Opinion

FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

KENNETH J. FALK GREGORY F. ZOELLER

ACLU of Indiana Attorney General of Indiana

Indianapolis, Indiana

ELIZABETH ROGERS

Deputy Attorney General

Indianapolis, Indiana

FILED

Dec 26 2012, 9:31 am

IN THE

CLERK

COURT OF APPEALS OF INDIANA of the supreme court,

court of appeals and

tax court

LESLEE ORNDORFF, )

)

Appellant-Plaintiff, )

)

vs. ) No. 53A04-1206-PL-299

)

INDIANA BUREAU OF MOTOR VEHICLES, )

R. SCOTT WADDELL, in his official capacity as )

Commissioner of the Indiana Bureau of )

Motor Vehicles, )

)

Appellees-Defendants. )

APPEAL FROM THE MONROE CIRCUIT COURT

The Honorable E. Michael Hoff, Judge

Cause No. 53C01-1205-PL-1018

December 26, 2012

OPINION - FOR PUBLICATION

CRONE, Judge

Case Summary

Leslee Orndorff committed three driving offenses that qualified her as a habitual

traffic violator (“HTV”) in 2004. In 2008, the Indiana Bureau of Motor Vehicles (“BMV”)

issued Orndorff a driver’s license. In 2012, the BMV notified Orndorff that her driving

privileges were to be suspended for ten years based on her HTV status. Orndorff filed a

complaint against the BMV alleging that the equitable doctrine of laches prevented the BMV

from suspending her driving privileges and requesting a preliminary injunction to stop the

suspension. The trial court denied her request for a preliminary injunction, concluding that

Orndorff did not have a reasonable likelihood of prevailing on the merits of her laches

defense at trial because it was unlikely that laches would apply to the government and the

BMV’s delay was understandable.

Orndorff appeals the trial court’s ruling, arguing that laches applies to the government

because the suspension of her driving privileges now, eight years after she qualified as an

HTV and four years after she obtained a valid driver’s license, will cause her to lose her job,

which requires her to drive, and thrust her family into poverty, thereby threatening the public

interest. She also contends that the BMV’s delay is inexcusable. We conclude that under the

facts of this case, there is a reasonable likelihood that Orndorff will succeed in establishing

that suspending her driving privileges will threaten the public interest such that laches applies

to the government. We also conclude that she has a reasonable likelihood of showing that the

BMV’s delay is inexcusable. Therefore, we conclude that Orndorff has a reasonable

likelihood of succeeding on the merits of her laches defense. We also conclude that Orndorff

2

has carried her burden to establish the other requirements for a preliminary injunction, and

thus we reverse the trial court’s denial of her request for a preliminary injunction and remand

for further proceedings.

Facts and Procedural History

The facts are undisputed. In 2002, when Orndorff was about twenty years old, she

obtained her Indiana learner’s permit in Terre Haute. Orndorff’s driving record shows that

from 2002 to 2004, she received seventeen driving convictions and had her driving privileges

suspended eighteen times. The convictions consist of failing to provide proof of insurance

(6), driving while suspended (5), never receiving a valid driver’s license (3), “non-pointable

violation” (2), and a “learner permit violation” (1). Appellant’s App. at 25-30. The

suspensions were based on the convictions named above as well as failure to appear in court,

failure to appear for driver’s safety program, and failure to pay court costs and fines

following a conviction. Of particular relevance to this case, Orndorff’s convictions for

driving without a valid license occurred on December 12, 2002, February 25, 2003, and May

10, 2004. These three convictions qualified Orndorff as an HTV and should have resulted in

the suspension of her driving privileges for ten years.

In 2008, Orndorff moved to Bloomington with her two children. On May 13, 2008,

Orndorff applied for and was granted a valid Indiana driver’s license by the BMV. Shortly

thereafter, she obtained employment with SICIL Home Care Services as a personal care

attendant to persons living at home who have needs that they are unable to address. To

perform her job, Orndorff must have a valid driver’s license. She uses her own vehicle to

3

drive her clients to doctor’s appointments and take them shopping. Orndorff does the

shopping herself for her clients who are home-bound.

