Young v. S. Bend Common Council
| Decision Date | 30 June 2022 |
| Docket Number | 21A-MI-1049 |
| Parties | Brian Young, Sandy Young, Tim Corbett, Dave Wells, Steve Richmond, Sheldon Scott, James Taylor, and Scott Hanley, Appellants-Intervenors, v. South Bend Common Council, Appellee-Plaintiff, v. South Bend City Administration, Appellee-Defendant |
| Court | Indiana Appellate Court |
Brian Young, Sandy Young, Tim Corbett, Dave Wells, Steve Richmond, Sheldon Scott, James Taylor, and Scott Hanley, Appellants-Intervenors,
v.
South Bend Common Council, Appellee-Plaintiff,
v.
South Bend City Administration, Appellee-Defendant
No. 21A-MI-1049
Court of Appeals of Indiana
June 30, 2022
Appeal from the St. Joseph Superior Court; Trial Court Cause No. 71D07-1209-MI-159; The Honorable Steven L. Hostetler, Judge
ATTORNEYS FOR APPELLANTS
Daniel H. Pfeifer
James P. Barth
Pfeifer, Morgan & Stesiak
ATTORNEYS FOR APPELLEE
SOUTH BEND COMMON COUNCIL
Robert J. Palmer
Matthew J. Anderson
May Oberfell Lorber
Crone, Judge
Case Summary
[¶1] Brian Young, Sandy Young, Tim Corbett, Dave Wells, and Steve Richmond (the Original Intervenors), along with Sheldon Scott, James Taylor, and Scott Hanley (the New Intervenors) (collectively the Intervenors), appeal the trial court's dismissal of their claims for declaratory and injunctive relief alleging violations of the Federal Wiretap Act and the Indiana Wiretap Act. The Intervenors raised their claims in a lawsuit originally filed by the South Bend Common Council (the Council) to compel the enforcement of a subpoena issued to the South Bend City Administration (the City) to produce recordings of phone calls made at the South Bend Police Department (the Department) to which the Intervenors allegedly were parties. We affirm in part, reverse in part, and remand for further proceedings.
Facts and Procedural History[1]
[¶2] In 1998, the Department installed a "server-based" recording system to record calls on some, but not all, of its phone lines. Appellants' App. Vol. 6 at 113. "Once a particular phone line was wired into the recording system, the recording system would record everything it 'heard' on that line regardless of who was speaking on the line, the content of the conversation, or the time of day of the conversation." Id. at 113-14. "Anything so recorded would be stored on the recording system's hard drive and would be downloaded automatically
to a disk for backup and storage purposes." Id. at 114. The recording system was maintained by the Department's communications director, Karen DePaepe, who also maintained a list of the recorded lines.
[¶3] No written policies or procedures were adopted regarding the recording of the Department's phone lines. The communications center lines (including 911 calls) and the front desk lines were recorded, regardless of user, as a matter of routine. Tom Fautz became the Department's chief in 2002. Fautz told DePaepe that his approach to the phone lines of individual administrative officers would be to start and stop recording them only upon an officer's request and not to record anyone without their knowledge, based on his belief that "they have an expectation of privacy with their own assigned line." Appellants' App. Vol. 5 at 20.
[¶4] In 2004, Rick Bishop was promoted to captain of the Department's investigative division and was assigned the phone number at issue in this case, Line 6031. In 2005, Bishop wanted to have his line recorded to facilitate the investigation of a person who was making harassing phone calls to the Department. Bishop spoke with DePaepe, who confirmed that his line was not currently being recorded and told him that he had to route his request through Fautz, which he did. Pursuant to Bishop's request, Line 6031 was wired into the Department's recording system and "was recorded from that time on." Id. at 116. In 2007, Bishop was promoted to division chief, and he asked to have Line 6031 transferred to his new office, which it was. By that point, Bishop had forgotten that his line was still being recorded. That same year, Darryl Boykins
became the Department's chief, and he followed Fautz's protocols regarding the recording of the Department's phone lines.
[¶5] In February 2010, Steve Richmond was promoted from captain of the Department's investigative division to division chief, replacing Bishop. Bishop transferred to the homicide unit and did not take Line 6031 with him. Richmond wanted to retain his existing phone number, so he asked Boykins' administrative assistant, Barbara Holleman, to transfer that line to his new office. Holleman did so, and she also transferred Line 6031 to the then-vacant captain's office. In March 2010, Brian Young was promoted to captain, moved into that office, and began using Line 6031. At that time, neither Holleman nor Young was aware that Young's line was being recorded.
