One Court To Rule Them All

As 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.

I 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.

The 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 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.