In 2011, the BMV implemented new processes to identify individuals who qualified as

HTVs. As a result, the BMV discovered that Orndorff qualified as an HTV based on her

three convictions for driving without a valid driver’s license. On April 24, 2012, the BMV

sent Orndorff an HTV notice of suspension informing her that she qualified as an HTV and

that her driving privileges would be suspended for ten years, effective May 29, 2012, through

May 27, 2022.

Currently, Orndorff is still employed with SICIL and earns $9.75 an hour. She is the

sole supporter of her two children and receives no child support. She and her children

receive food stamps due to their limited income. Orndorff has a checking account into which

her paychecks are deposited, but there is little money remaining after her bills are paid. She

does not have a savings account. She owns a 2002 Chevrolet Impala and has no other

personal property of significant value. She owns no real estate. If Orndorff’s driving

privileges are suspended, she will not be able to perform her duties as a personal care

attendant and will likely lose her job.

Orndorff and her children live in an apartment that is partially subsidized through the

Bloomington Housing Authority (“BHA”). She is required to pay a portion of the rent or

face eviction. Accordingly, if she loses her job and cannot find another, she will be unable to

pay her rent and her family will lose its housing. Through the BHA, Orndorff is enrolled in a

Family Self Sufficiency Program, which is a five-year program designed to assist individuals

4

in establishing financial independence and home ownership. To continue participating in the

program, Orndorff is required to maintain her current tenancy. Without employment,

Orndorff will not be able to pay her portion of rent, will be evicted from her apartment, and

will be ineligible to participate in the Family Self Sufficiency Program.

Orndorff also participates in the Circles Initiative through the South Central

Community Action Program, which is a program designed to support individuals in escaping

poverty. The program features weekly meetings and matches the participants with financially

stable members of the community. Orndorff has been in the program since March 2010,

regularly attends meetings, and is partnered with two Indiana University professors and a

Christian education specialist. To continue with this program, Orndorff must be employed.

Orndorff’s children have medical needs, and she drives them to doctor’s

appointments. Orndorff’s children will begin attending a new school in the 2012-13 school

year. The school is a private religious school that they attend through the Indiana Choice

Scholarship Program. Because there is no public transportation to the school, Orndorff will

have to drive the children. Orndorff’s younger daughter, who is entering second grade, is

having some difficulties with education, and Orndorff and the new school’s staff believe that

the new school will be beneficial for her daughter. Orndorff is enrolled at Ivy Tech and is

scheduled to complete her studies in December 2012 with a degree in criminal justice. She

maintains very high grades, having received a 4.0 grade-point average in the spring 2011

term.

5

On May 24, 2012, Orndorff filed a verified petition for judicial review and complaint

for declaratory and injunctive relief, in which she alleged (1) that the BMV’s extreme delay

in suspending her driving privileges threatens the public interest and therefore the BMV

should be prevented by the equitable doctrines of laches and estoppel from suspending her

driving privileges and (2) that suspending her driving privileges after she was awarded a

license by the BMV and had proven herself to be a safe driver was irrational and violated her

substantive due process rights guaranteed by the Fourteenth Amendment to the United States

Constitution. Orndorff asked the trial court to find that the BMV is barred from suspending

her driving privileges and to enter a preliminary injunction, later to be made permanent,

enjoining the BMV from suspending her driving privileges. Orndorff also filed a verified

petition for a temporary restraining order and a motion for preliminary injunction. On May

25, 2012, the trial court granted a temporary restraining order enjoining the BMV from

suspending Orndorff’s driving privileges.

On June 4, 2012, the trial court conducted a hearing on Orndorff’s request for a

preliminary injunction. On June 8, 2012, the trial court issued an order containing findings

of fact and conclusions thereon, which provides in relevant part as follows:

Findings of Fact

….

30. The Ivy [Tech] campus is 8-9 miles from [Orndorff’s] home and

she must drive back and forth to school. Although it would be theoretically

possible for her to use Bloomington’s city bus service to transport herself to

school, this is virtually impossible given that she must juggle her children’s

schedules as well.

6

31. If Ms. Orndorff loses her license, she will likely lose her job. The

loss of her job may cause her to lose her housing. The loss of her driving

privileges may cause the loss of her ability to continue and complete her

education. The loss of her driving privileges will likely make it impossible for

her children to attend the new school her children are enrolled in for the next

year.

