October 26, 2016
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 3:12-CV-475 JVB
- Joseph S. Van Bokkelen, Judge.
Flaum, Easterbrook, and Williams, Circuit Judges.
Easterbrook, Circuit Judge.
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.
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.
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
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 (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.
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.
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.
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 (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
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 (1923); Williams v. Mayor & City Council of
Baltimore, 289 U.S. 36, 40 (1933).
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, 135 S.Ct. 2652 (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 (1997). A suit by one whole branch of
the federal government against another is not possible; a
suit by the executive branch of a city versus the legislative
branch is equally improper. State courts may have authority
to resolve an intramural dispute, but otherwise it must be
worked out the same way Congress and the President resolve
their differences: by politics.
suppose this is wrong and that Arizona State
Legislature becomes the norm rather than, as the
Justices described it, a special situation based on a state
constitution's provision allocating powers among state
entities in a way that was asserted to violate the federal
Constitution. 135 S.Ct. at 2661-65. The fact remains that the
City filed this suit in an effort to ...