Featured Post

One Court To Rule Them All

CalRail Route MapAs part of my continuing intermittent series of posts worrying about California lighting its money on fire, I present yet another of my intermittent posts worrying about California lighting its money on fire. Today, I see the Gray Lady explaining why finding money for California’s high-speed rail project is proving difficult.

It’s dismaying that the only counter solution being proposed in official circles is complete cancellation of the project. That’s so clearly not the answer that it ought not be on the table at all. Enough money has already been invested in the project ($5.6 billion for the previous two years and projected for the upcoming year alone) that something needs to move forward. We’re about ready to start laying track, ten years after the project was first proposed. While I’d prefer that the project in its current form were revised, we are past the point of no return — having spent billions already, with nothing to show for it to date but paperwork, the taxpayers of the state should expect and demand results. Those results need to be competitive with what air travel offers.

FresnoFederalCourtI have previously proposed what I think needs to be done to redeem the statewide high-speed rail project from a decades-long future of litigation, study, and other white-collar graft. But of these suggestions, I think the most important would the creation of a special court with statewide jurisdiction to oversee land condemnation. Such a court should also get jurisdiction over special statutory concerns, such as environmental impact and potential interference with water delivery infrastructure.

Courts are created by legislatures. And legislators have the ability to talk to one another and work out solutions to problems like these. I call for representatives of California’s Legislature, California’s Governor, and California’s delegation to Congress to get together and come up with an idea to cut through and divert the red tape that makes this project so damned expensive and slow, and then push these items through their respective legislative bodies so that the special CalRail Court can begin clearing the way for construction.

As matters stand now, all manner of claims affecting construction of this project must be litigated piecemeal in courts scattered throughout the state; to date, only one such suit has been settled.

The creation of such a court would impact both state and federal law. This is an opportunity for California state and federal lawmakers to cooperate and create something new, practical, and effective at resolving these issues. It may be as simple as a waiver of the Eleventh Amendment, to allow the state law claims to be litigated directly in a federal court.

Alternatively, the federal government could waive its sovereign immunity and submit all of it statutory and direct claims to the jurisdiction of a special state court. The federal government sometimes waives sovereign immunity for matters like this in other subject matter areas. Both Federal and California courts have substantial procedures already available that would address the complexity of unified litigation.

litigationmoneyThe point is to get all of the claims and disputes related to construction of this project handled before a single court that will acquire expertise in the subject matter. And one that is mandated to resolve these issues in an expeditious fashion.

It is sad testament to the financial burden imposed by litigation that I can contemplate engineering and construction costs offset by litigation savings. For engineering problems remain. Most annoyingly, it still appears to be the case that the leadership of the project has found no satisfactory solution for running the train line through urban areas. A high-speed train sharing track with low-speed commuter rail and cargo trains is not high-speed rail at all. Solving this problem almost certainly involves spending more money than is currently allocated — but money could be found, at least in part, if less money had to be spent litigating.

We are already past the point of no logical return. And if we’re going to proceed, we should do it right. Right now, the project appears to be anchored by inertia, bureaucratic turf wars, and too many lawyers in too many courts trying to put sticks in the spokes of the wheel. Far be it for me to say that lawyers should not get paid; but there’s no reason that can’t happen in a single court.

Since the least bad option available now is pressing on, let us press on intelligently. For that, we need some support by our legislators.
 
Burt LikkoBurt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.

Please do be so kind as to share this post.
Share

42 thoughts on “One Court To Rule Them All

  1. “Enough money has already been invested in the project ($5.6 billion for the previous two years and projected for the upcoming year alone) that something needs to move forward.”

    This is called the sunk-cost fallacy. The next marginal expenditure may be warranted, but past expenditures should have no bearing on future expenditures, other than the fact it changes forward cost-benefit calculations.

      Quote  Link

    Report

      • I think this misses the point, Patrick. The value of calling attention to the fallacy is to diminish its (misguided) political power. We’d be better off if the public understood the concept well, so that claims that amount to “we’ve wasted shiploads of money, so it’s critical that we waste shiploads morre” aren’t politically persuasive.

