After more than a century in California’s political spotlight, the state’s initiative process will be getting a major revise next year. Even more surprising, both Democrats and Republicans in the famously partisan Legislature are happy to see it happen.

While Republicans made up most of the limited opposition when SB1253 made its way through the Legislature, the two GOP leaders, state Sen. Bob Huff of Diamond Bar (Los Angeles County) and Assembly member Kristin Olsen of Modesto, both voted “aye.”

“It was a bipartisan effort,” said former state Sen. Darrell Steinberg of Sacramento, the Democrat who authored the bill. “People like the initiative process but believe it can be improved.”

The measure opens the way for increased collaboration between lawmakers and backers of initiatives by requiring the Legislature to hold a joint public hearing on a proposed initiative as soon as 25 percent of the required signatures are collected. It also calls for the attorney general to open a 30-day public review before approving an initiative for circulation and lets supporters amend the initiative during that time.

A much-bigger problem: Slanted ballot language

These reforms make sense and should lean to cleaner ballot measures.  But if one looks back over the past 15 years, all of the biggest outrages in the initiative process involved another problem that the Legislature declined to try to fix: the extraordinary way that the last three attorneys general — Bill Lockyer, Jerry Brown and Kamala Harris — have slanted ballot language to achieve the outcome that Democratic special interests prefer.

Gov. Schwarzenegger’s bid to use a 2005 special election to force through major reforms was hurt badly by Lockyer’s ballot titles and language. Proposition 76 would have created a rainy-day fund and a less chaotic budget process. Lockyer made it sound like an attempt to hurt school kids, titling it “State Spending and School Funding Limits. Initiative Constitutional Amendment.”

In one week alone in 2010, then-Attorney General Jerry Brown had his ballot language thrown out by judges who agreed that Brown wasn’t playing fair on a ballot measure challenging AB 32 and one making it easier to pass a state budget without Republican votes. (He tried to sabotage the first one, Prop. 23, and promote the second one, Prop. 25.)

Kamala Harris has continued this unfortunate tradition. This CalWatchdog post looks at her attempt to help trial lawyers with their misleading 2014 ballot measure.

Lockyer, Brown and Harris all say they don’t draft the language; instead, they depict it as a chore that they leave to their “professional staffs.” But if that were the case, then why have all three AGs opposed reforms transferring ballot-language responsibilities to the FPPC, the LAO or a panel of retired judges?

Because they know being able to compose ballot language on measures digging with the biggest issues of the day gives the California attorney general extraordinary power.

The worst ballot-language abuser of all

But the twist to all this is that the single worst abuser of the privilege of writing ballot descriptions was the Legislature itself. In 2008, Democrats in the Assembly and Senate directly wrote the highly misleading title and summary for Proposition 1A, the measure which provided $9.95 billion in bond seed money for the bullet-train project. Here’s the summary:

SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT. To provide Californians a safe, convenient, affordable, and reliable alternative to driving and high gas prices; to provide good-paying jobs and improve California’s economy while reducing air pollution, global warming greenhouse gases, and our dependence on foreign oil, shall $9.95 billion in bonds be issued to establish a clean, efficient high-speed train service linking Southern California, the Sacramento/San Joaquin Valley, and the San Francisco Bay Area, with at least 90 percent of bond funds spent for specific projects, with federal and private matching funds required, and all bond funds subject to independent audits?'”

This prompted a Howard Jarvis Taxpayers Association lawsuit. That suit led a state appellate court to issue a jaw-dropping decision that forever banned the Legislature from writing ballot language.

Although Democrats face two scandals involving members of the state Senate, the party is well positioned for the 2014 campaign cycle. The party controls every statewide office and both houses of the state Legislature. Overall, the party has an advantage in voter registration of 2.6 million more than Republicans.

Gov. Jerry Brown is expected to cruise to reelection and could once again sweep Democrats into all of the statewide constitutional offices. The Democratic advantage is strongest in campaign fundraising. As of the last reporting deadline, 10 Democrat campaign committees had a collective $40 million in cash on hand.

And those big fundraising warchests could be put to work for the state’s Democratic Party.

