Tos v. State of California ( 2021 )

Filed 11/30/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
JOHN TOS et al., C089466
Plaintiffs and Appellants, (Super. Ct. No. 34-2016-
00204740-CU-WM-GDS)
v.
STATE OF CALIFORNIA et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Sacramento County, Richard
Sueyoshi, Judge. Affirmed.
Law offices of Stuart M. Flashman, Stuart M. Flashman; and Michael J. Brady for
Plaintiffs and Appellants.
Xavier Becerra and Rob Bonta, Attorneys General, Thomas S. Patterson, Assistant
Attorney General, Paul Stein and Sharon L. O’Grady, Deputy Attorneys General, for
Defendants and Respondents.
Appellants John Tos et al. (Tos parties) appeal from a judgment that section
2704.78 of the Safe, Reliable High-Speed Train Bond Act for the 21st Century (Bond
1
Act) (Sts. & Hy. Code, § 2704 et seq.) does not violate the state debt provision of the
California Constitution set forth in article XVI, section 1.1
Subdivision (d) of section 2704.08 of the Bond Act, approved by the voters in
2008 as Proposition 1A, requires an independent financial report indicating, among other
things, that each corridor or segment of a corridor of the high-speed train system, if
completed according to a “detailed funding plan” (§ 2704.08, subd. (d)(1)), would be
“suitable and ready for high-speed train operation.”2 (§ 2704.08, subd. (d)(2)(B).)
Section 2704.78, subdivision (a), passed by the Legislature in 2016 but not submitted to
the voters, provides that “[f]or purposes of the funding plan required pursuant to
subdivision (d) of Section 2704.08, a corridor or usable segment thereof is ‘suitable and
ready for high-speed train operation’ if the bond proceeds . . . are to be used for a capital
cost for a project that would enable high-speed trains to operate immediately or after
additional planned investments are made on the corridor or useable segment thereof and
passenger train service providers will benefit from the project in the near-term.”
1 All undesignated statutory references are to the Streets and Highways Code.
2 The Bond Act does not define this phrase, but does define the following terms:
“(d) ‘High-speed train’ means a passenger train capable of sustained revenue
operating speeds of at least 200 miles per hour where conditions permit those speeds.
“(e) ‘High-speed train system’ means a system with high-speed trains and
includes, but is not limited to, the following components: right-of-way, track, power
system, rolling stock, stations, and associated facilities.
“(f) ‘Corridor’ means a portion of the high-speed train system as described in
Section 2704.04. [For example, the “corridor” between San Francisco and Los Angeles.
(§ 2704.04, subd. (b)(2).)]
“(g) ‘Usable segment’ means a portion of a corridor that includes at least two
stations.” (§ 2704.01.)
2
Article XVI, section 1 of the California Constitution requires state debt over
$300,000 to be authorized by a law approved by two-thirds of the Legislature and a
majority of the voters. This provision also requires that state debt be “for some single
object or work to be distinctly specified therein” and the proceeds “applied only to the
specific object” of the authorizing law. (Cal. Const., art XVI, § 1.) The law is
“irrepealable until the principal and interest thereon shall be paid and discharged . . . .”
(Ibid.) The Tos parties contend the meaning of “suitable and ready for high-speed train
operation” set forth in section 2704.78, subdivision (a), constituted an implied partial
repeal of the Bond Act in violation of section 1 of article XVI of the California
Constitution.
We disagree. This constitutional provision does not prohibit alterations of a bond
law approved by the voters for a complex public works project, like the high-speed train
system, which do not divert funds from, interfere with, or destroy the “single object or
work . . . distinctly specified” (Cal. Const., art. XVI, § 1) in the law. Section 2704.78 did
not do so. The “single object or work” of the Bond Act was (1) the initial planning and
construction of a high-speed train system under (2) a “mandatory multistep process to
ensure the financial viability of the project,” which we described in California High-
Speed Rail Authority v. Superior Court (2014) 228 Cal.App.4th 676 (Rail Authority), our
prior opinion on the Bond Act, as a “financial straitjacket.” (Rail Authority, at p. 706.)
Section 2704.78 furthered the construction of the high-speed train system by investing in
improvement of existing rail lines, which after additional investment would be shared
with high-speed rail under the “blended systems” approach, while providing benefits to
passengers in the near term. Nor did section 2704.78 constitute an escape from the
“financial straitjacket.” The multistep planning and review process in section 2704.08,
subdivision (d), remained intact.
The judgment will be affirmed.
