Justice steps down from hearing Major Moves lawsuit

INDIANAPOLIS- An Indiana Supreme Court justice has removed himself from considering a lawsuit that seeks to block what would be the biggest highway-privatization in the nation, the pending lease of the Indiana Toll Road to a foreign, private venture.\nJustice Brent Dickson informed attorneys in the case of his decision Monday, a day before oral arguments were scheduled before the high court. They were still scheduled for 1:30 p.m., even though opponents of the lease filed a motion seeking to stop the proceedings and have the case sent to the Indiana Court of Appeals.\nThe high court rejected that request Tuesday morning.\nDave Remondini, counsel to the chief justice, said justices can recuse themselves from any case and are not required to give the reasons. Dickson has not said why he made the decision, Remondini said.\nOpponents of the lease, which include seven individuals and the consumer watchdog group Citizens Action Coalition, want the justices to overturn a May 26 ruling by St. Joseph Superior Court Judge Michael Scopelitis. He indicated that he did not believe the plaintiffs had much of a case against the lease and ordered them to post a $1.9 billion bond to proceed.\nWith four justices left to consider the case, a 2-2 tie ruling would be possible and would leave the lower court decision intact. That is why the plaintiffs wanted the oral arguments to be canceled and the case sent to the Court of Appeals.\n"Only remanding this matter to the Court of Appeals will guarantee a majority decision by an appellate court," the plaintiffs' motion for transfer said.\nThe high court agreed earlier with the state's request that the case skip the appeals court level and go directly to the justices. It gave no reason for rejecting the transfer motion following Dickson's decision.\nThe plaintiffs contend that the lease, the cornerstone of Gov. Mitch Daniels' "Major Moves" highway construction plan, violates provisions of the Indiana Constitution. They also contend they should not be required to post a bond.\nThe state has argued that the lease is constitutional and the plaintiffs should be required to pay the bond for the case to move forward.\nAt stake is a plan for the Indiana Finance Authority to lease the 157-mile northern Indiana highway to an Australian-Spanish consortium for an upfront payment of $3.8 billion. The partnership can pull out of the lease if litigation is pending on June 30, the date the deal is scheduled to close.\nIf the deal goes through, the state plans to use the $3.8 billion to help pay for numerous highway and other construction projects, and the private companies would operate the toll road and collect its revenue for 75 years.\nChallengers claim that the plan violates a constitutional provision that requires proceeds from the sale of public works to be used to pay down public debt. They also claim parts of the plan are unconstitutional special legislation, and that Scopelitis should not have ruled the challenge a "public lawsuit," requiring the bond.\nUnder Indiana law, public lawsuits are defined as challenges to the construction, financing or leasing of public improvements by a municipal corporation. One of the issues in the case is whether the state's finance authority is a municipal corporation.\nScopelitis said it was, noting the finance authority undertakes many of the same tasks cities and towns do, such as issuing bonds for public works projects. The lease, he said, constitutes a "public improvement."\nThe state said in its brief that the lawsuit's claims have the capacity -- regardless of their merit -- to scuttle a deal if they simply remain alive on June 30.\n"This threat, combined with the nature of the IFA as a municipal corporation, justify treating this case as a public lawsuit," the brief said.