Those 10 Democratic campaign committees could easily collect a few hundred thousand dollars more per year, if they simply managed their money better. And, no, this hot tip isn’t another scheme from Kindee Durkee.

In March 2012, Durkee, a popular California campaign treasurer, pleaded guilty to embezzling more than $8 million from Democratic candidates, including Sen. Dianne Feinstein.

Interest

Without dialing for dollars, Democrats could earn interest on their multi-million campaign war-chests. Under state campaign finance guidelines, campaign accounts can be invested in interest-bearing accounts. A few Democrats, such as State Treasurer Bill Lockyer, have figured this out. Last year, he earned a little more than $5,000 in interest.

Rep. Darrell Issa, R-Vista, is the best financial planner when it comes to his campaign account. According to Roll Call, his congressional campaign committee earned $82,457 from investments in just the third quarter of 2013. Among those returns were $19,293 in dividends on investments with Merrill Lynch, and $63,164 on unrealized gains. In the second quarter, the committee earned $32,108. In the first quarter, the committee earned $37,541.

If California Democrats wanted a more liquid investment, they could still earn interest from high-yield online savings accounts. According to the personal finance experts at Nerd Wallet, several banks are currently offering 0.90% APY rates for online accounts. At that rate, Democrats could earn a cool $30,133 per month, or $361,605 per year in free money.

California Democrats’ war-chests:

California Democratic Party
Cash on Hand: $10,124,593.00
Interest Earned in 2013: $906.28
Potential Campaign Interest: $91,121.34

Jerry Brown
Current Office: Governor
Campaigning for 2014: Re-Election
Cash on Hand: $16,957,317.44
Interest Earned in 2013: $74.39
Potential Campaign Interest: $152,615.86

Gavin Newsom
Current Office: Lieutenant Governor
Campaigning for 2014: Re-Election
Cash on Hand: $1,703,596
Interest Earned in 2013: $2,529.01
Potential Campaign Interest: $15,332.36

Bill Lockyer
Current Office: State Treasurer
Campaigning for 2014: None
Cash on Hand: $2,109,731.00
Interest Earned in 2013: $5,020.32
Potential Campaign Interest: $18,987.58

Kamala Harris
Current Office: State Attorney General
Campaigning for 2014: Re-Election
Cash on Hand: $3,103,865.00
Interest Earned in 2013: $262.70
Potential Campaign Interest: $27,934.79

John Chiang
Current Office: State Controller
Campaigning for 2014: State Treasurer
Cash on Hand: $1,833,550
Interest Earned in 2013: $0.00
Potential Campaign Interest: $16,501.95

John Perez
Current Office: Speaker of the State Assembly
Campaigning for 2014: State Controller
Cash on Hand: $1,866,339
Interest Earned in 2013: $0.00
Potential Campaign Interest: $16,797.05

Betty Yee
Current Office: Board of Equalization
Campaigning for 2014: State Controller
Cash on Hand: $502,178
Interest Earned in 2013: $0.00
Potential Campaign Interest: $4,519.60

Dave Jones
Current Office: Insurance Commissioner
Campaigning for 2014: Re-Election
Cash on Hand: $1,420,677
Interest Earned in 2013: $74.39
Potential Campaign Interest: $12,786.09

Tom Torlakson
Current Office: Superintendent of Public Instruction
Campaigning for 2014: Re-Election
Cash on Hand: $556,561
Interest Earned in 2013: $415.36
Potential Campaign Interest: $5,009.05

The CTA blocking efforts to make it easier to remove classroom sexual predators and instead passing legislation that gave such predators new protections is one example. Another is the state Public Employment Relations Board making insane arguments, such as asserting the provisions of a 1971 state law mandating teacher performance be part of job evaluations should be subject to collective bargaining now — and in every school district! Another is the Legislature passing a bill that would have led to even more shakedown lawsuits in response to corrupt trial lawyer scams targeting minority small businesses.

This ruthless extremism is on particular display with direct democracy. The Attorney General’s Office under Bill Lockyer, Jerry Brown and now Kamala Harris has a horrible record of crafting ballot language for initiatives and constitutional amendments — language obviously meant to push voters one way or the other when it comes to signing petitions or voting, whether it be for union power plays or on social issues like gay marriage.

