Will appeals court notice AG’s flip-flop on bullet train?

It took the California Supreme Court five days to unanimously reject Gov. Jerry Brown’s request that justices immediately consider a Superior Court ruling that the state’s bullet train project had an illegal business plan and lacked proper environmental reviews to begin the project. In an initial ruling in August and a confirming opinion in November, Sacramento-based Judge Michael Kenny cited taxpayer-protection provisions in Proposition 1A, the 2008 ballot measure providing $9.95 billion in bond seed money for the project. Under 1A, the state needs to have identified all funding for the first operating segment of the train — a 300-mile chunk estimated to cost $31 billion — before construction starts. This is from the San Francisco Chronicle:

“The state Supreme Court rejected Gov. Jerry Brown’s request Wednesday to grant immediate review of a ruling against his administration’s plan for first-stage funding of California’s high-speed rail project.

“While refusing to bypass a lower court and take up the case itself, however, the high court issued an unusual, unanimous order to the state appellate court in Sacramento to ‘expedite its consideration of this matter,’ with written arguments due by Feb. 10. “

The fact that the justices did expedite the process was treated as a victory for the governor by one of his spokesman. But remember that several of his spokesmen and Jerry Brown himself downplayed Kenny’s rulings — until it became apparent that the $31 billion requirement was insurmountable. They don’t have much credibility when it comes to analysis of state court decisions.

Will appeals court notice AG used to have a different view?

The appellate court in Sacramento that will take this up has some funny business to consider.

This is from an September 2013 essay by Ben Feuer, an attorney with the California Appellate Law Group in San Francisco who is the chair of the appellate section of the Bar Association of San Francisco’s Barristers Club.

“Whether you’re handling the appeal or bringing in an appellate specialist, the decisions you make in the trial court can’t be undone — and whether you preserved your arguments for appeal and made the right procedural decisions can make all the difference in the world once the case goes ‘up.’ …

“Of course, most litigators know the golden rule of appellate law: you waive your arguments on appeal if you don’t raise them in the trial court. Actually, the correct term is ‘forfeit,’ not ‘waive’ — waiver requires the intentional relinquishment of a known right, while forfeiture occurs whenever a party fails to preserve an argument for appeal whether intentional or not. (Courts and litigators tend to use the terms interchangeably.)

“California’s appellate courts will consider forfeited arguments only if they raise questions of pure law on undisputed facts.”

Current arguments against rulings weren’t raised before

Feuer is no dummy. He was the San Francisco bar’s 2013 “Outstanding Barrister.”

This is incredibly germane to what’s going on now because in Attorney General Kamala Harris’ October “remedies” brief responding to Kenny’s initial ruling, she didn’t take issue with the legal reasoning of his findings. Instead, she said the state could proceed with the project for the time being using federal funds.

But in the state’s emergency Jan. 24 appeal to the state Supreme Court, Harris’ brief said Kenny didn’t know what he was talking about.

Wednesday night, I asked the attorney for the Kings County folks suing the California High Speed Rail Authority if he thought this was a huge problem for the state.

“You are correct!” said Michael J. Brady in an email.

This is either really bad lawyering by Harris — or a face-saving way for Brown to give up on the doomed project. I believe it’s the latter.