Thursday, Dec. 10, 1998 | 11:06 a.m.
CARSON CITY -- The Nevada Supreme Court, with the justices widely divided, has ruled the state's wiretap law prohibits people from tape recording telephone conversations with another individual without prior approval.
Justice Bill Maupin, who wrote the majority opinion issued Wednesday, said it was clear the Legislature intended that both parties must consent, absent a court order.
The case involved Randy Lane who was fired by Allstate Insurance Company in Washoe County. He filed suit against the company complaining of age discrimination and named three company executives. Unknown to these officials, Lane recorded 700 of their conversations with him. Lane also taped conversations of about 180 other possible witnesses.
District Judge Deborah Agosti, who has been elected to the Nevada Supreme Court, ruled Lane had violated the law, and she suppressed evidence from the tape recording. She said so much of the evidence was tainted from the illegal taping that it was unlikely that Lane could successfully pursue his claim. She dismissed the suit.
Maupin agreed in part, saying "Lane's conduct in taping the conversations was intentional and illegal. This is certainly the basis for the district court's decision to strike Lane's complaint."
Maupin said Lane's tape recordings were clearly "intercepting" the telephone conversations, which is illegal. The Legislature, Maupin said, "prohibited surreptitious intrusion upon in-person, private conversations by means of any listening device.."
But he said the court itself could not reach an agreement on the proper interpretation of the law. So he said Lane's suit must be reinstated, but all evidence gathered from the monitored conversation must be excluded and there can be no reference by Lane to any statements made during the tape recording.
Justices Miriam Shearing and Cliff Young, concurred that Lane violated the law "hundreds of times in his attempt to secure evidence," but they said the suit should be dismissed.
Shearing wrote, "The plurality opinion would excuse Lane's conduct on the basis that Lane did not intend to violate state law, even though he intentionally engaged in the prohibited conduct. Ignorance of the law has never been an excuse for criminal conduct."
Nevada's wiretap law says it is unlawful for any person to intercept or try to intercept a wire communication unless one party consents, and it is impractical to obtain a prior court order. In most cases law enforcement officials must receive a court order before they can start a wire tap.
Attorneys for Lane argued the law prohibits a third party from intercepting a phone communication from two other people unless one of those individuals consent. The law, according to Lane's lawyers, contend there is nothing to bar recording a telephone conversation between two individuals if one approves.
Chief Justice Charles Springer and Justice Bob Rose wrote dissenting opinions supporting Lane.
Springer said the key to the case is the word "intercept" in the law. He said the majority of the court wants to interpret Lane's conduct as intercepting the conversation.
"Where there are only two persons, there cannot be an interception no matter how hard we try to stretch the law and the facts," Springer wrote. "It is clear to me that Mr. Lane did not 'intercept' anything and that he was not engaging in criminal conduct when he recorded his own telephone conversation."
Rose said the law "is susceptible to various interpretations," and it is ambiguous. He said the word "persons" in the law applies only to public officials and law enforcement personnel and not to private citizens such as Lane.
The decision notes law enforcement officials have tried unsuccessfully on several occasions to loosen the law to allow them to tape telephone conversations.
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