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Friday, May 15, 2009
Ind. Decisions - Court of Appeals issues 3 today, including opinions dealing with BMV/SSA and with CAFO zoning (and 5 NFP)
For publication opinions today (3):
In Lyn Leone, Omari Vaden, et al v. Commissioner, Indiana Bureau of Motor Vehicles, et al, the summary in advance of the oral argument read:
The Appellants-Plaintiffs contend that the Commissioner of the Bureau of Motor Vehicles has violated Indiana Law by relying upon the Social Security Administration's records to revoke their driver licenses or state issued identification cards. They contend that state law only requires them to provide their "legal name" in order to obtain a driver license or state identification card, but now the Bureau of Motor Vehicles is rejecting their valid driver licenses and state identification cards based upon conflicting records from the Social Security Administration.Today, in a 20-page, 2-1 opinion, Judge Bradford writes:
Appellants/Plaintiffs Lyn Leone, Omari Vaden, et al., (“the Class”) appeal from the trial court's denial of their motion for a preliminary injunction against Appellees/Defendants the Commission of the Indiana Bureau of Motor Vehicles, et al., (“the BMV”). The Class contends that it has satisfied all of the requirements for the grant of a preliminary injunction, while the BMV argues that the Class has satisfied none. Because we conclude that the Class has shown that the BMV's challenged policy violates constitutional guarantees of due process by failing to provide ascertainable standards, but that a preliminary injunction would not be in the public interest, we affirm the trial court's denial of the Class's request. * * *In Sandra Dinsmore, et al v. Fleetwood Homes of Tennessee, Inc. , a 14-page opinion, Judge Darden writes:The Class argues that the BMV violates Indiana law by essentially deferring to the SSA on the question of one's legal name, when the matter is purely one of Indiana law. The General Assembly has endowed the BMV with broad powers governing the issuance and regulation of driver's licenses and state identification cards. * * *
We conclude that the BMV's policy, as embodied in Indiana Administrative Code Title 140, rule 7-1.1-2, does not violate Indiana law. The Class cites to no authority that explains why requiring a person to update information with the SSA or BMV violates Indiana law in any way, nor are we aware of any. We are unwilling to essentially invalidate the BMV's program without clear authority that it has somehow violated Indiana law. The burden was on the Class to establish a clear violation of Indiana law, and it has not done so.
While we agree that it is the law of Indiana that a person can change his or her legal name without resort to formal legal process, it does not follow that all others, including governmental agencies like the BMV, are required to simply accept the word of the applicant that he is who he claims to be. In other words, the ability to change one's name at will does not equate to freedom from all of the consequences of such a decision. In our view, the public interest in curtailing identity theft shifts the burden and inconvenience to the person seeking to change his name. * * *
Taking all of the relevant statutes into account, we conclude that implicit in the broad statutory authority granted to the BMV is the power to verify the information submitted to it by an applicant for a driver's license or identification card by any reasonable method. As previously mentioned, the BMV has the power to revoke a license on any reasonable ground, and the failure (or refusal) of a cardholder to establish his or her identity seems eminently reasonable to us, even if that means using federal records. By taking away the BMV's power to verify the information given to it using the SSA standard it has chosen, the Class's position on this question would effectively eviscerate the statutory provisions granting the BMV broad powers in this area. In summary, we conclude that the policy does not violate Indiana law by using the SSA's database to verify the information supplied by applicants. * * *
The Class alleges two distinct due process violations, contending that the BMV has acted without ascertainable standards and that the program at issue is without a rational basis. We agree with the Class regarding the first claim, but not the second.
