by Chris Reed | March 4, 2014 11:00 am
For a few months, Cal Watchdog has been the only outlet in the media underlining how fundamentally strange and self-defeating the actions of the state government have been in defending the bullet train.
After an August court ruling from Sacramento Superior Court Judge Michael Kenny that the massive project didn’t have a legal business plan because it had inadequate financing and environmental reviews, the Attorney General’s Office filed a “remedies” brief that included no remedies. It didn’t dispute Kenny’s conclusion that the business plan was illegal. Instead, the state argued that the project could continue for the time being using federal funds.
As I wrote for CWD in October …
“It seems awfully problematic for the state to concede its plans break the law yet still want to proceed with a $68 billion project.”
Then came round two of legal filings in January, this one appealing Kenny’s rulings. This time the Attorney General’s Office argued that Kenny’s August and November decisions on the illegality of the business plan were flat-out wrong and an assault on the prerogatives of the state’s executive and legislative branches.
This is incompetent lawyering. Says who? Says (indirectly) Ben Feuer, chair of the appellate section of the Bar Association of San Francisco’s Barristers Club. This is from an September 2013 essay he wrote:
“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.”
So at the trial level, the Brown administration waived the argument it’s now making. And the argument it’s now making is that courts should know their place and let the governor and Legislature interpret state law as they please. Wow, that’s a winner.
Two plus two equals four, folks. The governor doesn’t want to win this legal fight. As I wrote in January, this “is a face-saving way for Brown to give up on the doomed project.”
It took a while, but now the Cal Watchdog view is on its way to being conventional wisdom. This is from Dan Walters’ column posted Monday night on the Sac Bee website:
“The state was to begin putting up its match for federal money this spring but cannot do it with the bond freeze. Now the feds are giving the state until July, apparently hoping that the Legislature will approve Brown’s budget request for $250 million from ‘cap-and-trade’ fees on business for the bullet train.
“Brown also wants a permanent stream of fee money. However, business groups are challenging the fees in court, saying they are taxes that should be approved by the Legislature, and the Legislature’s budget analyst, Mac Taylor, questions the legality of using them for the bullet train.
“Meanwhile, the governor is asking appellate courts to overturn the local court rulings -– arguing, in effect, that the courts have no power to review a legislative/administrative decision to spend bond money.
“Asking courts to limit their authority smacks of desperation to get financing -– or perhaps is a sneaky way of shifting the onus for killing an increasingly unpopular project onto judges.”
Bingo, Dan, bingo. Welcome to the club.
Source URL: https://calwatchdog.com/2014/03/04/dan-walters-figures-out-gov-brown-wants-bullet-train-dead/
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