SPECIAL REPORT: Indiana Toll Road plaintiffs will appeal

| 5/26/2006

The plaintiffs in the constitutional challenge of Indiana Gov. Mitch Daniels' "Major Moves" transportation plan say a judge's ruling does not mean they have lost the case, and they plan to appeal the ruling.

St. Joseph County Superior Court Judge Michael Scopelitis handed down an 83-page ruling Friday, May 26, stating the lawsuit is "public" under state code, which means the plaintiffs can be required to post a bond.

In his ruling, the judge ordered the plaintiffs to post a $1.9 billion bond if they want to continue to pursue the case. They have 10 days to post the bond or the lawsuit will be dismissed.

But the Indiana residents who filed the challenge, including OOIDA Member Randy Nace and activist Steve Bonney of West Lafayette, IN, plan to appeal the ruling. In fact, they said they have believed all along that the case will end up in the state Supreme Court.

"We always expected it to go to the Supreme Court, so we're not set back on that standpoint," Bonney toldLand Line Friday afternoon. "There are some substantial issues in the case that I don't think the judge at the trial court level was able to rule on without Supreme Court interpretation or clarification."

The judge exempted parts of the challenge from the "public" portion of the lawsuit, and ruled that the Indiana Toll Road's net present value is $1.9 billion. The value of the lease, which is part of "Major Moves" signed into law by Gov. Daniels in March, is $3.85 billion.

Bonney said the plaintiffs are not giving up.

"I hope no one else thinks that we've lost this," he said. "Again, no matter what the ruling was, we knew it would have to go to the Supreme Court."

The plaintiffs and their attorneys at the Cohen & Malad law firm are scouring the ruling to formulate their appeal.

"The Supreme Court is going to rule accordingly, whether it was win, lose or draw by the plaintiffs or defendants," Bonney said.

Gov. Daniels' "Major Moves" transportation plan includes the $3.85 billion lease of the Indiana Toll Road to the Spanish-Australian consortium of Cintra-Macquarie for 75 years.

Daniels and the Indiana Finance Authority - another defendant in the lawsuit - have already earmarked the revenue toward 200 road projects to bridge a growing gap in the state's roads budget.

Cintra-Macquarie, which is scheduled to formally ink the deal with Daniels on June 30, has a clause stating the private investor can walk away from the lease if there is pending litigation.

Whereas the state could not turn a profit on the 157-mile Indiana Toll Road, Cintra-Macquarie projects up to a 12.5 percent return for their investors.

Cintra-Macquarie is the same foreign consortium that leased the Chicago Skyway in 2005 for $1.83 billion, the first ever privatization of an existing toll road belonging to the U.S. interstate system.

The lawsuit that Bonney and Nace initiated is being fought with funding chiefly raised by Indiana residents and the trucking industry, including OOIDA.

To learn more about the challenge to the "Major Moves" plan that allows the Indiana Toll Road lease, visitmajormoves.orgonline.

- By David Tanner, staff writer