Opinion
No. 4-697 / 04-0060
Filed January 26, 2005
Appeal from the Iowa District Court for Floyd County, Joseph P. Moothart, Judge.
Carolee Philpott appeals from her conviction for mechanical eavesdropping in violation of Iowa Code section 727.8 (2003). AFFIRMED.
Judith O'Donohoe of Elwood, O'Donohoe, Stochl, Braun Churbuck, Charles City, for appellant.
Thomas J. Miller, Attorney General, Cristen Odell-Douglass, Assistant Attorney General, and Marilyn Dettmer, County Attorney, for appellee.
Heard by Sackett, C.J., and Vogel, Zimmer, Hecht, and Eisenhauer, JJ.
Defendant-appellant, Carolee Philpott, appeals from her conviction, following a jury trial, for mechanical eavesdropping in violation of Iowa Code section 727.8 (2003). She contends (1) the statute is unconstitutional because it violates due process and equal protection, (2) the State did not prove its case beyond a reasonable doubt, and (3) the court erred in not granting her a new trial. We affirm.
Background facts and proceedings.
Sadly, certain employees in the Franklin County Clerk of Court's office, including the defendant, had a longstanding conflict. The State blames the defendant for the conflict and the defendant blames her coworkers. As disappointing as it is that the employees may have put their own personal issues before the good of the office, identifying the instigator or instigators of the conflict is not the issue. The case focuses on the operation of defendant's tape recorder on November 7, 8 and 9 of 2002. Defendant had kept the tape recorder on her desk in the office for around a year before the days at issue. Following a verbal interchange with one coworker, the defendant sent an e-mail to the acting clerk of court to explain her side of the incident. In the e-mail she stated, "If I need to run a tape recorder every time I speak to either one of them to have an accurate record of the conversation, then I will."
On November 7, 2002 coworkers claimed to notice the tape recorder was operating while the defendant was at lunch. One called the county attorney and the acting district court administrator to inquire about the legality of defendant recording conversations while she was out of the office. On November 8, the tape recorder allegedly was operating while the defendant was in another room on a conference call. On November 9, the tape recorder allegedly was operating while the defendant was at lunch. A coworker called District Court Judge Carroll. The judge was to testify he observed that the play and record buttons were depressed and the voice activation switch on the recorder was on. The judge called the acting court administrator and put him on hold while the judge sought to determine whether the tape recorder was recording. He stopped the tape, rewound it briefly, then listened to it. He heard voices of people in the office and the sound of whistling he made earlier as a test. Following a staff meeting, the defendant removed the recorder.
On August 4, 2003, the State filed a trial information charging the defendant with electronic or mechanical eavesdropping on or about November 9, 2002. A later amendment listed the offense dates as November 7-9. Iowa Code section 727.8 provides:
Any person, having no right or authority to do so, who taps into or connects a listening or recording device to any telephone or other communication wire, or who by any electronic or mechanical means listens to, records, or otherwise intercepts a conversation or communication of any kind, commits a serious misdemeanor; provided, that the sender or recipient of a message or one who is openly present and participating in or listening to a communication shall not be prohibited hereby from recording such message or communication; and further provided, that nothing herein shall restrict the use of any radio or television receiver to receive any communication transmitted by radio or wireless signal.
The defendant filed a pretrial motion to dismiss alleging the statute was unconstitutional as applied to the her and on its face in the following particulars:
1. It is void for vagueness because "having no right or authority to do so" is not defined or explained so a person of common intelligence would not have fair notice of its meaning and application.
2. It is overbroad because it invades a defendant's First Amendment right to access to information.
3. It violates due process because it fails to provide an explicit standard for enforcement, thereby unduly delegating basic policy matters to police and others on a subjective basis.
4. It violates due process by imposing a criminal penalty without a requirement of general or specific intent.
5. It violates equal protection because it does not allow a person to record a conversation when absent that the person has the right to record when present.
