As has been widely reported (here is an AP story), the Daniels Administration is trying to quash the lawsuit (pdf) by the Citizens Action Coalition challenging the constitutionality of the Toll Road privatization legislation.
Specifically, Article 10, section 2 of Indiana’s Constitution says:
All the revenues derived from the sale of any of the public works belonging to the State, and from the net annual income thereof, and any surplus that may, at any time, remain in the Treasury, derived from taxation for general State purposes, after the payment of the ordinary expenses of the government, and of the interest on bonds of the State, other than Bank bonds; shall be annually applied, under the direction of the General Assembly, to the payment of the principal of the Public Debt.
The Daniels Administration is attempting to quash the lawsuit without addressing its merits under IC 34-13-5 which sets the procedure governing “public lawsuits.” In particular IC 34-13-5-7 allows a defendant (in this case, the State) to request that bond be posted. The court is required to set a hearing on the petition. Judge Scopelitis has set a hearing date of May 11.
The statute instructs the judge to use the standard for granting a preliminary injunction as the standard for determining whether a bond is required. This standard essentially requires the judge to weigh the harm if the requested relief is granted (delaying the sale), the harm if the requested relief is denied (allowing the sale to go through while the lawsuit is pending), and the plaintiff’s likelihood of success on the merits. If the judge decides that the CAC is likely to succeed on the merits of the case and that allowing the sale to proceed will cause greater harm than delaying the sale pending trial of the case, he will deny bond. If he decides to the contrary, he is instructed to set bond at a level that that would compensate the defendant for damages and costs accrued to the defendant by reason of the pendancy of the lawsuit.
Regardless of whether bond is approved or denied, either party can appeal the decision directly to the Supreme Court within 10 days of the trial court’s decision. So we’re likely to have a read on the Supreme Court’s opinion on the applicability of the Constitutional provision before too long.
My thoughts: 1) I question whether a statute such as IC 34-13-5 is permitted to essentially render a Constitutional provision a nullity. To take a hyperbolic example from the federal Constitution, what if Congress said a citizen had to post $1 billion to bring a lawsuit to stop a free speech violation by the government? Clearly Congress would not be permitted to make an end run around the Constitution in that fashion. 2) The consequences of a delay in entering into the privatization agreement while litigation is pending is less harmful than the consequences of potentially entering into the agreement illegally. The Toll Road isn’t going anywhere and there is no evidence that its value is diminishing. Unraveling the privatization deal once it goes into effect would likely be expensive and difficult, particularly if the State distributes the proceeds from the sale of its property rights in the Toll Road. 3) The State’s apparent reliance on characterization of the deal as a lease rather than a sale seems superficial and misguided. A lease is merely a particular kind of sale of property rights. Not to get all Property 101 on you, but the Daniels administration seems to be taking the position that the word “sale” in the Constitution refers only to a sale of a fee simple absolute interest in the Toll Road Property and that any other kind of sale is not subject to the constitutional provisions, including sale of a leasehold interest in the Toll Road Property for a term of years.