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Friday, December 28, 2012

Ind. Decisions - "Judges thwart BMV action against former habitual traffic violator" [Updated]

Wednesday's Court of Appeals opinion in Orndorff v. BMV (ILB summary here) is the subject of an Indianapolis Star story by Tim Evans. Some quotes:

A Monroe County woman involved in several public programs aimed at lifting her family out of poverty has won a reprieve from a driver’s license suspension the Bureau of Motor Vehicles issued eight years after she was deemed a habitual traffic offender — and almost four years after the agency gave her a license.

The Indiana Court of Appeals order issued this week concludes the BMV’s belated action to suspend the license of Bloomington resident Leslee Orndorff “presents a threat to the public interest and that no public interest will be served by suspending” her driving privileges.

The opinion hinges on three factors: the long delay in the BMV’s action to suspend Orndorff’s license; her clean driving record since the BMV erroneously issued Orndorff a license in 2008; and the critical role an ability to drive plays in the Bloomington woman’s job as a home health worker and her efforts to become self-sufficient. * * *

The BMV didn’t catch the problem with Orndorff’s license until 2011, when court records indicate the agency implemented a new process to identify individuals who qualified as habitual violators. Orndorff was among scores of Hoosiers snagged by the new BMV process. On April 24, 2012, the agency sent Orndorff a notice that her license was being suspended for 10 years.

Days later, Orndorff sought a judicial review. She claimed the BMV’s “extreme delay in suspending her driving privileges threatens the public interest.” Orndorff also argued that suspending her driving privileges after she had been awarded a license “and had proven to be a safe driver” with no violations in four years was irrational and violated her right to due process.

Monroe Circuit Judge Michael Hoff ruled in favor of the BMV in June 2012, but noted it was an unusual case, “because (Orndorff) has established that she will be irreparably harmed by the suspension” and that the “adverse effects on her family do not advance the general public interest, as it is not in the public’s interest to make it harder for a productive parent to support her children and to better her family’s circumstances.”

The appeals panel agreed, finding “although the adverse effects are undeniably personal, under the facts of this case, public policy interests are materially impacted.” The decision cites the single mother’s involvement in a subsidized housing program and a self-sufficiency project “designed to support individuals in escaping poverty” — both of which would be end if Orndorff can no longer drive and perform her job.

“Significant government resources have been expended to enable Orndorff to become self-sufficient and free of the need to depend on government aid,” Judge Terry A. Crone wrote in the appellate opinion. “There is a substantial probability that the public interest in reducing poverty will be thwarted if the BMV is not barred from suspending Orndorff’s driving privileges” based on the agency’s long delay in taking action.

The decision also notes that, had the BMV suspended Orndorff’s license in 2004, she could have looked for employment that did not require her to drive and “she would now be eligible for a probationary license that would allow her to drive for employment and other special circumstances.”

For background, see this ILB entry from July 20, 2012, headed "Woman sues to stop Indiana BMV from suspending her license, saying agency waited too long."

See also this Aug. 13th ILB entry, which includes the Orndorff trial court opinion and petition for review. It also links to documents in a related case, White v. BMV.

Here, in a Nov. 6th entry, is a separate case involving Kevin McGraw.

Yet another recent BMV case was the federal court hearing of Joseph Worley, who was unable to obtain a photo ID. Start with this Oct. 26th entry.

[More on Orndorff] Charles Wilson of the AP has this story headed:Court blocks BMV from suspending woman's license." Some quotes:

The state Court of Appeals reversed a Monroe County judge who denied Leslee Orndorff's request that he block the BMV from imposing a 10-year suspension stemming from her designation as a habitual traffic violator in 2004. The American Civil Liberties Union of Indiana filed the request on her behalf in May, and the judge issued a temporary restraining order while the ACLU appealed his decision. * * *

Orndorff, 30, said in a phone interview Thursday that she was thrilled by the ruling, adding that she'd been pulled over Saturday while driving her daughters to visit their father and threatened with arrest over the HTV designation. She said the officer told her she'd been pulled over because her car door was open, but he finally let her go when he found proof online of the temporary restraining order.

"I said, 'Google me.' Thank God for Google," she said.

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Ind. App.Ct. Decisions

Ind. Courts - "Rush takes oath as newest Indiana Supreme Court justice"

Eric Weddle of the Lafayette Journal Courier has an initial story here. A quote:

The heavy contingency of Lafayette and Tippecanoe County attendees — including Mayor Tony Roswarski and commissioners — led Daniels to joke the city was empty.

