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Court refuses appeal of HSR project: Part 2 Prop 1A suit will proceed

Flashman wins 2nd Extraordinary Writ case:  Court refuses Rail Authority request to stop Part 2 of the Tos case from proceeding
Flashman wins 2nd Extraordinary Writ case: Court refuses Rail Authority request to stop Part 2 of the Tos case from proceeding
K. Hamilton

The High-Speed Rail Authority failed to persuade Sacramento 3rd District Court of Appeal to stop the second part of the Tos/Fukuda/Kings County case from being heard. The Court ruled yesterday that they would not take the case. The first Extraordinary Writ Appeal remains, which places Superior Court Judge Michael Kenny’s ruling on hold. That ruling required the rescission of the Rail Authority’s funding plan. Court dates for that hearing have not yet been set.

What does this latest decision mean?

Michael Brady, co-counsel on the Tos/Fukuda/Kings county case commented on the court’s action on April 15, 2014:

"The plaintiffs are gratified by the court's ruling; this will allow us to proceed to an actual trial on important remaining issues, such as:

*The Authority will be unable to meet the mandatory requirement of Proposition 1A that the trip from LA to SF must be made in less than 2 hours 40 minutes;

*The project will be unable to operate without a state, local, or federal subsidy, which it is required to do;

*The Authority is planning to use the bond proceeds for purposes not authorized by the bond Act (1A), and this violates the state Constitution.

*Any of these (and other) violations means that the project is INELIGIBLE to receive Proposition 1A bond funds, our contention from the beginning."

A little history:

As a refresher, March 4 Superior Court Judge Michael Kenny allowed Part 2 (also known as a 526A suit) of the Tos/Fukuda/Kings County lawsuit to advance against the Rail Authority. The judge's action was a blow to the California High-Speed Rail Authority, which had asked the Court to dismiss the second part of the case. The Rail Authority then immediately filed an appeal and that is the plea they lost on April 15th. http://www.examiner.com/article/the-public-awaits-court-of-appeal-decision-on-the-high-speed-rail-project

Attorney and Prop.1A Co-Counsel Stuart Flashman could never understand why they were doing this, “nothing has been decided, what is the damage, what is the harm, there is no decision. It’s not as if there is an injunction in effect.” The Attorney General’s office filed this legal brief as to why: http://transdef.org/HSR/Extraordinary_assets/Petition%20for%20Extraordinary%20Writ.pdf

The State’s argument centered around the lack of time to appeal the case and they contended that the judge was just wrong on legal points. They said in their brief filed March 21st.

like the rulings already being reviewed, High-Speed Rail I, the Superior Court’s latest error, if not corrected threatens to engulf the high-speed rail project in litigation that improperly second guesses the wisdom of discretionary decisions by the legislature and government officials charged with designing and building the train.”

In his opposition brief filed March 21st, Stuart Flashman wrote: Understandably, Petitioners are uncomfortable about facing a trial over whether they are violating provisions of a voter-approved bond measure. The consequences of noncompliance could be severe, even to the point of the Authority not being permitted to use bond proceeds to construct its proposed project. However, close to a hundred years of consistent court decisions have made clear that the provisions of a voter-approved bond measure may not be ignored, nor may they be changed except by going back to the voters for approval of the change.”

When Co-counsel Stuart Flashman first heard of this second filing, he said, he believed “if the court is deciding this based on the law and not politics, the court should summarily deny this latest request for extraordinary writ review. “ And they did… frankly representing another win for the public and the rule of law.

Flashman remarked, “Our position is simply that if the Authority wants to use the bond funds, it has to build what it promised the voters. Our complaint says that the Authority’s project doesn’t meet requirements for the high-speed rail system that were set when California voters approved Proposition 1A. Judge Kenny’s ruling means we get our day in court to prove our case. If we’re successful, it will mean the Authority can’t use the bond funds to build its noncompliant project.”

Another outcome could be that the Rail Authority will win this case if the judge rules that outside evidence is not allowed. That was not decided yet. The Attorney General’s office has argued only the administrative record of the HSR project could be used for the proceeding if the case went forward. This is what the AG’s office is hoping for because the project opponents are well prepared with outside evidence and even requested an advisory jury. This means that a jury would advise the court of their decision but it wouldn’t be binding on the court.

If the Superior Court rules it’s ok to bring in new evidence, the Rail Authority may be at a disadvantage because according to Central Valley Attorney Ray Carlson from the Central Valley, it failed to properly prepare for the second part of the case.

How so? Because the Rail Authority submitted only two declarations, Rail Authority engineering manager, Frank Vacca who argues that the train can meet travel times required by Prop 1A and Deputy Attorney General Denae Aitchison who argues that a previous court decision did not allow the ridership question to be raised again. http://transdef.org/HSR/Taxpayer_assets/Vacca%20Declaration.pdf

http://transdef.org/HSR/Taxpayer_assets/Aitchison%20Declaration.pdf

The project opponents, on the other hand, submitted 14 declarations covering 279 pages of sworn written testimony about the inadequacy of the project costs, travel time, operating costs and the strong likelihood that the train will run without an operating subsidy. http://transdef.org/HSR/Taxpayer_assets/HSR%20Declarations%20of%20Expert... The declarations include Quentin Kopp’s, former State Judge, State Senator and Chairman of the High-speed Rail Authority. He declares that the project does not meet Prop. 1A requirements. Judge Kopp’s is the first declaration of the previous link.

At the end of the February 14th court hearing Attorney Ray Carlson, who is representing the Kings County Water District in an Amicus Brief, told the court:

“Money is being spent now. This phase of the case is not moot. The defendants could have brought this motion, many, many, many months ago and instead they decided to test the waters and they didn’t like the waters. They are bringing this motion now at the last minute in order to avoid consequences of the choice that was made by not proffering any evidence in support of an opposition to the 526A claims. We would submit your honor that the motion should not be granted as an equitable matter for those reasons.”

Looking forward:

In addition to Part B of the Tos/Fukuda/Kings County case moving forward, two other cases regarding the High-Speed Rail will be heard sometime this Spring/Summer.

The Appeals Court will decide whether they will allow Superior Court Judge Michael Kenny’s ruling to stand or be permanently overturned. Here’s the AG’s brief originally addressed to the California Supreme Court and later handed back down to the Appellate court. This was the first extraordinary write filed. No hearing dates have been set as of yet. http://transdef.org/HSR/Extraordinary_assets/Petition-for-Extraordinary-Writ-of-Mandate.pdf

Judge Kenny’s ruling required the rescission of an illegal business plan and has been temporarily halted while the case is reviewed. The Appellate Court may also examine the validation case decision. In that case, Judge Kenny ruled against validating bonds for the high-speed rail project since not evidence was presented before the High-Speed Train Finance board. This decision has held up the sale of general obligation bonds that could be used for construction for the rail project. Having another case in court may continue to tie up the sale of state bonds regardless of the decision of the Court on the first Extraordinary Writ.

May 20th an Appellate Court hears two issues. One is about an older court case called Atherton II, which is a California Environmental Quality Act (CEQA) case. It’s an appeal which claims inadequate study of some environmental issues on the San Jose to San Francisco segment plus a claim by the Attorney General’s office that CEQA does not apply since the project is under the jurisdiction of the Surface Transportation Board (STB) For all details for each of these claims see http://transdef.org/HSR/Appeal.html

For all of Kathy’s articles see Examiner: http://www.examiner.com/transportation-policy-in-san-francisco/kathy-hamilton

See Calwatchdog: Google Search: site:calwatchdog.com "kathy hamilton"

For all the cases see the TRANSDEF site: http://transdef.org/HSR/HSR.html