By Lesley Weidenbener   
TheStatehouseFile.com

INDIANAPOLIS – A federal appeals court has ruled that an Indiana law banning most political calls that use automated dialers and recorded messages doesn’t violate federal consumer protection rules.

But the 7^th Circuit Court of Appeals sent a case back to a lower court to decide whether the state law violates the First Amendment of the U.S. Constitution.

“This decision confirms the position we have been advocating for over a decade in every forum where our telephone privacy laws have been challenged,” Attorney General Greg Zoeller said in a statement. “Federal law bearing on telemarketing simply does not preclude broader state prohibitions.”

But he acknowledged that the lower court will now be reviewing the law again – this time in light of constitutional questions.

“My office will continue to enforce and defend the state’s telephone privacy laws, but there is more work ahead to ensure Hoosiers are protected from annoying and intrusive robocalls,” Zoeller said.

At issue is an Indiana law that applies to commercial and non-commercial speech and prohibits automated, pre-recorded calls unless a live operator introduces the message. Schools are exempted, as are organizations that receive a consumers’ permission to call.

The General Assembly passed the law more than 25 years ago but it was not initially enforced against political parties, campaigns or special interest groups. Over the years, those groups used robo-calls for a variety of purposes – such as sending reminders for voters to request absentee ballots or go to the polls, delivering endorsements from prominent politicians, or criticizing opponents – because they are cheaper than calls made by volunteers or paid-professionals.

But in 2006, then-Attorney General Steve Carter announced he would enforce the law in regard to political calls, too. The Indiana Republican and Democratic parties went along with the decision, but outside groups continued to make the calls and Carter moved to fine the offenders.

One of those groups – American Family Voices, which was using the autodialing machines in the 9^thCongressional District race between Democrat Baron Hill and Republican Mike Sodrel – sued the state, leading to an Indiana Supreme Court ruling that upheld the law.

Then in 2010, Patriotic Veterans, a political advocacy organization based in Illinois, sued the state in federal court, challenging that the law violated the federal Telephone Consumer Protection Act as well as the free speech clause of the U.S. Constitution.

U.S. Judge William Lawrence of Indiana’s Southern District decided in 2011 that the state law violates the federal Telephone Consumer Protection Act, which regulates calls made from one state to another. He did not then rule on the constitutional question.

The state appealed, leading to the appeals court decision on Thursday.

“The plain language (of federal law) dictates that the Indiana statute is not expressly preempted,” the appeals court said. “This is true whether the Indiana statute is one that merely regulates autodialed interstate calls or prohibits them.”

But the ruling said the district court should now have the opportunity to consider the constitutional question.

Lesley Weidenbener is the executive editor of TheStatehouseFile.com, a news website powered by Franklin College journalism students.

By Lesley Weidenbener
TheStatehouseFile.com

Lesley Weidenbener, managing editor, TheStatehouseFile.com

INDIANAPOLIS – State legislative leaders are weighing how to deal with what one of them called a “civil war” between the governor and state superintendent of public instruction.

Already, Republican lawmakers have been working behind the scenes to mediate the dispute, which has crippled the State Board of Education. The clash stems from Democrat Superintendent Glenda Ritz’s win over a GOP incumbent last year and Republican Gov. Mike Pence’s creation of a new education-related agency.

“Right now the status quo is not acceptable,” Senate President Pro Tem David Long, R-Fort Wayne, said last week. “We have to find a way for people to do their work. They don’t have to like each other; but they have to work together because it affects our kids and our schools and our ability to move forward as a state.”

Both Long and House Speaker Brian Bosma, R-Indianapolis, say they’re hesitant for the legislature to step too far into the dispute. Long called it a “last resort.”

Still, he said last week he’s not inclined to dismantle the controversial new Center for Education and Career Innovation. In fact, he said the new agency, which is staffing the State Board of Education that Ritz chairs, is “consistent” with directions from the legislature.