The district court denied the defendant's motion to dismiss. It determined the statute was not void for vagueness because the meaning of the phrase in question could be ascertained from State v. Fox, 493 N.W.2d 829, 831 (Iowa 1992) and its reference to Iowa Code chapter 808B, delineating circumstances in which a person has the "right or authority" to intercept communications. The court found the statute was not overbroad because "the defendant has not established there is a First Amendment right to tape record communications while a person is absent." As to the standard for enforcement, the court found "openly present and participating in or listening to a communication" to be sufficiently specific. The court determined section 727.8 was a general intent statute. Finally, the court concluded equal protection was not violated because no fundamental right or suspect classification was involved and the State had a rational basis for protecting its citizens from having their communications intercepted by unauthorized persons "who are not openly present and participating in or listening to their communications."
Following a trial, the jury found the defendant guilty. The defendant filed motions for judgment of acquittal and a for new trial based on insufficient evidence, a verdict contrary to the weight of the evidence, errors in jury instructions, and errors in admitting evidence that was not relevant or whose relevance was outweighed by its prejudicial nature. The court denied the motion and sentenced the defendant to thirty days, which it suspended, a year probation, and a fine.
Claims on appeal.
The defendant raises three primary issues on appeal: (1) the court should have granted her motion to dismiss because the statute violates due process and equal protection; (2) the State failed to prove she recorded anything, left her recorder on intentionally, or that the communications recorded were "clothed with an expectation of privacy;" and (3) the court should have granted a new trial because the jury was misinstructed, prejudicial evidence without probative value was admitted, and the weight of the evidence is against the verdict.
The State first challenges the defendant's unconstitutional-as-applied claims as not preserved for our review. The State also asserts that, if the as-applied claims were not preserved, then the defendant has no standing to raise a facial challenge to the statute.
Discussion.
A. Constitutional claims. Scope of review.
In challenging the constitutionality of a statute, the defendant has a heavy burden. There is a strong presumption of constitutionality, and this court will avoid a construction which finds the statute unconstitutional, if it can be avoided. The court will afford statutes every presumption of validity and will find them unconstitutional, only upon a showing that they clearly infringe on constitutional rights and only if every reasonable basis for support is negated. When there is a doubt, that doubt will be resolved in a manner to avoid finding the statute unconstitutional.
State v. Conner, 377 N.W.2d 664, 665 (Iowa Ct.App. 1985) (internal citations and quotations omitted).
Due process.
The defendant claims the lack of definition of the phrase "any person, having no right or authority to do so" and the lack of exceptions violate due process because an average citizen would not know what conduct was prohibited and those enforcing the statute have no objective standard to guide enforcement.
Due process requires that a penal enactment must give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so he or she may act accordingly. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S. Ct. 2294, 2298-99, 33 L. Ed. 2d 222, 227-28 (1972). Due process also requires that a penal enactment must provide explicit standards for those who enforce it, and must not delegate basic policy matters to police officers, judges and juries for resolution on an ad hoc and subjective basis. Id. However, due to the strong presumption of constitutionality, one who challenges a penal enactment on vagueness grounds must prove beyond a reasonable doubt that the enactment violates the Grayned standards. State v. Wagner, 410 N.W.2d 207, 214 (Iowa 1987) American Dog Owners Ass'n, Inc. v. City of Des Moines, 469 N.W.2d 416, 417-18 (Iowa 1991). Statutory terms provide notice of what conduct is prohibited if their meaning "is to be fairly ascertainable by reference to similar statutes, prior judicial determinations, reference to the dictionary, or if the questioned words have a common and generally accepted meaning." State v. Kueny, 215 N.W.2d 215, 217 (Iowa 1974).
In State v. Fox, the supreme court addressed the phrase in question and referred to chapter 808B as a source for determining who acquires the "right or authority" in section 727.8. State v. Fox, 493 N.W.2d 829, 831 (Iowa 1992). Although Fox specifically addressed monitoring telephone calls, the language of chapter 808B includes "oral communication." See, e.g., Iowa Code §§ 808B.1(8) (definition), 808B.2 (unlawful acts). We conclude the ruling in Fox provides sufficient guidance on the meaning of "having no right or authority" in section 727.8 that the language is not unconstitutionally vague.
