« Ind. Decisions - Court of Appeals issues 1 today (and 6 NFP), including interesting opinion by Sr. Judge Shepard | Main | Ind. Courts - Two justices and four appellate judges must stand for retention this year »

Thursday, June 21, 2012

Ind. Courts - Case filed by ACLU yesterday against BMV poses interesting administrative law / rulemaking question

In a complaint filed yesterday in Marion County Superior Court, White v. Indiana BMV, the Indiana ACLU contends that the BMV is acting without authority in certain cases, because the BMV has not promulgated rules to implement the applicable state. Some quotes from the 12-page complaint:

1. Indiana Code chapter 9-25-10, establishes a "Previously Uninsured Motorist Registry" ("PUMR") for persons who have operated a motor vehicle without financial responsibility following December 31, 2009. Indiana Code § 9-25-10-5 specifically requires that the Bureau of Motor Vehicles ("BMV") promulgate mles to implement the PUMR. Despite the statutory requirement, the BMV has never done so. Nevertheless, without any mles, the BMV has proceeded to randomly select persons from the PUMR and suspend their driver's licenses, or suspend their "driving privilege" for those persons without a license, if the selected persons do not have proof of financial responsibility on the date of their selection. The BMV is taking this action against persons who are not otherwise required under Indiana law to have proof of financial responsibility. This exceeds the BMV's statutory authority and violates both Indiana Code § 9-25-10-5 as well as the Indiana Administrative Rules and Procedures Act ("ARPA"), Ind. Code § 4-22-2-13, et seq. To the extent that the Commissioner of the BMV is punishing persons who do not have financial responsibility when they are not required to have financial responsibility by Indiana law, the Commissioner is acting in an arbitrary and irrational manner in violation of the due process of law guaranteed by the Fourteenth Amendment to the United States Constitution.

2. If persons are selected to demonstrate they have financial responsibility and fail to respond, they will lose their driver's licenses or driving privileges pursuant to Indiana Code § 9- 25-10-6 that provides that failure to respond is "prima facie evidence of operating a motor vehicle without financial responsibility" in violation of Indiana law. However, given that there are many reasons that a person on the PUMR may, consistent with Indiana law, not have financial responsibility, the presumption created by Indiana Code § 9-25-10-6 is unconstitutional as violating due process.

3. This action is brought pursuant to Indiana law and 42 U.S.c. § 1983, to redress the deprivation, under color of state law, of rights secured by the United States Constitution. * * *

28. Indiana Code § 9-25-10-5 provides that the BMV:

shall adopt rules under IC 4-22-2 to implement this chapter. Rules adopted under this section must do the following:
(1) Establish the method of random selection of names of previously uninsured motorists from the registry.
(2) Establish the methods by which the bureau may request evidence of financial responsibility from a previously uninsured motorist whose name was randomly selected from the registry.
(3) Establish the methods by which a previously uninsured motorist may respond to the bureau's request for evidence of financial responsibility.
29. Although the BMV, in 2010, published a notice of intent to engage in rulemaking, the BMV has not promulgated the requisite regulations, which violates the statutory requirements found in Indiana Code section 9-25-10-5.

58. The BMV's demand that persons demonstrate financial responsibility in the absence of the regulations required by Indiana Code § 9-25-10-5, is not allowed by Indiana law and represents void and unlawful action pursuant to a non-promulgated mle in violation of the Indiana Administrative Rules and Procedures Act, Indiana Code § 4-22-2-13, et seq .. as well as unlawful action under Indiana Code § 9-25-10-5.

Posted by Marcia Oddi on June 21, 2012 11:23 AM
Posted to Indiana Courts