Tuesday, September 16, 2014

Derailing democracy

Bump at the pump


California's Democratic Derailment
Sept. 13, 2014

Politicians ignore the legal caveats that voters added to the bullet train

In theory at least, courts and ballot referenda are checks on legislative tyranny. A California appellate court has effectively done away with both by ruling that the legal requirements of a bond measure approved by voters for the state's bullet train are merely "guidance." Californians ought to try this law-as-guidance defense when they're stopped for speeding.

Six years ago voters approved a referendum authorizing $9 billion in bonds for high-speed rail construction, including language with stringent "taxpayer protections." These stipulations were, among other things, that the state high-speed rail authority present a detailed preliminary plan to the legislature identifying funding sources and environmental clearances for the train's first "usable segment" prior to a bond appropriation.

The legislature in 2012 green-lighted the bonds while ignoring these stipulations. The rail authority had pinpointed merely $6 billion of the estimated $31.5 billion necessary to complete the first 300-mile segment from Merced to San Fernando. Only 30 miles of environmental clearances had been certified. 

Last year Sacramento County Superior Court Judge Michael Kenny ruled that the authority "abused its discretion by approving a funding plan that did not comply with the requirements of the law." But in July Sacramento's Third Appellate District sanctioned the lawlessness with a decision as impressive for its cognitive dissonance as its legal afflatus.

On the one hand, the court opined that "voters clearly intended to place the Authority in a financial straitjacket by establishing a mandatory multi-step process to ensure the financial viability of the project." But then the judges ruled that the challenge to the legislature's invalid bond appropriation and authority's preliminary plan, "however deficient," was in effect moot.

The court could require the authority to redo its plan, but the judges say that would be unnecessary since the Director of Finance must still approve a rigorous final plan before the authority can spend the bond revenue. In other words, the law's procedural requirements don't matter.

Yet the bond referendum had ordered a preliminary plan for legislative review precisely so lawmakers could force the rail authority to address their concerns before appropriating the bonds. This added a modicum of political accountability.

So here we have the spectacle of legislators ignoring the very taxpayer protections that they had used to gull voters into approving a ballot measure that might never have passed without those protections. The lesson is that politicians will grab any new power or spending authority voters give them. They'll blow through the caveats and dare voters to sue to stop them.

As for the courts, they're supposed to enforce the law as written. California's Supreme Court now has an opportunity to do what the appellate judges did not and order Sacramento to follow the bond language. At stake are the rule of law and democratic governance in the Golden State.


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