1998) (same) ; In re Exxon Valdez , 270 F.3d 1215, 1245 (9 th Cir. 2001) (same, declaring cr iminal-fine prec

edents particula

rly informative in civil cases because of the quasi-criminal nature of punitive

damages); Searles v. Van Bebber , 251 F.3d 869, 878 (10th Cir. 2001) (same) ; Jordan v. Medley , 711 F.2d 211, 216 (DC Cir. 1983) (same). 31 On punitive dama

ges, the Suprem

e Court has said that

“[t]he ver

y labels given ‘punitive’ or ‘exemplary’ dam ages, as well as the rationales that support them, dem

onstrate that they

share key char

acteristics of cr

iminal sanctions

. Retroactive impos ition of punitive damage s would raise a serious c onstitutional question [under the Due Process Clause]

. ” Landgraf v. US I Film Product s , 511 U.S. 244, 281, 114 S.Ct. 1483, 1505 (1994) (statutory case) (declaring that defendants did not have to pay compensatory and punitive damages for acts that occurred before s

uch penalties were

established) (em

phasis added). The

Fifth Amendme

nt’s Due Proce ss Clause provides pr otection and repose,

demanding fair notice. See id. at 266, 1497. We have not found, nor has anyone br

ought 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 federal law when the act was committed.6 While not a st ric t an alo gy, it is pretty f air to say th

at as the Ex Post Fac

to Clause is to the legislature, the D ue Proce ss Clause is to the judiciary. This observation is not to say that the legislature and judiciary are subject to the same

rules, but rather that the two branches are guided by the same important

principle: protecting the people and their liberties fr

om an abuse of go

vernment. Cf. Rogers v. Tennessee , 532 U.S. 451, 462, 121 S.Ct. 1693, 1700 (2001) (criminal case) (stating that the Ex Post Facto Clause principles cannot strictly be applied to the common law, but concludingthat “a

judicial alteration of a common law doctrine of criminal law violates the pr

inciple of fair warning, and

hence m ust not be given retroactive effect . . . [when] it is ‘unexpected and indefensible

by refere nce to the law whic

h had been express

ed prior to the conduct in issue.’”), citing 32 The United State s Constitution prohibits b oth Congress and the S tates from passing an ex post facto law, that is, from passing a law to make unlawful earlier conduct that was lawful when done. U.S. Const. art. I, § 9, cl. 3; U. S. Const. art. I, § 10, cl. 1. Of course, the cla use is binding o nly on legislatures. See Marks v. United States , 430 U.S. 188, 191, 97 S.Ct. 990, 992 (1977) (crim

inal case). But th

e similar Due Process princip le of fair notice appli es to the judiciary’s acts. See id. at 191-92, 992-93 (“[T]he principle on which the [Ex Post Facto] Clause is based [—] the notion that

persons have a right t

o fair warning of t

hat conduct which w

ill give rise to criminal penalties [—] is fundamental to our concept of constitutional liberty.”).As such, the Due P rocess Clause of the

Fifth Amendm

ent prohibits the judiciary fr

om punishing partie s through judicial construction of a statu te unless fair notice was gi

ven that the conduct w

as prohibited before

the conduct took place. See id. ; see also Bouie v. City of Columbia , 378 U.S. 347, 84 S.Ct. 1697 (1964) (crimi

nal case); Rabe v. Washingt on , 405 U.S. 313, 92 S.Ct. 993 (1972) (criminal case). 6 “Eleme

ntary considera

tions of fairness dic

tate that individualsBouie

v. City of Colum

bia , 378 U.S. 347, 354, 84 S.Ct. 1697, 1703 (1964). Here, we are not dealing with the judicial a

lteration of a co

mmon law doctrine,

but rather of a le

gislative enac

tment.

7 As I understand

it, roughly

half of the federal circuits have expressed no view about whether aninterspousal exceptionapplies to the pertinent statute. Several circuits have opined that no such exce ption applies. But that some other circuits have concluded that no interspousal wire tap exceptio

n exists did not -- could not -- remove the binding force of Simpson as the lawof this Circuit before tod ay. Circuit splits are notuncommon. And they are not resolved

by a majority

vote of the circu

its. They are resolved by

Congress or the Supreme Court. Therefore, that other circuits g

ave the statute a different meaning than Simpson provided inadequ ate notice to

the residents

of this Circuit that the statutory constructionwould change and, more important, that a new construction would be applied retroactively

in this Circuit to comp

leted conduct. By the way, it is not just theFifth and Eleven th Circuits that hav

e said that some

exception applies to the pertinent statute for wiretaps made by a spouse in his resi

dence. The Seco

nd Circuit, in Anonymous v. Anonymous , 558 F.2d 677 (2d Ci r. 1977) , concluded that no Title III violation arises when a spouse (or ex-spouse) wiretaps his own phone in his own h ome in pu rely domest ic matters, which are “clearly to be handled by the state courts.” Id. at 679