I. Ascertainable Standards * * *
Even though we believe that the BMV has failed to provide ascertainable standards, we do not accept the Class's argument that the policy lacks a rational basis. * * *
The question, then, is whether the presence of an unresolved discrepancy between BMV and SSA records is a rational basis for suspending or revoking a driver's license or identification card. We conclude that it is. In short, the policy effectively blocks a well- known avenue for identity theft by making it much more difficult to appropriate another's social security number in order to obtain state identification. Moreover, although objective proof of the success of the program is unnecessary, all indications are that the program in question is in fact effective. * * *
II. Public Interest
Even though we are convinced of the lack of ascertainable standards in the BMV's policy, thereby relieving the Class of its burden of proving irreparable harm and that the balance of harms weighs in their favor, it must still establish that a preliminary injunction would be in the public interest. This it has failed to do. We conclude that an injunction in favor of the Class would clearly disserve the public interest in preventing and detecting identity theft. Suspension of the BMV's program would have the effect of restoring a well- known avenue for fraud and identity theft. We simply cannot agree that the inconvenience of a few Hoosiers (which is really all the record before us shows) outweighs the very real threat that identity theft poses to all of us. * * * We conclude that the Class has failed to establish that a preliminary injunction is in the public interest and affirm the trial court's ruling on that basis.
Conclusion
We conclude that the BMV policy does not violate Indiana law by using the SSA's files to verify the accuracy of its own information and by requiring that individuals correct any discrepancies. We also conclude, however, that the policy fails to provide ascertainable standards and so violates the federal Constitution's guarantee of due process. Even so, we nevertheless affirm the trial court's denial of the Class's request for a preliminary injunction, as we conclude that it has failed to show that it would be in the public interest. The judgment of the trial court is affirmed.
BAILEY, J., concurs.
RILEY, J. dissenting with separate opinion:
I respectfully dissent. The majority has chosen to author its opinion without telling the factual history of the real people identified by the Appellants-Plaintiffs that are being hassled by the BMV's policy shift. Additionally, they have chosen to ignore Indiana law controlling administrative actions that an agency may not by its rules and regulations add to or detract from the law as enacted, nor may it by rule extend its powers beyond those conferred upon it by law. Lee Alan Bryant Health Care Facilities, Inc. v. Hamilton, 788 N.E.2d 495, 500 (Ind. Ct. App. 2003), clarified on reh’g, 793 N.E.2d 29 (Ind. Ct. App. 2003). * * *
The majority relies upon the testimony of Detective Eads to find a “rational basis” for the BMV's ultra vires acts. However, the law as codified by our legislature is that a person applying for a drivers license or identification card must provide the BMV with their “full legal name.” See I.C.§§ 9-24-11-5(a)(1) and 9-24-16-3(b)(1). It has been the long standing law of our state that:
a full name consists of one christian or given name, and one surname or patronymic. The two, using the christian name first and the surname last, constitute the legal name of the person. Any one may have as many middle names or initial as are given to him, or as he chooses to take; they do not affect his legal name.Schofield v. Jennings, 68 Ind. 232, 234-35, 1879 WL 5847, 1 (1879). As such, Leone, Vaden, and Goff provided their “full legal names” to the BMV. If the BMV now thinks that in the day and age of identity theft that applicants for drivers licenses or identification cards should provide their name as it appears in the SSA database, then the BMV has the opportunity to approach our legislature and seek an amendment to Indiana Code sections 9-24-11-5(a)(1) and 9-24-16-3(b)(1).. . . No person is bound to accept his patronymic as a surname, nor his christian name as a given name, though the custom to do so is almost universal amongst English- speaking people, who have inherited the common law. A person may be known by any name in which he may contract, and in such name he may sue and be sued, and by such name may be criminally punished; and when a person is known by several names—by one as well as another—he may contract in either, and sue and be sued by the one in which he contracts, and may be punished criminally by either.
Sandra Dinsmore (“Sandra”) and intervening plaintiffs Victor Dinsmore, Carissa Dinsmore (by her natural parents, Victor and Sandra Dinsmore), and Bradley Tucker (by his natural parents Tanya Tucker and Brian Dinsmore) appeal (1) the trial court's order granting summary judgment to Fleetwood Homes of Tennessee, Inc. (“Fleetwood”); and (2) their motion to amend by interlineation Sandra‟s response to Fleetwood's motion for summary judgment. We reverse. * * *In Benton County Remonstrators v. Board of Zoning Appeals of Benton County, et al , a 14-page opinion, Judge Mathias writes:The plaintiffs' complaints raise claims based on Indiana's common law warranty of habitability. Fleetwood's motion for summary judgment and designated evidence did not establish that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law in that regard. Therefore, summary judgment to Fleetwood is precluded. Accordingly, the issue of intervening plaintiffs' response to the summary judgment is moot.
