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5/13/2006
Indiana: Punctuation Mark Threatens Toll Road
A court ruling on the meaning of a semicolon could end up blocking Indiana's $3.8 billion toll road deal.

Indiana Toll Road
A semicolon could stand as a roadblock to completion of a $3.8 billion sale of Indiana highways to a Spanish-Australian toll road conglomerate. Superior Court Judge Michael Scopelitis must decide the significance of a punctuation mark in the state's definition of "municipal corporation," and the answer could allow a lawsuit that could end up blocking the deal. According to the Indiana Code:

"'Municipal corporation', for purposes of IC 34-13-5, means a: (A) local subdivision of the state; or (B) public instrumentality or public corporate body created by state law; including but not limited to cities, towns, townships, counties, school corporations, special taxing districts, conservancy districts, and any other local public instrumentality or corporation that has the right to sue and be sued;" (IC 34-6-2-86 Sec. 86)

If the Indiana Finance Authority responsible for the toll road deal is declared a municipal corporation, Indiana's public lawsuit statute takes effect. That means toll road officials can ask the court to force plaintiffs to post a $3.8 billion bond in order to continue the legal challenge. If imposed, the bond could be paid to the toll road authority if its arguments ultimately prevail in court.

Plaintiffs argue that because none of the the examples of municipal corporations given is a statewide body, the "municipal corporation" definition does not apply to the Indiana Finance Authority.

Article Excerpt:
IC 34-13-5
Chapter 5. Public Lawsuits for Testing Public Improvements of Municipal Corporations
...

IC 34-13-5-7
Interlocutory hearing
Sec. 7. (a) At any time before the final hearing in a public lawsuit, the defendant may petition for an order of the court that the cause be dismissed unless the plaintiff posts a bond with surety to be approved by the court. The bond must be payable to the defendant for the payment of all damages and costs that may accrue by reason of the filing of the lawsuit if the defendant prevails.
(b) A hearing shall be held on a petition described in subsection (a) in the same manner as the hearing on temporary injunctions under IC 34-26-1. If, at the hearing, the court determines that the plaintiff cannot establish facts that would entitle the plaintiff to a temporary injunction, the court shall set the amount of bond to be filed by the plaintiff in an amount found by the judge to cover all damage and costs that may accrue to the defendants by reason of the pendency of the public lawsuit in the event the defendant prevails.
(c) If the plaintiff does not file a bond with sureties approved by the court within ten (10) days after the order to do so is entered, the suit shall be dismissed.
(d) Either plaintiff or defendant may appeal an order to post or deny bond to the Indiana supreme court within ten (10) days by notice of appeal and a statement of error in the same manner as is provided in a petition for mandate or prohibition. The supreme court may:
(1) stay the lower court order pending its own decision;
(2) set a bond to be filed by the plaintiff;
(3) modify the order of the lower court; or
(4) enter its order as a final order in a case.
(e) If no bond is filed as provided in this section:
(1) the public lawsuit shall be dismissed; and
(2) no court has further jurisdiction of the public lawsuit or any other public lawsuit involving any issue that was or could have been raised.
(f) This section does not create, nor shall it be construed as creating, any additional cause of action on the part of any municipal

corporation, person, partnership, limited liability company, or corporation, unless the defendant is required to and does post bond.
As added by P.L.1-1998, SEC.8.
Source: Semicolon may derail Toll Road lease deal (Associated Press, 5/12/2006)



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