WORLEY v. MILLER
Filing
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ORDER granting in part 57 Plaintiff's Cross MOTION for Summary Judgment on the limited issue of Plaintiff's entitlement to an evidentiary hearing. The BMV shall conduct an evidentiary hearing at which Plaintiff shall set forth the reason s he believes he should be granted a photo ID. The BMV will be permitted to conduct it's own review of whether or not Plaintiff' conduct is fraudulent or otherwise improper. The hearing must occur as soon as possible and before the Novemb er 6 election. All other facets of this suit are stayed pending the outcome of said hearing. The Court's delay in issuing this order shall not foreclose Plaintiff's ability to vote in the November 6 election, notwithstanding the October 9 voter registration deadline. Signed by Judge Sarah Evans Barker on 10/9/2012.(PGS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JOESPH A. WORLEY,
Plaintiff,
vs.
R. SCOTT WADDELL, in his official
capacity as Commissioner of the Indiana
Bureau of Motor Vehicles,
Defendant.
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1:10-cv-01259-SEB-DKL
ORDER
Pursuant to 42 U.S.C. § 1983, Plaintiff has filed this lawsuit for declaratory and
injunctive relief as a result of the refusal by Defendant, the Indiana Bureau of Motor
Vehicles (“the BMV”), to issue Plaintiff a photo identification card1 in the name under
which he currently lives: Joesph A. Worley. Plaintiff contends that the BMV’s
unwillingness to issue him an Indiana photo identification card violates the Fourteenth
Amendment to the United States Constitution. He specifically invokes the Due Process
Clause of this amendment, which forbids “any State [from] depriv[ing] any person of life,
liberty, or property, without due process of law.” U.S. Const. Amend. XIV, § 1.
I. Background
Plaintiff was born to an unwed mother in 1968. Second Am. Compl. ¶ 7. The
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It is within the proper scope of the BMV’s duties to issue such cards and driver’s licenses.
Second Am. Compl. ¶ 6.
birth certificate issued at that time identified him by the name “Joseph Alan Ivey.” Id. ¶ 7;
see Pl.’s Mot. for S.J. Ex. B (copy of birth certificate). One year later, after his mother
married his biological father, Plaintiff was issued a Social Security card designating him as
“Joesph A. Worley.” Id. ¶ 8. From that date onward, Plaintiff has used the name “Joesph
A. Worley” in going about his personal life and conducting his business affairs. Id.; see
Pl.’s Compl. Ex. A (copy of Social Security statement addressed to “Joesph A. Worley”).
He considers “Joesph A. Worley” to be his “full legal name” as contemplated by the
Indiana Administrative Code. See 140 Ind. Admin. Code 7-1.1-1(t) (defining “full legal
name” as an individual’s first name, middle name or names, and last name). Second Am.
Compl. ¶ 8.
In 2007, Plaintiff was convicted of a felony drunk driving charge in Indiana and
served six months of a two-year sentence in the state’s New Castle Correctional Facility.
Second Am. Compl. ¶ 9; Def.’s Br. at 2. He was released from prison on February 15,
2008, at which time the Indiana Department of Correction (“IDOC”) issued him a “release
card” with his photo, name (listed as “Worley, Joseph”), offender number, Social Security
number, and date of release. Id.; Pl.’s Mot. Ex. C. His goals for reentry into society
included voting in elections, obtaining a marriage license and driver’s license, and
adopting his youngest natural child.5 Second Am. Compl. ¶ 10; Worley Dep. at 16. In
pursuit of these objectives, he made “five or six” attempts to procure a photo identification
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Plaintiff fathered this child out of wedlock; she was adopted by her biological mother’s
husband in 2004 after Plaintiff’s parental rights were terminated. Worley Dep. at 23.
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card from the BMV between February 2008 and June 2011. Pl.’s Br. at 4; Worley Dep. at
16. Each of these endeavors was unsuccessful. Worley Dep. at 16-17.
Based on the record before us, we surmise that Plaintiff may have expected some
degree of resistance from the BMV. His history with that agency is, to put it mildly,
disconcerting. By his own admission, “somewhere” between 1992 and 1994, his driver’s
license was suspended for six months after he was caught “[d]riving under the influence.”
Worley Dep. at 10. Plaintiff’s license was subsequently reinstated, but after “[a]nother
DWI” in 1996, it was suspended once again, this time for a year. Id. at 11; Def.’s Br. at 2.
