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Saturday, May 20, 2006

Ind. Courts - Still more on the toll road statute challenge

Final briefs were submitted Friday in the challenge to the constitutionality of the statute permitting the lease/sale of the Indiana Toll Road. Tom Coyne of the AP has this story. Some quotes:

SOUTH BEND, Ind. (AP) -- Lawyers for the state argued Friday that those seeking to block Gov. Mitch Daniels' plan to lease off the Indiana Toll Road to private operators have failed to prove the 75-year deal is unconstitutional.

"Merely raising questions about some elements of some claims is not sufficient. Plaintiffs must prove a likelihood of success on the merits for an entire claim," lawyers for the state argued in briefs filed in St. Joseph Superior Court.

Attorneys for the challengers, though, argued that the provisions in articles 10 and 11 of the Indiana Constitution were designed to prevent "precisely the sort of 'public/private' partnership involved in this case" and urged Judge Michael Scopelitis to allow the case to move forward.

The arguments contained in the briefs filed Friday cover many of the same arguments presented during two days of hearings and other filings since the lawsuit was filed last month.

Scopelitis has not said when he will issue a ruling. He did say he would read the post-hearing briefs over the weekend. He has said if a full hearing is needed it could be held the first week in June. * * *

The biggest question pending before Scopelitis for now is whether the case is a public lawsuit. If he rules it is, the challengers - seven individuals along with the Citizens Action Coalition of Indiana - might have to post a bond of up to the $3.8 billion a Spanish-Australian consortium is to pay for control of the northern Indiana highway.

Attorneys for the challengers contend they should not have to post a bond because the Indiana Finance Authority - the state agency executing the lease - is not covered by the public lawsuit statue. * * *

The challengers also contend the lease calls for the state to treat the lease as a sale, which they contend is illegal.

"Although the transaction is characterized as a 'lease' or 'concession,' it is agreed to be a 'sale' for federal taxation purposes," the plaintiffs say.

But state lawyers argued the "contention that the toll road is being sold is frivolous."

"Possession is being transferred, not ownership, and only temporarily and subject to extensive ongoing restrictions," the state's lawyers wrote.

The ILB will attempt to obtain copies of the briefs, and a copy of Judge Scopelitis' decision, as soon as it is issued.

For background, start with this May 16th ILB entry.

Posted by Marcia Oddi on May 20, 2006 08:34 AM
Posted to Indiana Courts