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5/10/2006
SPECIAL REPORT: Indiana Toll Road hearing set this week

A county judge in Indiana will begin weighing evidence Thursday, May 11, in a lawsuit challenging the lease of the Indiana Toll Road - and he could rule that residents who filed the challenge must pony up a $3.85 billion bond for the privilege to continue.

The judge must decide whether the lawsuit is "public" as Gov. Mitch Daniels and his attorneys claim, and whether the plaintiffs - a group of Indiana residents, including OOIDA Member Randy Nace - must come up with a $3.85 billion bond to pursue the case.

Public lawsuits are defined as suits that challenge the construction, financing or leasing of public improvements. The law requires the plaintiffs to either show their suit has merit or post a bond equal to the state's financial loss - in this case if the lease is delayed.

The residents group, Citizens Action Coalition, filed a lawsuit April 12 in St. Joseph County Superior Court in South Bend, IN. It names as defendants the governor, the Indiana Finance Authority and others involved in the 75-year lease of the toll road. The toll road is part of Daniels' "Major Moves" transportation program.

The residents claim the $3.85 billion upfront payment from the foreign investment consortium leasing the toll road, Cintra-Macquarie, must go to pay off public debt and not for other road projects in Daniels' plan. The lawsuit contends that mandate is in the Indiana Constitution.

Daniels, after the state legislature approved the lease in March, signed the lease the same day the challengers filed their lawsuit in St. Joseph County Superior Court in South Bend, IN.

Then, in a motion filed April 20 by the Ice Miller law firm, Daniels claimed the lawsuit is "public" and therefore the Indiana residents who filed it need to post a bond equivalent to the toll road lease - and that's $3.85 billion.

The plaintiffs fired back with a motion early this week in an attempt to show that the lawsuit is not public under state law. They cited a precedent that has been used in five other cases.

The plaintiffs have also filed a motion to continue the hearing.

That's a lot of "legalese" going back and forth for the judge to sort out as the hearing gets underway Thursday.

The plaintiffs, led by Nace and the Citizens Action Coalition, have raised $75,000 to challenge the toll road. They say the case, including appeals, could cost up to $200,000.

Steve Bonney of West Lafayette, IN, helped launch a Web site for the cause, majormoves.org. Bonney said the Daniels motion would be a "lawsuit killer" if the judge approves it.

"I've heard from a lot of people from a lot of different ilks," Bonney recently told Land Line. "The point is this message resonates all across the political spectrum. The constitutionality of our laws is everyone's utmost concern."

The holder of the Indiana Toll Road lease, Cintra-Macquarie, is the same foreign investment group that operates a 99-year lease of the Chicago Skyway.

Cintra Concessiones de Infraestructuras de Transporte, S.A., is also on paper to see a 600-mile portion of the Trans-Texas Corridor come to light.

- By David Tanner, staff writer
david_tanner@landlinemag.com

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