So guess what happened Tuesday? The Secretary of State’s Office released the official title and summary for a proposed anti-bullet train ballot measure prepared by the AG’s office, and it seems downright reasonable and fair:

“HIGH-SPEED RAIL. FUTURE BOND SALES. NEW TRANSPORTATION TECHNOLOGIES. INITIATIVE STATUTE. Prevents sale of high-speed rail bonds previously approved by voters for construction of a high-speed rail system, except to fund any segment already under construction. Permits construction of first segment of the high-speed rail system to proceed, if Legislature consents, to allow comparison with other transportation technologies that deliver speeds exceeding 250 miles per hour or energy efficiencies exceeding 120 miles per gallon or equivalent. Authorizes state to acquire/dedicate right-of-way and contract with private developers to construct and operate new transportation technology pilot projects for comparison with high-speed rail. Summary of estimate by Legislative Analyst and Director of Finance of fiscal impact on state and local government: Impact to state debt-service savings ranging from zero to about $650 million annually from not using state bond funds to construct high-speed rail, depending on how this measure is interpreted and the resulting reduction in bond funds spent. Potential state costs in the hundreds of millions of dollars to the extent that the state is not reimbursed by private developers for right-of-way acquisition for the development of transportation pilot projects. Potential reduction in state and local tax revenues of tens of millions of dollars annually for a few years, resulting from a loss of federal matching funds.”

Dems ready to bail on bullet train without admitting as much

So what’s going on here? Why is Kamala Harris playing fair?

I think it’s more evidence for my theory that Dem leaders from Gov. Jerry Brown down privately agree with Lt. Gov. Gavin Newsom and want the bullet train gone before it becomes Big Dig West — but they want to do so without blood on their hands or without admitting they championed a fiasco. Instead, they can lamely blame “declinists” and mean people who opposed the bullet train from the start.

How are they going to pull this off? Through intentionally inept lawyering. As I wrote last fall for this site:

“In California Attorney General Kamala Harris … office’s ‘remedies’ brief in October responding to Sacramento Superior Court Judge Michael Kenny’s Aug. 16 ruling that the bullet train had an illegal business plan and inadequate environmental reviews, there was no challenge to Kenny’s findings. There was just the assertion that work on the project could continue using federal funds. …

“It seems awfully problematic for the state to concede its plans break the law yet still want to proceed with a $68 billion project. But that appears to be what has happened.”

Touting ludicrous legal theories with knowledge they’re ludicrous

Here’s more from CWD in January on the the second round of legal responses from the state to anti-rail authority rulings:

“For five months after Judge Kenny’s ruling, the Brown administration didn’t question its legal reasoning one bit. Now the administration accuses the judge of ‘erecting obstacles found nowhere in the voter-approved bond act’ of 2008 that provided $9.95 billion in bond seed money for the project. Huh? How can the governor and attorney general make this argument now when they didn’t before?

“Maybe because they know how ludicrous it will look to sober observers, and they like that it looks ludicrous.

“Look at the bigger picture. Two plus two equals four, people.

“By asking the California Supreme Court to weigh in quickly, and by using an obviously flawed legal argument in doing so, Jerry is angling for a prompt resolution to the bullet-train saga — before more money is spent and before eminent domain is used to seize perfectly sound homes, farms and businesses in the Central Valley.”

Now there’s more evidence for this thesis. If Kamala Harris really wanted the bullet train, her MO would have been to write another slanted ballot summary and title.

She didn’t.

Sherlock Holmes would know what to think of this. It’s the dog that didn’t bark.

But when a second-tier statewide elected official who wants to continue to be a statewide elected official crosses the most powerful unions of all, that’s pretty remarkable. Yet that’s just what Controller John Chiang  did — or appeared to do — on Monday in calling for a public database of the pay of all teachers.

“Chiang [is] requesting that every public school district in California shares with the public all salary and benefits information of all teachers online. …

“‘When public pay information is transparent and easy accessible, citizens have the power to hold their local governments more accountable,’ said Chiang.