Concerning enforcement, the statute provides two general exceptions to the prohibition against listening to, recording, or intercepting conversations or communications: (1) a person can record if "openly present and participating in or listening to the communication" and (2) radio and television receivers may receive radio and television signals. The defendant argues the statute should contain exceptions for recording with permission or if a person is unable to be present, such as a student recording a lecture. Such argument should be addressed to the legislature. The statute does not delegate basic policy decisions to enforcers or to provide for resolution on an ad hoc or subjective basis merely because it does not contain additional exceptions to the prohibited conduct. "[A] statute is not unconstitutionally vague merely because it is stringent and harsh. And a statute is not unconstitutionally vague merely because clearer and more precise language might have been used. . . ." 16B Am. Jur. 2d Constitutional Law § 920 at 516-17 (1998). An enforcer only need determine whether or not the person is "openly present" or a participant. We conclude the language of section 727.8 is not unconstitutionally vague so as to delegate policy decisions to enforcers or to provide for resolution on a subjective basis.
Criminal intent.
The defendant claims the statute does not require any criminal intent. She argues a person who left a tape recorder on by accident could be deemed to have committed a crime under this statute. "In the absence of [specific intent] language, we presume the legislature intended to criminalize the proscribed act itself, without further proof related to the defendant's subjective desires." State v. Buchanan, 549 N.W.2d 291, 294 (Iowa 1996). We decline the defendant's suggestion we read the requirement of willfulness in chapter 808B into section 727.8. We conclude, as did the district court, section 727.8 is a general intent statute. We find unpersuasive the defendant's argument it is turned into a public welfare strict liability offense because it lacks specific criminal intent language. See State v. Conner, 377 N.W.2d 664, 665-66 (Iowa Ct.App. 1985). Public welfare offense laws are "in the nature of neglect where the law requires care, or inaction where it imposes a duty." State v. Hy-Vee, Inc., 616 N.W.2d 669, 672 (Iowa Ct.App. 2000) (quoting Morissette v. United States, 342 U.S. 246, 256, 72 S. Ct. 240, 246, 96 L. Ed. 288, 296-97 (1952)).
Equal protection.
The defendant contends the statute violates equal protection because it (1) classifies communications in which the participants have a reasonable expectation of privacy with those in which they do not and (2) too narrowly defines the exception for openly-present or participating and does not allow for recording by consent. The State responds that the district court resolved the issue by incorporating consent in jury instruction 9. The defendant replies that a jury instruction cannot resolve a constitutional infirmity in a statute. While we agree a jury instruction cannot resolve constitutional infirmity in a statute, we do not agree the statute must provide for recording by consent in order to pass constitutional muster as applied to the defendant. The circumstances of this case show the defendant, in order to provide an accurate record of her interaction with coworkers, stated she would record her interactions with them if that is what it took. Under the statute, the defendant was free to record her conversations and interactions with coworkers without regard to their consent (emphasis supplied). If the district court's instruction to the jury added more protection for the defendant by providing the jury with an alternative under which it could find her not guilty that is not contained in the statute, that does not mean the statute is constitutionally infirm.
Jury Instruction No. 9:
With respect to paragraph 2 of Instruction No. 8, with certain exceptions not applicable to this case, a person has a right or authority to record or otherwise intercept a conversation or communication if the person is an investigative or law enforcement officer. In addition, it is not unlawful for a person not acting under color of law to intercept an oral communication if the person is a party to the communication or if one of the parties to the communication has given prior consent to the interception.
