by Mark Wilson

The U.S. Court of Appeals for the Seventh Circuit held that federal courts lack jurisdiction to hear declaratory judgment actions filed by a city’s executive branch against its legislative branch. “State courts may have authority to resolve an intramural dispute,” the Court observed. “Otherwise it must be worked out the same way Congress and the President resolve their differences: by politics.”

The South Bend Police Department in Indiana routinely records conversations on some officer desk phones supplied by the department. While working in the risk management bureau in 2005, Captain Rick Bishop requested recordings of his phone line.

Steve Richmond took Bishop’s former position and office in February 2010. Richmond wanted to keep his old number, so Bishop’s line was switched to the vacant office assigned to the investigative division captain.

Brian Young was promoted to captain of the investigative division in March 2010. He did not know the phones in his new office were being recorded.

The Department’s recording system crashed in 2011 and had to be restored from a backup. The Department’s director of communications, Karen DaPaepe, listened to some of the recordings to ensure that the restoration was done correctly.

While listening to the recordings, DaPaepe heard Young say things she thought were inappropriate. She advised her supervisors, and Chief of Police Darryl Boykins requested a copy of the most troubling calls recorded in December 2011. DaPaepe gave him a cassette tape of calls that Young made on eight dates in 2011.

Boykins used information from the recordings to threaten Richmond. Others in the department learned of the recordings and their content. People whose voices had been recorded were alarmed.

State and federal officials launched an investigation, but no charges were filed. Even so, Boykins was demoted, and DaPaepe was fired.

The South Bend Common Council demanded access to the recordings. When the police department refused to disclose them, legislators subpoenaed the city’s executive officials and sought state court enforcement of the subpoena.

Believing that subpoena compliance would violate federal wiretap statutes, the City of South Bend brought federal suit against the council. The city sought a declaration that disclosure of the recordings would violate 18 U.S.C. § 2511(1)(c). The city also named Young, Richmond, and three other individuals, asserting that it should be declared not liable to any of them.

The individuals named in the city’s suit also brought a federal damages action against the city. The district court consolidated the cases. Although the court did not have subject-matter jurisdiction over the city’s declaratory judgment action, it believed that the damages action by the five individuals supplied the court with jurisdiction.

After a bench trial, the court held that between 2005 and February 4, 2011, the recordings had been lawful because Bishop consented to them. Citing 18 U.S.C. § 251 l
(l)(a), however, the court also held that once DaPaepe learned that Young was using the line, the recordings and their distribution, even in response to a subpoena, became unlawful.

The Seventh Circuit reversed. “A suit by one whole branch of the federal government against another is not possible,” the Court observed. “A suit by the executive branch of a city versus the legislative branch is equally improper.” Noting that such a suit is the equivalent of “one division of General Motors suing another,” the appellate court instructed that “if any court is to resolve a dispute between the legislative and executive branches of a unit of state or local government, a state court is the right forum.” Thus, the Court vacated the district court’s judgment and remanded with instructions to dismiss the complaint. “The state court now is free to resolve the underlying dispute on its own, without regard to the vacated federal judgment,” the Seventh Circuit advised. See: City of South Bend v. South Bend Common Council, 865 F.3d 889 (7th Cir. 2017). 

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