        As Brian notes, it may make sense to continue funding this project (I’m a skeptic, of course I don’t actually know), but if so it’s only because the gains will be greater than what more it will cost from this moment forward.

          Quote  Link

        Report

      • I should note that my skepticism is not so much in the value of the project itself as in the cost reality of getting it done–a reality which Burt’s scenario might make reasonable enough to prove my skepticism wrong, but that in the absence of his scenario I suspect is right.

          Quote  Link

        Report

      • it may make sense to continue funding this project[…], but if so it’s only because the gains will be greater than what more it will cost from this moment forward.

        This is an interesting way that sunk-cost arguments can work “in reverse” (in a sense) in some cases. As much at it doesn’t make sense to continue the project because of what already been spent if its costs going forward are greater than its benefits, it also doesn’t make sense to discontinue the project if its benefits going forward exceed its costs going forward – despite the fact that a point may have been reached where lifetime project benefits will never equal lifetime costs.

          Quote  Link

        Report

      • , I’m all for increased spending on public transportation but thing the HSR project is a bad way to go about it. The money would be better spent on enlarging the already existing and used public transportation in the Bay Area, Los Angeles, San Diego, and Sacramento. The problem with California HSR is a lot of the stations are going to be in places that are very auto-dependent and rail is meant to decrease reliability on the car. Whats the point of taking a train from LA to Fresno when you need a car once you get to Fresno.

          Quote  Link

        Report

      • Of course, generally speaking, I don’t disagree. It’s one of the reasons that I tend to be skeptical of rail more generally. It’s great as long as the place you want to go is along the rail, but it’s hard to make a rail system as robust as the current road systems. You would ultimately be relying on (or mandating) a change in settlement patterns. If we ever wanted to really ween ourselves off car-dependence. (Excepting cities where settlement patterns were not heavily influenced by automobile.)

          Quote  Link

        Report

      • , the important part about alternative transportation for the car is that people have to use it. From experience in the United States and elsewhere we know that people will ditch the car for light rail, heavy rail, a bicycle, or walking. We know that they won’t abandon the car for the bus. The key is making sure the rail lines connect residential areas to the right places.

          Quote  Link

        Report

      • I don’t disagree with your points in this comment at all, James, I’m just pointing out, practically speaking, that the public doesn’t understand the concept well and thus, from the viewpoint of Management, it may indeed be considered politically a non-starter to consider cancelling.

          Quote  Link

        Report

      • “The money would be better spent on enlarging the already existing and used public transportation in the Bay Area, Los Angeles, San Diego, and Sacramento. ”

        Heck, if you connected BART to the San Jose airport, you’d move more people in the first month than Cal-HSR would move in its first ten *years*.

          Quote  Link

        Report

  2. Infrastructure work is a nightmare in America because our political system gives opponents of any project a lot of veto points. There are always opponents. The only real solution is to eliminate the veto points.

      Quote  Link

    Report

      • As long as an appeal is possible, all veto points are not consolidated into a single venue. I’m not really a fan of using the courts to hinder or get rid of a divisive policy decision or law even for civil rights issues. For pure policy issues like this, its even worse. The way you do that is to by electing legislators and executives to ennact your preffered policies. Don’t get me started on referenda.

          Quote  Link

        Report

      • Some things have to get litigated, though. When property is condemned, neither the Legislature nor the Governor get to say what the property owner is compensated: that’s for a court. Whether the Environmental Protection Act has been violated or not is a matter for a court, not Congress or the President.

        Even if it’s truly the case that the ability to appeal renders the consolidation of CalRail veto litigation not subject to a single point, at least it minimized the number of points at issue. And more to the point, it creates a single forum where the stakeholders can assert their rights, interests, and seek whatever remedies are available to them under the law. It would be a lot closer to the efficient binding arbitration model that advocates below — the problem with binding arbitration being that it requires the consent of all parties to bind them. A court is a compulsory forum, not a voluntary one.