. See also Janecka v. Franklin , 843 F.2d 110 (2d Cir. 1988) (upholding dismissal of Title III c laim on the autho rity of Anonymous ). 33 should have an opportunity to know what the law is and to conform their conduct accordingly.” Landgraf

, 511 U.S. at 265, 114 S.Ct. at 1497 (1994). In the present case , the wife adm its in her brief that Simpson “provide[s] immunity ” for interspousal w

iretapping; and she concedes that the over turning of Simpson would creat e new law for t he Circuit . Even if we th ink Mr. Glaz ner’s wiretap was not r

ight, it seems v

ery wrong for

a federal court t

o subject him to punishment for committing a n act that was clearly lawful un der the pertinent federal law in the

Eleventh Circuit w

hen he comm

itted 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 mora

lly reprehensi

ble or illegal, a de

gree of unfairness

is inherent34

whenever the law

imposes additiona

l burdens where the

re clearly w

ere none before.”). Law is not static.It can change. Bu t the Constitution sets some limits on how the law can be

changed and on whom

the change can im

pact. Given the lon

gstanding construction in this Circuit of the pertinent federal statute when Mr. Glazner conducte

d the wiretap, he

was not fairly

warned that his cond

uct would violate the federa

l statute. I worr

y that applyi

ng our new construct

ion of the statute to Mr. Glazner today violates the Constitution. “The law is a causeway upon which , so lo ng as h e keep s to i t, a ci tizen may walk safel y.” Rob ert Bo lt, “A Man for All Seasons” Act II, 8 9 (Vintage 1960) (sp eech of Sir Thomas More). As we said before, “[t]o be free of ty ranny in a free country, the causeway’ s edges must be clearly marked.” United States v. Brown , 79 F.3d 1550, 1562 (11th Cir. 1996). In this Circ

uit, the federal l

aw’s borders w

ere marked be

fore today in a way that did not penalize a wiretap of the kind underlying this case.

II.

I question whether Chevron Oil v. Huson , 404 U.S. 97, 92 S.Ct. 349 (1971), controls this case. I have already set out my vi

ew that the Constitut

ion directly8 ChevronOil involved whether to apply a cha

nge in a stat ute of

limi tatio ns ret roact ively. In a recent case, our Circuit, en banc, used the ChevronOil test to decide whether a new rule allowing dis trict courts to deny plain tiffs leave to ame

nd their complaints sua sponte should be applied retroactively

. We decided that the

answer was “No” : the rule should be applied

pro spe cti vel y onl y. Wagner v. Daewoo Heavy

Indus. Am. Corp. , 314 F.3d 541 (11th Cir. 2002)(en banc). Less concern arises from applyi

ng laws r etroactive ly in procedural matters because they “regulate secondary rather thanprimary conduct.” Landgraf , 511 U.S.244, 275, 11 4 S.Ct. 1483, 1502. Ye t, as Wagner

shows, even in procedural matters we hesitate before applying c hanges retroactively; and we sometimes -- I think quite rightly -- decline to do so.

9 ChevronOil has since been limited, by disallowing selective prospectivity. Onc e a new rule has been applied re

troactively

to one party

in acase, it must be ap

plied retroactiv

ely to all pa

rties in all similar cases. See Wagner v. Daewoo He avy Indus. Am. Corp. , 314 F.3d 541, 544 (11th Cir. 2002) ; see also McKinney v. Pate , 20 F.3d 1550, 1566 (11th Cir. 1994) (en banc).

35 bars a retroactive application of today’s new interpretation of the pertinent statute. I also suspect that th

e circumstances here (a case i nvolving a change in subst antive law wi th qu asi-c rimina l aspe cts) a re too diffe rent f rom 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 except ion sh ould n ot be ap plied r etroac tively. 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) wh

ether retroactiv

e 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 appli cation. Chevron Oil , 404 U.S. at 106-07, 92 S.Ct. a

t 355. 910 “To assure the privacy of oral and wire c ommu nicat ions, titl e III prohibits all wiretapping and electronic surveillance by persons other than [those] duly authorized . . . .” S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112, 2153. 36 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 doe s not support retro active application

. The retroactive application of the new interpretation -- which removes the interspousal wiretap exception -- does not

retard the purpose of the pertinent sta tute, but neither doe s it further the purpose

more than apply

ing the old Simpson

interpretation to th

e instant case. The statute’s core goal is not to punish wireta pping, but instead to prevent (prohibit by dete rrence) wiret

apping. 10 Here, the wir

etap has already occurred; and neither the law of the Simpson case nor the law of today’s case can prohibit or preven t wiretaps that have al ready happened. See Usery v. Turner Elkhorn Mining Co. , 428 U.S. 1, 17 -18, 96 S.Ct. 2882 , 2893 (1976) (“ hesitat[ing] to approve the retro spective imposit ion of liability on

any theory o f deterrence or blameworthine ss”) (internal cit ations omitted).

