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Friday, May 12, 2006
Ind. Law - Another take from the toll road courtroom
Munster (NW Indiana) Times reporter Patrick Guinane was also at the South Bend courthouse yesterday (did he take the South Shore?), and gives his take on the arguments:
SOUTH BEND | Two key questions emerged Thursday as St. Joseph Superior Court Judge Michael Scopelitis heard more than five hours of testimony in a legal challenge to leasing the Indiana Toll Road.Lawyers for Gov. Mitch Daniels' administration want Scopelitis to invoke a 1998 state law intended to keep "public" lawsuits from stalling things like sewer improvements or school construction.
A public lawsuit label would force the challengers, led by West Lafayette farmer and activist Steve Bonney, to prove a "substantial likelihood of success," or post a bond as high as $3.8 billion -- the bounty a Spanish-Australian consortium has offered for a 75-year Toll Road lease.
"We think it's clear from the statute that that is a public lawsuit," said Michael Wukmer, an attorney with Ice Miler, an Indianapolis firm representing the state.
Lease challengers contend that public lawsuit statute protects only towns, school districts and other municipal corporations. Further, they argue that law only applies to the financing or construction of new assets.
"What it's designed to do is ensure that the courthouse or the school building gets built," said Arend Abel, lead counsel for the plaintiffs. "The Toll Road is already there."
Abel, of the Indianapolis firm of Cohen & Malad, said the public lawsuit law has been tested some 60 times, but never in a case involving the state.
Scopelitis questioned why lawmakers would shield cities and schools but not state government.
"I can't always explain why the Legislature chooses and uses the words that it does," said Wukmer, arguing the law extends to all state entities.
Abel said a semicolon in the statute shows legislators intended the law to apply only to municipal corporations. If the semicolon argument proves central to the decision, it will be a very one very valuable piece of punctuation. * * *
Scopelitis will hear more testimony Monday. The case could end quickly if he declares it a public lawsuit and sets a high bond.
Otherwise, the actual trial likely would begin in June. Scopelitis also suggested he could rule the lease challenge itself a public lawsuit while letting other issues, such as how the proceeds are to be spent, move forward without a bond.
Posted by Marcia Oddi on May 12, 2006 09:31 AM
Posted to Indiana Law