Between 1996 and June 2011, Plaintiff went without a driver’s license; he chose not to seek
reinstatement between 1996 and 2008 due to the associated fines and costs. Def.’s Br. at
2; Worley Dep. at 11. He did, however, apply to the BMV for a new photo identification
card at some point either during or after February 2008. Pl.’s Br. at 4. When he did so,
he was refused despite having presented a Social Security statement, his birth certificate,
his IDOC release card and parole travel permit, and two bills containing his current
address. Second Am. Compl. ¶ 11. Plaintiff asserts that “[he] needed to have everything
match on [his] birth certificate and Social Security [card],” Worley Dep. at 16-17, and that
“the BMV refused to issue [him] a photo identification card because the name on his birth
certificate did not match the name on file with the Social Security Administration.” Pl.’s
Br. at 4. He further alleges that, notwithstanding this discrepancy, he “had not . . . had any
difficulty in obtaining a state-issued photographic identification card or driver’s license”
before his incarceration. Worley Aff. ¶ 2.
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In June 2011, Plaintiff attempted to procure a driver’s license from the BMV’s
Muncie location. Pl.’s Br. at 5. At some point prior to that day, the BMV had issued him
a photo identification card. Worley Dep. at 29. Plaintiff understood the remainder of the
process as follows:6 he would be eligible to receive a license if he could verify his current
address and pass a facial recognition program. He satisfied these criteria and
subsequently went to the Muncie branch, where he passed a driver’s test and had his photo
taken. Pl.’s Br. at 5. Approximately seven days later, his driver’s license arrived in the
mail. However, Plaintiff’s BMV woes resumed about a week after he received the
driver’s license, when his attorney received a letter directing Plaintiff to return the license.
Id.; Pl.’s Ex. E (“BMV Ltr. 1”). This letter, dated June 22, 2011, was from the BMV’s
general counsel and stated, in pertinent part, as follows:
It has recently come to the attention of the [BMV] that you were improperly issued
an Indiana identification card by the BMV. Our records indicate that you applied
for, and received, an identification card without providing the BMV with
appropriate supporting documentation as outlined in I.C. 9-24-16 and 140 IAC
7-1.1-3.
...
[B]ased on the error made in issuing you an Indiana identification card without
appropriate supporting documentation, the Commissioner has determined that the
Indiana identification card issued to you must be revoked. . . . This revocation will
remain in effect until you provide appropriate documentation as outlined in I.C.
9-24-16 and 140 IAC 7-1.1-3 to verify your identity.
BMV Ltr. 1. The letter also directed Plaintiff to return his Indiana photo identification
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Plaintiff contends that the manager of the Muncie BMV contacted the BMV’s call center
before relaying the following information to him about getting a photo identification card and
driver’s license: “[A]fter I passed the test, if the picture [from the facial recognition test] got sent
in, if I received it in the mail, that meant that I passed the photo recognition and I would be issued
my driver’s license.” Worley Dep. at 27.
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card either in person or by mail. Id.
As established above, Plaintiff understood that having different names listed on his
birth certificate and Social Security card hindered his efforts with the BMV. He wanted to
change the name on his birth certificate7 to remove this obstacle and, to that end, contacted
attorney David Wilson to assist his efforts. Pl.’s Br. at 4; Worley Dep. at 17. Plaintiff,
although unsure of whether Mr. Wilson filed the appropriate name change paperwork,
asserts that the attorney told him that “the state wasn’t going to touch [his name change]
because of [his] felony conviction.” Worley Dep. at 17. Since contacting Mr. Wilson,
Plaintiff has not spoken with any other attorneys about effecting a legal name change. Id.
at 18.
On September 30, 2010, Plaintiff personally filled out a Petition for Name Change,
which he intended to file with the Delaware County Court. Worley Dep. at 18. He
ultimately elected not to file the petition because of the associated filing fee. Id. at 19.
Plaintiff also knew that his criminal history imposed additional impediments in this
process. Notably, because he had been convicted of a felony in the ten years prior to
September 30, 2010, petitioning for a name change would have required him to publish
notice thereof in a Delaware County newspaper and with other entities specified by
statute.8 Second Am. Compl. ¶ 12; Worley Dep. at 19, 33; Pl.’s Br. at 4. Once again, in
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Plaintiff avers that he sought to change his name “legally changed from Joesph A. Worley
to Joesph A. Ivey solely as part of [his] desire to again be issued a photographic identification card
by the [BMV].” Worley Aff. ¶ 4.
