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Saturday, May 27, 2006

Ind. Decisions - More on toll road ruling

Other than the AP's Tom Coyne's reports on the South Bend trial, the only other Indiana report I've seen on the outcome of the suit is this story in the Indianapolis Star by Staci Hupp.

Odd, given the importance of the suit.

Hupp reports/editorializes:

His 83-page ruling never used the term "frivolous," but a Superior Court judge left little doubt Friday that he considered the bulk of a constitutional challenge of the state's pending $3.8 billion lease of the Indiana Toll Road without merit. * * *

His ruling ... left most of the plaintiffs' case in tatters, including a key claim that money from the Toll Road lease should be directed to the state's general fund rather than future highway projects.

For that provision of the state constitution to kick in, the judge said, three tests must be met: The state must have a "public debt," the Toll Road must belong to the state, and the state must get money from the "sale" of the Toll Road.

Scopelitis said none of those applies in this instance because the Indiana Finance Authority, not the state, owns the Toll Road. The authority -- and any of its debts -- are independent of the state that created it, the judge wrote.

The judge also dismissed arguments that the Toll Road agreement is a sale rather than a lease, pointing to language in the state's contract that expressly spells out that the deal is a lease. He also expressed amazement at claims made by the plaintiffs' economist that the state could generate more than $11 billion in 75 years if it imposed the same toll increases that private operators supposedly plan to.

"The assumption is unrealistic in the sense that it ignores the historical performance of the public operation of the Toll Road over the past 50 years," Scopelitis wrote, referring to the road's money-losing record.

The plaintiffs, who sued in April, also argued that 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."

But the judge pointed out that state agencies often approve agreements in which private operations pay to operate for-profit enterprises using state resources. Scopelitis cited Hoosier Hills Marina at Patoka Lake, among several examples.

Perhaps I am naïve, but I see this case, not as "frivolous," but rather as an important test of whether the General Assembly may craft statutes that effectively preclude or bypass judicial review.

Posted by Marcia Oddi on May 27, 2006 08:09 AM
Posted to Ind. Trial Ct. Decisions