          Quote  Link

        Report

      • The bigger the project, the bigger the problems, the more interests to balance, and the more potential for fraud. I moved out of Boston when the Big Dig was at it’s worst, and lived through (and helped pay for) the clean up of Boston Harbor.

        So I think this is a brilliant suggestion. It is in the public interest to eliminate the kinds of red tape big projects and drive costs up, while at the same time crucial to fairly here the problems and concerns of residents impacted by the projects.

          Quote  Link

        Report

      • eh James, I’m consistent. When at some time in the future the GOP gets 50 seats in the Senate, 218 seats in the House, plus the Vice Presidency, they should be able to pass whatever they want. Even then, there’s still four veto points at the very least for something a majority of people in the country support getting passed. I think that’s more than enough.

        But, then again, if I was ever elected to office, I’d seriously consider ending every speech with “and the Senate must be destroyed,” so there ya’ go.

          Quote  Link

        Report

      • , from a legislative perspective, you’re correct.

        But that’s always just half the battle. After the laws are passed and the budgets are funded, there’s the rule making and implementation, which are also public processes, subject to changing laws and legal challenges, and where I suspect most regulatory capture and mucking-up reside.

        Egregious Example Here.

          Quote  Link

        Report

      • , actually no. In the liberal blogosphere, most people are all for getting rid of veto points like the filibuster even if it makes things easier for conservatives when they are in power. There really is near universal hatred for veto points among American liberals. Most of us would rather risk legislating we don’t like passing than live with veto points.

          Quote  Link

        Report

      • I respect those folks who ate consistent on veto points. But distinguishing Democratic legislators from actual liberals, it’s clear the Demo legislators love them some veto points when they’re out of power.

        As to you actual liberals, you have about as much influence in D.C. as us libertarians. ;

        And for my part as a libertarian, I love me some veto points, to stop all the bastards right, left, and center. ;)

          Quote  Link

        Report

      • That is true, James. But, even four years ago, the partial nuking of the filibuster to get some judges and basic governance passed in the Senate never would’ve been done because of internal conflict within the Democratic caucus.

        But now, there’s a whole new generation of Senator’s who’ve only elected and served under a Republican minority committed to destroying the process. What personal feelings do Jeff Merkley and Liz Warren have to the modern day filibuster?

          Quote  Link

        Report

  3. I’m not completely joking when I suggest that in cases like this binding arbitration would be much cheaper, infinitely faster, and overall no less fair than litigation. Fairer, even, because it would greatly reduce the issue of how much justice any particular claimant can afford.

      Quote  Link

    Report

  4. Most annoyingly, it still appears to be the case that the leadership of the project has found no satisfactory solution for running the train line through urban areas.

    Yeah, it’s the toughest design problem to crack. Airplanes have a huge advantage that the high-speed portion of the “track” is 30,000 feet up, with more-or-less vertical stubs that allow the planes to move between the station and the high-speed line at more modest velocity (corresponding disadvantage is that the station and coordination of use of the stubs is much more expensive). In one sense, the solution is obvious: if it’s time for high-speed rail, then it’s time to give up at least the left-most lane in each direction of an appropriate set of freeways/interstates in the urban areas. I mean, you’re simply not going to acquire new equivalent corridors in this day and age.

      Quote  Link

    Report

  5. , I don’t know if these are valid comparisons or not, but Public Utility Commissions and Authorites seem potential models (not to mention NSA courts).

    In my state, for instance, we have commissions that oversee insurance, electricity, etc.; they’re both the regulating agency and the court you appeal if you have problems. They’re charged with balancing the interests of the public and the private; the industries here are private but required for the public good.

    Authorities oversee more publicly-owned projects; airports, highways, and often conduct large infrastructure projects, but don’t have the role of court that a PUC fills.

    Some hybrid of the two, perhaps. But I’d want a method of advocacy built in.

      Quote  Link

    Report

    • It’s a model that does have some instruction to offer here. PUCs dispense rules after a period of public comment, and have adjudicative functions built in to them the way a number of other executive agencies at both state and federal levels do.

