Extraordinary Writ

Seeking Relief from the Tos and Validation Suit Rulings

In a rather shocking act of desperation, Governor Brown has had the Attorney General file a petition for an extraordinary writ with the California Supreme Court on January 24, 2014. The petition seeks to get around the two rulings of the Sacramento Superior Court, which have tied up the California High-Speed Rail Authority in knots.

Interestingly, both the Governor and the Chair of the Authority discounted the significance of the Superior Court ruling when it first came out, and continue to do so. Meanwhile behind the scenes, deputies in the Attorney General’s office were busily working away at a 50+ page brief: “The trial court’s approach to these issues cripples government’s ability to function. The rulings thwart the intent of the voters and the Legislature to finance the construction of high-speed rail…” (p. 2) This is an enormously arrogant claim, given that the petition seeks to get around Judge Kenny’s ruling in the  Tos taxpayer case that the Authority’s Funding Plan had failed to meet the requirements set in the high-speed rail bond measure to protect taxpayers.

The other part of the petition seeks to overcome Judge Kenny’s refusal to validate the sale of high-speed rail bonds, claiming that High-Speed Passenger Train Finance Committee, comprised of the Treasurer, the Controller, the Director of Finance, the Secretary of Business, Transportation and Housing and the Chair of the CHSRA, was required only to rubberstamp the request of the CHSRA for the issuance of the bonds. The Authority is asking the Supreme Court to disregard the plain language of the bond act requiring the Committee to find the issuance of the bonds “necessary and desirable.”

The Authority is requesting a stay of Judge Kenny’s writ prior to March 1, 2014, so that it can avoid rescinding its currently operative funding plan (which it claims is moot, because the Legislature has already approved its request for the use of bonds).

In a very responsive action, the Supreme Court issued an Order three days later, transferring the matter to the Court of Appeal.

The Court of Appeal granted an Order Granting Stay on the writ in the Tos case, and issued an Alternative Writ, so the January 2014 writ in the Tos case requiring recision of the Funding Plan is on hold, pending appellate proceedings.

The Tos plaintiffs and Kern County filed a joint Preliminary Opposition and later filed a Return by Answer and Supporting Memorandum of Points and Authorities. Other returns (not available electronically) were filed by Kings County Water District and Citizens for California High-Speed Rail Accountability; Union Pacific Railroad Company; and First Free Will Baptist Church.

The Authority filed a Reply brief on April 1.

The State Building and Construction Trades Council was granted leave to file, and filed an Amicus Brief, which is not available electronically. The Tos plaintiffs filed an application asking the Court to grant leave to file a Response to the Amicus Brief. First Free Will Baptist Church filed a response to the amicus brief, which is not available electronically.

A series of amicus briefs have been approved for filing by the Court:

  • Peninsula Corridor Joint Powers Board and San Mateo County Transit District, Metropolitan Transportation Commission, Santa Clara Valley Transportation Authority, and City and County of San Francisco
  • Hon. Cathleen Galgiani, California State Senator
  • Los Angeles County Metropolitan Transportation Authority and the Southern California Association of Governments, none of which are available electronically

The Tos plaintiffs filed a Request to the Court to limit amici briefs, or to allow the Tos parties to reply to them and then filed an Answer to the briefs and an Objection.

Second Petition
In a fascinating further demonstration of desperation, the Attorney General filed a second Petition for Extraordinary Writ on behalf of the CHSRA, challenging the March 4, 2014 ruling in Tos that denied its request to end the Tos proceedings. CHSRA had requested a judgment on the pleadings already filed in the case. The trial Court ruled that a trial be held to determine whether the Authority’s HSR project complies with Proposition 1A.

The Tos plaintiffs filed a Preliminary Opposition and Motion for Judicial Notice, which were followed by the Attorney General’s Reply and Request for Judicial Notice.

The Court of Appeal issued a ruling on April 15th dismissing the petition.

Oral argument was held on May 23, 2014. A decision was issued July 31, 2014 that overturned Judge Kenny’s January 2014 ruling in the Tos case  and September 2013 ruling in the Validation case. The decision held that the Funding Plan challenged by the plaintiffs had been for the benefit of the Legislature, not the voters, and that there was no remedy for the fact that the Authority’s Funding Plan did not meet the requirements of the Bond Measure. Plaintiffs issued a very strong press release , with counsel’s quote: “The court has essentially allowed the Authority to ignore promises it, and the legislature, made to Californiaʼs voters. It bodes ill for votersʼwillingness to trust such promises in the future.”

Petitions for Rehearing
On August 13, the Tos plaintiffs filed a Petition for Rehearing, asserting that the Court of Appeal’s decision had been based on cases and arguments that had not been briefed. The Howard Jarvis Taxpayers Association and the First Free Will Baptist Church filed a Joint Petition for Rehearing on August 12th, claiming that the court had failed to rule on one part of the case, the Finance Committee had not made one of the two findings mandated for approving bond issuance. Upon order by the Court, the Authority filed an Answer. Howard Jarvis Taxpayers Association filed this Reply. The petitions were denied as of September 2:

Petition for Review
On September 2, 2014, Attorneys for the Tos plaintiffs filed a Petition for Review with the California Supreme Court, opening a whole new chapter in this Extraordinary Writ proceeding.

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