“Chiang mailed a letter on Monday to nearly 1,000 school districts requesting the information within 90 days.

“Most community colleges and the University of California system agreed to the plan, but Chiang says he needs K-12 schools and the courts represented.”

Did CTA, CFT see writing on wall? Or is something else going on?

Now it’s already established that teacher pay is by law a matter of public record, and some newspapers already have databases of local individual teacher salaries, such as the Orange County Register. But it’s not the norm, and teachers want to keep it that way. They have the same privacy objections — and their unions the same goal of secrecy — as other public employees.

But their unions are way more powerful. The California Teachers Association and the California Federation of Teachers and their half-million members are first among equals in the Democratic establishment.

Chiang hasn’t remotely the stature of Jerry Brown or the glamor of future Dem gubernatorial candidates Kamala Harris and Gavin Newsom. For him to suddenly pipe up and endorse something members of the CTA and CFT don’t like is highly odd. For him to do so just before the CTA voted to endorse him to succeed Bill Lockyer this year as state treasurer, well, that’s hard to fathom. To the public, it makes him look like an open-government crusader, but to insiders who know how Democratic politics work in the Golden State, it makes him seem like a political kamikaze.

Unless the teacher unions see the writing on the wall and know that state law offers districts no way of ducking compliance.

Or unless Chiang has no intention of making this a crusade, and has told the CTA this. The controller is only “requesting” the information. His tone is mild.

Why? Because they’re playing chess, not tic-tac-toe. Chiang and the CTA know that most local districts with union-dominated school boards will drag their feet on setting up databases for years — until they’re forced to by court order.

The California way

So is Chiang a kamikaze? Or is he slickly posturing on the need for complete statewide openness about teacher pay without any real intention of following through with threats and lawsuits?

I’ll be shocked if it’s not the latter. It’s the California way.

“A 2014 initiative advanced by Jones, a Sacramento Democrat, and Consumer Watchdog would give the insurance commissioner the authority to deny health insurance rate increases his department deems excessive. …

“‘The health insurers and HMOs will do everything in their power to crush this, including attacking me and attacking the initiative,’ he said. ‘This is the last thing in the world they want to see happen.’

“Others say the health overhaul should be given an opportunity to work before imposing what they see as potentially costly new regulations that could undermine it. They say it would create more bureaucracy that would reduce access to care and drive up rates. Kim Stone, president of the Civil Justice Association of California, said the measure would be a bonanza for organizations that intervene in rate cases and increase costs.

“’This initiative isn’t about improving health care for millions of Californians,’ said Tom Scott, executive director at California Citizens Against Lawsuit Abuse. ‘It’s really about putting money in the pockets of trial lawyers who could file costly legal challenges that will end up ultimately costing patients and consumers more money.”

Another way to look at the initiative is yet another expansion of government power over the private sector. In a state with the highest effective poverty rate in the nation, why would we want to make the status quo even harder on a big segment of the private economy?

Trial lawyers, Latino Dems should be like oil and water

Cadelago’s excellent analysis has lots of interesting details on Jones’ background, including plenty of evidence that not just Republicans but fellow Dems in Sacramento see him as a publicity-seeking stunt man.

But there’s one point about Jones’ key political ally — California’s trial lawyers — that can never be brought up enough. Just as it’s absurd for Latino Democrats to see the California Teachers Association — enforcers of the anti-Latino education status quo — as an ally, it’s absurd for Latino Democrats to see trial lawyers as an ally. Indeed, it’s absurd for any Democrat who actually believes in “social justice” and doesn’t just use the term as camouflage.

Why? The Trevor law firm scandal of a decade ago. Here’s my account from earlier this year:

“Consider what happened in 2003.  Early that year, a series of sickening media reports detailed how several L.A. area law firms, especially the Trevor Law Group, filed thousands of frivolous suits against small businesses such as restaurants, dry cleaners and car repair shops, many run by immigrants or minorities with a poor grasp of English and a lack of awareness of their legal rights. The suits, which were allowed under the state’s Unfair Competition Law, would allege minor technical infractions of various state codes and demand payments from $6,000 to $26,000 to drop the suits.