The defendant asserts the State's interest in stopping electronic or mechanical eavesdropping is based on the assumption the act is surreptitious and invades the participants' privacy, citing cases from other jurisdictions and arguing the statutory offense is derived from the common law offense. From that assertion, she argues the statute is neither narrowly tailored nor rationally related to the State's interest. The defendant argues strict scrutiny applies and the statute must be narrowly tailored because it infringes what she sees as a First Amendment right of access to information. She claims it is not rationally related because it does not require an expectation of privacy.
Strict scrutiny applies if a law implicates a fundamental right. Washington v. Glucksberg, 521 U.S. 702, 722, 117 S. Ct. 2258, 2268, 138 L. Ed. 2d 772, 788 (1997). "If the right at issue is not deemed fundamental, a reviewing court merely applies the familiar rational basis test to determine whether a reasonable fit exists between the government's purpose in enacting the statute and the means chosen to advance it." Santi v. Santi, 633 N.W.2d 312, 317 (Iowa 2001) (citing State v. Klawonn, 609 N.W.2d 515, 519 (Iowa 2000)). The defendant asserts "courts have held that gaining information or documents from a public office can implicate a First Amendment right." Assuming without deciding the defendant's assertion is true, she has provided no authority that any such right is fundamental. We conclude section 727.8 demonstrates a reasonable fit in the means chosen to protect individuals from unauthorized or unknown interception of their communications. It requires either that the person obtain the right or authority or else be openly present. In addition, as applied to the defendant, the statute would not prevent her from obtaining information or documents from a public office, nor would it prevent her from creating an accurate record of her interaction with coworkers. It merely prevents her from indiscriminate recording of conversations to which she is not a party.
Standing.
The pretrial motion to dismiss raises the five constitutional claims set forth above and adds "All challenges . . . are made both as to the statute on its face and as to its application to the facts of this case." The court's ruling, however, appears to address the challenges to the statute as facial challenges. The defendant's brief also does not address her claims the statute is unconstitutional as applied to her, but rather makes general, facial challenges to the statute. If the statute constitutionally can be applied to the defendant, she would not have standing to raise the facial challenges. See State v. Reed, 618 N.W.2d 327, 332 (Iowa 2000). One exception to this principle is if the defendant's claims fall within an exception such as a violation of her First Amendment rights. As we have determined section 727.8 may be constitutionally applied to the defendant's actions and it does not implicate a fundamental right, we conclude she lacks standing to raise a facial challenge because that "is a challenge based on a contention that the law, by its own terms, always operates unconstitutionally." 16 Am. Jur. 2d Constitutional Law § 140 at 545 (1998).
B. Insufficient evidence.
"Because a jury verdict is binding on us when supported by substantial evidence," we review challenges to the sufficiency of the evidence underlying the verdict for correction of errors at law. State v. Speicher, 625 N.W.2d 738, 740 (Iowa 2001). The principles we apply are well-established:
Evidence is substantial if it could convince a rational jury of a defendant's guilt beyond a reasonable doubt. In making an assessment of the sufficiency of evidence, we are obliged to view the record in the light most favorable to the State. But we must consider all the evidence in the record, not just the evidence supporting guilt.
Although direct and circumstantial evidence are equally probative, the inferences to be drawn from the proof in a criminal case must "raise a fair inference of guilt as to each essential element of the crime." Evidence is not substantial if it raises only suspicion, speculation[,] or conjecture
State v. Weatherly, 679 N.W.2d 13, 16 (Iowa 2004) (quoting Speicher, 625 N.W.2d at 741) (citations omitted). The weight of the evidence and credibility of witnesses are to be determined by the jury and not the appellate court. State v. Fetters, 562 N.W.2d 770, 772 (Iowa Ct.App. 1997).
The defendant claims the State failed to prove (1) she recorded anything, (2) the conversations were clothed in an expectation of privacy, and (3) she intentionally left the recorder on when she was not present. She argues the only evidence she recorded anything came from Judge Carroll. He testified he observed the recorder in operation with the record and play buttons depressed. When he listened to the last portion of the recording, he heard one of the defendant's coworkers speaking on the telephone. He also heard his test whistle. The jury, as fact finder, is free to accept or reject evidence, to assign weight to evidence, and to assess credibility. State v. Maring, 619 N.W.2d 393, 395 (Iowa 2000); State v. Thornton, 498 N.W.2d 670, 673 (Iowa 1993).
