State v. American Family Voices, Inc.

• Decision Date: 23 December 2008
• Docket Number: No. 31S00-0803-CV-139.,31S00-0803-CV-139.
• Citation: State v. American Family Voices, Inc., 898 N.E.2d 293 (Ind. 2008)
• Parties: STATE of Indiana, Appellant (Plaintiff below), v. AMERICAN FAMILY VOICES, INC., Jim Gonzalez, and John Does 2-10, Appellees (Defendants below).
• Court: Indiana Supreme Court

898 N.E.2d 293

STATE of Indiana, Appellant (Plaintiff below), v. AMERICAN FAMILY VOICES, INC., Jim Gonzalez, and John Does 2-10, Appellees (Defendants below).

No. 31S00-0803-CV-139.

Supreme Court of Indiana.

December 23, 2008.

Steve Carter, Attorney General of Indiana, Thomas M. Fisher, Solicitor General of Indiana, Julie A. Brubaker, Heather L. Hagan, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellant.

Anthony W. Overholt, Maggie Smith, Indianapolis, IN, Attorneys for Appellee American Family Voices, Inc.

Edward O. DeLaney, Craig M. Blanchet, Indianapolis, IN, Attorneys for Appellee Jim Gonzalez.

James Bopp, Jr., Anita Y. Woudenberg, Terre Haute, IN, Attorneys for Amici Curiae The Indiana Democratic State Central Committee and The Indiana Republican State Central Committee.

On Petition to Transfer Pursuant to Appellate Rule 56(A)

SULLIVAN, Justice.

In this case, the State Attorney General attempts to enforce the Indiana Autodialer Law against telemarketers who used autodialers to send pre-recorded messages to Indiana residents. The trial court dismissed the complaint pursuant to Ind. Trial Rule 12(B)(6) because there was no allegation that the telemarketers were making consumer transaction calls with commercial messages. We hold that a complaint filed under this statute is not required to allege that consumer transaction calls are at issue because the law applies to all autodialer calls, not just consumer transaction calls with commercial messages.

Background

The State seeks an injunction prohibiting the defendants American Family Voices, Inc. ("AFV"), Jim Gonzalez, and John Does 2-10 from making telephone calls using an automated dialing-announcing device, civil penalties for each violation, reasonable attorneys fees, and costs against the defendants. The trial court dismissed the lawsuit under the authority of T.R. 12(B)(6) for "failure to state a claim upon which relief can be granted." The State appealed and petitioned that this Court grant immediate transfer and expedited consideration pursuant to Ind. Appellate Rules 4(A)(2), 21(B), and 56(A). We granted the State's request transfer under App. R. 56(A).

On September 25, 2006, the State filed this lawsuit against AFV and John Does Nos. 1-10. The State alleged that AFV and John Does Nos. 1-10 had made unlawful pre-recorded telephone calls using automatic dialing-announcing devices ("autodialers") in violation of Ind.Code § 24-5-14-5(b). On September 27, 2007, the State amended its complaint naming Jim Gonzalez as John Doe No. 1. The State's amended complaint alleged that the defendants had made unlawful pre-recorded telephone calls in violation of I.C. § 24-5-14-5(b). Gonzalez moved to dismiss the complaint under T.R. 12(B)(6) for failure to state a claim upon which relief can be granted because the State had not alleged that the defendants made consumer transaction calls with commercial messages. AFV joined Gonzalez's motion to dismiss. On February 22, 2008, the trial court granted the motion to dismiss. This case is now before us pursuant to App. R. 56(A).

Discussion

I

In 1988, the Legislature enacted statutory regulations pertaining to autodialers, the Indiana Autodialer Law, codified at I.C. §§ 24-5-14-1-14. The Autodialer Law recites that its purpose is to protect the privacy, tranquility, and efficiency of telephone customers by generally banning the use of autodialers that deliver pre-recorded messages. See id. The principal mandate of the Autodialer Law is that a caller may not use an autodialer without the consent of the recipient of the call. I.C. § 24-5-14-5(b). The consent may be obtained prior to the call or at the outset of the call by a live operator. However, certain calls made with autodialers are exempt from this rule, I.C. § 24-5-14-5(a); certain other such calls are prohibited altogether, I.C. §§ 24-5-14-8 & 12.

The Legislature's enactment of the Autodialer Law appears to respond to problems associated with autodialers. Autodialers are "uniquely intrusive due to the machine's inability to register a listener's response." Van Bergen v. Minn., 59 F.3d 1541, 1554 (8th Cir.1995). "[W]hen the technology was in its early stages, the computers sometimes tied up all the lines of a single business, in some cases hospitals, or failed to disconnect after the recipient hung up, thus creating safety concerns." Joseph R. Cox, Telemarketing, the First Amendment, and Privacy: Expanding Telemarketing Regulations Without Violating the Constitution, 17 Hamline J. Pub.L. & Pol'y 403, 404 (1996). Provisions of the Autodialer Law directly address problems linked with the use of autodialers —problems that are not limited to consumer transaction calls with commercial messages.