“Today would be a good day to rob a bank in Lafayette because nobody is home,” he said.

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012

Ind. Courts - Justice Loretta Rush investiture ceremony this morning

Justice Rush taking the oath from Governor Daniels. Photo here.

Justice Rush and her four children. Photo here.

Indiana's only other woman justice, Myra Selby, unveiled Justice Rush's photo on the wall of the chamber, joining the photos of the four current justices.

In her remarks, Justice Rush said: "I look forward to the day a woman's appointment to this Court is unremarkable."

Watch the video of the entire robing ceremony here.

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Indiana Courts | Vacancy #2 on Supreme Court 2012

Ind. Decisions - Court of Appeals issues 3 today (and 21 NFP)

For publication opinions today (3):

James M. Brinkley and Stephanie L. Brinkley v. Michael Haluska, P.E., d/b/a Retro Tech, et al.

Joel Zivot v. Pamela London

In Duke Energy Indiana, Inc. v. Office of the Utility Consumer Counselor, Indiana Utility Regulatory Commission , a 20-page opinion, Judge Vaidik writes:

On October 5, 2010, Governor Mitch Daniels fired Indiana Utility Regulatory Commission (“IURC” or “Commission”) Chairman David Lott Hardy. Hardy was aware that one of his administrative law judges (“ALJ”), Scott R. Storms, had been communicating with Duke Energy Indiana (“Duke”) regarding a position with the company while Storms was presiding over administrative proceedings involving Duke, yet Hardy did not remove Storms from matters involving Duke. This was one such case; Storms was the ALJ, the Indiana Office of Utility Consumer Counselor (“OUCC”) recommended denying Duke relief, but the IURC granted Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. The IURC conducted an audit but eventually found that Storms did not exert any undue influence in his decision. Nevertheless, the IURC reopened this case for further review and consideration of the evidence presented.

After another evidentiary hearing before a new ALJ and the full Commission at which updated evidence was presented, the IURC, in a lengthy order, denied Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. Duke now appeals, arguing that the IURC acted arbitrarily and capriciously when it looked twice at materially the same evidentiary record but came to diametrically opposed decisions without giving any reason for the change.

We, however, find that the IURC’s findings are based on substantial evidence that was placed into the record following the IURC’s order reopening this proceeding. These findings, in turn, support the IURC’s conclusion to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses. As for Duke’s argument that the IURC should have explained why it changed its mind because failing to do so was fundamentally unfair, we find that there were changes in the evidence from the first hearing to the second hearing that justified the IURC’s decision to deny Duke relief the second time around, and, in any event, the IURC was not required to explain why it reached a different conclusion. We therefore affirm the IURC’s decision to deny Duke’s request to utilize deferred-accounting treatment for over $11 million in storm-operating expenses.

NFP civil opinions today (4):

In Re the Term. of the Parent-Child Rel. of K.K.; R.I. v. The Indiana Dept. of Child Services (NFP)

Rebecca J. Bartle v. Jackson Street Investors, LLC as Assignee of Paul E. Turner (NFP)

Benito S. Gamba, Hilda P. Gamba and Gamba Real Estate Holdings, LLC v. The Ross Group, Inc., Ticor Title Ins. Co. v. The Ross Group, Inc., Benito Gamba, HIlda Gamba and Gamba Real Est. Holdings (NFP)

In Re The Adoption of C.H.; M.W. v. B.H. and V.H. (NFP)

NFP criminal opinions today (17):

State of Indiana v. Elvis Holtsclaw (NFP)

State of Indiana v. Blake Lodde (NFP)

Ricky Jester v. State of Indiana (NFP)

Johnny C. Horton v. State of Indiana (NFP)

Michael Watson v. State of Indiana (NFP)

Steven McIntyre v. State of Indiana (NFP)

Alexander A. Lopez v. State of Indiana (NFP)

William Holly v. State of Indiana (NFP)

Jesus Torres v. State of Indiana (NFP)

Randell Vandeventer v. State of Indiana (NFP)

Guy Cummings v. State of Indiana (NFP)

Mark Sexton v. State of Indiana (NFP)

Kieth McCoy v. State of Indiana (NFP)

Quintez Deloney v. State of Indiana (NFP)

Manuel J. Silva v. State of Indiana (NFP)

Robert R. Ashcraft v. State of Indiana (NFP)

Paul Marcum v. State of Indiana (NFP)

Posted by Marcia Oddi on Friday, December 28, 2012
Posted to Ind. App.Ct. Decisions