“Attorney General Bill Lockyer probed the scam, corroborated the media reports and denounced the suits as a despicable extortion scheme. L.A.-area Latino Democrats, especially Lou Correa of central Orange County, pushed hard for reforms.

“But the trial lawyers pushed back. And fearful of offending a key source of Democrats’ campaign funds, Democrats didn’t just cave and block reform measures. They actually offered a bill that would have exposed the small businesses being sued to even bigger court judgments — in other words, giving the extortionist law firms an even bigger club to threaten business owners.

“The Unfair Competition Law only ended up being fixed by a 2004 initiative.”

Preying on immigrants not social justice

The trial lawyers wanted the right to prey on poor English speakers. Oh, yeah, they’re natural allies for Latino Democrats.

I understand why people say Republicans are an uneasy and unnatural coalition. Social conservatives and libertarians have little to agree on nowadays besides the idea that big government is scary.

But the California Democratic Party is every bit as odd a coalition. Its richest backers — teachers unions and trial lawyers — have agendas that are inimical to the interests of its biggest voting bloc.

But among Latino Democrats, only former state Sen. Gloria Romero ever bothers to point this out.

“I worry a little bit about fairness, although when you look at the income distributions in the last 20 years and see that essentially 80 percent of the people in California have either stagnated or fallen backward, 20 percent are the folks that actually have more disposable income, maybe progressive income taxes are relevant and fair in that kind of environment.

“However, you do get to the top pretty quick, and the potential for out-of-state migration is substantial enough that we have to be very sensitive about those rates.”

His tune is a little different this year:

“Tesla Motors Inc. got the authority to save up to $34.7 million in California sales and use taxes on its purchase of up to $414 million in equipment to expand motor car production in California.

“The Palo Alto-based electric car company applied for and got tax credits for achieving state incentive goals such as being a net benefit to the community, improving air quality, creating construction jobs, creating permanent jobs and developing California research and development facilities.

“State Treasurer Bill Lockyer announced the credit Tuesday following the meeting of the California Alternative Energy and Advanced Transportation Financing Authority, which voted to approve the credit.”

But the main beneficiaries will be rich people, such as Tesla founder and billionaire Elon Musk; and rich people who purchase the expensive cars.

The tax credit is especially welcome to Tesla’s investors after their stock tanked Friday following news a Tesla car’s meltdown in a garage in Irvine, against which the firm is fighting back.

But the question arises: If tax credits for Tesla create jobs, why not tax credits — or cuts — for everybody?

But what appears to be the most common form of eminent domain in the U.S. is typically an appalling assault on liberty. As Justice Sandra Day O’Connor argued in her dissent in 2005’s Kelo vs. New London, it’s commonly used for reverse Robin Hood purposes — taking land from the poor (or poorly connected) and giving it to wealthy, connected developers.

Now we may be on the brink of eminent domain takings in California that would be uniquely odious. I wrote about it in U-T San Diego in reaction to Judge Michael Kenny’s finding that the state didn’t have a legal business plan, sufficient environmental reviews or authority to issue any more bonds for its high-speed rail project:

“These are immense obstacles. Yet instead of acknowledging their seriousness, rail authority board Chairman Dan Richard depicted them as predictable ‘challenges,’ and a spokeswoman said the authority would proceed with its plans to seize land for the project in the Central Valley via eminent domain.

“This is in keeping with Richard’s full-speed-ahead bravado. But is also unconscionable — disrupting the lives and livelihoods of Central Valley residents for a project that is now an extreme long shot solely to create an apparition of progress.

“Before this happens, it’s time for a ‘have you no shame?’ intervention in Sacramento. If Jerry Brown won’t take Richard to the woodshed, then it’s time for some senior Democratic leader to take Brown to the woodshed.

“A decade ago, when he was attorney general, Treasurer Bill Lockyer ripped the ‘puke politics’ of Gov. Gray Davis. Taking away folks’ homes and farms for political theater is politics at its pukiest. In coming days and weeks, we hope Lockyer, Lt. Gov. Gavin Newsom, Sen. Dianne Feinstein or some Democrat of stature has the decency to make this point.”

