ILB has Toll Road briefs

The Indiana Law Blog has posted the parties’ briefs in the Toll Road lawsuit currently before Judge Scopelitis.

The Plaintiffs’ brief (challenging HB 1008-2006 and toll road privatization) is here.

The Defendant’s brief (defending HB 1008-2006 and toll road privatization) is here.

I’ve only glanced at the plaintiffs’ brief and have not read the defendant’s brief at all, but I had been under the impression that at the heart of the Plaintiffs’ challenge was the Constitutional question of whether toll road lease/sale proceeds could be applied to something other than public debt. And maybe it is. I could have gotten the wrong impression from my quick read of the brief or the main issues may not be emphasized at this stage of the proceedings simply because the main question right now is whether this is a public lawsuit for which a bond should be posted.

But, it seemed like the brief spent a lot more time discussing whether this was prohibited special legislation or not. Article 4, section 22 – 23 of the Indiana Constitution provides:

Section 22. The General Assembly shall not pass local or special laws:

Providing for the punishment of crimes and misdemeanors;
Regulating the practice in courts of justice;
Providing for changing the venue in civil and criminal cases;
Granting divorces;
Changing the names of persons;
Providing for laying out, opening, and working on, highways, and for the election or appointment of supervisors;
Vacating roads, town plats, streets, alleys, and public squares;
Summoning and empaneling grand and petit juries, and providing for their compensation;
Regulating county and township business;
Regulating the election of county and township officers and their compensation;
Providing for the assessment and collection of taxes for State, county, township, or road purposes;
Providing for the support of common schools, or the preservation of school funds;
Relating to fees or salaries, except that the laws may be so made as to grade the compensation of officers in proportion to the population and the necessary services required;
Relating to interest on money;
Providing for opening and conducting elections of State, county, or township officers, and designating the places of voting;
Providing for the sale of real estate belonging to minors or other persons laboring under legal disabilities, by executors, administrators, guardians, or trustees.

Section 23. In all the cases enumerated in the preceding section, and in all other cases where a general law can be made applicable, all laws shall be general, and of uniform operation throughout the State.

When I got to Legislative Services back in 1996, the new drafters were cautioned that the courts had recently made disapproving noises about the General Assembly’s routine passage of special legislation under a legal fiction but had not yet decided to put a stop to it. The legal fiction is that the General Assembly is not passing special legislation (legislation that applies only to one part of th estate) but is rather passing legislation that applies to any part of the state that happens to fall within a particular population parameter. It sounds reasonable — big cities have different needs than small towns, for example. However, in practice, the parameters are carefully selected so that they apply to a particular city or town or county or whatever. For example, where HB 1008-2006 states “in a township having a population of more than seventy-five thousand (75,000) and less than ninety-three thousan five hundred (93,500),” that means “Perry Township in Marion County, Indiana.” Those sections of the Code are updated when the new census numbers come out.

In 2003, the Supreme Court struck down an annexation statute that applied only to St. Joseph County on the grounds that it was special legislation South Bend v. Kimsey, 781 N.E.2d 683 (Ind. 2003) susceptible of being general legislation. To justify using special legislation, the Supreme Court held that the justifications for the legislation must be inherent in the population range used and/or unique to the specified locality.

The two primary uses of special legislation in HB 1008-2006 were to prevent implementing a toll road through Perry Township and to allocate specific areas where the pork from the privatization was to go. I haven’t read the Defendant’s brief yet, but it should be interesting to see how they argue that general legislation wasn’t possible or how the pork needed to swing the necessary votes miraculously lines up with the specific needs of the particular localities.