      Now, executive agency adjudication is probably not the ultimate solution here. When there is agency adjudication, the agency retains the power to override the results of the adjudication if it chooses. Given that we’re looking at a multiplicity of adversarial proceedings, and overlapping Federal and state jurisdictions implicating another multiplicity of agencies and policy areas, negotiating the waivers of authority that would be subject to a state veto (and thus ultimately under the Governor’s control) is not something I can see the Federal authorities agreeing to.

      The other issue is that an executive-level adjudication fails to fulfill the requirements of due process unless there is ultimately an appeal to a true judicial body. So we may perversely create more litigation expenses rather than reduce them by adhering too closely to this model.

      With that said, I’ll say in CalRail’s defense that there has been extensive opportunity for public comment and input in the planning phases of the project, opportunity which to my knowledge exceeds the minimum mandated by state law. And citizens, companies, and advocacy groups have availed themselves of those opportunities. It’s difficult to quantify the extent to which CalRail has been responsive to all of the public commentary but that amount would almost certainly be greater than zero.

      And the PUC model may provide a means by which litigation of at least some kinds of claims that would come before the special CalRail Court that I call for could be streamlined. For instance, the condemnation of land requires a valuation of its fair market value. For this, the CalRail Court could delegate things to a kind of specially-appointed arbitrator, often called a “special master,” who would be the person who dealt with the nuts and bolts of the adversarial valuation process and made a recommendation to the court itself for a final confirmation.

      So, yes, there are good and useful elements to tease out of this model.

        Quote  Link

      Report

      • Weather migraine; we’ve the 4th ice storm since Christmas moving in. It’s been rough.

        Thank you, and I think what I’m trying to suggest is some sort of PUC that helps regulate Authorities, since I’d presume that’s the structure here.

        Given that we’re looking at a multiplicity of adversarial proceedings, and overlapping Federal and state jurisdictions implicating another multiplicity of agencies and policy areas, negotiating the waivers of authority that would be subject to a state veto (and thus ultimately under the Governor’s control) is not something I can see the Federal authorities agreeing to.

        I think Federal authorities always have veto power to some degree; but they also do a lot of block-grant level stuff, where they leave administration to state-level agencies. Transportation — at least the highway system part of it — functions wonderfully well this way; right up to building large-scale projects. This is exactly where a PUC-board structure would be beneficial; that board can be made of representatives from the public at large, industries involved, as well as local, state, and federal government.

          Quote  Link

        Report

  6. With respect, counselor, not your best.

    If we’re wishing upon a star, there’s lots of things that should have been done differently. First, using the initiative process for major infrastructure is a terrible idea. I did a fair amount of legal work for a couple of rather well known publicly owned toll roads in Southern California, and those agencies had to go back to the Legislature on a regular basis.

    Second, consolidating cases in a single venue doesn’t really simplify the issues. And from what I’ve read (which is some but not a lot), the biggest single issue has been the serious lack of competence on the part of the Authority. Just look at the bond validation case. How could the Authority lawyers been so utterly incompetent as not to draft a complete set of findings for the Finance Committee to adopt?

    And third, I’m really uncomfortable with the idea that we over-ride California’s regulatory regime every time we’re trying to do something difficult. California desperately needs to build cross-Delta pipelines but the way to do that is through the public process, not by southern urban voters forcing passage of a divisive bill.

      Quote  Link

    Report

    • Nothing that can be done in a court will remedy the managerial competence, or lack thereof, at the high levels of the Authority. That has to come out of the political process, and so far, Governor Brown is standing by the leadership team that is in place at CalRail right now. I’m also so far not terribly impressed with the Legislature’s seeming deliberate ignorance of the many fiascos that are amounting to a debacle.

      Nor can we do anything about Prop 1A; that water has not just passed under the bridge, it’s washed out to sea by now. I suppose we can appeal the ruling from the Sacramento Superior Court to try and open up the bond funding again, but that’s being done already and would still have to be done even under my proposal.