As with Kelo ruling, backlash could be huge

In 2005, principled believers in property rights were very pleasantly surprised at the sharp backlash against eminent domain triggered by the 5-4 high court Kelo vote to continue to allow land grabs to help local governments increase tax revenue.

I think there’s a chance that if the rail authority starts seizing productive ag lands and neighborhoods of middle-class homes in the Central Valley for a project that appears dead, there would be another backlash, and not just in California.

It wouldn’t just be an obnoxious assault on the property owners facing land grabs. It would be a hateful assault on American norms of fairness and honesty.

We’ll see.

But there’s something particularly odious about how Harris has put her finger on the scale of justice with the ballot language for a trial-lawyer measure to up the amount they can wring out of doctors through medical-malpractice lawsuits. Dan Walters had the details earlier this week:

“This is the official ‘title and summary’ of a proposed 2014 ballot measure, as prepared by Attorney General Kamala Harris’ office:

“‘Drug and Alcohol Testing of Doctors. Medical Negligence Lawsuits. Initiative Statute. Requires drug and alcohol testing of doctors and reporting of positive test to the California Medical Board. Requires Board to suspend doctor pending investigation of positive test and take disciplinary action if doctor was impaired while on duty. Requires doctors to report any other doctor suspected of drug or alcohol impairment or medical negligence. Requires health care practitioners to consult state prescription drug history database before prescribing certain controlled substances. Increases $250,000 cap on pain and suffering damages in medical negligence lawsuits to account for inflation.’

“A voter who is approached to sign petitions for this measure would naturally assume that its primary thrust is eliminating drug-addled doctors, and if it qualifies for the ballot, one can be certain millions of dollars will be spent on its behalf to drive home that seemingly lofty goal.

“In fact, however, its real aim is reflected very briefly in the final sentence — to modify the state’s 38-year-old cap on ‘pain and suffering’ damages in medical malpractice cases.'”

Oh, the hilarity: AG’s office administers ethics test

Now there is a very strong chance that a judge will throw out Harris’ ridiculously slanted ballot language. But that doesn’t hide the corrupt intent of our attorney general: to benefit her fellow lawyers, by legal hook or crock.

Here’s what’s funny: Googling “California state government ethics” turns up the fact that the AG’s office is responsible for administering an ethics test to state officials!

“Government Code section 11146 requires all covered state officials to complete an ethics orientation conducted by their agency every two years. The Attorney General’s Office and the Fair Political Practices Commission have devised this core course that may be incorporated into an ethics orientation by any state agency.

“Under the law, your agency must provide a public record of who has taken its ethics orientation. If this core course is a part of your agency’s ethics orientation as mandated by the law, make sure that you are following your agency’s procedures for completing this aspect of the orientation.”

But has Harris taken the test? If so and she passed, she’s since forgotten what it means to be ethical.

This is one more example of a point I made earlier this week when writing about the Bay Area Rapid Transit system: Corrupt, dishonest behavior that would lead to civil or criminal sanction in the private sector is taken for granted in the public sector.

Were she chief counsel for a corporation that behaved this horribly, Kamala Harris would be pilloried, and correctly so. In Sacramento, however, she faces little blowback — and is probably chortling at the brazen way she has figured out how to reward her friends in the trial-lawyer community.

Great, just great.

The protections were meant to ensure the state wouldn’t spend huge sums on a train segment that wouldn’t be usable or have any utility if further segments weren’t built. One required the state to have funding firmly lined up for the 300-mile Initial Operating Segment, which the CHSRA estimates would cost $31 billion. The second required the state to have all environmental reviews completed for the Initial Operating Segment before construction began.

But Kenny’s ruling waffled on whether he had the authority to block construction. “Proposition 1A appears to entrust the question of whether to make an appropriation based on the funding plan to the Legislature’s collective judgment,” he wrote. “The terms of Proposition 1A itself give the Court no authority to interfere with that exercise of judgment.” He ordered the state to suggest “remedies” to address the deficiencies, which he will consider at a hearing this Friday in his Sacramento courtroom.

