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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. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

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