32. If Ms. Orndorff is unable to obtain new employment that does not

require a driver[’]s license, she will probably have to break up the family and

have her children live with her mother who works at a gas station.

33. This will be devastating to Ms. Orndorff and her family and will

push the family back further into poverty. This injury is irreparable and cannot

be rectified through damages after the injury.

34. This injury threatens the general public interest, as thrusting a

family into poverty is contrary to the public interest.

….

Conclusions

….

38. [Orndorff] has established that she will suffer irreparable harm if

her license is suspended. Despite the State’s heroic efforts to characterize the

effects of losing her license as mere economic injuries, it is difficult to

conceive of appropriate, adequate and available monetary compensation or

other legal remedy.

39. [Orndorff] has not demonstrated a reasonable likelihood of success

at trial by establishing a prima facie case, as such a case depends upon proving

that laches should be attributed to the State.

….

47. There is no clear definition of the nature of the threat to the public

interest required before laches or estoppel can apply to the government.

48. The court accepts [Orndorff’s] statement that without the use of her

car [her] continued employment and schooling will become almost impossible,

at least as they are currently configured. [Orndorff’s] ability to care for her

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children will become vastly more difficult. These changes do not serve the

public interest. However, the public also has an interest in the impartial and

evenhanded application of statutes.

49. It does not appear that the adverse effects on [Orndorff’s] family

from the suspension of her driving privileges is the sort of threat to the public

interest that should prevent the State from suspending [Orndorff’s] license as a

habitual offender.

50. Without a showing that the public interest is threatened by the

suspension of [Orndorff’s] driving privileges, laches cannot be attributed to the

State, despite the delay in suspending [Orndorff’s] license. It is also unlikely

that laches can be proven in this case, as the State’s failure to act earlier is

understandable. [Orndorff] did not have a license to suspend at the time she

became a habitual traffic violator. The computer system did not flag her when

the license was issued to her in 2008. She had no particular right to rely on the

State’s failure to catch her. She cannot justifiably rely to her detriment on the

fact that she was not identified as a HTV in 2008. Since [Orndorff] is unlikely

to establish laches, she cannot prevail on the merits of this case. For that

reason, she has not proven entitlement to a preliminary injunction.

51. [Orndorff’s] motion for a preliminary injunction should be denied.

This is an unusual case, because [Orndorff] has established that she will

be irreparably harmed by the suspension of her driving privileges. She has

also established a very long delay on the part of the State in taking action

against her. Further, [Orndorff] has established that the adverse effects on her

family do not advance the general public interest, as it is not in the public

interest to make it harder for a productive parent to support her children and to

better her family’s circumstances. Indiana law does not set out what public

interest should be considered by a court in deciding a claim of laches against

the government. The Temporary Restraining Order entered on May 25, 2012,

and extended on June 5, 2012, expires on June 8, 2012. To permit [Orndorff]

to seek review of this order, the Temporary Restraining Order entered on May

25, 2012 should remain in effect until July 9, 2012 to allow [her] to seek

appellate review.

Appellant’s App. at 8-11. Orndorff now appeals.

8

Discussion and Decision

We review a trial court’s decision whether to grant a preliminary injunction for an

abuse of discretion. Thornton-Tomasetti Engineers v. Indianapolis-Marion County Pub.

Library, 851 N.E.2d 1269, 1277 (Ind. Ct. App. 2006). An abuse of discretion occurs when a

trial court reaches a conclusion that is against the logic and natural inferences that can be

drawn from the facts and circumstances before it. Id. “An abuse of discretion also occurs

when a trial court misinterprets the law.” Id.

When determining whether to grant a preliminary injunction, the trial court is required

to make special findings of fact and state its conclusions thereon. Bigley v. MSD of Wayne

Twp. Schs., 823 N.E.2d 278, 281-82 (Ind. Ct. App. 2004) trans. denied (2005). We review

the special findings and conclusions for clear error. Ind. Trial Rule 52(A).

Findings of fact are clearly erroneous when the record lacks evidence or

reasonable inferences from the evidence to support them. A judgment is

clearly erroneous when a review of the record leaves us with a firm conviction

that a mistake has been made. We consider the evidence only in the light most

favorable to the judgment and construe findings together liberally in favor of

the judgment.

