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Tuesday, June 06, 2006

Ind. Decisions - Parallels between the Toll Road suit and the Fort Wayne Airport suit, redux; and more

Parts of the ILB entry from April 14th bear, I believe, repeating now that the Supreme Court will hear the Toll Road suit a week from today.

Like the Toll Road suit, the Fort Wayne Airport case also went to the Supreme Court via Rule 56(A), which permits an appeal directly from the trial court "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."

Relying on the 10-year general statute of limitations, IC 34-11-1-2, the Airport Authority had asserted that the statute prevented the plaintiffs from contesting the constitutionality of the airport authority statute.

The trial judge defined the issue as: "Whether the doctrine of the statute of limitations precludes citizens from contesting the constitutionality of a statute that provides a basis for the formation of an airport authority 17 years after the statute was enacted." He held that it did.

The ILB wrote at the time:

If upheld, would this decision mean that the General Assembly can protect its statutes from constitutional challenge by simply passing a law limiting the time for challenge (or perhaps totally prohibiting challenge)? Or does the separation of powers play a part here?
Last November, the Supreme Court denied the challenge to the airport authority law, relying not on the statute of limitations, as the trial judge had, but upon the equitable doctrine of laches, with Justice Boehm writing:
Because we hold that the plaintiffs’ claim is barred by laches, we need not address the statute of limitations issue which was the basis of the trial court’s ruling reaching the same result. We affirm the trial court’s entry of summary judgment for the defendants.
As the ILB wrote:
The Supreme Court thus avoided the question of whether the General Assembly by law could limit the time for challenge of a statute's constitutionality, by stating that the right to challenge the constitutionality of a statute, even apparently a statute that was void ab initio and in every application, could be lost by the passage of time.

It seems perhaps a short step from a holding that a patently unconstitutional statute could become unchallengeable though the passage of time via laches, and the same result via the application of a statute of limitations (although one turns on the inaction of a plaintiff, and the other upon a limitation set by the General Assembly.)

The Toll Road case presents at least two tests for the Court that are similar to those in the Fort Wayne case. First, there is a 15-day statute of limitations imposed upon "any action to contest the validity of a public-private agreement entered into under this chapter." Second, there is the separate "public lawsuit"* statute, which by its terms precludes challenge to public works projects unless a massive bond is posted.

Both of these are roadblocks thrown up by one branch of government, the legislature, to prevent citizens from going to a separate branch of government, the courts, to challenge the legislature's actions. The question: May the General Assembly effectively dismantle the constitutional system of checks and balances via artful drafting?

*IC 34-6-2-124 defines "public lawsuit" as:

(1) any action in which the validity, location, wisdom, feasibility, extent, or character of construction, financing, or leasing of a public improvement by a municipal corporation is questioned directly or indirectly, including but not limited to suits for declaratory judgments or injunctions to declare invalid or to enjoin the construction, financing, or leasing; and
(2) any action to declare invalid or enjoin the creation, organization, or formation of any municipal corporation.
[More] The AP's Tom Coyne has had the time now to add some detail to the story he filed earlier today. Here is some of that detail:
The state asked for the speedy hearing because the private Spanish-Australian partnership that has agreed to 75-year lease can pull out of the deal if litigation is pending June 30, when the deal is scheduled to close.

"The speedy and expeditious resolution of this appeal is of unparalleled consequence to the citizens of this state, for the unassailable truth is that if this court does not accept jurisdiction now ... plaintiffs will in effect already have won - even though they may lose on the merits - for they will have kept their case alive just long enough to block the lease," attorneys for the state wrote in the filing. * * *

Under normal circumstances, challengers would have at least 60 days to file appeals. In this case, the Supreme Court ordered attorneys for the opponents - seven Indiana residents and the Citizens Action Coalition of Indiana - to file their appeal to Scopelitis' ruling by 5 p.m. Thursday.

Both sides then can quickly file responses, leading up to oral arguments that were scheduled for 1:30 p.m. Tuesday, with each side given 30 minutes to present its case.

The state said in its motion that a case of this sort normally would take a year or more, but that "is obviously wholly inadequate to protect the Indiana Finance Authority and the citizens of this state from potential losses."

It asks the court to have the matter resolved by June 30.

Lawyers questioning the constitutionality of the lease expected the case to move through the courts quickly, although the ruling puts pressure on both sides to meet deadlines.

"We can only presume that the court shortened the deadlines so it will have as much time as possible to give full consideration to the substantial and weighty constitutional issues raised in this appeal," said Jim Fenton, an attorney for the plaintiffs. "The decision in this appeal will chart the course of constitutional jurisprudence for years to come."

Posted by Marcia Oddi on June 6, 2006 05:55 PM
Posted to Ind. Sup.Ct. Decisions