7th Circuit: District court did not have jurisdiction to rule in South Bend wiretapping case

August 2, 2017

In the most recent decision in litigation stemming from South Bend Police Department wiretapping allegations, the 7th Circuit Court of Appeals has vacated a district court’s determination that the unlawful recordings cannot be distributed to the city Common Council. The appeals court found that a prior settlement deprived the federal court of jurisdiction in the case.

In February 2011, while restoring a backup of a recording system utilized by the South Bend Police Department on its phones, the department’s Director of Communications Karen DaPaepe listened to recordings made on Captain Brian Young’s department phone and heard him making “inappropriate” comments. Allegations contend that Young, along with Captain Steve Richmond and other officers, made racial comments about then-Chief Darryl Boykins, who is black.

Young was unaware his phone was being recorded. He inherited a line that a previous user asked to be added to those being recorded. DaPaepe turned the tapes over to Boykins, who used the recordings of Young and other officers to threaten Richmond. Federal and state officials launched an investigation into the situation, and DaPaepe was fired. Boykins was also demoted and eventually resigned, though charges were never filed against him.

The South Bend Common Council then demanded access to the tapes, though two of the officers heard on the tapes, Tim Corbett and David Wells, urged the council in February 2015 to end their pursuit of the recordings. When the police department objected to giving the council access to the tapes, the councilors issued a subpoena to South Bend executives and applied to state court for its enforcement.

The city, however, believed complying with the subpoena would violate federal wiretap statutes, so it filed the instant federal suit seeking declaratory judgment that disclosing the recordings would violate 18 U.S. Code Section 2511(1)(c). To give the U.S. District Court for the Northern District of Indiana jurisdiction to hear the case, the city sought a declaratory judgment on an isolated federal issue and sued Young, Richmond and three other people, arguing it should not be declared liable to any of them.

The individual defendants then filed their own suit seeking damages from the city, so Judge Joseph S. Van Bokkelen consolidated the two cases. Van Bokkelen treated the defendants’ damages suit as the footing for his jurisdiction for both cases, as the damages sought were based on federal statutes.

After a bench trial, the judge determined the recordings had been lawful from 2005 through Feb. 4, 2011, as no one with authority over the system recognized that Young had begun using the recorded line in March 2010. However, the recordings became unlawful when DaPaepe learned Young was using the line, so their distribution would also be unlawful, even in response to a state subpoena, the court ruled, relying on 18 U.S.C. 2511(1)(a).

In cross appeals, the Common Council urged the 7th Circuit Court of Appeals to find that all of the recordings may be disclosed, while the individual parties urged the opposite. Though the city did not appeal, it did not defend the judgment in full and instead asked the 7th Circuit to hold that the recordings on Feb. 4, 2011, were unlawful.

None of the parties’ appellate briefs discussed the state litigation, the fact that one branch of the city of South Bend is suing another or the fact that before trial, the individual parties’ suit had been settled and dismissed. After requesting briefs on those issues, the 7th Circuit determined in a Tuesday opinion that it is unnecessary to discuss the case on its merits.

Specifically, Judge Frank Easterbrook wrote that there is no precedent for the executive branch of a municipal government to bring a claim against its legislative counterpart.

“Doubtless a state can divide powers into such rigidly separated compartments that it is possible for one to sue another,” Easterbrook wrote. “But a city’s legislative and executive branches are not distinct juridical entities; they are part of a single government.”

Further, when a state plaintiff is a governmental body, it is an abuse of discretion for a federal judge to take a federal defense out of a state judge’s hands by issuing declaratory judgment, Easterbrook said. Thus, because the individual parties had settled their suit with a provision that the release of the recordings would be governed by the outcome of the state litigation, there was nothing more for the federal judge to do.

“Equitable relief – injunctions and declaratory judgments alike – depends on a conclusion that legal relief such as damages is inadequate to protect injured parties,” Easterbrook wrote. “By settling their claims, the five individual litigants have shown that financial relief is adequate.”

“The parties could have structured their settlement so that additional disclosure leads to additional remuneration, but they did not,” the judge continued. “The five individual litigants have given up any entitlement to further compensation, perhaps receiving a larger lump sum as a result.”

Thus, the 7th Circuit vacated the district court’s judgment and remanded the case with instructions to dismiss the complaint of City of South Bend, Indiana v. South Bend Common Council and Tim Corbett, et al., 15-3315 and 15-3385.


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