The district court instructed the jury the State had to prove the defendant had "recorded or otherwise intercepted a conversation or communication of any kind." The court defined "conversation or communication of any kind" as one "uttered by a person or persons who exhibited a subjective expectation of privacy which was reasonable by societal standards." The defendant argues people in the district court clerk's office have no objectively reasonable expectation of privacy in their conversations and communications, and the State did not prove the persons recorded had an expectation of privacy because they were aware the tape recorder was in operation and she had said in her e-mail she would be recording conversations. The State responds that "the expectation that one's conversations will not be intercepted is the expectation of privacy within the meaning of section 727.8." The State also argues there is an expectation of privacy based on the clerk's office handling sensitive and confidential matters. Coworkers testified they felt hurt, upset, invaded, or violated by the recording, evidencing a subjective expectation of privacy. In addition, the defendant was not recording her conversations and interactions with coworkers as she stated in her e-mail she might. She was indiscriminately recording the speech of coworkers and the public in her absence. She cannot reasonably claim a right to do so.
Jury instruction 13 addressed intent. It required that "the person was aware he was doing the act and he did it voluntarily, not by mistake or accident." The defendant claims the State did not prove she intentionally left her recorder on when she left for lunch. The jury is allowed to presume the defendant intended the natural consequence of her acts. See State v. Chang, 587 N.W.2d 459, 462 (Iowa 1998). The natural consequence of turning on the recorder is that it operates until turned off or reaches the end of the tape. As the defendant did not turn off the recorder when she left the office, the jury could reasonably infer she intended to continue recording. The defendant argues the State had to prove she did it willfully and had a motive. The willfulness concept comes from section 808B.2(1)(a), not 727.8, and is not an element of the crime charged. As noted above, we decline to read the requirements from section 808B.2 into section 727.8. Motive is not an element of the crime.
Jury Instruction No. 13:
To commit a crime a person must intend to do an act which is against the law. While it is not necessary that a person knows the act is against the law, it is necessary that the person was aware he was doing the act and he did it voluntarily, not by mistake or accident. You may, but are not required to, conclude a person intends the natural results of his acts.
We conclude sufficient evidence supports the jury's verdict.
C. Motion for new trial.
The defendant raises several contentions concerning why the district court should have granted her motion for new trial: incorrect jury instructions, admission of prejudicial evidence with no probative value, and the weight of the evidence being against the verdict. The district court has broad, but not unlimited discretion in ruling on new trial requests. Iowa R. App. P. 6.14(6)( c). Our review of a denial of a motion for new trial depends on the grounds asserted in the motion and ruled on by the district court. Ladeburg v. Ray, 508 N.W.2d 694, 696 (Iowa 1993). To the extent the motion and ruling are based on discretionary grounds, we review the ruling for an abuse of discretion. Id. To the extent the motion and ruling are based on a claim the district court erred on issues of law, our review stands or falls on the correctness of the district court's ruling on the legal question. Id. Jury instructions.
District court decisions on jury instructions are reviewed for errors of law. Iowa R. App. P. 6.4. Error in giving or refusing jury instructions does not merit reversal unless it results in prejudice to the defendant. State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). We judge instructions in context with other instructions relating to the criminal charge, not in isolation. State v. Liggins, 557 N.W.2d 263, 267 (Iowa 1996).
Instruction 5 is the Uniform Criminal Jury Instruction number 100.6 defining direct and circumstantial evidence.
