California appeals court deals a blow to high-speed rail opponents. What the ruling means

Judges on California’s 3rd District Court of Appeal dealt another blow to the hopes of high-speed rail opponents in Kings County and elsewhere across the state, issuing a ruling Tuesday that the current use of bond funds for construction in the central San Joaquin Valley does not violate the California Constitution.

Kings County walnut farmer John Tos, who has battled in court against the California High-Speed Rail Authority and state officials for a decade, and other litigants sued the state of California over a key piece of 2016 legislation they said represented a significant change to what California voters agreed to when they approved Proposition 1A, a $9.95 billion bond measure, in 2008.

That law, Tos attorney Stuart Flashman argued to the appellate justices in October, represented a violation of the state Constitution by changing the definition of how the money could be spent. After losing the first round of the case in Sacramento County Superior Court, the case was appealed to the 3rd District.

In a 25-page opinion, Presiding Justice Vance W. Raye, joined by associate justices Cole Blease and Ronald Robie, disagreed with Flashman and affirmed the lower-court ruling.

The court effectively decided that since the 2016 legislation, Assembly Bill 1889, did not fundamentally change what the Proposition 1A money was to be used for – advancement of a high-speed rail program – and that spending on a project that has undergone modifications over the years was, in fact, constitutional.

“This constitutional provision does not prohibit alterations of a bond law approved by the voters for a complex public works project, like the high-speed train system, which do not divert funds from, interfere with, or destroy ‘the single object or work … distinctly specified” in the bond act,” Raye wrote in the opinion.

The decision clears the way for the state to continue spending the bond funds on construction both in the San Joaquin Valley and on related projects in the “bookends” of the future rail system in the San Francisco Bay Area and the Los Angeles basin.

The opinion starts a 30-day clock in which Flashman can ask the court to reconsider the case. If they deny that request, there is a 10-day period in which Flashman’s clients can petition the California Supreme Court to review the case.

“I’ve got to talk to my clients and see where they want to go,” Flashman told The Fresno Bee on Wednesday. “My tendency is to not to try to take it to the California Supreme Court because I doubt they would take it on.”

What was behind the decision?

In oral arguments via video conference with the three justices in October, Flashman contended that AB 1889 allowed the California High Speed Rail Authority to be able to spend money on intermediate segments of the high-speed rail project, including portions now under construction in Fresno, Kings, Madera, Tulare and Kern counties, rather than on an entire integrated system.

Proposition 1A, Flashman argued, required that money could only be spent on a “usable segment” of the rail system. By instead allowing incremental construction to occur on sections that would someday be “suitable and ready” for high-speed rail before all of the money was available for a section, the 2016 law effectively removed a “financial straitjacket” contained in Proposition 1A.

That, he added, was enough of a change to what was approved by voters in 2008 to require sending the entire program back to voters.

The appellate panel rejected that premise. “The Tos parties maintain that ‘suitable and ready for high-speed train operation’ (a phrase used in the bond act) … mandates completion of, and only of, a corridor or segment upon which a high-speed train could immediately travel at speeds up to 200 miles per hour,” the opinion states. That’s compared to the current incremental approach for construction and possible operations of conventional trains on the tracks as an interim step toward running true high-speed trains.

The 2016 law, the justices wrote, “furthered the construction of the high-speed train system by investing in improvement of existing rail lines, which after additional investment would be shared with high-sped trains … while providing benefits to passengers in the near term.”

In authorizing Proposition 1A in 2008, “voters approved bonds to initiate construction of a high-speed rail system …,” Raye wrote. “This was the ‘single object or work’ of Proposition 1A. The vote was not taken to endorse every detail of the construction and financial planning process.”

In a prepared statement, California High-Speed Rail Authority CEO Brian Kelly applauded the court’s ruling Tuesday. The decision “affirms using Proposition 1A bond funds for the single purpose of the voter-approved Proposition 1A described project – electrified high-speed rail in California,” Kelly said. “We are encouraged by (Tuesday’s) important decision.”

Decision sets precedent, attorney says

This was the second time that a challenge of the legality of using Proposition 1A funds has been rejected by courts.

The first, involving Tos and some of the same plaintiffs, directly challenged whether the rail project could meet operating requirements of the bond measure – including provisions that trains be capable of making a nonstop trip from San Francisco to Los Angeles in two hours, 40 minutes.

That lawsuit also maintained the system could not realistically operate without a subsidy of taxpayer funds, and that the system was substantially different than what voters approved in 2008.

Flashman was disappointed and disheartened by the latest opinion, adding that he believed politics were likely a driving pressure on the justices.

“From the standpoint of Central Valley cities, especially down in the Fresno area, it’s real important that high-speed rail go forward,” Flashman said. “There’s a lot of money and a lot of stuff riding on this.”

Work on what is planned to become the initial operating section of the statewide bullet-train between Merced and Bakersfield is underway with three different construction contracts in Madera, Fresno, Kings, Tulare and Kern counties.

The petitioners in the case include Tos, who has been involved in lawsuits over the rail project since 2011, as well as the town of Atherton along the San Francisco Peninsula, several Peninsula residents, former state senator and judge Quentin Kopp of San Francisco.

Several nonprofit rail organizations are also petitioners: the California Rail Foundation, the Community Coalition on High-Speed Rail, and Transportation Solutions Defense and Education Fund (TRANSDEF).

Flashman said the court ruling “reduces my confidence in the court and the legal system.”

He added that he believes the appellate opinion could set the precedent for legislation to modify important requirements of future bond acts with very specific voter-approved requirements, with the effect of potentially eroding the confidence of voters to cast “yes” votes on bond measures for other purposes if the they are uncertain about the durability of the provisions.