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Indiana law requires an applicant for a name change to provide notice of his petition “[b]y
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Plaintiff’s view, these costs were prohibitive “due to the fact that he [was and] is jobless
and indigent.” Second Am. Compl. ¶ 12.
II. Discussion
The Due Process Clause of the Fourteenth Amendment to the Constitution protects
more than fair process; it “provides heightened protection against government interference
with certain fundamental rights and liberty interests.” Washington v. Glucksberg, 521
U.S. 702, 720 (1997). Beyond the freedoms detailed in the Bill of Rights, these interests
are several: “the rights to marry, to have children, to direct the education and upbringing
of one’s children, to marital privacy, to use contraception, to bodily integrity, and to
abortion.” Id. (internal citations omitted). Even so, the Supreme Court exercises great
caution before expanding the concept of substantive due process past its existing
boundaries. The Court has explained its reticence to make substantive due process a
free-for-all as follows:
By extending constitutional protection to an asserted right or liberty interest, we, to
a great extent, place the matter outside the arena of public debate and legislative
action. We must therefore “exercise the utmost care whenever we are asked to
break new ground in this field,” lest the liberty protected by the Due Process Clause
be subtly transformed into the policy preferences of the Members of this Court.
three (3) weekly publications in a newspaper of general circulation published in the county in
which the petition is filed in court.” Ind. Code § 34-28-2-3(a)(1). “[I]n the case of a person who
has had a felony conviction within ten (10) years before filing a petition for a change of name, at
least thirty (30) days before the hearing the petitioner must give notice of the filing of the petition
to: (1) the sheriff of the county in which the petitioner resides; (2) the prosecuting attorney of the
county in which the petitioner resides; and (3) the Indiana central repository for criminal history
information.” Id. § 34-28-2-3(c).
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Id. (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)). After a
fundamental right or liberty interest is properly asserted, the court examines the “directness
and substantiality” of the government’s interference with that right or interest. Zablocki v.
Redhail, 434 U.S. 374, 387 n.12 (1978). A significant interference with a fundamental
right is only defensible if it is “supported by sufficiently important state interests and is
closely tailored to effectuate only those interests.” Id. at 388.
In order for Plaintiff’s claim to fall within the ambit of the protections provided by
the Fourteenth Amendment’s Due Process Clause, Plaintiff must demonstrate his
“legitimate entitlement” to a “property” interest. Bd. of Regents State Colls. v. Roth, 408
U.S. 564, 577 (1972). Property interests do not emanate from the Constitution, but are
created. “[T]heir dimensions are defined by existing rules or understandings that stem
from an independent source such as state law . . . [and which] secure certain benefits and
that support claims of entitlement to those benefits.” Id. Moreover, having a legitimate
property interest in such a benefit “means [having] an entitlement established by rule; hope
for a favorable exercise of administrative discretion does not qualify.” Portillo-Rendon v.
Holder, 662 F.3d 815, 817 (7th Cir. 2011). The Seventh Circuit has elaborated on the
concept of property interests in kind, noting, “[W]e must look behind labels and decide
whether [an asserted interest] is ‘property’ in a functional sense.” Reed v. Vill. of
Shorewood, 704 F.2d 943, 948 (7th Cir. 1983). Using this lens, the court determined that,
“viewed functionally, property is what is securely and durably yours under state (or . . .
federal) law, as distinct from what you hold subject to so many conditions as to make your
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interest meager, transitory, or uncertain.” Id.
Recently, the Seventh Circuit held that “a legitimate claim of entitlement to warrant
a due process hearing occurs ‘only when the statutes or regulations in question establish a
framework of factual conditions delimiting entitlements which are capable of being
explored at a due process hearing.’” Fincher v. S. Bend Heritage Found., 606 F.3d 331,
334 (7th Cir. 2010) (quoting Eidson v. Pierce, 745 F.2d 453, 459-60 (7th Cir. 1984)).
This lawsuit presents precisely the situation contemplated in Fincher. It is clear that the
ability to identify oneself is critical for any United States citizen. We noted as much in our
May 2011 Order Denying Defendant’s Motion to Dismiss, when we concluded that
“Plaintiff does not claim a fundamental right to identification . . . but rather a fundamental
right to these other privileges . . . of which he is being deprived based on his lack of
BMV-issued identification.” Worley v. Waddell, 819 F. Supp. 2d 826, 830 (S.D. Ind.
