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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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