Gonzalez's main contention in his motion to dismiss was that the Autodialer Law is only "intended for consumer transaction telephone calls." (App. 22.) Because the State did not allege the telephone calls at issue were calls soliciting the purchase or consideration of goods or services, Gonzalez argued that the State failed "to assert an actionable claim under Indiana law." (App. 20.) The trial court agreed and dismissed the lawsuit under the authority of T.R. 12(B)(6) for failure to state a claim for which relief can be granted.

The State appeals on the basis of its contention that the Autodialer Law prohibits all callers, subject to exceptions not applicable in this case, from disseminating pre-recorded calls by means of an autodialer without prior consent of the recipients. More specifically, the State contends that I.C. § 24-5-14-5(b) does not limit the prohibition on the use of autodialers to commercial callers proposing consumer transactions. As such, the State contends, it was not required to allege that AFV and Gonzalez engaged in consumer transaction calls with commercial messages and the trial court was wrong to dismiss its complaint.

As can be easily inferred from the presence of the Democratic and Republican State Central Committees as amici in this case, this litigation raises questions as to the extent to which the Autodialer Law limits and may constitutionally limit the use of autodialers to convey political messages. However, all parties agree that no such questions are before this Court at this stage of the litigation and we express no opinion with respect thereto.

II

In reviewing a 12(B)(6) motion to dismiss, we look at the complaint in the light most favorable to the plaintiff, with every inference drawn in its favor, to determine if there is any set of allegations under which the plaintiff could be granted relief. King v. S.B., 837 N.E.2d 965, 966 (Ind.2005). A 12(B)(6) dismissal is improper unless it appears to a certainty on the face of the complaint that the complaining party is not entitled to any relief. Id. Dismissals under T.R. 12(B)(6) are "rarely appropriate." Id. (citing State Civil Rights Comm'n v. County Line Park, Inc., 738 N.E.2d 1044, 1049 (Ind. 2000)).¹ Though Indiana's notice pleading rules do not require the complaint to state all elements of a cause of action, Miller v. Mem'l Hosp. of S. Bend, Inc., 679 N.E.2d 1329, 1332 (Ind.1997) (citing State v. Rankin, 260 Ind. 228, 294 N.E.2d 604, 606 (1973)), the plaintiff must still plead the operative facts necessary to set forth an actionable claim. Trail v. Boys and Girls Clubs of Nw. Ind., 845 N.E.2d 130, 135 (Ind.2006) (citing Mem'l Hosp. of S. Bend, Inc., 679 N.E.2d at 1332).

The State's complaint indicates that on or about July 18, 2006, the defendants made or caused to be made telephone calls to certain telephone numbers in Indiana, and that the defendants made those calls using an automated announcing-dialing device that disseminated pre-recorded messages. The complaint further indicates that the defendants are "callers"² and that the recipients of the pre-recorded messages are "subscribers."³ The recipients did not consent to receiving the calls and the calls were not preceded by a live operator. As a result, the complaint alleges, the calls were made in violation of the prohibition in I.C. § 24-5-14-5(b).

The defendants contend that the Attorney General's complaint did not set forth the requisite "operative facts necessary to set forth an actionable claim." Trail, 845 N.E.2d at 135. This is because, the defendants say, the Autodialer Law applies only to consumer transaction calls with commercial messages. Unless the Attorney General alleges that the defendants' calls at issue were consumer transaction calls with a commercial message, defendants continue, the Attorney General has not pled the operative facts necessary to state a claim for which relief can be granted.

We express no opinion as to whether it would be necessary to plead that the defendant made consumer transaction calls with commercial messages in order to state a claim if the Autodialer Law applied only to consumer transaction calls with commercial messages. But because we are of the view that the statute unambiguously reaches all autodialer calls and not just consumer transaction calls with commercial messages, the State's complaint states a claim for which relief can be granted and the trial court was wrong to grant the motion to dismiss.

When faced with a question of statutory interpretation, we first examine whether the language of the statute is clear and unambiguous. City of Carmel v. Steele, 865 N.E.2d 612, 618 (Ind.2007). If it is, we need not apply any rules of construction other than to require that words and phrases be given their plain, ordinary, and usual meanings. Id. This Court has articulated that, "[t]he primary purpose in statutory interpretation is to ascertain and give effect to the legislature's intent." State v. Oddi-Smith, 878 N.E.2d 1245, 1248 (Ind.2008). The statute itself is the best evidence of legislative intent, "and we strive to give the words in the statute their plain and ordinary meaning." Id. We construe statutes only where there is some ambiguity which...