Lewton et al v. Divingnzzo et al

Filing 97

ORDER denying 60 Divingnzzos' Motion for an order declaring statutes unconstitutional. Ordered by Magistrate Judge F. A. Gossett. (CLS, )

L e w t o n et al v. Divingnzzo et al

D o c . 97

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA W I L L I A M DUANE LEWTON, et al., P l a i n t if fs , vs. D I A N N A DIVINGNZZO, et al., D e f e n d a n t s. ) ) ) ) ) ) ) ) )

8 :0 9 C V 2 MEMORANDUM A N D ORDER

T h is matter is before the magistrate judge by consent of the parties on the motion of d e f en d a n ts , Dianna Divingnzzo and Sam M. Divingnzzo f o r an Order declaring 18 U.S.C. 25:10 et sec and Neb. Rev. Stat. 86-2103 et s e c unconstitutional as applied to the Defendants Divingnzzo for the reason th a t the statutes clearly did not desire to curtail the activities of a concerned p a re n t to protect their child, therefore violates equal protection and due p ro c e ss ; or in the alternative is unconstitutional as applied to Defendants D e v in g n z z o . (D o c . 60). No party has filed any response to this motion. The court finds that the motion s h o u ld be denied. The Attorney General of the United States and the Attorney General of th e State of Nebraska were given notice of Divingnzzos' constitutional challenges and d e c lin e d to intervene in this matter. See 28 U.S.C. § 2403(a) & Fed. R. Civ. P. 5.1. I. BACKGROUND T h e Amended Complaint (Doc. 63) alleges that William Duane Lewton ("Lewton") a n d Dianna Divingnzzo are former spouses and are the parents of a minor child, Ellenna. D e f en d a n t Sam M. Divingnzzo is the biological father of Dianna Divingnzzo. In a divorce

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d e c re e entered in May 2004, Dianna Divingnzzo was awarded the sole care, custody and c o n tro l of Ellenna, subject to Lewton's rights of reasonable and liberal visitation. In October 2007, Lewton filed a complaint seeking custody of Ellenna (the "Custody C a s e " ). Subsequently, Dianna Divingnzzo and Sam Divingnzzo (together, "Divingnzzos") in s e rte d a recording device inside Ellenna's teddy bear and secretly intercepted c o m m u n ic a tio n s between or among Ellenna and the plaintiffs, and/or between or among the p la in tif f s themselves without Ellenna's participation. The recordings were made without the p la in tif f s' knowledge or consent. Divingnzzos admit that Dianna Divingnzzo inserted the re c o rd in g device inside Ellenna's teddy bear. The recordings occurred over a period of several months. Divingnzzos brought the re c o rd in g s to Dianna Divingnzzo's attorneys for use as evidence in the Custody Case. D iv in g n z z o s provided the recordings to counsel in a digital format using CD-ROM data s to ra g e discs. Dianna Divingnzzo's attorneys had the recordings copied and transcribed, and s u p p lie d copies of the CDs and transcripts to Lewton's attorney in the Custody Case. Lewton f irs t discovered the existence of the recordings when they were delivered to his attorney on J u n e 2, 2008. The following day, the Sarpy County District Court held that the recordings were ille g a lly obtained, there were no applicable exceptions to the Nebraska Telecommunications C o n s u m e r Privacy Protection Act, the conduct of Dianna Divingnzzo and Sam Divingnzzo

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a m o u n ted to a Class IV felony under Nebraska law 1 , and the recordings were inadmissible in the Custody Case. In this action, plaintiffs assert claims for statutory damages under the Federal Wiretap A c t, 18 U.S.C. § 2510, et seq., and under Nebraska law, Neb. Rev. Stat. § 86-297 (Reissue 2 0 0 8 ). Plaintiffs also seek damages for invasion of privacy and mental suffering. In this m o t io n , the Divingnzzos contest the constitutionality of the federal and state statutes. I I . DISCUSSION S ta te and federal law 2 provide private causes of action for the illegal interception, d isclo su re, or use of electronic communications. Divingnzzos state that these statutes are u n c o n s titu tio nal, both facially and as applied to parents, because of their fundamental interest in decisions regarding the care, custody and control of Ellenna. A. The Statutes 1 8 U.S.C. § 2510, which is the sole federal statute actually mentioned in Divingnzzos' b rie f , contains only definitions. The court guesses that Divingnzzos are challenging the v a l id i ty of 18 U.S.C. § 2511(1)(a), which provides: E x c e p t as otherwise specifically provided in this chapter any person who in te n tio n a lly intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic

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See Neb. Rev. Stat. §§ 86-295 & 296 (Reissue 2008).

The statutes specifically challenged in this motion are "18 U.S.C. 25:10 et sec [sic]" and "Neb. Rev. Stat. § 86-2103 et sec [sic]" (Doc. 61, Divingnzzos' Brief at p. 3/4). -3-

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c o m m u n ic a tio n ... shall be punished as provided in subsection (4) or shall be su b ject to suit as provided in subsection (5). T h e procedures for recovering civil damages for violations of federal law appear in 18 U.S.C. § 2520. Section 2520(c)(2)(B) allows the recovery of "statutory damages of whichever is the g re a te r of $100 a day for each day of violation or $10,000." A s for the state statute currently under attack, the court guesses that the Divingnzzos a re contesting the validity of Neb. Rev. Stat. § 86-2,103, which is cited in the Amended C o m p l a in t . Section 86-2,103 provides: M o b ile tracking device; use. (1 ) A district court may issue a warrant or other order for the installation o f a mobile tracking device, and such order may authorize the use of that d e v ic e within the jurisdiction of the court and outside that jurisdiction if the d e v ic e is installed in that jurisdiction. (2 ) For purposes of this section, mobile tracking device means an electronic o r mechanical device which permits the tracking of the movement of a person o r object. N e b . Rev. Stat. § 86-290, also cited in the Amended Complaint, provides, in part: U n la w f u l acts; penalty. (1) Except as otherwise specifically provided in s e c tio n s 86-271 to 86-295, it is unlawful to: (a ) Intentionally intercept, endeavor to intercept, or procure any other p e rs o n to intercept or endeavor to intercept any wire, electronic, or oral c o m m u n ica tio n ; (b) Intentionally use, endeavor to use, or procure any other person to use o r endeavor to use any electronic, mechanical, or other device to intercept any o ra l communication when (i) such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire c o m m u n ic a tio n or (ii) such device transmits communications by radio or in ter f e re s with the transmission of such communication; -4-