Furthermore , applying the Simpson rule to Mr. Glaz

ner -- and those per

sons materiall

y similar - - will not encourage others to wiretap their spouses in the future. We have made clear today that the interspousal exception no longer exists in our Circuit. We have furthered the deterrent purpo se whether we ap ply today’ s decision retroact ively or not.11 Iassume that Mr. Glazner did not actually rely on the Simpson rule before acting, but the record is not compl etely clear. While it appears to be clear that he did not seek advice from legal counsel about the use of the tape recorder, it is not clear whether he learned of the Simpson rule in some other way. The lar ger point, thoug h, is that it is not

important whether

Mr. Glazner actua

lly relied on Simpson before acting. The impo rtant fact is that

his conduct was not contrary to federal law when he committed the conduct. In general, that which is not prohibited is permitted. In addition, here, there was express permission, per Simpson

.

12 “We live in

the jurisdiction of

two sovereignti

es, each having

its own system

of courts to declare and enforce its laws in common territory. . . . They exercise jurisdiction, it is true, within the same territory, but not in the same plane.” Ponzi v. Fessenden , 258 U.S. 254, 259, 261, 42 S.Ct. 309, 37 We must we

igh the last elem

ent: whether substa

ntial inequity w

ould result in applying the new statutory interpretation retroactively. Before today, it was clearly established law that it ( even if dishonorable)

was not illegal under federal law, as long interpret ed by our Circ uit, for a hu sband to r ecord his w ife’s conversations (or vi

ce versa) in the hom

e that they shar

ed. 11 Sitting en banc (as we must when w

e overrule a past pr

ecedent), we ha

ve just now changed

the law of the Circuit. But in this country, a law must be made accessible to people before punishment m

ay be impose

d so that the people hav

e the opportunity t

o obey the law. To do otherwise is fu ndamentally unjust. Given the nature of our federalism, the nonexistence of an interspousal wiretap exception

under state law doe s not make the re troactive rem

oval 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 w

e sit. 12 That wiretapping one’s spouse is unlawful under an310, 311 (1922).

13 Predictability

in the law is importa

nt. People are supposed to be able to plan what they will do and to know with some level of confidence whether the planned acts are lawful or not and, even if not, what the conse

quences will

be from different sides. Oneadvantage of having a country made up of many diff

erent jurisdictio

ns is that people ha

ve a right to move

from state

to state, orfrom circuit to circuit, to live in a place that adheres to the version of laws that they prefer. For example, corporations clearly de

cide where to

settle onthe basis of law. See generally Guhan Subramanian, The Influence of Antitakeover Statutes on Incorpora tion Cho ice: Evidence on the “Race” Debate and Antitakeover

Overreaching , 150 U. Pa. L. Rev. 1795 (2002)(finding that corporations often decide notto incorporate in Massachusetts, Ohio, and Pennsylvania because of their severe antitakeover statutes). Iam not trying to be facetious; but before today , some spouses might have chosen to live inthe Eleventh Circ

uit because they could wiretap their own telephone without being liable under federal law. Even if we th ink it unlikely

that someone would

live in our Circuit to

avoid liability u nder federal law for

wiretapping the

ir spouse, it is our jo

b to ensure that som

eone cannot b e punished retroac

tively for d

oing so, as the ac

t was clearly

lawful. 38 Alabama stat

ute 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 Mrs. Glazner - - if she wishes -- may possibly

pursue a state clai

m against her husband for the w

iretap. The sta

tes may puni sh conduct violating the states’ preexisting laws. But she should not be abl e also to pursue a fe

deral claim a

gainst him under the sta

tute involved in the pre sent case. The pr ecise question befor

e us is whether it is inequitable, that is unfair, for the federal sovereign to penalize Mr. Glazner. I believe it is terribly unfair for federal courts to penalize completed conduct which the fe

deral courts said w

as lawful at the ti

me of the conduc

t. Today’s Court definitely adds a new and burdensome legal consequence to Mr. Glazner’s 1999 c

onduct: a federal cause of action for, among other things,14 I am reminded of the legal maxim, “No one need be wiser than the laws.” S.S.

