Former Chief Justice Pens Bizarre Column In Support Of $100 Million IMS Subsidy

There are many ways a former chief justice of the Indiana Supreme Court can give back to the state which gave him so much, but arguing in a public newspaper that it's "a smart move" for Indiana taxpayers to publicly subsidize up to $100 million in improvements for the Indianapolis Motor Speedway doesn't make the list. That's precisely what retired Chief Justice Randall Shepard does in an opinion column in the latest edition of the Indianapolis Business Journal.

Shepard has no doubt "the General Assembly is on the right track in moving legislation to bolster the track and the jobs it helps create," citing a highly-questionable economic impact study recently released by a think tank with which he is now affiliated at Indiana University. Seemingly struck by amnesia, Shepard raises Indiana's infamous Internal Improvements Act of 1836, an ambitious series of roads, railroads and canals financed by the state that ultimately resulted in the state going bankrupt, as an example of why the public's money should be invested in the IMS.

This initiative during Indiana's earliest days ultimately proved a financial disaster due to the failure o the Wabash and Erie Canal. The canal was a case old technology being overtaken by new techniques (like railroads), and the weight of its debt eventually carried under the state government itself.

The canal's failure and the state's bankruptcy were so dramatic that they overshadowed the fact that other elements of the Internal Improvements program put in place valuable assets that help advance the state's economy to this day: Michigan Road, U.S. 150 across southern Indiana , multiple rail lines in central and southern Indiana, to name a few.

Shepard cites the success of some of those public transportation endeavors as "a need to examine what we've come to call "public-private partnerships." "Is there likely to be sufficient benefit to the public to warrant the government support at stake?" he asks. He says it's a question that "regularly" gets asked these days, such as "when the City-County Council overwhelmingly voted to move forward with certain tax incremental financing districts to boost inner-city commercial districts and residential neighborhoods."  "I suggest that the discussion of this proposal is an example of public policy being well conducted," Shepard concludes.

The discussion of the Internal Improvements Act of 1836 in the context of a $100 million public subsidy for the Hulman-owned Indianapolis Motor Speedway could not be more inapposite. Those public improvements at least involved public transportation projects, even if they did involve privately-owned businesses. Shepard also cavalierly brushes over the financial debacle that the reckless public works project brought about, which drove the need to conduct a constitutional convention in 1851 to rewrite the state's constitution. Many provisions were written into that document to ensure that nothing like that occurred again, a number of which judges have gone out of their way to undermine and, once again, place the state's finances at risk.

Indiana judges permit the General Assembly to allow municipal corporations, for example, to skirt the strict debt limitations imposed by Article 13 of the 1851 constitution (i.e. 2% of taxable property) by creating unelected coterminous municipal corporations, such as airport authorities, capital improvement boards, library districts, etc. whose debts aren't counted against the municipal debt of the municipality of which they serve as an alter ego. A provision in Article 11 of the state's constitution prohibiting the state from extending its credit or loaning money to a private corporation has simply been read out of the constitution by Indiana judges who view it as an inconvenience to enforce.

Given the history of Indiana judges to undermine the tough but necessary reforms enacted by the delegates to the 1851 constitutional convention and approved by the state's voters, I guess it shouldn't come as a surprise that one of our state's top former jurists would argue that giving $100 million of public tax dollars to a sports-related business owned by one of the state's wealthiest families is a worthy public undertaking. One still holds out hope that such persons would put their talents to use advocating for more public-worthy changes needed in this state to ensure the enactment of fairer laws that treat its citizens for purposes of taxation more fairly and uniformly. Certainly it's not too much to expect that persons like Shepard would at least refrain from advocating for the continued enactment of special laws that benefit the few wealthy and privileged among us to the detriment of the many.