Sunday, October 08, 2006

Update: LUS Appeals

Fiberish news is mostly in a lull with the "big" news being mostly that there is no news. That's not entirely an nonsequiter—it's important that LUS is pursuing its first appeal of a court ruling; and it's important that Congress adjourned after doing nothing on national video franchising or net neutrality. It is not exciting. But it does make a difference. I'll try and post updates on all these topics over the next few days as obligations allow.

Today's not-news topic is the LUS appeal.

Both the Advertiser and the Advocate have run pieces recently noting that the wheels are turning in the LUS appeal to the state supreme court. The whole thing is a mite confusing because nobody in the administration much wants to talk about what was a large issue before the appeal showed up on the state Supreme Court docet: this is, by law, supposed to be an expidited appeal. The ability of third parties to block the issue of bonds approved by local communities was strictly limited. Naquin's Plaquimine attorneys just made it under the gun of the deadline. If she were to withdraw her suit no new suit against the bond ordinance could be filed. BellSouth's it's twelfth-hour threat suit died after cutting a deal with the city and that death was final, at least on the account of the bond law. They cannot now initiate a new one.

The law follows up strict deadlines for filing with strict deadlines for the case being heard—right through the Supreme Court. But we haven't heard anything about the Supreme Court recently. That's because, lawyers tell me, that the Supreme Court holds itself above the law on the issue of its own scheduling and nobody wants to talk about it—most especially the city appellants. As a matter of state law there is no effective appeal beyond the Supreme Court. And if they decide that a law infringes on their prerogatives to whom do you appeal?

So we wait to see, if in their majesty, they'll take the case. And wait to see if they'll handle it quickly and fairly.

That's not right, I think most of us will agree. But there it is. The people approved this after a huge battle fought against it by powerful corporations. They knew what they were voting for. Standing in the way of it is simply wrong. Whether it is a single self-interested woman, a powerful corporation, or the State Supreme Court.

With that bit of background out of the way.......The Advertiser article pretty simply recounts the bare fact that LUS answered the Naquin attorney's arguments on Friday. It didn't deal with the substance of either side's arguments.

Kevin Blanchard over at the Advocate published before the city issued its rebuttal but it does go over the points that Naquin's attorney's make and notes the Louisiana Municipal Association's (LMA) friend of the court brief in support of Lafayette. Blanchard covers Naquin's arguments and I have to say they don't make much sense to me. They dismiss the LMA and Lafayette's concern that the 3rd circuit's earlier ruling fundamentally reinterprets state bond law--but that has been a concern since before the latest Naquin appeal and a major reason why many state-wide wanted that decision appealed. It is a real concern as the LMA filing demonstrates. The corporations are playing with the laws that enable local governments to operate effectively in order to get their way on stopping Lafayette's project. Many bond issues use the word "pledge" and any that try and use a "pay as you go," "revenue-based" bonds are particularly in danger. It is a dangerous game the corporations are playing.

Blanchard also reports that Naquin's attorney appear close to conceding that traditional legal interpretation has always allowed the "fruits" of "pledged" assets to be used to pay off debts. But then the lawyers get into some sort of convoluted "fruit of fruits" and claims that property cannot be the fruit of itself. I honestly can't imagine what they can mean by that -- they appear to be saying that revenue derived from an asset cannot be considered to be part of the value of the pledged asset. If that is what they mean; that's a nutty argument. Most assets, from rental property to stocks are valued precisely on their rate of return--on their fruits. If that were removed they would have a hugely reduced value. It's a bad misunderstanding of fundamental economics to think substance and return are separable in theory or practice.

So we wait for the Supreme Court to act. While we wait there are still unresolved issues that might make news if only the reporters would pursue it: Who recruited Matthew Eastin and Elizabeth Naquin, notably uninvolved citizens? Who turned them onto a couple of law firms in Baton Rouge and Plaquimine? Are they paying for all this litigation? If not, who is? Who, in fact, benefits? There is real news out there. We're just not seeing much of it.

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