In legal briefs filed last month, Attorney General Kamala Harris’ staff responded in unexpected fashion: Instead of saying Kenny’s ruling was wrong and a misreading of Proposition 1A, the state’s lawyers argued that so long as the rail authority only used the $3.3 billion in federal funds it had been given for the project, it could proceed with work for now.

Harris’ position both elated and baffled attorneys for Kings County and two Kings County residents who are the plaintiffs in the case against the bullet train. They were elated because the state’s top lawyer accepted without challenge Kenny’s conclusion that the bullet-train project would break state law if it used state funds. But they were baffled at the AG’s opinion’s that taxpayer safeguards in Proposition 1A didn’t apply to federal funds, since they were supposed to be matched dollar for dollar by the state.

How do bullet-train advocates see path to construction?

What could be driving this legal maneuvering? How do bullet-train supporters — whose ranks at least nominally include the attorney general — see a path to construction?

Based on interviews with insiders and close observers of the bullet-train fight, the scenario builds off this assumption: “They don’t think the judge will have the [guts] to block this unilaterally,” one county supervisor from Silicon Valley told me. “He already signaled in the August decision that he didn’t want to do it … by raising the question of whether he even had the power to do it.”

After another ambiguous court ruling, the theory holds, Controller John Chiang and Treasurer Bill Lockyer will hold their noses and go along with the sale of state bonds. Where will the $20 billion or more that the state would still need to complete the Initial Operating Segment come from, given the lack of interest from private investors who can’t legally be given subsidies or revenue guarantees? The assumption is that the federal spigot will reopen if Democrats take back the House in November 2014.

In the sequester era, the idea that there will be a surge in discretionary domestic spending anytime soon seems unlikely. The disastrous rollout of the Affordable Care Act also seems certain to be a huge damper on House Democrats’ hopes to reinstate San Francisco Rep. Nancy Pelosi as speaker.

But the initial premise of the scenario also is open to question. The judge, a 2003 appointee of Gov. Gray Davis, may not be the controversy-wary milquetoast that bullet-train admirers hope.

He has been dealing with high-speed rail litigation for years and has issued several decisions unfavorable to the state before his Aug. 16 ruling. In 2009, he agreed with Menlo Park, Atherton and environmental groups who challenged the environmental reviews used in the decision to route high-speed trains through the San Francisco Peninsula instead of East Bay. This forced the rail authority to rescind its approval of an environmental study for a major section of the bullet train’s northern route. In 2011, he rejected the rail authority’s environmental reviews for a plan to send the bullet train through Gilroy in the San Francisco Peninsula.

A ‘remedies’ hearing in which the state offers no remedies

And a rereading of Kenny’s 16-page ruling shows it to be a thorough condemnation of the rail authority’s efforts to get around Proposition 1A’s taxpayer protections. Its language also suggests that he hasn’t ruled out a range of actions because of his concerns about legislative authority. Rather than rule out injunctive relief, the ruling suggests plaintiffs will have a better chance of achieving it if they make the case on limited grounds rather than by seeking a broad ban on construction spending.

But Kenny could also strike a decisive blow against the bullet train without ordering a moratorium on construction until funding had been firmly identified and environmental reviews completed for the first 300 miles of the project. In his “remedies” ruling, he could again conclude that the final authority on spending decisions rested with the Legislature — then warn bluntly of the impropriety of issuing state bond funds for a project that violates plainly written state laws.

There’s also the chance that the state’s decision to respond to his request for remedies by not offering any might incense him into more decisive action. Kenny’s Aug. 16 ruling treated it as a given that the state would take his concerns seriously. The attorney general didn’t. Instead, Kamala Harris gave the rail authority a fig leaf and a questionable temporary reprieve.

Will Kenny’s judicial temperament prompt him to overlook this diss? We shall see.

This prompted the state Attorney General’s Office — acting on behalf of the rail authority — to file a brief on Oct. 8 that argued that the state could begin building the bullet train project without violating Proposition 1A, the state law providing $9.95 billion in bond seed money to the project, if it only used the federal funding it had been provided by the Obama administration.

