ILNews

Court: federal suit should have been dismissed

Michael W. Hoskins
January 1, 2007
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The federal District Court in Indianapolis should have dismissed a suit challenging Indiana's prerecorded telephone messages statute because a state court was already considering the issue and could have provided an adequate legal remedy, the 7th Circuit Court of Appeals ruled today.

The three-judge appellate panel also chastised U.S. District Judge Larry McKinney for concluding last October that the then-approaching 2006 congressional election was a reason for urgent attention on this issue.

The 7th Circuit decision came in FreeEats.com, Inc. v. State of Indiana and Steve Carter, Attorney General, No. 06-3900. The issue stems from near-simultaneous disputes in both state and federal courts last year involving Indiana Code 24-5-14-5, the Automated Dialing Machine Statute.

Virginia-based company FreeEats.com sought to halt the attorney general's enforcement of the little-used statute adopted in 1988 and stating: "A caller may not use or connect to a telephone line in an automatic dialing-announcing device unless the subscriber has knowingly or voluntarily requested, consented to, permitted, or authorized receipt of the message; and that the message was immediately preceded by a live operator who obtained the person's consent before the message began."

Carter's office had filed a state claim in Brown Circuit Court in early September 2006 against another company that had hired FreeEats.com to make the pre-recorded calls to Indiana residents from Virginia. Three days after that state court action, FreeEats.com filed this federal action seeking an injunction to stop enforcement.

Judge McKinney ruled Oct. 24, 2006, that Indiana's statute on automated phone calls does not restrict interstate commerce and is not pre-empted by federal law, but he also denied Carter's motion to stay and dismiss the case pursuant to the abstention doctrine spelled out in Younger v. Harris, 401 U.S. 37 (1971). That ruling required federal courts to abstain from enjoining most ongoing state proceedings unless there are certain extraordinary circumstances.

While the state had argued that the federal court could abstain while similar issues were resolved in pending state court litigation, Judge McKinney decided to forward those issues on because of the federal issues involved - specifically the Nov. 7 general election.

But Circuit Judge Daniel Manion and his appellate colleagues disagreed in an 18-page opinion and remanded the case for dismissal.

"Whether a fast-approaching election justifies refusing to abstain under the principles of Younger is an issue of first impression in this circuit," he wrote.

"We further note that elections, be they municipal, state, or federal, take place on a very regular basis," Judge Manion wrote. "If we were to conclude that waiting until weeks before an election to file a suit seeking injunctive and declaratory relief from a state statute that was enacted eighteen years earlier gives rise to 'extraordinary circumstances,' then it would give license to the federal courts to run roughshed over the state courts' rights to adjudicate properly filed actions involving constitutional challenges that relate in some way to that election. That result would not respect comity, and this it would violate the core principles of Younger."

Aside from the election issue, the 7th Circuit also noted that the Indiana state court clearly has the power to grant a preliminary injunction to FreeEats.com to prevent the state from enforcing the statute, as well as issuing decisions on other federal law preemption and constitutionality claims.
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  1. Some are above the law in Indiana. Some lined up with Lodges have controlled power in the state since the 1920s when the Klan ruled Indiana. Consider the comments at this post and note the international h.q. in Indianapolis. http://www.theindianalawyer.com/human-trafficking-rising-in-indiana/PARAMS/article/42468. Brave journalists need to take this child torturing, above the law and antimarriage cult on just like The Globe courageously took on Cardinal Law. Are there any brave Hoosier journalists?

  2. I am nearing 66 years old..... I have no interest in contacting anyone. All I need to have is a nationality....a REAL Birthday...... the place U was born...... my soul will never be at peace. I have lived my life without identity.... if anyone can help me please contact me.

  3. This is the dissent discussed in the comment below. See comments on that story for an amazing discussion of likely judicial corruption of some kind, the rejection of the rule of law at the very least. http://www.theindianalawyer.com/justices-deny-transfer-to-child-custody-case/PARAMS/article/42774#comment

  4. That means much to me, thank you. My own communion, to which I came in my 30's from a protestant evangelical background, refuses to so affirm me, the Bishop's courtiers all saying, when it matters, that they defer to the state, and trust that the state would not be wrong as to me. (LIttle did I know that is the most common modernist catholic position on the state -- at least when the state acts consistent with the philosophy of the democrat party). I asked my RCC pastor to stand with me before the Examiners after they demanded that I disavow God's law on the record .... he refused, saying the Bishop would not allow it. I filed all of my file in the open in federal court so the Bishop's men could see what had been done ... they refused to look. (But the 7th Cir and federal judge Theresa Springmann gave me the honor of admission after so reading, even though ISC had denied me, rendering me a very rare bird). Such affirmation from a fellow believer as you have done here has been rare for me, and that dearth of solidarity, and the economic pain visited upon my wife and five children, have been the hardest part of the struggle. They did indeed banish me, for life, and so, in substance did the the Diocese, which treated me like a pariah, but thanks to this ezine ... and this is simply amazing to me .... because of this ezine I am not silenced. This ezine allowing us to speak to the corruption that the former chief "justice" left behind, yet embedded in his systems when he retired ... the openness to discuss that corruption (like that revealed in the recent whistleblowing dissent by courageous Justice David and fresh breath of air Chief Justice Rush,) is a great example of the First Amendment at work. I will not be silenced as long as this tree falling in the wood can be heard. The Hoosier Judiciary has deep seated problems, generational corruption, ideological corruption. Many cases demonstrate this. It must be spotlighted. The corrupted system has no hold on me now, none. I have survived their best shots. It is now my time to not be silent. To the Glory of God, and for the good of man's law. (It almost always works that way as to the true law, as I explained the bar examiners -- who refused to follow even their own statutory law and violated core organic law when banishing me for life -- actually revealing themselves to be lawless.)

  5. to answer your questions, you would still be practicing law and its very sad because we need lawyers like you to stand up for the little guy who have no voice. You probably were a threat to them and they didnt know how to handle the truth and did not want anyone to "rock the boat" so instead of allowing you to keep praticing they banished you, silenced you , the cowards that they are.

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