Coates v. Heat Wagons, Inc., 942 N.E.2d 905, 912 (Ind. Ct. App. 2011) (citation omitted).

Orndorff appeals the denial of a request for a preliminary injunction.

A party appealing from the trial court’s denial of an injunction appeals

from a negative judgment and must demonstrate that the trial court’s judgment

is contrary to law; that is, the evidence of record and the reasonable inferences

drawn therefrom are without conflict and lead unerringly to a conclusion

opposite that reached by the trial court. We cannot reweigh the evidence or

judge the credibility of any witness. Further, while we defer substantially to

the trial court’s findings of fact, we evaluate questions of law de novo.

Zimmer, Inc. v. Davis, 922 N.E.2d 68, 71 (Ind. Ct. App. 2010) (citations omitted).

9

“Preliminary injunctions are generally used to preserve the status quo as it existed

before a controversy, pending a full determination on the merits of the dispute.” Stoffel v.

Daniels, 908 N.E.2d 1260, 1272 (Ind. Ct. App. 2009).

To obtain a preliminary injunction, the moving party has the burden of

showing by a preponderance of the evidence that: (1) the moving party’s

remedies at law are inadequate, thus causing irreparable harm pending

resolution of the substantive action; (2) the moving party has at least a

reasonable likelihood of success on the merits at trial by establishing a prima

facie case; (3) the threatened injury to the moving party outweighs the

potential harm to the non-moving party resulting from the granting of the

injunction; and (4) the public interest would not be disserved.

Zimmer, 922 N.E.2d at 71 (citations omitted). Here, the trial court concluded that Orndorff

carried her burden to show that her remedies at law are inadequate but that she failed to

establish a reasonable likelihood of success on the merits at trial by establishing a prima facie

case. The trial court did not make any conclusions regarding the third and fourth factors.

Orndorff argues that the trial court erred in concluding that she does not have a

reasonable likelihood of success on the merits of her case. She contends that she has a

reasonable likelihood of prevailing at trial on her claim of laches.

Laches is an equitable defense that may be raised to stop a person from

asserting a claim that he would normally be entitled to assert. The rationale

behind the doctrine of laches is that a person who, for an unreasonable length

of time, has neglected to assert a claim against another waives the right to

assert his claim when this delay prejudices the person against whom he would

assert it.

Ind. Real Estate Comm’n v. Ackman, 766 N.E.2d 1269, 1273 (Ind. Ct. App. 2002) (citations

omitted). “Laches requires: ‘(1) inexcusable delay in asserting a known right; (2) an implied

waiver arising from knowing acquiescence in existing conditions; and (3) a change in

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circumstances causing prejudice to the adverse party.’” SMDfund, Inc. v. Fort Wayne-Allen

Cnty. Airport Auth., 831 N.E.2d 725, 729 (Ind. 2005) (quoting Shafer v. Lambie, 667 N.E.2d

226, 231 (Ind. Ct. App. 1996)).

The application of the doctrine of laches lies within the sound discretion of the trial

court. Ackman, 766 N.E.2d at 1273. We will not reverse the trial court’s decision unless the

trial court abused its discretion, which occurs only when the trial court’s decision is clearly

against the logic and effect of the facts and circumstances before it, or the reasonable,

probable, and actual deductions to be drawn therefrom. Id.

Here, Orndorff seeks to assert laches against a government entity, which requires that

she satisfy an additional requirement. Generally, equitable defenses, such as laches, may not

be asserted against the government when it acts in its sovereign capacity to protect the public

welfare. Id. Only under “the clearest and most compelling circumstances” will laches be

applicable to the government. Id. “Under certain conditions, where extreme unfairness is

shown, a court may apply equitable principles against the government.” Id. (citing U.S. v.

Lindberg Corp., 882 F.2d 1158 (7th Cir. 1989)). “Extreme unfairness occurs where the

public interest would be threatened by the government’s conduct.” Id. (citing Hannon v.

Metro. Dev. Comm’n of Marion Cnty., 685 N.E.2d 1075 (Ind. Ct. App. 1997) (holding that an

exception to the rule that equitable estoppel cannot be applied against governmental entities

exists if the public interest would be threatened by the government’s conduct)).