Peloubet, A Collec tion of Legal Maxims in Law and Equity, with Eng lish Translations 177 & No . 145 2 (“ Neminem oportet esse s ap ientiorem legibus ”) (Fred B. Rot hman & Co. 1985) (1 884). It is sufficient that one is on the federal law’s causeway; one should not need to forete ll how and where the fede ral law may c han ge to mor row to a voi d fed eral pen alt ies for som eth ing d one tod ay. 39 punitive damages . And especially to the extent that Mr

s. Glazner (and

those like her) a lread y has ca uses of act ion i n stat e cour t for t he wir etap, it har dly se ems unfair to say to h

er, given the lega

l history, that s

he cannot also have th

e benefit of a new federal ca

use of action as we

ll. I need to stress the s

weep of the Court’ s decision today.If we retroac tively apply this new r

ule, it will not ju

st be Mr. Glazne

r who will be trea

ted unfairly,

but also anyone else

who has already

completed a sim

ilar act, includin

g those persons who -- before unde

rtaking to wiretap -- first sought com petent legal advice

about federal law, t

hen directly re

lied on Simpson , and took pains to stay within the federal law’s proverbial “cause way.” 14 Once we decide t o apply a rule retroactively

, we, as I under

stand the law, m

ust apply the rule

retroactively

to all whose cases are still p ending. See Wagner v. Dae woo Heavy Indu

s. Am. Corp

. , 314 F.3d 541, 544 (11th Cir. 2002) (en banc).

III.15 According to the 2000 Census, 20.2% of the U.S. population resides in the Eleventh and Fifth Circuits. 40 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 g

o along with overruli

ng Simpson . My colleagues think that the court got it wron

g about Congress’s i

ntent when Simpson , in 1974, construed the st atute to exe mpt in tersp ousa l wire taps i n the ma rital resid ence. I thin k my colleagues’ interpretation of the statute today is more likely correct. But w e are not writing on a blank slate in this case. And stability and certainty in the law are extremely important. O

verruling long-established precedents und ercuts stability and certainty. So, I tend to think that leaving precedents undisturbed, unless they are very obviously mistakes , is best (especia lly long-ma

de precedents constr

uing statutes). I do not regard Simpson

as absurd. And, a

fter all, if the courts in the Fifth and Eleventh Circu

its have very ba

dly misrea

d the statute, Congr

ess and the Supreme Court have had nearly thirty ye ars to correct this error -- an “error” that before today governed more than one out of every five people in the United States 15 ; but neither the Sup reme Court nor Congress ha s acted to correct what we now see as the Simpson

fallacy. Still, I do not dissent from today’s new41

cons truct ion o f the s tatut e. But the pa st th irty yea rs are not ea sily er ased. In my view, we should not act as if Simpson never was the law

to the people in this Circuit. I would apply toda

y’s interpre

tation of the Wire

tap Act to cases ba

sed on occurrences of w

iretapping in the futu

re, not the past. On this basis, I would affirm the district court’s jud gment.1 In Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981.

2 In footnote 3 o

f his d issent, Chief

Judge Edmondson states that his reasoning does not depend on the availability of

punitive damage

s. If punitive damages were not available, I think the Court’s Chevron analysis would carry the day

. 42 BLACK, Circ

uit 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 cir

cuit precedent should

not be applied retroa

ctively. I w

rite separately,

however, to state

that, in my

view, the retroa

ctivity analy

sis 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 fundam

ental ex post facto pr

inciples incorporat

ed into the Due Process Clause. Courts repeatedly

have recognized puni

tive damages a

re quasi-crim

inal in nature. See Landgraf v. USI Film Prods. , 511 U.S. 244, 281, 114 S. Ct. 1483, 1505 (1994) (“The very labels given ‘punitive’ or ‘exem plary’ damages, as well as the rationales that support them, de monstrate that

they share key

characteristics

of criminal sanc

tions.”); In re Exxon Valdez , 270 F.3d 1215, 1245 ( 9th Cir. 2001) (stating that “p

unitive damages

are quasi-crim

inal”); cf. Pacific Mut. Life Ins. Co. v. Haslip , 499 U.S. 1, 19 , 111 S. Ct. 1032, 1044 (1991) (“[P

unitive damages ] have43

been described as qua

si-criminal. ” (citation omi tted)). Retroac

tively apply

ing the Court’s new rule would su bject Mr. Glazner to quasi- criminal liability. Consequently, I

