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Wednesday, June 21, 2006

Ind. Decisions - Papers report today on yesterday's Supreme Court toll road ruling

Lesley Stedman Weidenbener reports in the Louisville Courier Journal:

In a 4-0 decision, the Indiana Supreme Court said the Citizens Action Coalition and seven individuals trying to stop the lease would have to post a $1.9 billion bond to proceed with their lawsuit. * * *

The court did not prevent the suit from proceeding. But it found that a state law meant to prevent frivolous or harassing lawsuits from stopping public projects applied to the lease deal.

By imposing that "public lawsuit" designation, the court determined that the plaintiffs would have to post the bond to continue unless they showed they had a chance to prevail.

In an opinion written by Justice Ted Boehm, the court said the opponents failed to prove that any of their three constitutional claims had merit.

That means the state and Cintra-Macquarie -- a Spanish-Australian partnership that bid $3.8 billion to operate the road and collect the tolls -- can close the deal next week, said Mark Massa, the general counsel to Gov. Mitch Daniels, who sought the lease. * * *

Opponents of the deal had argued that the law authorizing the lease was unconstitutional special legislation because it offered more money to those counties along the toll road than others elsewhere in the state.

But the ruling said the court should not interfere with the legislature's constitutionally granted power to appropriate state money and that the lease proceeds provide benefits statewide, not just in one area.

Also, opponents had argued that the Indiana Constitution requires the state to spend the proceeds to pay off the "public debt," not on new projects.

But the court said that argument also was without merit, ruling that "there is no longer any such public debt" to retire. The court said the provision applied only to debt from projects that led to the current version of the Indiana Constitution.

Because of constitutional restrictions, Indiana issues bonds only through quasi-public or independent agencies.

The Supreme Court did not rule on other parts of the lawsuit that challenge whether provisions applying solely to the construction and tolling of a proposed extension of Interstate 69 violate the constitutional ban on special legislation.

The St. Joseph County trial court had ruled that those provisions weren't subject to the bond and therefore could proceed regardless of the decision about the lease.

But yesterday Bonney said the opponents might not proceed with those parts of the suit because the original goal was to have the entire law declared unconstitutional.

Niki Kelly of the Fort Wayne Journal Gazette reports:
The Indiana Supreme Court on Tuesday found no “substantial” constitutional issues regarding the lease of the Indiana Toll Road, a ruling that clears the way for a foreign consortium to control the road for the next 75 years.

The legislature passed a law in March authorizing the state to enter into a public-private partnership, and Gov. Mitch Daniels is set to close that $3.8 billion deal June 28. The proceeds will be used to pay for hundreds of state road projects over the next decade.

Seven Hoosiers and a non-profit group had challenged the plan on constitutional grounds, but the court handed down a 4-0 decision Tuesday that gutted the plaintiffs’ entire case.

The Supreme Court’s fifth justice withdrew from the case previously with no public explanation.

Here is the Indianapolis Star coverage, written by Tammy Webber. Today's Star also has a brief editorial titled "Roadblock's gone, future is brighter."

For a voice raised in dissent, see Dan Carpenter's column today in the Star, headlined "Taking it private takes a toll." Some quotes:

It seems like such a sturdy, wholesome, democratic term, "public lawsuit." Common citizens taking on city hall, and more power to 'em.

Turns out, though, that you don't want your public lawsuit to be classified as a "public lawsuit," because it can put you in a very public place, i.e., the street. * * *

Citing a 1998 statute that was written to protect local school and government construction projects from nuisance suits, Scopelitis and the high court told the dissenters theirs is a public lawsuit with little likelihood of success and therefore is a removable barrier to civic improvement.

Now, many self-styled conservatives who have climbed aboard Gov. Mitch Daniels' Major Moves Express are applauding this rather startling denial of common redress. Many are the same old-fashioned patriots who condemned the U.S. Supreme Court's expansion of eminent domain powers in the celebrated Kelo v. City of New London case in Connecticut.

The inconsistencies don't stop there. When the Colts wanted land, various small-government politicians found themselves suddenly thinking bigger. And when public schools found themselves in the crosshairs of the tax-phobic Statehouse, a remonstrance process was enacted that allows a handful of malcontents to stop a new school in its tracks.

Meanwhile, the law that stops the little guy from challenging a 75-year relinquishment of Indiana's largest piece of infrastructure remains on the books, oiled for selective use.

There are loads of problems with the Toll Road boondoggle and Major Moves -- legal, constitutional and political. So far, the third category has trumped the first two -- the extraordinary concession of power to the governor by the legislature; the blatant special treatment of certain sensitive parts of the state; the crazy rush put on the whole process, as if study by lawmakers and even deliberations by the high court could not be allowed to inconvenience a foreign business proffering a check.

As with so much privatization in general and Daniels' version in particular, Major Moves is faith-based. We're being asked to trust these guys to work out the details of prison contracts, welfare outsourcing, charter schools and carefree highways as they go along.

Take I-69, for instance. By sticking with the most expensive, most destructive route for the extension from Indianapolis to Evansville (so much for new thinking), Daniels obligated more than half the $3.85 billion from Major Moves to this single project. Then he offered the taxpayers the fantasy of making it a toll road -- again, leased to a private operator. Then he and his legislative allies backed away from tolls between Indianapolis and Martinsville, and promised to change the Perry Township connection, because I-69 is so hated in those areas he could not otherwise have gotten the votes to eke out Major Moves.

At least the public has spoken there. That voice is still being raised, and will be, even as our inactivist judges decree they are too public to be heard.

Posted by Marcia Oddi on June 21, 2006 06:55 AM
Posted to Ind. Sup.Ct. Decisions