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Federal judge finds U.S. law preempts state 'robo-call' statute

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The state is not able to prevent out-of-state entities from placing political calls to residents within Indiana because of an existing federal law, according to a federal judge’s ruling on Indiana’s auto-dialer statute.

U.S. Judge William Lawrence in the Southern District of Indiana issued an eight-page decision late Tuesday in Patriotic Veterans v. State of Indiana, No. 1:10-CV-723, ruling that the 23-year-old state statute is preempted by the federal Telephone Consumer Protection Act.

Filed June 10, 2010, this case is one of a handful of similar suits that have played out in state and federal courts during the past several years about the Indiana Auto-Dialer Statute that passed in 1988 but largely went unenforced until 2006.

This case involves an Illinois-based nonprofit that sued Indiana on claims that the state law violates the group’s First Amendment rights by not allowing it to make political calls leading up elections. Patriotic Veterans claimed the Indiana law is preempted by the similar but more lenient federal TCPA. Unlike the state statute banning all pre-recorded telemarketing calls unless the consumer has given consent, the federal law makes exceptions for nonprofit groups, telephone carriers, and politicians.

In his ruling, Judge Lawrence granted the plaintiff’s motion for summary judgment, denied the state’s motion and granted a permanent injunction preventing the enforcement of Indiana Code 24-5-14. In footnotes, the judge wrote that he’s limited his decision to the preemption issue and is not addressing the First Amendment claims, and that he’s declining to enter a broader injunction that would apply to more than political messages even though the court’s ruling could support that.

Judge Lawrence found that the TCPA doesn’t contain an express preemption clause, but rather has a savings clause that applies to specific intrastate requirements and regulations. Legislative support also proves that intent, he wrote.

“The language of the savings clause coupled with the consistent legislative history leads the Court to determine that the TCPA was enacted with the purpose of establishing exclusive regulations relating to the interstate use of automatic telephone dialing systems, as well as establishing regulations that would apply to their intrastate use unless a particular state chose to enact (or had already enacted) more stringent regulations,” Judge Lawrence wrote. “To read the TCPA otherwise would render the word ‘intrastate’ within the savings clause entirely meaningless and thus be inconsistent with the ‘cardinal principle of statutory construction that we must give effect, if possible, to every clause and word of a statute.’ If Congress intended for the TCPA to have no preemptive effect, it would not have included the word ‘intrastate’ in the savings clause; the fact that it did indicates that it intended for state laws relating to interstate use of automatic telephone dialing systems… to be preempted, while more restrictive intrastate laws would be enforceable.”

Judge Lawrence disagreed with the state’s interpretation of the TCPA language that it doesn’t apply to the state statute, and although the wording and grammatical structure is awkward, the Congressional intent is clear that Indiana’s law is preempted in this situation.

How all this factors into the broader constitutional questions remains unclear. The First Amendment claims could be addressed on appeal in the federal courts, while the Indiana Supreme Court hasn’t yet decided the case of State of Indiana v. FreeEats.com, No. 07S00-1008-MI-411, that focuses more specifically on state constitutional issues. The justices heard arguments in January on that Brown County case involving the attempted enforcement of the state statute. Those same constitutional questions about the 1988 statute were left open by the state’s high court in December 2008, when the justices unanimously determined the state law isn’t limited to commercial message calls placed to consumers but stopped short of deciding how the law applies to political messages.

Attorney Paul Jefferson with Barnes & Thornburg, who represents both Patriotic Veterans and Freeeats.com, said the two cases are on parallel but separate courses and that he doesn’t think the justices needed to wait on this federal suit’s resolution. The Office of the Indiana Attorney General Greg Zoeller said Wednesday he will appeal the ruling and ask for an immediate stay.

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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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