      My proposal today does not include alteration of regulations or of substantive law. (I have previously made such suggestions, just not today.) Consolidation into a complex litigation would, it seems to me, offer substantial efficiencies and permit the creation of expedited procedures for the thousands of similarly-situated parties whose land will be condemned or who assert standing to protest environmental compliance. CalRail must still pay FMV for condemned land, and demonstrate through its EIRs that both environmental impact is minimized and the benefits of its activities outweigh the unmitigatable damage to the environment it will do.

      I’m also most definitively not proposing a “CalRail wins all the time” court. If CalRail cannot demonstrate compliance with the law, I’d expect the judge assigned to the CalRail court to so rule, issuing appropriate orders, including stop-work orders if necessary. But I do expect that a single judge hearing all the matters relating to the case would be listened to much more closely both by the Legislature and by the electorate.

        Quote  Link

      Report

      • Of all the things to consolidate, condemnation would be the worst. First, it’s grossly unfair to condemnees who would have to hire counsel in a county that might be hundreds of miles from their home. And since the special court is likely to be in a big city, attorneys’ fees will be higher. Second, of all the issues facing the courts, condemnation is the most local. A special Los Angeles court would have less expertise, not more, on local FMV. Third, condemnation is a particularly court-intensive process. Your average homeowner may have five or six different easements (water, sewer, electricity, gas, cable, alley) on a parcel, all of which must be condemned separately, giving rise to that many defendants per parcel.

        Most of the OC toll road land was dedicated in advance. Even then, the law firm I was at needed to assemble a special team just to handle the condemnation work arising from a few minor route adjustments, because those minor adjustments suddenly gave rise to literally hundreds of condemnations. The idea that the AG’s office alone is going to handle all the HSR condemnations is insane. Of all the things to outsource to specialty lawfirms on a county-by-county basis, condemnation comes first.

          Quote  Link

        Report

        • I had not thought about the idea proposes, but I think it goes a substantial ways towards addressing the (quite legitimate) concerns raises.

          Alsotoo, electronic filing is part of every complex case and routine appearances can and often are done by CourtCall for moderate fees.

          It’s not perfect but a lot of the litigating can be done without regard for the physical situs of a court.

            Quote  Link

          Report

  7. Burt:

    Meh, if CA burns their money they will probably fall back on the tried and true Dem plan of raising taxes.

    Your idea for the court doesn’t address the two main problems cited by the NYT article. First being the authority failed to comply with Prop. 1A because the funding plan did not identify realistically available sources of money for the entire Merced-San Fernando Valley operating segment, as required by the law. A new court won’t cure their failure. Second, the new court won’t change the fact that the the state lost a bid to delay an environmental review of the first 29-mile section of the project. Frankly I’m happy to see the enviro nuts waste CA’s money as now they can feel the pain like so many other that have had their infrastructure projects delayed by the same type of nuts that CA liberals seem to love.

      Quote  Link

    Report

    • You’re quite right that my suggestion would not address either of those problems. The first of those problems will require some fairly extensive bureaucratic and political surgery, and the second of them cannot realistically be solved now.

      I’m overall a critic of, and a cynic about, this program. But I’m not the kind of critic or cynic who sits back and does nothing but boo and hiss. Nor do I wish to be the sort of Californian who says “I’m fed up with this state, it’s run by a bunch of nincompoops.” Why? That all seems to me to be quite incomplete.

      It’s not enough to point out where things have gone wrong. It’s incumbent upon the responsible critic to offer suggestions for ways to make things better, if that’s possible. I think the creation of a special court, by itself, could save millions of public dollars, thousands of hours of professional time, and expedite the actual work on the project and opening of the railway to public business by a substantial amount of calendar time. No, it won’t solve the flaws in the original bond proposal. No, it won’t bring back the lost opportunity to circumvent portions of EIR. But it would save money and time, freeing up those resources to be used elsewhere.

        Quote  Link

      Report

  8. “We are already past the point of no logical return. And if we’re going to proceed, we should do it right. ”

    So what you’re saying is that maybe the slippery-slope argument isn’t a fallacy after all but darn it we’re sliding now so we might as well get to the bottom as fast as possible?

      Quote  Link

    Report

Leave a Reply

Your email address will not be published. Required fields are marked *