The Benton County Remonstrators (“Remonstrators”) appeal from a dismissal of their verified petition, complaint, and application for writ of certiorari, declaratory judgment and judicial review. * * * Brian Martin, David Martin, and North Fork Farms, LLC (“North Fork”) cross appeal, alleging that the verification by Remonstrators' attorney of the appeal is not allowed under Indiana Code section 36-7-4-1003(a). * * *NFP civil opinions today (2):The trial court did not err in determining that the Remonstrators' counsel may verify the Remonstrators' Petition. The original judge did not err when he rescinded his order appointing a special judge who was ineligible under local rule and appointed an eligible special judge in his place. The Remonstrators waived the issue of when the clerk mailed the panel of judges for strike when they failed to raise the issue before the trial court. The trial court erred in determining that all of the Remonstrators lacked standing to challenge the BZA decision, when the Remonstrators who were adjoining landowners had sufficiently pleaded a special harm that would result in a pecuniary injury. Finally, the trial court erred in dismissing the Remonstrators' Petition as it related to the East Application but did not err in dismissing the Remonstrators' Petition as it related to the West Application.
Therefore, we remand this case to the trial court for further proceedings consistent with this opinion concerning the East Application.
Tracy Lynn Weston, et al v. Fayette Memorial Hospital, et al (NFP) - "Tracy Lynn Weston, as personal representative of the Estate of Clinton Dale Weston (“the Estate”), filed suit in Fayette Superior Court against Fayette Memorial Hospital (“the Hospital”) and Preferred Emergency Specialists, Inc. (“Preferred”) (collectively “the Defendants”) alleging that the Defendants negligently hired and retained Dr. Scott Longevin (“Dr. Longevin”). The Defendants moved for summary judgment, claiming that Dr. Longevin was an independent contractor, not an employee, and thus they could not be liable for negligently hiring or retaining him. The trial court granted summary judgment in favor of the Defendants. The Estate now appeals and claims that the trial court erred in granting summary judgment in favor of the Defendants because there is a genuine issue of material fact with regard to whether Dr. Longevin was an employee of the Defendants. We reverse and remand. "
Laura J. Blickem v. Review Board of the Dept. of Workforce Development and Gas America Services, Inc. (NFP) - "Laura J. Blickem received unemployment benefits after her employment with GasAmerica Services, Inc., ended, and Gas America appealed the Department of Workforce Development’s initial determination that she was eligible for benefits. The Department mailed documents relating to Blickem’s upcoming telephonic hearing to her address of record, including a form for Blickem to return to provide the Administrative Law Judge with her contact telephone number for the hearing. Shortly before the hearing began, Blickem faxed her telephone number to the Department. However, the ALJ did not see the fax, ended the hearing after determining that Blickem had failed to appear, and reversed the initial Determination of Eligibility. Blickem appealed, and the Review Board affirmed the ALJ’s decision without accepting additional evidence. Blickem now appeals to this Court, contending in part that the Review Board erred by refusing to consider additional evidence. Because we agree with Blickem that the Review Board should have reviewed her proffered additional evidence and remanded for a new hearing, we reverse and remand for a new hearing before an ALJ. * * *
"The ALJ did not consider any of Blickem’s evidence because the ALJ determined that she had failed to appear for her hearing or provide a telephone number at which she could be reached. However, Blickem did provide a telephone number to the Department before her hearing commenced, and her fax, time stamped three minutes before the hearing started, made apparent that she was available and wished to participate in her hearing."
NFP criminal opinions today (3):
Qunicy Montgomery v. State of Indiana (NFP)
Timothy J. Randle v. State of Indiana (NFP)
James A. Nelson v. State of Indiana (NFP)
Posted by Marcia Oddi on May 15, 2009 12:06 PM
Posted to Ind. App.Ct. Decisions