City of S. Bend v. S. Bend Common Council

• Citation: 865 F.3d 889
• Decision Date: 01 August 2017
• Docket Number: Nos. 15-3315 & 15-3385,s. 15-3315 & 15-3385
• Parties: CITY OF SOUTH BEND, Indiana, Plaintiff-Appellee, v. SOUTH BEND COMMON COUNCIL, Defendant-Appellee, Cross-Appellant, and Tim Corbett, et al., Defendants-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

865 F.3d 889

CITY OF SOUTH BEND, Indiana, Plaintiff-Appellee,

v. SOUTH BEND COMMON COUNCIL, Defendant-Appellee, Cross-Appellant,andTim Corbett, et al., Defendants-Appellants, Cross-Appellees.

Nos. 15-3315 & 15-3385

United States Court of Appeals, Seventh Circuit.

Argued October 26, 2016

Decided August 1, 2017

Edward A. Sullivan III, Ryan G. Milligan, for Plaintiff-Not Party.

Daniel Henry Pfeifer, Jerome McKeever, for Defendant-Appellant.

Robert J. Palmer, for Defendant-Appellee.

Before Flaum, Easterbrook, and Williams, Circuit Judges.

Easterbrook, Circuit Judge.

The caption of this case says much of what is necessary to its resolution: the City of South Bend, Indiana, is suing one of its constituent parts.

As a matter ordinary business, South Bend's Police Department (part of the City rather than a distinct juridical entity) records some of the desk phones supplied to officers as official equipment at its headquarters. In 2005 Rick Bishop, then a Captain in the Risk Management Bureau, asked that his phone be added to those being recorded, and this was done. The line's phone number does not matter; we call it the Line. In February 2010 Steve Richmond took Bishop's former position and office. Richmond wanted to keep his old phone number, so the Line was switched to the office of the Captain of the Investigative Division, which was vacant at the time. In March 2010 Brian Young was promoted to that job. Young did not know that the phone in his new office was among those being recorded. It is unclear who did know in 2010; once recording began in 2005, no one appears to have given the subject further thought.

In February 2011 the recording system crashed and had to be restored from a backup. While listening to some recordings to make sure that this had been done correctly, Karen DaPaepe, the Police Department's Director of Communications, heard Young say things that she thought inappropriate. This was reported up the chain of command, and in December 2011 the Chief of Police (Darryl Boykins) asked DaPaepe to give him recordings of the most troubling calls. DaPaepe gave the Chief cassette tapes of calls Young had made on eight dates in 2011. Apparently knowledge of the recordings' existence and contents went beyond Boykins; other persons whose voices had been recorded on the Line became concerned. Boykins used some of the information to threaten Richmond. Federal and state officials launched investigations, which ended without charges being filed. Boykins was demoted; DaPaepe was fired. And the Common Council (the City's legislature) demanded access to the tapes. When the Police Department demurred, the legislators issued a subpoena to the City's executive officials and applied to state court for its enforcement.

The City believes that complying with the subpoena would violate federal wiretap statutes. See 18 U.S.C. §§ 2510 – 22. Not content with the prospect of interposing a federal defense to the subpoena, the City of South Bend filed this federal suit, seeking a declaratory judgment that disclosure of the recordings would violate § 2511(1)(c). A federal defense to a claim arising under state law does not permit the suit's removal. See, e.g., Aetna Health Inc. v. Davila , 542 U.S. 200, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (discussing the rule and its exceptions, such as complete preemption). The City tried to sidestep this rule, and obtain a decision on an isolated federal issue, through the declaratory-judgment process. For good measure the City sued Young, Richmond, and three other persons, contending that it should be declared not liable to any of them. They filed their own suit seeking damages from the City. The district court consolidated the two suits.

The district court ruled that it had subject-matter jurisdiction despite the fact that the suit had been filed to present a federal defense to a state suit rather than a stand-alone federal claim. Normally the Declaratory Judgment Act, 28 U.S.C. § 2201, cannot be used to present a federal defense to state litigation. But before the Common Council moved to dismiss the action, the five individual defendants in the City's suit had become plaintiffs in their own suit, seeking damages based directly on federal statutes. This supplied jurisdiction, the district court concluded, even though the City's original complaint did not. 2013 U.S. Dist. LEXIS 5192 (N.D. Ind. Jan. 14, 2013). In effect, the district court treated the second suit, consolidated with the City's, as the jurisdictional footing for both suits, with the original dispute between the City's legislative and executive branches along for the ride under the supplemental jurisdiction of 28 U.S.C. § 1367.

After a bench trial, the judge concluded that recordings through February 4, 2011, had been lawful because Captain Bishop had consented in 2005 and no one with authority over the recording system recognized that Captain Young had started using the Line in March 2010. Lawfully made recordings may be disclosed, the judge added. But once DaPaepe learned that Young was using the Line, recording became unlawful—and because the recordings were unlawful, their distribution, even in response to a state subpoena, would be unlawful. The district court rejected the Common Council's reliance on 18 U.S.C. § 2510(5)(a)(ii), which permits the recording of any line "being used by ... an investigative or law enforcement officer in the ordinary course of his duties". The judge based his finding of illegality principally on § 2511(1)(a), which forbids the intentional interception of a call in the absence of a statutory justification. The district court treated the intent element as related to knowledge of whose voice would be heard rather than knowledge of which line would be recorded, but the judge did not explain why the statutory word "intentionally" refers to the identities of the parties to a call.

We have cross-appeals. The Common Council asks us to hold that all of the recordings may be disclosed and the individual parties that none may be. The City did not appeal but also does not defend the judgment in full. It asks us to hold, contrary to the district court, that the recordings on February 4, 2011, are unlawful. The City does not discuss the venerable rule that only a party that has filed a timely appeal may obtain a modification of the judgment. See Greenlaw v. United States , 554 U.S. 237, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). And none of the parties' briefs discusses the significance of the pending 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 argument we directed the parties to file briefs on these issues. We now conclude that it is unnecessary to discuss the merits, for reasons that can be stated succinctly.

The initial problem, as we observed at the outset, is that this suit began as a claim by the executive branch of a city's government against the legislative branch. Asked for precedent deeming such a suit justiciable, the parties knew of none. We likewise could not find any. The suit is like one division of General Motors suing another. We held in Illinois v. Chicago , 137 F.3d 474 (7th Cir. 1998), that a state cannot sue one of its cities, because as far as the national government is concerned a state and all of its creatures is a unit. That goes for cities suing their states, too. See, e.g., Trenton v. New Jersey , 262 U.S. 182, 185–86, 43 S.Ct. 534, 67 L.Ed. 937 (1923) ; Williams v. Mayor & City Council of Baltimore , 289 U.S. 36, 40, 53 S.Ct. 431, 77 L.Ed. 1015 (1933).

Doubtless a state can divide powers into such rigidly separated compartments that it is possible for one to sue another. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Commission , ––– U.S. ––––, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015). But a city's legislative and executive branches are not distinct juridical entities; they are part of a single government. Sometimes individual members of the legislature are permitted to sue particular executive officers, but they face formidable problems of standing. See Raines v. Byrd , 521 U.S. 811, 117 S.Ct. 2312, 138...