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Judge Kenny rules for Prop 1A case to move forward: Authority says, not so fast

Stuart Flashman takes press questions after the Hearing
K. Hamilton

In a court ruling last week, Judge Michael Kenny agreed with the plaintiffs, John Tos, Aaron Fukuda and Kings County that the part 2 of their case can move forward. This is called the 526A suit. The HSR Authority argued that the case shouldn’t go forward. The ruling can be found here. This part of the case will examine what the plaintiff’s believe are violations of the Prop 1A bond measure. The first part of their case concentrated on the funding plan the HSR Authority presented to the Legislature, which was found to be illegal by the California Superior Court.

Within 2 days of the court’s published ruling, the Tos legal team was notified that the Attorney General’s office was going to file another Extraordinary Writ of Mandate to stop this most recent ruling. Stuart Flashman co-counsel for the plaintiffs wonders what the grounds would be. In order to file an Extraordinary Writ of Mandate, it is supposed to be an urgent situation. Flashman explains it’s like someone yelling, “my house is on fire, my house is on fire, do something!” When the firemen get to the house they find the barbeque grill on fire.” There is no fire here, says the co-counsel in the Tos case. The legal brief, explaining these extraordinary circumstances is expected to be filed by March 15th.

It appears the Rail Authority is trying to shut down the legal process with their latest tactic. This new case would be independent of others before the Appeals Court.

Stuart Flashman is pleased with the decision of the Superior Court to hear the 526A case. “We’re gratified by Judge Kenny’s ruling denying the High-Speed Rail Authority’s motion. The Authority was in essence, trying to shut the case down. 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.”

In the background, the Court of Appeal, also known as an Appellate Court, has agreed to review Judge Kenny’s prior ruling. The Attorney General’s office asked the court to review the Superior court decision that required the Rail Authority to rescind its funding plan and the other Judge Kenny decision not to validate bonds that were needed to fund construction of the project. After the remedies ruling was announced late November, Rail Authority Chairman, Dan Richard told KQED News it was a bump in the road, and told the Los Angeles Times that” the claims of a major setback are wildly overstated” but in stark comparison their brief to the California Supreme Court said those Superior Court Rulings had devastating effects on the project. The Tos team has until March 17th to file its legal brief opposing the action. The Authority’s legal team has the opportunity to file a final brief. He who files the lawsuit gets the last word.

Quick catch up news items that have flown under the radar:

US Inspector General reviews HSR Project:

· The Inspector General has agreed to open a case on the High-Speed Rail project. The November 2012 report was a disappointment and hoping for a more objective analysis. See the link: See page 7, it says California High-Speed Rail has all its stakeholder agreements in place. If master railroad agreements are considered stakeholder agreements then the IG report was incorrect. In the newly released 2014 business plan, the Rail Authority indicated that it is a risk to the project that they don’t have these master agreements.

· State Audit Report

The State Auditor is required to follow up on past audit reports and they came out with their update of various audit reports. High-Speed Rail was one of them. While the state Auditor reports that the HSR project has cleared up many audit concerns, there are still outstanding and important issues with the project. See the February 14th report, page 10. 2011-504 Report number. Key Issues not fully implemented or at all:

1. Subcontractors should file statements of interest.

2. It showed that the Authority will only receive profits for 2022 and 2023 and then not again until 2060.

3. The Auditor’s office wants to see funding alternatives that don’t rely on large amounts of federal funds.

4. The Authority board refuses to seek a legal opinion to ask if the Bagley Keene Act (Open Meetings) applies to the Peer Review Group.

· Senate Transportation Committee to review Rail Project:

March 27, 2014 - The Senate Transportation Committee in Sacramento will hold a hearing on the HSR Business Plan and Funding Plan. Specifics can be found Senate Transportation website as the date gets closer. Public comment is welcome either in writing or better yet, in person.

· Caltrain’s draft environmental document has been published:

Peninsula people, heads up. Friday, February 28th, the Environmental document was released for the Caltrain’s electrification project.

There is a 60-day public comment period. At the Caltrain board meeting, the Caltrain board was warned they should slow down and not obligate itself for contracts too early since the fate of the High-Speed Rail project was unknown. The question is where will they get $600K if the Prop 1A funds from the high-speed rail project disappear. There are meetings on March 18th and April 2nd in San Carlos and Redwood City. Check the link for other locations.

Kathy Hamilton has written several recent articles on the current lawsuits and many other subjects concerning the High-Speed Rail Authority. See a brief synopsis by title on her site:

She also writes for, plug in search: Kathy Hamilton

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