[¶6] Sometime around January 2011, while troubleshooting the recording system, DePaepe listened to a recording from Line 6031, which she believed was Richmond's line, and recognized Young's voice. At some point, DePaepe began listening to recordings of that line "to investigate something that [she] had heard that bothered [her]" that she believed to be "illegal." Appellants' App. Vol. 6 at 38, 40. Sometime around the beginning of March 2011, DePaepe informed Boykins about the content of those conversations and "stated to him that [she] would leave this in his hands." Id. at 40. Boykins allowed the recording of Young's phone calls to continue so that he could "look into" DePaepe's allegations of wrongdoing. Appellants' App. Vol. 5 at 102. During this time, Young allegedly placed calls to and/or received calls from the other Original Intervenors (his wife Sandy and fellow Department officers Corbett,
Wells, and Richmond), as well as the New Intervenors (fellow Department officers Scott, Taylor, and Hanley). Young did not become aware that his line was being recorded until October 2011. He immediately asked to have the recording stopped, but his request went unheeded.
[¶7] In December 2011, Boykins asked DePaepe to "find" certain recordings of Young's phone conversations. Appellants' App. Vol. 6 at 61. In January 2012, DePaepe gave Boykins audio cassette tapes of conversations recorded on eight dates: February 4, April 5, June 3, June 6, June 16, June 27, July 14, and July 15, 2011. Young became aware that the recording of his line had continued after October 2011 and that Boykins possessed recordings of his phone calls. Young had conversations with Boykins that caused him to feel "intimidated[.]" Appellants' App. Vol. 5 at 238-39. Federal and state investigations into the recordings ensued. In March 2012, South Bend's mayor issued a news release that mentioned the recordings and announced that Boykins had been demoted and DePaepe had been fired.
[¶8] In August 2012, the Council issued a legislative subpoena to the City that requested the following items: "Copies of any and all tapes and/or digital recordings related to the Mayor's news release of March 29 and March 30, 2012 regarding the demotion of former Police Chief Darryl Boykins; as well as the tapes and/or digital recordings cited by the Mayor in the termination of
Communications Director DePaepe." Appellants' App. Vol. 9 at 174.[2] Later that month, the City filed a complaint for declaratory judgment against the Council and the Original Intervenors in the U.S. District Court for the Northern District of Indiana, seeking a determination of whether disclosure of the recordings would violate the Federal Wiretap Act (Case 475).
[¶9] In September 2012, the Council started the instant litigation by filing a motion with the trial court to compel compliance with its subpoena. Later that month, the Original Intervenors filed a complaint in the U.S. District Court for the Northern District of Indiana (Case 532). As amended, the caption of the three-count complaint named the following defendants: "The City of South Bend, Acting through its Police Department," Boykins in his individual and official capacities, DePaepe, and DePaepe's attorney, Scott Duerring. Appellants' App. Vol. 2 at 181 (capitalization altered). Although the caption did not specifically name the Council as a defendant, the Council was listed as one of the parties in the body of the complaint. See id. at 183 ("11. The City of South Bend is a government unit located in St. Joseph County, Indiana. It operates the South Bend Police Department. 12. The South Bend Common Counsel [sic] is the legislative body of South Bend.").
[¶10] In count 1, the Original Intervenors requested damages for violations of the Federal Wiretap Act and the Indiana Wiretap Act, negligence, defamation, invasion of privacy, and intentional infliction of emotional distress allegedly committed by Boykins, DePaepe, and Duerring, and they asserted that the City was vicariously liable for Boykins' and DePaepe's acts and omissions and was negligent in training and supervising them. In count 2, the Original Intervenors asked for a declaratory judgment that the defendants' interception, disclosure, and/or use of their phone conversations violated both the Federal Wiretap Act and the Indiana Wiretap Act and that the Council's subpoena was "void and of no effect" to the extent that it sought the production of conversations recorded in violation of the Federal Wiretap Act. Id. at 189. And in count 3, the Original Intervenors asked that the defendants be permanently enjoined "from disclosing or using any of [their] recorded communications, whether pursuant to a Subpoena issued by the Council or otherwise." Id.
[¶11] By way of background, we note that, broadly speaking, both the Federal Wiretap Act and the Indiana Wiretap Act prohibit and impose civil and criminal penalties for the unauthorized intentional interception, use, or disclosure of various communications. 18 U.S.C. §§ 2511, 2520; Ind. Code §§ 35-33.5-5-4, -5. Neither Act applies to intercepted communications in which at least one of the parties has consented to the interception. See 18 U.S.C. § 2511(2)(c) ("It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to...
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