think the Suprem

e Court’s Due P

rocess Clause jur

isprudence in the cri minal co ntext c ounsel s again st retr oactiv ity. In the crimina

l context, the Supre

me Court has sta

ted the Ex Post Fac

to 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 (1977) (citation omitted). Ne

vertheless, “

the principle on whic

h the Clause is based[ ,] the notion that persons have a r

ight to fair warnin

g of that conduct whic

h 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 aga

inst judicial actio

n by the Due Process Clause of the Fifth Amendment.” Id. at 192, 97 S. Ct. at 993. A judicia l alteration violate s fair warning principles and should not be applied retroactively when it is “unexpected and indefensible by

reference to the

law which had bee

n expressed prior to t

he conduct in issue.” Rogers v. Tennessee , 532 U.S. 451, 462, 121 S. Ct. 1693, 1700 (2001) (citation and

quotations omitte

d). In light of our st

rict adherence to stare decisis and the prior panel pr ecedent rule, the

re was no fair w

arning that we woul

d3 The circuit co urt s of appeals frequently disagree in interpreting statutes. That certainly does not mean a litigant should not rely on the law of the circuit in which he is litigating. 44 overrule Simpson and retroa ctively app ly a new rule to make Mr. Glazne r’s conduct unlawful. In Simpson , the Court held tha t Title III of the

Omnibus Crim

e Control and Safe Streets A

ct of 1968, 18 U.S. C. §§ 2510-22, has an interspousal except

ion for wiretapping in the m

arital home. 490 F.2d at 810. Th at ruling rema

ined in effect, unaltered, until tod

ay. To be sur

e, other circuits

questioned and disagre

ed with Simpson . Such disagreement did not, however, give Mr. Glazner fair war ning that we would overturn o

ur decision and retr

oactively apply

a new rule to m

ake his otherwise lawfu

l conduct unlawful. 3 Moreover, state law did not provide any fair warning. The law of another sovereign simply

could not give fair w

arning to Mr. Gla

zner that he could be hailed into federal

court for punitive da

mages under a f

ederal statute tha

t, until today, we interpreted not t o apply to his conduc t. Cf. Bouie v. City of C olumbia , 378 U.S. 347, 359-60, 84 S. Ct. 1697, 1705-06 (1964) (“It would be a rare situation in which the

meaning of a sta

tute of another Sta

te sufficed to aff

ord a person ‘fair w

arning’ that his ow

n State’s statute

meant some

thing quite differen

t from what its words said.”). To hold otherwise w ould open floodgates to numerous interp

retive questions. Could fair warning be deemed given onl

y by45

state statutes, or could it also be deemed given by state common law, regulatory law, and county

and municipal or

dinances? Must a court

considering the fair warning issue inter

pret state statutes

and common law? Would such cou rts have to certif y questio ns of state

law to sta

te suprem e courts? The state statutes

potentially im

plicated by Mr.Glazner’s cond uct illustrate the problems inhe

rent in such an approa

ch. For exam

ple, Ala. Code § 13A-11-33 provides: A person comm

its the crime o f installing an eavesdropping device if he intentionally i

nstalls or places a d

evice in a private place with knowledge it is to be us ed for eavesdropping and without permission of the owner and any lessee or tenant or guest for h

ire of the private place. Ala. Code § 13A-1 1-33(a) (emp hasis added). I ex

press no view as to the

merits, but an argument certainly could be made that Mr.Glazner had “ permission of the owner” and therefore did not violate § 13A-11-33 since he presumably was an owner of the marital residence. Moreover, in its opinion, the Court cites Ala. Code § 6-5-370 to suggest that Mr. Glazne

r’s conduct expose

d him to civil liability. Th

at provision, howeve

r, “does not cr

eate a cause of ac

tion; rather, it merely a llows a plaintiff to commencea civil action even i f the plaintiff does

not pursue criminal prosecution of the defendant.” Lewis v. Fraunfelder , 796 So. 2d 1067, 1070 (Ala. 200 0). There may be a remedy under Alabama common law.46

See Ages Group, L.P. v. Raytheon Aircraft Co., Inc. , 22 F. Supp. 2d 1310, 1320 (M.D. Ala. 1 998). Still, it is e xactly this ty

pe of analysis th

at highlights the unworkability of

an approach to the f

air warning analy

sis that looks to the law

s of another sovereign. In conclusion, Mr. Glazner simply had no fair warning that his conduct would subject him

in federal court t

o the quasi-crim

inal sanction of puniti

ve damages. Consequently, the Co urt’s opinion deni es due process to Mr. Gla zner. On this basis, I re spectfully disse nt.