From left, Senate President Pro Tem David Long, R-Fort Wayne; Gov. Mike Pence, a Republican; House Speaker Brian Bosma, R-Indianapolis; and state Superintendent Glenda Ritz, a Democrat

Ritz says the agency – which brings together the education board, the advisory Indiana Education Roundtable, and several workforce development councils and agencies – is at the root of problems. She claims the agency, at the direction of Pence, is trying to usurp her authority and that of the Department of Education she oversees.

And last week, House Minority Leader Scott Pelath, D-Michigan City, said Republicans are creating a “political soap opera” to justify stripping Ritz of some of her powers.

Officials at the center have denied any such takeover attempts. And the governor wants to bring in a national group to mediate the dispute – something Ritz has rebuffed. She says direct talks with the governor are the key to resolving the problems.

The fracas matters because so many education issues in Indiana are up in the air. The State Board of Education – whose members Ritz recently sued over actions she deemed illegal – is working on a new grading system for schools, debating what standards school curriculum should be based and will soon be choosing a new testing system to measure achievement based on those standards.

Bosma said last week that a rework of the education structure – an elected state superintendent who chairs a State Board of Education appointed by the governor – is something lawmakers may have to discuss. In the past, though at different times, both Republicans and Democrats have advocated an appointed, rather than elected, state superintendent.

“It may be appropriate to look at that structure and modernize it,” Bosma said. But he added, “Not this session in the middle of an argument about who is in charge.”

Lawmakers won’t return to the Statehouse for their 2014 session until January, which gives Pence, Ritz and the state board a few weeks to try to iron out differences. Otherwise lawmakers may get involved after all.

Legislative leaders say they’re reluctant to do so but Bosma seemed to indicate last week that they would if necessary.

“While there’s an argument over who’s in charge of education policy,” he said, “our state’s constitution clearly gives that task to the elected legislative bodies in this chamber and the Senate.”

That sounded a lot like a warning.

Lesley Weidenbener is executive editor of TheStatehouseFile.com, a news website powered by Franklin College journalism students.

Staff report

TheStatehouseFile.com

INDIANAPOLIS – Gov. Mike Pence today named members to commissions that oversee higher education, horse racing, state ethics and more.

Commission on Higher Education 

Caren Whitehouse of Vanderburgh County will serve on the Commission on Higher Education. She is currently executive director of the Vanderburgh County Medical Society and also serves on the Pulmonary Fibrosis Board of Directors, the Healthy Evansville Steering Committee and the Vanderburgh County Perinatal Task Force. She will serve through June 30, 2015, effective immediately.

Horse Racing Commission

George Pillow Jr., president and chief executive officer of Pillow Logistics, will serve on the Horse Racing Commission. Previously, Pillow, of Marion County, served as assistant executive administrator for the Department of Health and Human Services. He will serve through Sept. 1, 2015, effective immediately.

State Ethics Commission

Bob Jamison, retired from the New Albany Office of the FBI; Daryl Yost, director of the Certified Technology Park of the Northeast Indiana Innovation Center; and James Clevenger, partner at Wyland, Humphrey, Wagner & Cleveland, have been reappointed to the State Ethics Commission. Clevenger will continue to serve in his role as chairman, and the appointees will serve four-year terms through Oct. 31, 2017, effective immediately.

Indiana Arts Commission 

Allen Platt III of Floyd County will serve on the Indiana Arts Commission through June 30, 2017, effective immediately. He is counsel at Wyatt, Tarrant & Combs LLC. Jonathan Ford of Vigo County and Linda Levell of Knox County have been reappointed to the board and will serve through June 30, 2017.

Commission on Ports

Ramon Arredondo has been named to the Commission on Ports. Arredondo of Lake County retired in 2005 as assistant to the chairman at NiSource and has extensive experience working in both local and federal government positions. Arredondo will serve through June 30, 2017, effective immediately.

Housing and Community Development Authority Board of Directors 

Patricia Gamble-Moore of Herron’s Fiduciary Committee; Thomas McGowan, president and chief operating officer of Kite Realty Group Trust; and Lula Porter, executive director of the Evansville African American Museum, have been reappointed to the Housing and Community Development Authority Board of Directors, effective immediately.