In considering the evidence, make deductions and reach conclusions according to reason and common sense. Facts may be proved by direct evidence, circumstantial evidence, or both. Direct evidence is evidence from a witness who claims actual knowledge of a fact, such as an eyewitness. Circumstantial evidence is evidence about a chain of facts which show a defendant is guilty or not guilty. The law makes no distinction between direct and circumstantial evidence. Give all the evidence the weight and value you think it is entitled to receive.
The defendant argues it invites jurors "to string together circumstances, to construct a chain of events" without instructing them a chain of events cannot be filled in by a deduction. She contends her proposed instruction would have made it clear to the jury that it had to determine whether the recorder was left on accidentally or on purpose and what the defendant's motive was. The State responds that the uniform instruction does not allow the jury to make inferences based on speculation, but requires at least "a chain of facts." Trial courts are not bound by the uniform jury instructions. State v. Holtz, 548 N.W.2d 162, 164 (Iowa Ct.App. 1996). Generally, however, we prefer the uniform instructions be followed by trial courts. Id. Instruction 13 covers intent, voluntariness, and lack of mistake or accident, so the uniform instruction need not cover such issues. We already have determined motive is not an element of the crime charged, so the instruction need not address motive.
Next, the defendant claims the court should have included her proposed marshalling instruction which required proof the defendant acted willfully and incorporated terminology from Iowa Code chapter 808B instead of the language from section 727.8. Her primary complaints involve confusing the jury on the expectation of privacy and on consent or implied consent. She argues the jury should have been instructed the State had to prove (1) the coworkers had an expectation of privacy and (2) they did not give their implied consent to be recorded. The State responds that the court acted correctly in not giving the proposed instruction because it was not a correct statement of the law and was not supported by the evidence. See State v. Kellogg, 542 N.W.2d 514, 516 (Iowa 1996). We conclude neither an expectation of privacy nor consent are elements required by the statute. The court was correct in not incorporating willfulness from chapter 808B, as it is not an element in section 727.8.
Irrelevant or prejudicial evidence.
The defendant fills more than two pages in her brief with a list of examples of four categories of evidence which was admitted over objection but that she claims was irrelevant, lacking foundation, or unfairly prejudicial. Her summary conclusion is that "Taken as the whole, this evidence was more prejudicial than probative and the Court should have granted a new trial on this ground." The State contends the defendant waived this issue because she merely listed the evidence without analysis or citation of authority. Determination of relevance of evidence rests within the sound discretion of the trial court and we will reverse only on a showing that such discretion has been abused. State v. Taggart, 525 N.W.2d 877, 881 (Iowa Ct.App. 1994). Relevant evidence is generally admissible unless its probative value is substantially outweighed by the danger of unfair prejudice. Iowa Rs. Evid. 5.402, 5.403.
In her motion for new trial the defendant made three contentions concerning the admission of evidence. First, she was prohibited from introducing evidence of bias until late in the case, thus preventing her from cross-examining the State's witnesses on those points. Second, the entire e-mail from the defendant to the acting clerk of court was admitted when only one sentence was relevant to her recording conversations. The State responds to this allegation saying that the defendant put the e-mail in the record as one of her exhibits. Defendant's third contention is the district court admitted a rebuttal exhibit about disciplinary action that essentially usurped the province of the jury because it would not be obvious to jurors the elements and burden of proof were different in the disciplinary action than in the criminal charge.
There is an overlap between the evidence complained of in the motion for new trial and that listed in the defendant's briefs. However, there are objections to evidence in the briefs that were not raised in the motion. The district court's decision to restrict the defendant from presenting evidence of bias is not challenged in the briefs, but only mentioned when referring to the claims raised in the motion. The evidence now challenged was not presented to the district court in the motion for new trial, so was not considered by the court in its ruling on the motion. The issue of the court's restriction concerning evidence of bias is waived. See Iowa R. App. P. 6.14(1)( c). The defendant has not shown how the outcome of the trial likely would have been different had the evidence complained of been excluded or admitted. Consequently, we find no prejudice and affirm the trial court's exercise of discretion.
Weight of the evidence.
