Justices hear 3 cases, including robo-calls appeal

The Indiana Supreme Court heard three arguments this morning, including one case that it had granted emergency transfer to regarding whether the state should be constitutionally allowed to restrict robo-calls to residents.

With Justice Frank Sullivan not participating, the four justices heard arguments first in State of Indiana v. FreeEats.com, No. 07S00-1008-MI-411, that the court had granted on emergency transfer from the Brown Circuit Court. The case involves the attempted enforcement of the Indiana AutoDialer Law, or Indiana Code 24-5-14, by the state. The trial judge granted and denied in part a preliminary injunction request from FreeEats.com and the state appealed, presenting this case for the justices’ consideration.

The case raises a constitutional question under the Indiana Constitution, and attorney Paul Jefferson with Barnes & Thornburg argued that this restriction creates an economic burden for the company using this interactive artificial technology and violates the state Constitution. He’s not asking the court to strike down the full statute, but rather allow for this technology to be used in place of a live operator as the legislative language currently states.

Terre Haute attorney James Bopp split the time with Jefferson, taking up the First Amendment concerns he sees with the case. Bopp was quickly questioned by the justices about whether his argument was relevant to the appeal at hand. As soon as Bopp began citing his landmark victory before the U.S. Supreme Court last year in Citizens United v. Federal Election Commission, 130 S.Ct. 876 (2010), which dealt with whether companies should be able to donate money to political campaigns, Justice Brent Dickson wondered whether his argument had standing in this state appeal.

The trial court didn’t rule on that First Amendment issue, the court and Bopp agreed, and so the state justices questioned whether this preliminary injunction matter – rather than a summary judgment issue – allows for other legal theories and issues to be raised. Bopp said it did and discussed why he believes the state is prohibited from restricting this protected type of speech within someone’s home.

But Indiana Solicitor General Tom Fisher argued that this robo-calls restriction doesn’t target protected political speech and isn’t about campaign-finance laws as Citizens United and other free speech cases were. Instead it focuses on all types of calls that seek consent without a live operator and that’s a consumer-protection issue that the statute aims to protect homeowners against.

The same four justices also heard the case of City of Greenwood v. Town of Bargersville, No. 41S05-1012-CV-666, in which Greenwood is challenging the town's annexation of land within three miles of the city's corporate boundary. The Johnson Superior Court granted summary judgment in Bargersville’s favor. The Indiana Court of Appeals last year reversed on the grounds that the town didn’t obtain the consent of 51 percent of the landowners for annexation purposes, but rather as part of a separate sewer service agreement. What the Supreme Court rules will not only decide whether that part of Bargersville becomes a part of Greenwood, but also what is required for “consent” by other communities trying to annex land.

The third case the court heard today is a combined argument in Jeffery McCabe v. Commissioner, Indiana Department of Insurance / Hematology-Oncology of Indiana, P.C., v. Hadley Fruits, No. 49S02-1010-CV-602, on whether attorney fees and litigation expenses are recoverable damages under the Adult Wrongful Death Statute. Justice Sullivan heard arguments and was participating in that appeal.