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The BMV seeks to suspend Orndorff’s driving privileges due to her HTV status

pursuant to Indiana Code Section 9-30-10-4(b), which provides in relevant part, “A person

who has accumulated at least three (3) judgments within a ten (10) year period for any of the

following violations, singularly or in combination, and not arising out of the same incident, is

a habitual violator.” The qualifying judgments include: (1) operation of a vehicle while

intoxicated; (2) operation of a vehicle with an alcohol concentration equivalent to at least

eight-hundredths (0.08) gram of alcohol per one hundred (100) milliliters of the blood or two

hundred ten (210) liters of the breath; (3) operating a motor vehicle while the person’s

license to do so has been suspended or revoked; (4) operating a motor vehicle without ever

having obtained a license to do so; (5) reckless driving; (6) criminal recklessness involving

the operation of a motor vehicle; (7) drag racing or engaging in a speed contest in violation

of law; and (8) any felony under an Indiana motor vehicle statute or any felony in the

commission of which a motor vehicle is used. Id. Indiana Code Section 9-30-10-5(a)

governs notice of suspension and provides,

If it appears from the records maintained in the bureau that a person’s

driving record makes the person a habitual violator under section 4 of this

chapter, the bureau shall mail a notice to the person’s last known address that

informs the person that the person’s driving privileges[1] will be suspended in

thirty (30) days because the person is a habitual violator according to the

records of the bureau.

1

Effective July 1, 2012, “Driving privileges” are defined as “the authority granted to an individual

that allows the individual to operate a vehicle of the type and in the manner for which the authority was

granted.” Ind. Code § 9-13-2-48.3 (Pub. Law 125-2012, Sec. 12).

12

Orndorff’s driving privileges are to be suspended for ten years. See Ind. Code § 9-30-10-

5(b). “The primary purpose of suspending a person’s license for being an HTV is to remove

from the highway those drivers who have proven themselves to be unfit to drive, and who

pose a substantial threat to the safety of others.” Ind. Bureau of Motor Vehicles v. McNeil,

931 N.E.2d 897, 902 (Ind. Ct. App. 2010) (citation omitted), trans. denied (2011). The

parties do not dispute that suspending the driving privileges of a person who qualifies as an

HTV is an action to protect the public welfare. Thus, for laches to be applicable in this case,

Orndorff must show that suspending her driving privileges presents a threat to the public

interest.

The trial court found that Orndorff will suffer adverse effects if her driving privileges

are suspended, and that those adverse effects, namely that she will lose her job and her family

will be thrust into poverty, threaten the public interest. Appellant’s App. at 8. The trial court

concluded that Indiana law offers no clear definition of the nature of the threat to the public

interest that is required to apply laches to the government. Nevertheless, the trial court

concluded that the adverse effects that will be suffered by Orndorff’s family do not appear to

constitute the sort of public threat that should prevent the BMV from suspending her driving

privileges. Id. at 11.

Our research reveals that the trial court correctly observed that for purposes of

applying equitable defenses to the government, “[w]hat constitutes the public interest [] is not

well defined.” Hi-Way Dispatch, Inc. v. Ind. Dep’t of State Revenue, 756 N.E.2d 587, 599

(Ind. T.C. 2001) (citing Samplawski v. City of Portage, 512 N.E.2d 456, 459 (Ind. Ct. App.

13

1987)). Although this Court has been confronted with the question whether laches should

apply to the BMV’s suspension of driving privileges due to HTV status, in neither case was it

necessary for the Court to define what constitutes a threat to public interest. In McNeil, the

appellant was convicted twice of operating while intoxicated and once of reckless driving.

Two years after his third qualifying conviction, the BMV sent McNeil an HTV notice

informing him of his ten-year suspension. In rejecting McNeil’s argument that the BMV was

barred by laches from suspending his driving privileges, the McNeil court summarily

concluded that “McNeil has not shown how the public interest would be threatened by the

BMV’s conduct, and therefore, the doctrine of laches is not applicable in the present case.”

McNeil, 931 N.E.2d at 902 n.2.

