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Friday, May 26, 2006

Ind. Decisions - More on: Plaintiffs in toll road suit must post $1.9 billion bond

The AP reporter Tom Coyne's story today about the toll road decision has been recast yet again, possibiliy attributable, at least in part, to the length of the opinion - 83 pages - and the time required to digest it fully. See earlier versions of the story here, or simply scroll down four entries.

The 4:55 pm version exhibits a new spin:

Gov. Mitch Daniels won a key victory Friday in his plan to lease the Indiana Toll Road to foreign investors, but his Major Moves plan could still face a bumpy road.

St. Joseph Superior Court Judge Michael Scopelitis ruled plaintiffs challenging the constitutionality of the lease must post a $1.9 billion bond within 10 days if they want to move ahead with most aspects of their lawsuit.

Attorney Arend J. Abel said the group - seven individuals and the Citizens Action Coalition of Indiana - could not come up with that kind of money but was considering an appeal.

In declaring the challenge a public lawsuit, Scopelitis left open the possibility of continued legal challenges, saying the plaintiffs could proceed with their claims pertaining to Interstate 69. But he said the toll road lease is not in jeopardy.

"The I-69 provisions of the act have nothing to do with the operation of the Indiana Toll Road. The attack on those provisions does not in any way jeopardize the validity or enforcement of the lease ...," Scopelitis wrote. * * *

Scopelitis dismissed plaintiffs' arguments that the lease was not a good deal for the state. "Whether or not the lease is a 'good deal' is irrelevant," he wrote. * * *

Dave Menzer, a member of the Citizens Action Coalition, appealed to the public to donate money to keep the lawsuit alive.

"We've gotten a great amount of support from folks in and out of Indiana, but this is obviously going to cost a lot, to take some resources to fund an appeal. But we are certainly looking at that."

Scopelitis did allow the plaintiffs to challenge two parts of the lease law: one that prohibits a section of the federally approved I-69 from running through Perry Township in southern Indianapolis without future legislative approval, and another that bans tolls on I-69 between Martinsville and Indianapolis.

Under Indiana law, public lawsuits are defined as challenges to the construction, financing or leasing of public improvements by a municipal corporation. One of the issues in the case was whether the finance authority is a municipal corporation.

Scopelitis said it was, noting the finance authority undertakes many of the same tasks cities and towns do, such as issuing bonds for public works projects. The lease, he said, constitutes a "public improvement."

Scopelitis said he based the $1.9 billion bond on the current net value of the toll road.

An observation. For the first time in my memory, a trial court decision was posted today on the Supreme Court's website. On the front page of the website. Within minutes of its release. To me, this means that the Court is publicly cognizant of the importance of this case . . . Which brings me back to the wording of Rule 56A, which provides in part:
In rare cases, the Supreme Court may, upon verified motion of a party, accept jurisdiction over an appeal that would otherwise be within the jurisdiction of the Court of Appeals upon a showing that the appeal involves a substantial question of law of great public importance and that an emergency exists requiring a speedy determination.
[More] Lafayette attorney and blogger Doug Masson has sent this note:
Marcia, I think it gets to the Supreme Court even more easily than you mentioned in your post: Per IC 34-13-5-7(d):
(d) Either plaintiff or defendant may appeal an order to post or deny bond to the Indiana supreme court within ten (10) days by notice of appeal and a statement of error in the same manner as is provided in a petition for mandate or prohibition. The supreme court may:
(1) stay the lower court order pending its own decision;
(2) set a bond to be filed by the plaintiff;
(3) modify the order of the lower court; or
(4) enter its order as a final order in a case.
(e) If no bond is filed as provided in this section:
(1) the public lawsuit shall be dismissed; and
(2) no court has further jurisdiction of the public lawsuit or any other public lawsuit involving any issue that was or could have been raised.

Posted by Marcia Oddi on May 26, 2006 06:58 PM
Posted to Ind. Trial Ct. Decisions