California Gov. Jerry Brown demonstrated this year that he's willing to skate very close to the hazy line that separates devotion to duty from political obstreperousness, virtually daring federal judges to hold him in contempt for stalling on orders to reduce prison crowding.
That performance gives rise to uncertainty about Brown's reaction to another loss in the courts — a Superior Court judge's finding that his pet bullet-train project, as now envisioned, violates the ballot measure that authorized state bonds for its construction.
Sacramento Judge Michael Kenny agreed with San Joaquin Valley opponents of the project that a series of financial and procedural requirements to commit funds from the bond issue had not been met, thus imperiling plans to start construction on an initial segment in that region.
The winning lawyers want Kenny to block any further work on the initial line and “go back to square one” to comply with the bond requirements, but such a delay could violate a looming federal government deadline for using its funds.
In response, state lawyers creatively argue that construction could begin with $3.24 billion in federal grants without using state money, under a waiver granted by federal authorities eager to score a high-speed success.
The plaintiffs' lawyers, however, maintain that the bond issue's requirements would apply to any work. The conflict will play out before Kenny in November.
Nor is this the only legal impediment to beginning construction. State Treasurer Bill Lockyer is reluctant to release bond money until legal underbrush is cleared. A big hurdle could be the California Environmental Quality Act, but Brown's aides suggest that with the project now cleared by a federal railroad agency, CEQA may not apply.
Legal maneuvers aside, it's quite evident that the project, as modified by Brown's handpicked High-Speed Rail Authority to overcome other political and financial hurdles, cannot comply with the plain language of the bond ballot measure — language that bullet-train proponents told voters would protect the project's integrity.
Having been integrated with commuter rail in major urban areas, for example, the bullet train could not possibly comply with the requirement of a 160-minute ride between San Francisco and Los Angeles, even if authorities insist otherwise.
Clearly, Brown, et al, hope that if they can stave off legal challenges long enough to lay a few miles of track on San Joaquin Valley farmland, it would create some kind of moral imperative to see the project to completion, regardless of the law or its costs, now pegged at $68 billion but certain to grow.
Ultimately, however, it's a test of political integrity — especially in light of recent polls showing that most California voters now oppose the project. If the bullet train cannot honestly comply with the requirements that voters were told would guard against flim-flam, it should be derailed.
Dan Walters covers state politics for the Sacramento Bee.