More recently, in Thomas v. Indiana Bureau of Motor Vehicles, No. 64A03-1204-PL-

191 (Ind. Ct. App. Nov. 28, 2012), another panel of this Court rejected the appellant’s

argument that laches should bar the BMV from suspending his driving privileges based on

his HTV status. Thomas was convicted of operating a vehicle while intoxicated, reckless

driving, and operating while intoxicated endangering a person. Three and a half years after

his third qualifying offense, the BMV sent him notice of his HTV status and suspension of

his driving privileges. Thomas argued that it was unfair to suspend his driving privileges

because in the years since his last qualifying conviction, he had altered his behavior to

effectively render himself a safe driver. The Thomas court was “unconvinced by Thomas’s

self-serving statement regarding his belief that he has altered his behavior in a manner such

to render him a ‘safe driver’” and concluded that “it falls far short of demonstrating that the

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public interest would be threatened by the BMV’s conduct.” Id., slip op. at 8-9. The

Thomas court concluded that the public interest would be served, not threatened, by the ten-

year suspension, and that laches was therefore inapplicable to the government in that case.2

Unlike the appellants in McNeil and Thomas, Orndorff argues, and the trial court

agreed, that thrusting her family into poverty is a threat to the public interest, and therefore

we must consider the definition of public interest in greater depth to determine whether

laches should apply to the government in this case. We find Samplawski helpful. There, the

court refined the definition of the threat to public interest in considering whether equitable

estoppel could be applied to the government.

In Samplawski, the City of Portage commenced eminent domain proceedings to secure

a strip of land from the Samplawskis. The mayor of Portage informed the Samplawskis that

they did not have to comply with the filing deadlines to object to the appraisers’ valuation of

their property. The city sought to enforce the appraisers’ valuation, and the Samplawskis

sought a declaration that the city be estopped from asserting that the Samplawskis failed to

file objections to the appraisers’ valuation. In determining whether laches applied, the

Samplawski court reasoned as follows:

A significant factor in determining whether the exception may be applied is

whether public funds are involved. Estoppel may be permitted when its

application will not involve the unauthorized or unlawful use of public funds.

[City of Crown Point v. Lake Cnty., 510 N.E.2d 684 (Ind. 1987); Cablevision

of Chicago v. Colby Cable Corp., 417 N.E.2d 348 (Ind. Ct. App. 1981)].

2

In Thomas, the appellant also argued that a statute of limitations period should apply to the BMV

regarding suspension of driving privileges due to HTV status. The Thomas court concluded that the general

ten-year limitation period in Indiana Code Section 34-11-1-2 applies to suspension of driving privileges based

on HTV status. Thomas, slip op. at 6-7. This is not at issue here as neither party in this case has raised a

statute of limitations argument.

15

It has also been said that estoppel may be permitted where the

limitations on governmental authority are not clear and unambiguous, or where

the government attempts to take inconsistent positions at different stages of the

same proceeding. [State v. Hendricks Superior Court, 250 Ind. 675, 235

N.E.2d 458 (1968); Cablevision, 417 N.E.2d 348.]

Most stressed, however, is the idea that estoppel may be allowed if the

failure to allow it would result in thwarting public policy or defeating the

public interest. [Crown Point, 510 N.E.2d 684; Cablevision, 417 N.E.2d 348.]

Unfortunately, the decisions have done little to define when it is that public

policy favors rather than opposes the application of estoppel. For instance, it

would appear to favor the public interest that citizens be able to rely upon the

representations made by their public officials, yet that interest is clearly

outweighed in the statement of the general rule. Perhaps it is sufficient for

present purposes to state that for an exception to the general rule to apply,

there must be an articulable public policy reason which the court determines

outweighs the public policy that supports denying estoppel.

Samplawski, 512 N.E.2d at 459 (emphasis added). The Samplawski court concluded that the

Samplawskis failed to present an articulable public policy reason to apply equitable estoppel

to the City of Portage. Id.

Here, Orndorff argues that due to the BMV’s long delay in acting to suspend her

driving privileges, the adverse effects of suspending her driving privileges now will threaten

the public interest. The BMV does not challenge any of the trial court’s factual findings but

contends that the adverse effects on Orndorff’s family resulting from suspension of her

driving privileges are personal and not a public interest.3 Although the adverse effects are

undeniably personal, under the facts of this case, public policy interests are materially

3

Despite failing to specifically challenge any of the trial court’s findings as unsupported by the

evidence, the State asserts that the adverse effects are speculative and based on Orndorff’s self-serving

testimony. We will not address these assertions except to observe that they are merely invitations to reweigh

the evidence, which we will not do. Zimmer, 922 N.E.2d at 71.

