Group appeals toll road case

SOUTH BEND -- A group seeking to block the state from leasing the Indiana Toll Road to a foreign company plans to appeal a judge's ruling that it must post a $1.9 billion bond to move forward.\nPlaintiff Steve Bonney said lawyers who worked through the three-day weekend hope to file the appeal to the Indiana Supreme Court by Friday.\n"It's just a matter of decisions on what that appeal is going to look like," he said Tuesday.\nSt. Joseph Superior Court Judge Michael Scopelitis ruled Friday that the case was a public lawsuit. He said plaintiffs must post a $1.9 billion bond within 10 days if they want to continue to challenge the plan to lease the toll road to a private Spanish-Australian partnership for an upfront payment of $3.8 billion. The plaintiffs would not have to post the bond while the appeal is before the Supreme Court.\nA message seeking comment was left Tuesday at the office of Arend Abel, the lead attorney for the group challenging the lease. Messages also were left at the offices of the governor and state attorney general.\nDave Menzer, a member of the Citizens Action Coalition -- another of the plaintiffs -- said the lawyers will challenge Scopelitis' decision that the case is a public lawsuit. If the Supreme Court rules it is not public, the challengers would not have to file a bond.\nA public lawsuit is defined as one that questions a public improvement. The aim of forcing groups to post a bond in such cases is to prevent people from filing nuisance lawsuits aimed at slowing or stopping projects.\nMenzer said he hopes the Supreme Court will look at the merits of the case and whether leasing the road is constitutional.\n"We hope they will look beyond just this issue of whether it's a public lawsuit," he said.\nLawyers were trying to decide whether to seek further arguments in front of the Supreme Court, Bonney said. He said lawyers had tried to present their case during the hearing before Scopelitis in case the Supreme Court didn't allow oral arguments.\n"I think we're pretty well-prepared for that," he said. "We knew this was going to be appealed by one side or the other. So this doesn't really change much. Of course it would be better to have a favorable ruling going into an appeal, but it doesn't really matter based on the merits of the case."\nScopelitis indicated he doesn't think the challengers have much of a case. However, he did say they still could challenge the legality of whether Interstate 69 can be banned from running through Perry Township south of Indianapolis without legislative approval. He said they also can challenge whether the proposed I-69 section from Martinsville and Indianapolis can be kept toll-free without legislative approval.\nBonney said he's "even more resolute" in challenging the toll road lease plan after watching Gov. Mitch Daniels testify before the House Subcommittee on Highways, Transit and Pipelines in Washington last week after Rep. Peter DeFazio, D-Ore., questioned the lease plan.\n"Is $3.85 billion a good deal when the operator in the last 31 years of the lease is expected to draw $60 billion?" Bonney asked.\nBut Scopelitis said in his ruling that whether or not the lease is a good deal is "irrelevant." Bonney said it might be irrelevant to the court, "but it matters in reality."\nMenzer said if the Supreme Court rules the group must put up the $1.9 bond, "that would certainly have a chilling effect"