In ruling on a motion for new trial, the court must consider whether or not the verdict is contrary to the weight of the evidence. State v. Ellis, 578 N.W.2d 655, 658 (Iowa 1998). A verdict is contrary to the weight of the evidence if a greater amount of credible evidence supports one side of an issue than the other. State v. O'Shea, 634 N.W.2d 150, 154 (Iowa Ct.App. 2001). We give the district court's weighing of the facts a great deal of deference. State v. Reeves, 636 N.W.2d 22, 26 (Iowa 2001). "We recognize that motions for new trial are not favored and should be closely scrutinized and sparingly granted." State v. Weaver, 554 N.W.2d 240, 245 (Iowa 1996) overruled on other grounds by State v. Hallum, 585 N.W.2d 249, 254 (Iowa 1998).
The defendant's contentions concerning the weight of the evidence primarily relate to her own theory of the elements the State had to prove, such as expectation of privacy, consent, and motive to record conversations. The analysis of the weight of the evidence depends on the resolution of those issues as noted above. The court instructed the jury the State had to prove (1) the defendant recorded a conversation on November 7, 8, or 9, 2002; (2) she had no right or authority to do so; and (3) she was not openly present when the recording occurred. The court further instructed the jury a person has the right or authority if the person is an investigative or law enforcement officer. Judge Carroll testified about observing the recorder in operation and then listening to the recording of part of a conversation on November 9. He and others testified the defendant was not present. There was no evidence the defendant was an investigative or law enforcement officer. Having determined above that the defendant's theory of the case is largely incorrect, we conclude the greater weight of credible evidence supports the jury's verdict. Accordingly, the trial court did not abuse its discretion in denying the defendant's motion for new trial.
AFFIRMED.
Hecht, J., dissents.
I respectfully dissent. I would reverse on the ground that the district court erred in failing to grant Philpott's motion for judgment of acquittal. This case presents a judicial branch personnel problem involving three employees who could not get along. After the employees and those who supervised them were unwilling, for whatever reason, to resolve by other means the interpersonal conflicts fueling the personnel problem, an unfortunate decision was made to seek an extreme solution in the criminal law. In my view, the legislature did not intend with passage of Iowa Code section 727.8 to criminalize Philpott's open and notorious recordings. I believe the legislature intended, and the statute should therefore be interpreted, to proscribe only clandestine recording or interception of conversations or communications. My interpretation is informed by the legislature's choice of "Electronic and Mechanical Eavesdropping" as the title for the legislation. An eavesdropper "listens secretly to what is said in private." Because I believe Philpott's recordings were, as a matter of law, not clandestine, and those persons who were recorded had no reasonable expectation of privacy, I would reverse the conviction.
It sadly appears that less extreme alternatives such as (1) simply turning the recording machine off, or (2) requiring Philpott to remove the recording machine from the office were not exhausted before attempting a criminal law solution.
It appears all participants in the conversations and communications recorded by Philpott's recording device knew the equipment was present in the office. In fact, the two office co-employees who were parties to the personnel conflict immediately complained to supervisors about the presence of the equipment after Philpott brought it to the office, placed it prominently at her work station, and promised to use it to defend herself. Although the State produced witnesses who claimed they were shocked and offended both by Philpott's declared intention to record inner-office conversations with the prominently displayed equipment, and by the recording of office communications made in her absence, no reasonable person could on this record claim the recordings were clandestine. I am completely unpersuaded that any person had a reasonable expectation of privacy in the recorded conversations or communications under the circumstances presented here. While I acknowledge the State's proof that the recording equipment was operated at times when Philpott was not present in the office, such proof is in my view of no consequence because in this case the recordings were not surreptitious.
"Although the title of a statute cannot limit the plain meaning of the text, it can be considered in determining legislative intent." T K Roofing Co. v. Iowa Dep't of Educ., 593 N.W.2d 159, 163 (Iowa 1999).
Merriam-Webster's Collegiate Dictionary 363 (10th ed., 2002).