16

impacted. Here, government agencies have been providing financial and structural support to

Orndorff and her family. The BHA provides her with partially subsidized housing. Orndorff

participates in its Family Self Sufficiency Program. In addition, the South Central

Community Action Program supports her through its Circles Initiative. These government

entities and the assistance that they have been providing to Orndorff evidence a real and

tangible public interest in reducing poverty. Significant government resources have been

expended to enable Orndorff to become self-sufficient and free of the need to depend upon

government aid. The BMV argues that Orndorff is already receiving government assistance.

While that is true, it ignores the fact that if she is unable to maintain employment because her

driving privileges are suspended, she and her family will become more, rather than less,

dependent on government aid. Given that Orndorff’s eligibility for housing and government

programs is dependent upon her gainful employment, which is in turn dependent upon her

driving privileges, 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 on the basis of laches.

The BMV asserts that Orndorff would have faced the same prejudices she complains

of now if it had suspended her driving privileges in 2004. We disagree. The BMV not only

failed to notify Orndorff of her HTV status for eight years after she qualified as an HTV, but

it also issued her a valid driver’s license that she has now held for four years. After obtaining

her driver’s license, Orndorff accepted employment that requires that she be able to transport

her clients or run errands on their behalf. The BMV’s assertion ignores the fact that it issued

17

Orndorff a driver’s license and that her employment depends on her valid driving privileges.

If her driving privileges had been suspended in 2004, she would have sought different

employment. In addition, she would now be eligible to apply for a probationary license that

would allow her to drive for employment and other special circumstances. See Ind. Code §

9-30-10-9(c), -(d) (providing that where a court finds that an HTV has had his or her driving

privileges suspended for at least five consecutive years and certain other conditions are met,

the court may place the person on probation and shall order the BMV to issue the person

probationary driving privileges with restrictions). Orndorff’s job is the foundation

supporting nearly everything that she, with the assistance of government agencies, is doing to

lift her family out of poverty. If Orndorff’s driving privileges are suspended now, it will

derail her efforts, and those of the government agencies that have been assisting her, to

maintain steady employment, support her family, and secure stable housing. Instead of

climbing out of poverty, she will be thrust back into poverty, and such an event threatens the

public interest.

Under the facts of this case, laches will be applicable to the government if the public

interest in reducing poverty outweighs the public interest in denying laches. Samplawski,

512 N.E.2d at 459. As previously stated, the purpose of suspending the driving privileges of

an HTV is to protect the public from unsafe drivers. McNeil, 931 N.E.2d at 902. Here, all

three of Orndorff’s qualifying convictions are for driving without a valid driver’s license. A

person who has not received a valid driver’s license is an unsafe driver because that person

has not proven to the satisfaction of the BMV that he or she has mastered the rules of the

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road and knows how to safely operate a vehicle. That danger has been remedied in this case.

Orndorff passed the required driving tests and was awarded a driver’s license. She has

demonstrated that she knows the rules of the road and how to drive. In addition, since she

received a valid driver’s license, Orndorff has not incurred any driving convictions.

Based on these circumstances, Orndorff has presented a prima facie case that she is

not a substantial threat to the safety of others. As such, the public interest in keeping unsafe

drivers off the road will not be served by suspending Orndorff’s driving privileges.

Therefore, based on the particular facts of this case, we conclude that Orndorff has

established a prima facie case of an articulable public policy interest that outweighs the

public policy that supports denying laches and thus that there is a reasonable likelihood that

she will prevail at trial in her argument that laches is applicable to the BMV.

That is not the end of our inquiry however. The trial court also concluded that

Orndorff did not have a reasonable likelihood of establishing laches because the BMV’s

delay was understandable. See SMDfund, 831 N.E.2d at 729 (laches requires “inexcusable

delay in asserting a known right”). Specifically, the trial court concluded that Orndorff did

not have a license to suspend at the time she became an HTV, that the BMV’s computer

system did not flag her when she was issued a license in 2008, and that she had no right to

rely on the BMV’s failure to withhold driving privileges. Appellant’s App. at 11.

