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Tuesday, April 25, 2006

Ind. Law - "Daniels wants Toll Road foes to post billions"

"Daniels wants Toll Road foes to post billions" is the headline to this story today by Niki Kelly in the Fort Wayne Journal Gazette. Some quotes:

INDIANAPOLIS – Gov. Mitch Daniels has asked a St. Joseph County judge to require citizens challenging the 75-year lease of the Indiana Toll Road to post a $3.8 billion surety bond to protect the state from possible economic losses.

“A handful of protesters must not be permitted to derail or delay the execution of any projects authorized by Major Moves, particularly the leasing, funding and construction of the Indiana East/West Tollway, with a meritless and harassing lawsuit,” the Thursday filing said. * * *

The state’s petition asks the judge to certify the legal action as a “public lawsuit,” which under Indiana law provides an expedited process for suits that seek to interfere with major public works projects “where time is of the essence to public officials, private industry and the citizens of Indiana alike.”

If the judge agrees, according to the petition, the burden is on those challenging the public improvement project to either demonstrate in the beginning of litigation that their lawsuit has merit or post a bond sufficient to protect the state from any losses.

A bond is essentially a legal promise – backed by a bank or investors – to pay that amount should the plaintiffs fail in their efforts to stop the lease and the state is damaged financially.

“There’s a lot at stake here,” said Daniels’ press secretary Jane Jankowski. “Thousands of jobs. Hundreds of road projects. It’s important for us to keep moving ahead.”

Although the lease has been signed, the financial part of the deal isn’t expected to close until June 30. That is when Statewide Mobility Partners – a Spanish-Australian consortium – would give Indiana the $3.8 billion to use for highway projects over the next 10 years.

Martin DeAgostino of the South Bend Tribune writes:
The lawsuit says Major Moves violates many constitutional and statutory provisions, including a requirement that all proceeds from public works be used to retire the public debt.

Judge Michael P. Scopelitis has scheduled a May 11 hearing on the state's motion, filed by lawyers for Daniels, state Treasurer Tim Berry, the Indiana Department of Transportation and the Indiana Finance Authority, which owns the Toll Road. * * *

According to a lawyer not involved in the case, the state's use of the public lawsuit statute is an expected response when plaintiffs challenge publicly funded construction projects.

But Jon Laramore, former legal counsel to Govs. Frank O'Bannon and Joe Kernan, said Scopelitis could let the suit proceed without a bond requirement if the plaintiffs "show a certain degree of merit."

According to the motion seeking the bond, the plaintiffs must demonstrate "a substantial issue" to be tried as well as facts that would entitle them to a temporary injunction to block the Toll Road lease.

The motion repeatedly asserts that the plaintiffs cannot make either case, but it presents no arguments to support those assertions. State officials have previously said Major Moves received careful legal scrutiny before it was drafted and presented for approval to the Indiana General Assembly.

According to Laramore, the immediate questions about the suit's merits will turn on two issues: imminent harm to the plaintiffs if the lease proceeds, and the lawsuit's likelihood of success.

He said likelihood of success is a common legal phrase that does not require a full demonstration by plaintiffs of the merits of their case. But he said the court will attempt to determine whether the facts as alleged would indeed constitute a violation of state law.

"A plaintiff in our system is not required to marshal all its evidence in order to file a case," Laramore said. "The court won't put the plaintiff to its proof yet."

Yesterday's Indianapolis Star web story (or scroll down to next entry) is expanded in today's paper, and concludes:
The bench of attorneys defending the Toll Road lease deal for the state is deep. The Indiana attorney general's office is involved, along with an attorney from the South Bend firm of Jones Obenchain and five attorneys from Indianapolis' Ice Miller firm.
Check here for a list of earlier ILB entries concerning the toll road.

Posted by Marcia Oddi on April 25, 2006 07:29 AM
Posted to Indiana Law