When the Attorney General’s office sent their plea directly to the California Supreme Court to “stay” both rulings made by Superior Judge Kenny against the high-speed rail project, many legal observers thought it was unwise to skip the appellate level, a term used synonymously with the Court of Appeal. And as predicted, in just three days, the California Supreme Court said, sorry this doesn’t belong with us, try the Court of Appeal.
While that decision was certainly a disappointment for the Rail Authority, the fact that the California Supreme Court directed the Court of Appeal to review the legal briefs on an expedited timetable gave them a ray of hope.
The next hurdle is the Court of Appeal. Attorney Jason Holder, who represented the Madera Farm Bureau against the Authority and settled out of court last year said, “The Supreme Court has given real parties in interest (i.e., the prevailing petitioners in the Prop. 1A case) only a few days to file their preliminary opposition – according to the ruling, it’s due on Monday, February 3. That means opponents have only four days to prepare an opposition to a petition that is almost fifty pages long."
The Attorney General’s office, which represents the High-Speed Rail Authority, will have until February 10, 2014 to reply to the preliminary opposition.
Mike Brady, co-counsel on the Tos case with more than 40 years of appellate experience, doesn’t think things look too rosy for the High-Speed Rail Authority: "It was a brash act for the Authority and the Governor to go directly to the Supreme Court, and the Court told them so; it is normal procedure for something like this to go to the Court of Appeal, where it is now placed. The odds are still overwhelming that the Court of Appeal in Sacramento will deny this request from the Authority; Why? Because they already have what are called adequate legal remedies, and there is no need for the type of relief they are seeking. We expect the Court of Appeal ALSO will so rule before the end of February."
It appears the clock is ticking so loudly that the Authority is willing to try anything to stop it.
What could the Court of Appeal do?
The Court of Appeal could do one of two things. They could say no to hearing the case, explaining the parties have adequate legal remedies available to them, as Attorney Michael Brady outlined, or they could decide to take the case.
If the court took the case, they might be convinced by the AG’s office to “stay” Judge Kenny’s rulings. That means a temporary pause in the rulings while the case is heard, and relief for the March 18, 2014 deadline imposed by the Tos order to decertify the current funding plan.
Without Judge Kenny’s ruling in effect, is it possible that the Rail Authority would dare to use federal funds for the start of construction in Fresno on the one or two properties they have acquired?
The Authority asked for a March 1st decision so they could give the necessary 10 days public notice agendizing an item to rescind their illegal funding plan at the March 11th High-Speed Rail board meeting, if the court refused to take their case or didn't issue a stay of Judge Kenny’s rulings.
If the Court of Appeal denies the Authority’s request and the Authority is simply left with the Kenny court order, the questions are, will they comply and how?
Hints are found toward the end of their California Supreme Court brief when they said this, “Without a stay, the Authority must, within the 60-day return date provided in the writ, choose either to comply with the writ by rescinding the funding plan, which will risk mooting this writ proceeding as well as any eventual appeal of a judgment, or decline to do so and risk sanctions for contempt of court.” Frankly, boldness and overstepping its authority have been the norm, not the exception for the High-Speed Rail Board, so anything is possible.
The problems are mounting; landmines are everywhere. It’s all about money and the rush to spend over $3.2 billion from the American Recovery and Reconstruction Act of 2009 (ARRA) federal grant funds by September 2017. They are nearly 18 months late in starting construction since they don’t have environmental clearance or the money to build an “usable segment,” which translates to one which does not require a subsidy. See more about the state’s more restrictive rules concerning the definition of a “usable segment” vs. the federal government’s “independent utility” requirements.
Here are some key things that will happen in the next 90 days:
· The Superior court ruled that the Authority must rescind their current funding plan by March 18, 2014 because it didn’t comply with the law.
· They are required to re-do a new plan, though not required to show the court how they plan to comply. A new funding plan must identify the funds to build it after they complete the environmental work. If they decide to attempt to comply by simply striking down their original plan, the plan they have in the works would not meet the requirements for a usable segment. A new court action could be filed immediately.
· Judge Kenny will hear arguments as to whether the Tos plaintiffs may move forward with the second half of their case on February 14, 2014.
· The Surface Transportation Board denied the Authority’s request that the Board conditionally grant the exemption authority by addressing the transportation aspects of the proposed project from Fresno to Bakersfield before the environmental review process has been completed. It extended public comment until February 14, 2014.
· The Authority must rewrite the first funding plan before they move to the second funding plan, which is required before construction, according to state law.
· The state has financial obligations of $180 million due on April 1, 2014. This is necessary to begin matching federal funds already spent since they promised a 50% match and the feds agreed to spend their money first. The state doesn’t have the funds to do so but perhaps they can arrange a “loan” from the General Fund, as the Governor has been done before.
· The budget for which Brown asked for cap-and-trade revenue will not be voted on until June 2014 at the earliest, with no assurance it will pass, due to staunch opposition by environmentalists.
This case is about the rule of law and protecting the voters by enforcing the provisions in the bond measure. The Rail Authority is trying to hold onto the federal grant funds to build frankly anything, even conventional rail, even improvements to the City of Fresno, rather than to admit they cannot build the high-speed rail system they promised the voters. Dan Richard is on record at a California Joint Senate Committee hearing May 15, 2012 when questioned about the relevance of a small start in the Central Valley, “ We don't get a high-speed rail system, but we get a lot. ”
Judge Michael J. Kenny ruled on the side of the voters. He respected the plain language in the bond measure and protected the public from a financially irresponsible project. The Prop 1A bond measure should fund a high-speed rail system or nothing. Hopefully the Appellate Court will agree and allow the rule of law to prevail. If not, there will be no faith in any bond measure that is put on the ballot in the future.
http://transdef.org/HSR/Private_Capital.html See David Schonbrunn’s opinion on what is going on. For all cases including the latest called Extraordinary Writ, look left for all the filings on all cases.
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: http://www.examiner.com/transportation-policy-in-san-francisco/kathy-hamilton