COA revives ‘new intervenors’ challenge in South Bend police phone call recording litigation

Describing the litigation as taking a “convoluted procedural path” through state and federal courts, the Court of Appeals of Indiana remanded the yearslong dispute in South Bend over surreptitiously recorded phone conversations of certain police officers after finding the fundamental question of whether the state or federal wiretap laws were violated had never been answered.

The legal dispute erupted in 2012 when the South Bend mayor’s office acknowledged Capt. Brian Young’s phone calls had been recorded. As a result, then-Police Chief Darryl Boykins was demoted and Director of Communications Karen DePaepe was terminated.

The litigation was sparked when the South Bend Common Council issued a legislative subpoena for copies of the recordings and the city responded with a federal lawsuit, seeking a judgment on whether the disclosure of the recordings would violate the Federal Wiretap Act.

Throughout this dispute, separate lawsuits have been filed in federal and state courts and two groups of intervenors — labeled original intervenors and new intervenors — began seeking relief from the courts, as well.

The litigation before the Court of Appeals involves the new intervenors’ appeal of the St. Joseph Superior Court’s dismissal of their claims for declaratory and injunctive relief alleging violations of the Federal Wiretap Act and the Indiana Wiretap Act.

Those claims were originally raised in a lawsuit filed by the Common Council, which sought the recordings of phone calls made at the South Bend Police Department.

The trial court found none of the new intervenors were a party to any of the calls on the tapes and, therefore, none of the individuals would “suffer any injury whatsoever if the Tapes are released by the City to the Council … .” Consequently, the new intervenors were dismissed for lack of standing pursuant to Indiana Trial Rule 12(B)(6).

In Brian Young, Sandy Young, Tim Corbett, Dave Wells, Steve Richmond, Sheldon Scott, James Taylor, and Scott Hanley v. South Bend Common Council v. South Bend City Administration, 21A-MI-1049, the Court of Appeals reversed.

The unanimous appellate panel found the trial court erred in terminating the litigation after finding the new intervenors had no standing to challenge the production of the cassette tapes. However, the plaintiffs also challenged the legality of all the interpled recordings, which allegedly contain their conversations.

Finding issues still in play, the Court of Appeals remanded.

“In conclusion, despite this dispute having traversed numerous judicial proceedings in both state and federal courts for almost a decade, the fundamental question of whether any or all of these recordings constitute a violation of either state or federal wiretap laws has never been resolved,” Judge Terry Crone wrote for the court. “Unless the parties reach an amicable resolution as to the tapes sought by the Council as well as the tapes covered by both the Original Intervenors’ and the New Intervenors’ declaratory judgment actions, that question must be answered in order to resolve this case.”

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