The trial court’s conclusions imply that the BMV had no obligation to recognize

Orndorff’s status as an HTV until after she was actually issued a valid driver’s license. Such

a conclusion is contrary to Indiana Code Section 9-30-10-4(b), which states that when a

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person has accumulated three qualifying convictions within ten years, that person “is a

habitual violator.” Therefore, one’s status as an HTV is not dependent upon the person’s

possession of a valid driver’s license. Pursuant to Indiana Code Section 9-30-10-4(b),

Orndorff’s status as an HTV was activated on May 10, 2004, when she was convicted of

driving without a valid driver’s license for the third time within ten years.4

Further, although Orndorff did not have a driver’s license at that time, that fact did not

relieve the BMV of its duty to identify her as an HTV. The BMV is not only authorized to

maintain driving records for persons who do not have a valid driver’s license, but it is also

required to establish a driving record for an unlicensed driver when that driver incurs a

driving conviction. See Ind. Code § 9-24-18-9(a) (“The bureau may establish a driving

record for an Indiana resident who does not hold any type of valid driving license. The

driving record shall be established for an unlicensed driver when an abstract of court

conviction has been received by the bureau.”). The BMV has not presented any explanation

as to why it took eight years to identify Orndorff as an HTV or why it issued her a driver’s

license for which she should have been ineligible. Therefore, the trial court clearly erred in

concluding that Orndorff is unlikely to succeed in showing that the BMV’s delay was

inexcusable. Based on our determinations that Orndorff has established a prima facie case

that laches is applicable to the government under these circumstances and that the BMV’s

4

For purposes of determining the number of judgments accumulated within a ten-year period, the

dates of the offenses are used. Ind. Code § 9-30-10-4(e).

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delay was inexcusable, we also conclude that the trial court clearly erred in concluding that

Orndorff did not have a reasonable likelihood of success on the merits at trial.5

We now turn to the remaining requirements necessary to obtain a preliminary

injunction: that the moving party’s remedies at law are inadequate; that the threatened injury

to the moving party outweighs the potential harm to the non-moving party resulting from the

granting of the injunction; and that the public interest would not be disserved. Zimmer, 922

N.E.2d at 71. The trial court concluded that Orndorff’s remedies at law are inadequate. The

BMV disagrees, arguing that the injuries to Orndorff are purely economic. See Ind. Family

& Soc. Services Admin. v. Walgreen Co., 769 N.E.2d 158, 162 (Ind. 2002) (“A party

suffering mere economic injury is not entitled to injunctive relief because damages are

sufficient to make the party whole.”). The BMV’s argument fails to explain how, if Orndorff

prevails at trial, monetary damages will compensate her if her family loses its housing or if

the children are unable to attend their new school due to lack of transportation. We agree

with the trial court that “it is difficult to conceive of appropriate, adequate and available

monetary compensation or other legal remedy.” Appellant’s App. at 9.

As to the last two requirements for a preliminary injunction, the facts of this case

permit us to address them together because the non-moving party is the BMV and any harm it

incurs would constitute a harm to the public interest. Based on the particular circumstances

5

The BMV cites Bryant v. State ex. rel. Van Natta, 405 N.E.2d 583, 584 (Ind. Ct. App. 1980), in

which another panel of this Court concluded that the BMV did not waive its right to suspend Bryant’s driving

privileges despite issuing him a permit when he qualified as an HTV. We observe that the Bryant court

summarily reached this conclusion, providing no rationale or citation for it. As such, we respectfully decline to

follow Bryant.

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of this case, we have concluded that suspending Orndorff’s driving privileges presents a

threat to the public interest and that no public interest will be served by suspending her

driving privileges. It follows that the threatened injury to Orndorff outweighs the potential

harm to the BMV resulting from the granting of the injunction and that the public interest

would not be disserved. In sum, then, we conclude that Orndorff has carried her burden to

establish each requirement for a preliminary injunction. Therefore, we reverse the trial

court’s denial of her request for a preliminary injunction and remand for further proceedings.

Reversed and remanded.

RILEY, J., and BAILEY, J., concur.

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