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Monday, June 12, 2006

Ind. Decisions - More on: Toll road case oral arguments tomorrow

Here is the brief of the State (and here is an Addendum).

Here is the brief (2 MB) of the Indiana Finance Authority.

A reader (and experienced appellate attorney) sends this note re the reports of Justice Dickson's recusal:

Interesting. Although there may be some debate on the outcome, ask yourself what happens if there's a 2-2 split. If it's deemed "direct review" by the Supreme Court under Rule 59(B), the trial court judgment shall be affirmed. Accordingly, the constitutionality of Major Moves could be decided on by a single trial court judge without any controlling appellate decision.

The only way you could guarantee an actual controlling appellate case would be if the Court of Appeals (the entity to which the Appellants filed their appeal) heard it first. Then, if the Appellants won in the Court of Appeals 3-0 or 2-1 and the Supreme Court was evenly divided, under Rule 58(C), the Court of Appeals' previously-vacated (on transfer) opinion would be reinstated. Also, the the State and IFA won in the Court of Appeals and there was an equally-divided court, they would win. Either way, you would be guaranteed that someone other than the trial court would have to rule on this legislation.
[More] And sure enough - it turns out the Appellants filed a motion earlier today to remand the matter to the Court of Appeals to ensure there is a controlling appellate decision reached.

Unfortunately I can't quote from the Motion to Vacate Transfer because it is scanned, but turn to page 2. Also note page 6.

Posted by Marcia Oddi on June 12, 2006 07:30 PM
Posted to Ind. Sup.Ct. Decisions