2011). We concluded that his claim was intended to redress Defendant’s conduct, which
has effectively impeded his ability to vote, marry, or adopt his natural child. Id. The
importance of these basic, community-oriented functions cannot be overstated. Thus, we
conclude that Mr. Worley’s argument that he has “a reasonable expectation [to] be issued a
photographic identification card so that he can participate in our democracy on equal terms
with other qualified citizens” has teeth. In our view, the doctrine of implied contract
supports his contention that such a card is a protected “property” interest triggering his
right to a Fourteenth Amendment due process hearing.
The concept of procedural due process is both malleable and variable. See
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Zinermon v. Burch, 494 U.S. 113, 127 (1990); Doherty v. City of Chi., 75 F.3d 318, 323
(7th Cir. 1996). To that end, Supreme Court jurisprudence instructs that “an opportunity
for ‘some kind of hearing’” ought to precede deprivation of a significant property interest.
Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981); Parratt v. Taylor,
451 U.S. 527, 540 (1981), overruled on other grounds. The longstanding requirement for
such hearings is that they occur “at a meaningful time and in a meaningful manner.”
Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citation omitted). A plaintiff who brings a
Fourteenth Amendment procedural due process claim must, at the very least, be afforded
“an opportunity to present his side of the story.” Wozniak v. Conry, 236 F.3d 888, 890
(7th Cir. 2001). Nevertheless, “even for the most important decisions, an evidentiary
hearing is required only if there are material factual disputes.” Id.
“When a procedural due process claim is based on the random and unauthorized
conduct of a state actor and state law remedies are available, a plaintiff must either avail
himself of the state law remedy or show that the available remedy is inadequate.” Leavell
v. Ill. Dep’t of Natural Res., 600 F.3d 798, 802 (7th Cir. 2010). Our review of the record
indicates that Mr. Worley cannot avail himself of the appropriate state law remedy, which
is completion of the name change process detailed in the Indiana Code. In making this
determination, the Court takes judicial notice of In re Name Change of Herron, No.
49A02-1205-MI-00364 (Marion Cir. Ct. Apr. 10, 2012), and In re Name Change of
Resnover, No. 49-C01-1110-MI-040823 (Marion Cir. Ct. Apr. 4, 2012). Both of these
cases involved a similar situation to the case at bar. Specifically, the plaintiff in each case
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could not obtain a valid Indiana driver’s license due to discrepancies between the names
listed on his Social Security card and birth certificate. Despite the fact that appeals have
been filed in these cases and reportedly still pend, both decisions read section 34-28-1-1 et
seq. of the Indiana Code in conjunction with section 34-28-2-1 of the same to bar the
plaintiff’s otherwise legitimate petition for a name change. With no markedly different
facts in the instant lawsuit, we cannot conclude that Mr. Worley would be more fortuitous
in pursuing the same end. The prescribed state law remedy, although generally
acceptable, fails to afford Mr. Worley full protection for important interests. For this
reason, a hearing is necessary.
We recognize that the BMV’s stated interest underlying these regulations is
preventing voter fraud; as such, it is a strong and legitimate concern which we in no way
wish to diminish. However, this interest, in our view provides further justification for a
Fourteenth Amendment due process hearing. The exigency of holding such a hearing is,
of course, obvious, given the upcoming November elections. Accordingly, the BMV is
hereby ordered to conduct forthwith an evidentiary hearing during which Mr. Worley shall
set forth the reasons he believes he should be granted a photo identification card. At the
same time, the BMV will be permitted to conduct its own review of whether or not Mr.
Worley’s conduct is fraudulent or otherwise improper. The hearing and the decision by
the BMV must occur with all due haste and, in any event, prior to the November 6th
elections. All other facets of this lawsuit are stayed pending the outcome of this hearing.
If Plaintiff is determined to be eligible to receive the state-issued identification card he
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seeks, the Court’s delay in issuing this order to a time after the October 9th voter
registration deadline shall not foreclose Plaintiff’s ability to vote in the upcoming
November elections based on his failure to register in a timely fashion. That said, when
and if the BMV issues the identification document to Plaintiff, the issuance shall also
effectuate his registration to vote.
IT IS SO ORDERED.
Date:
10/09/2012
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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Copies to:
William R. Groth
FILLENWARTH DENNERLINE GROTH & TOWE LLP
wgroth@fdgtlaborlaw.com
Adam Clay
INDIANA ATTORNEY GENERAL
Adam.Clay@atg.in.gov
Betsy M. Isenberg
INDIANA OFFICE OF THE ATTORNEY GENERAL
Betsy.Isenberg@atg.in.gov
William Martain Krowl
KROWL LAW, LLC
krowllegal@gmail.com
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