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BMV policy needed to prevent identity theft

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The inconvenience of a few Hoosiers outweighs the very real threat of identity theft, so the trial court was correct in denying a preliminary injunction against the Bureau of Motor Vehicle's verification of records using Social Security Administration data, the Indiana Court of Appeals ruled today. Judge Patricia Riley dissented, believing the BMV needs to have legislation amended before it can institute its policy.

Although the class of affected plaintiffs showed the BMV's challenged policy violates constitutional guarantees of due process, a preliminary injunction wouldn't be in the public's interest, wrote Judge Cale Bradford for the majority in the interlocutory appeal of Lyn Leone, et al. v. Commissioner, Indiana Bureau of Motor Vehicles, et al., No. 49A02-0804-CV-377. The plaintiffs - a class of people who received letters from the BMV notifying them that their information on record didn't match that from the Social Security Administration - sought a preliminary injunction against enforcement of the policy of revoking licenses or ID cards if the BMV records aren't updated.

While the class appeal of the denial of its motion for a preliminary injunction was pending, the BMV filed Indiana Administrative Code Title 140, Rule 7-1.1-2, which appears to adopt the policy of verifying records against data from the SSA.

The majority determined the BMV's new policy doesn't violate Indiana law, and there's no authority that explains why requiring a person to update information with the SSA or BMV violates the law, wrote Judge Bradford. The public interest in preventing identity theft requires that one must "bear the consequences, including the inconveniences, of changing one's name."

The new policy does violate due process because the BMV acted without ascertainable standards for current license and ID holders. Nowhere in the first two letters is the concept of "updating" information with the BMV explained, wrote Judge Bradford, and the notices are inconsistent. In addition, the majority believed the rule promulgated by the BMV after the litigation began only serves to increase the confusion. Although the BMV can require a match between its and the SSA's information, it failed to give the class members fair notice regarding this requirement, he wrote.

The motion for preliminary injunction failed because it would clearly disserve the public interest in preventing and detecting identity theft. Suspending the 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," he wrote. "We do not doubt that the loss of a driver's license or identification card could be highly inconvenient, but we imagine that, as a general rule, being the victim of identity theft would be far worse."

Judge Patricia Riley in her dissent wrote the majority ignored the "factual history" of the plaintiffs that are being "hassled" by the BMV's policy shift. The three named plaintiffs of the class in this case had used the names the BMV had on file for numerous years and in different records, such as on the Roll of Attorneys or to pay bills. They all had valid drivers' licenses at the point the BMV sent them letters threatening to revoke them because of discrepancies. According to I.C. Sections 9-24-11-5(a)(1) and 9-24-16-3(b)(1), the plaintiffs 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 9-24-16-20 3(b)(1)," she wrote.

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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