This was odd enough — Attorney General Kamala Harris refusing to defend the legality of the state’s bullet-train business plan yet arguing that it should be allowed to proceed for now. But according to the lawyers for Kings County and two of its residents — the plaintiffs in the lawsuit still being heard by Kenny — even the state’s use of federal funds for the first 29 miles of the project may not be legal.

Federal dollars supposed to go to Fresno-Bakersfield link

In a court filing last week, attorneys Michael Brady and Stuart Flashman cited an amendment to the 2009 federal stimulus bill, the American Recovery and Reinvestment Act (ARRA), the largest source of the $3.3 billion in federal funding for the project. That amendment “restricts the use of the ARRA grant proceeds to the Fresno to Bakersfield segment of the Authority’s Central Valley rail construction project.”

This is a major problem for the state because of costly contracts the rail authority has already signed.  “Virtually the entirety of both the Caltrans [construction] contract and the Tutor-Perini-Parsons contract for design and construction of the CP-1 segment of the Authority’s Central Valley rail project cover an area between Madera and Fresno. None of the work currently planned to proceed involves the area between Fresno and Bakersfield,” the Brady-Flashman brief noted.

That means that only federal funds not from the 2009 stimulus bill can be used — about $929 million. But the total design and construction costs for the Caltrans and the Tutor-Perini-Parsons contract are $1.196 billion.

Brady’s and Flashman’s brief also targets Harris’ premise that federal funds can legally be spent on the project without violating Proposition 1A’s restrictions on the use of state bond money, noting the ARRA requirement that the federal funds be matched by state funds. “The legislature explicitly expected Proposition 1A bond funds to be used to match the federal grant funds, not some other hypothetical future fund,” the brief notes.

But even if federal waivers remove the matching-fund requirement, the available federal funding for the 29-mile Madera-Fresno link still doesn’t cover the total cost of the contracts the state has already signed.

A ‘remedies’ hearing without any remedies proposed

The Brady-Flashman brief calls for Judge Kenny to ban the rail authority from beginning construction on the project until it resolves the funding and environmental-review deficiencies identified in Kenny’s Aug. 16 ruling.

The next major chapter in the fight in Kenny’s courtroom is going to be unusual. The veteran judge is holding a Nov. 8 “remedies” hearing at which the state explains how it will resolve its funding and construction plans’ violation of the state law established by Proposition 1A’s 2008 approval.

Yet the attorney general’s “remedies” brief of Oct. 8 offered no remedies addressing Kenny’s conclusion that the state was on track to break state law.

State media coverage has focused on the fact that Harris’ office says it is legal to proceed with work on the project for now using federal funds. What has received inexplicably little emphasis, however, is the fact that the leading law-enforcement official in California government agreed with a judge that the state would break the law if it started using state funds on the project without having firm funding for the first 300 miles of the project.

The rail authority, which has at most $13 billion available, estimates the cost of the 300-mile initial segment at $31 billion. This is not a gap that cash-poor state government can address or finesse, and the prospect for more federal funding in the sequester era seems far-fetched.

Has the bullet-train end game began?

What’s going on here? A veteran Democratic elected official from  Silicon Valley, who spoke with me on the condition of anonymity, suggested we may be seeing the beginning of the end game for the bullet train.

“There are a lot of angles to this. … The support for the train isn’t nearly what it was, the cost is way up, it’s gotten a lot of bad press. People in Sacramento understand that,” the politician told me.

Harris will face major pressure from building-trades unions to let the project go forward. But she will not certify as legal something that her office has already agreed is not legal.

State Treasurer Bill Lockyer and Controller John Chiang also have fiduciary responsibilities that preclude them from approving or proceeding with the sale of billions of dollars in state bonds of shaky legality.

And all three have political motives to disassociate themselves from the increasingly unpopular project. Harris is running for governor in 2018. Chiang is running for treasurer next year. And Lockyer is retiring from politics in 2014 with his most cherished possession being a reputation as an independent maverick.

It’s tough to imagine a better final flourish to Lockyer’s career than deciding not to sell the Prop. 1A bonds in December, as is now planned, on the grounds that he will not be a party to an assault on both state law and California taxpayers.

“That might appeal to Bill,” the Democratic elected official told me. “I could see that.”