(c ) Intentionally disclose or endeavor to disclose to any other person the c o n te n ts of any wire, electronic, or oral communication, knowing or having re a so n to know that the information was obtained through the interception of a wire, electronic, or oral communication in violation of this subsection; (d) Intentionally use or endeavor to use the contents of any wire, electronic, or oral communication, knowing or having reason to know that the information w a s obtained through the interception of a wire, electronic, or oral co m m u n icatio n in violation of this subsection; or (e) Having knowledge that an investigative or law enforcement officer has b e e n authorized or has applied for authorization under sections 86-271 to 8 6 -2 ,1 1 5 to intercept a wire, oral, or electronic communication, give notice or a ttem p t to give notice of the possible interception to any person in order to o b s tru c t, impede, or prevent such interception. W ith certain exceptions, any person who violates § 86-290(1) is guilty of a Class IV felony. S e c tio n 86-290(2) states the circumstances and situations in which the interception of wire, e le c tro n ic or oral communications is not unlawful. Neb. Rev. Stat. § 86-297 provides a civil cause of action for the unlawful interception, d isc lo su re , or use of wire, electronic or oral communications. Remedies under this statute in c lu d e "s ta tu to ry damages of whichever is the greater of one hundred dollars a day for each d a y of violation or ten thousand dollars." Neb. Rev. Stat. § 86-297(b)(ii). B. F a c ia l Challenge T o succeed in their facial attack, Divingnzzos must establish that no set of c irc u m s ta n c es exists under which the challenged statutes would be valid, or that the statutes la c k any plainly legitimate sweep. See United States v. Stevens, 130 S. Ct. 1577, 1587

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(2 0 1 0 ). Based on the contents of Divingnzzos' motion and brief, the court finds that they h a v e failed to meet this burden. C . " A s - A p p lie d " D iv in g n z z o s next argue that the state and federal statutes are unconstitutional "as a p p lie d to parents, and, in particular, the Defendants Divingnzzo." (Doc. 61, Divingnzzos' B rie f at p. 2/4). They argue that they "faced the potential of having their parental rights te rm in a te d for not taking steps to protect their children." 3 Citing Edward J. DeBartolo Corp. v . Florida Gulf Cost Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988), Divingnzzos a d v is e that enforcement of the statutes against them violates the "doctrine of constitutional a v o id a n c e ." In DeBartolo, the Court stated that it would construe statutes to avoid

c o n stitu t io n a l questions unless such construction was plainly contrary to the intent of C o n g re ss . 485 U.S. at 575. This approach reflects the "prudential concern that constitutional is s u e s not be needlessly confronted." Id. In this motion, Divingnzzos did not disclose the n a tu re of any actual danger from which Ellenna ostensibly needed protection. Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998), and Scheib v. Grant, 22 F.3d 149 (7 th Cir. 1994), cited by the Divingnzzos, do not involve any constitutional challenges and a re factually distinguishable from this case.

The argument was made as to both defendants, although Sam Divingnzzo is not a parent of Ellenna and, as far as the court can tell, has no legal rights or obligations regarding Ellenna. -6-

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D . E q u a l Protection T h e "Equal Protection Clause," U.S. Const. amend. XIV § 1 provides that "No State s h a ll make or enforce any law which shall abridge the privileges or immunities of citizens o f the United States; nor shall any State deprive any person of life, liberty, or property, w ith o u t due process of law; nor deny to any person within its jurisdiction the equal protection o f the laws." State statutes are presumed constitutional, and the party challenging constitutionality b e a rs the burden to show otherwise. Branson v. O.F. Mossberg & Sons, Inc., 221 F.3d 1064, 1 0 6 5 n.4 (8th Cir. 2000) (citing Fitz v. Dolyak, 712 F.2d 330, 333 (8th Cir. 1983)). D iv in g n z z o s have cited no authority establishing that "parents" have any fundamental c o n stitu tio n a l right to engage in the behavior that is the subject of this lawsuit. When an e q u a l protection claim is neither based on a "suspect class" nor grounded in a fundamental rig h t, it is subject to a rational basis review. See Gilmore v. County of Douglas, 406 F.3d 9 3 5 , 937 (8th Cir. 2005). Under the rational basis test, "state action is presumed

c o n stitu tio n a l and 'will not be set aside if any state of facts reasonably may be conceived to ju s tif y it.'" More v. Farrier, 984 F.2d 269, 271 (8th Cir. 1993). Divingnzzos' argument that the Nebraska statutes violate the Equal Protection Clause is not persuasive.

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I I I . CONCLUSION W h ile the Divingnzzos may be entitled to assert some statutory or other exception to th e statutes at issue, their constitutional arguments are without merit. Accordingly, I T IS ORDERED that the motion of defendants, Dianna Divingnzzo and Sam M. D iv in g n z z o for a declaration of unconstitutionality (Doc. 60) is denied. D A T E D July 28, 2010. B Y THE COURT: s / F.A. Gossett U n ite d States Magistrate Judge

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