BMV policy change case gets transfer

The Indiana Supreme Court has agreed to hear the case challenging the state's Bureau of Motor Vehicle's invalidation of licenses or identification cards only on the basis of mismatched records. The high court granted transfer Oct. 29 to Lyn Leone, et al. v. Indiana BMV Commissioner, No. 49S02-0910-CV-505.

Lyn Leone and others received letters from the BMV notifying them that their information on record didn't match that from the Social Security Administration and their driver's licenses or ID cards would be revoked if the BMV records weren't updated. The class sought a preliminary injunction against the enforcement of the policy. The trial court denied the injunction, as did the Indiana Court of Appeals.

The appellate court ruled the plaintiffs showed the BMV's policy violated constitutional guarantees of due process, but a preliminary injunction wouldn't be in the public's best interest because of the threat of identify theft.

Judge Patricia Riley dissented, arguing the plaintiffs were being hassled by the new policy and the BMV should approach the legislature to amend Indiana Code to allow for the new policy.

The Supreme Court also granted transfer to three additional cases – Andrew King v. State of Indiana, No. 49S04-0911-CR-507; Steven W. Everling v. State of Indiana, No. 48S05-0911-CR-506; and Subhen Ghosh v. Indiana State Ethics Commission and the Office of the Inspector General, No. 32S01-0910-CV-504.

In King, the appellate court affirmed Andrew King's felony convictions of child solicitation and attempted dissemination of matter harmful to minors. It concluded that impossibility isn't a defense to the crime of attempted dissemination of matter harmful to minors and that the legislature couldn't have intended to foreclose prosecution under Indiana Code Section 35-49-3-3 when the defendant erroneously believes the victim is a minor.

In Everling, the Court of Appeals upheld Steven Everling's felony convictions of child molesting and sexual misconduct with a minor. He claimed he didn't receive a fair and impartial trial, and that his trial counsel was ineffective. The appellate court disagreed, finding the testimony of his witnesses, which were excluded based on a motion from the state, wouldn't have likely affected the outcome of the trial. His trial counsel's performance was deficient, but based on the record the Court of Appeals couldn't determine if Everling was prejudiced.

In Ghosh, the appellate court affirmed the Ethics Commission conclusion that an Indiana Department of Environmental Management employee violated a provision of the ethics code when he bought gas with a state-issued credit card at a gas station he partly owned. Ghosh argued he didn't "participate in any decision" per statute by using the credit card because participate implies more than one person is involved in the decision. The Court of Appeals rejected the argument and remanded on the issue of the monetary sanction he was ordered to pay.