3
FACTUAL AND PROCEDURAL BACKGROUND
We need not repeat the description of the Bond Act, its history, overall structure
and initial implementation, which we set forth in Rail Authority, supra, 228 Cal.App.4th
at pages 684-693. Lead petitioner in this case, John Tos, was also the lead petitioner in
Rail Authority and the parties are well familiar with the background of the Bond Act and
our opinion in Rail Authority.
This case concerns subdivision (d)(2) of section 2704.08, the final step in the
series of plans and reports required by section 2704.08 to appropriate and expend bond
proceeds for the capital costs of a high-speed train corridor or usable segment thereof.
The first step, subdivision (c) of section 2704.08, requires the California High-
Speed Rail Authority (Authority), prior to a request to appropriate bond proceeds, to
submit a “detailed funding plan” to the Legislature and Governor. (§ 2704.08, subd.
(c)(1).) This report must have been previously submitted to the Director of Finance, a
peer review group, and multiple legislative committees. (Ibid.) Section 2704.08,
subdivision (c)(2), specifies the 11 subjects that the plan must “include, identify, or
certify,” beginning with “[t]he corridor, or usable segment thereof, in which the authority
is proposing to invest bond proceeds,” and ending with “[t]he authority has completed all
necessary project level environmental clearances necessary to proceed to construction.”
(§ 2704.08, subd. (c)(2)(A), (K).) One of the 11 specified subjects is that “[t]he corridor
or usable segment thereof would be suitable and ready for high-speed train operation.”
(§ 2704.08, subd. (c)(2)(H).)
The second step, subdivision (d)(1) of section 2704.08, requires the Authority,
prior to expenditure of bond proceeds for a corridor or usable segment, to submit a
“detailed funding plan” to the Director of Finance and Joint Legislative Budget
Committee. (Rail Authority, supra, 228 Cal.App.4th at p. 688.) Subdivision (d)(1)
specifies six subjects to be included in the plan beginning with “identif[ying] the corridor
or usable segment thereof, and the estimated full cost of constructing the corridor or
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usable segment thereof” and ending with “terms and conditions associated with any
agreement proposed to be entered into by the authority and any other party for the
construction or operation of passenger train service along the corridor or usable segment
thereof.” (§ 2704.08, subd. (d)(1)(A), (F).)
The third and final step, subdivision (d)(2) of section 2704.08, requires the
Authority also to submit to the Director of Finance and Joint Legislative Budget
Committee “a report or reports, prepared by one or more financial services firms,
financial consulting firms, or other consultants, independent of any parties, other than the
authority, involved in funding or constructing the high-speed train system . . . .” The
report or reports must “indicat[e]” five subjects, the first two of which concern us here:
“(A) construction of the corridor or usable segment thereof can be completed as proposed
in the plan submitted pursuant to paragraph (1), [and] (B) if so completed, the corridor or
usable segment thereof would be suitable and ready for high-speed train operation.”
(§ 2704.08, subd. (d)(2)(A), (B).)
The meaning of “suitable and ready for high-speed train operation” set forth in
section 2704.78 can be traced to the “Revised 2012 Business Plan” (revised business
plan) adopted by the Authority in mid-April 2012. As noted in Rail Authority, the
Authority is required to “ ‘prepare, publish, adopt, and submit to the Legislature, not later
than January 1, 2012, and every two years after, a business plan.’ ” (Rail Authority,
supra, 228 Cal.App.4th at p. 689, citing Pub. Util. Code, § 185033, former subd. (a), as
amended by Stats. 2009, ch. 618, § 1.) The Authority certified the preliminary funding
plan required by section 2704.08, subdivision (c), two days after issuing a “Draft 2012
Business Plan” in 2011. (Rail Authority, at p. 690.)
After a peer review group to the Legislature outlined weaknesses in the
preliminary funding plan and draft business plan (Rail Authority, supra, 228 Cal.App.4th
at p. 690), the Authority adopted the revised business plan in mid-April 2012. (Id. at
p. 691.) Among other things, “the revised business plan introduced a ‘blended systems’
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approach that integrates high-speed rail with existing commuter lines in various urban
areas. The revised business plan states: ‘Passengers will have more options, faster travel
times, and greater reliability and safety. . . . [¶] Benefits will be delivered faster through
the adoption of the blended approach and through investments in the bookends. Across
the state, transportation systems will be improved and jobs will be created through the
implementation of those improvements.’ ” (Id. at p. 691.)3
In 2016, the Legislature passed Assembly Bill No. 1889 (2015-2016 Reg. Sess.),
enacting section 2704.78, effective January 1, 2017. (Stats. 2016, ch. 744, § 2.) Section
1 of the statute explained that the impetus for section 2704.78 was the blended systems
approach introduced in the revised business plan:
“(c) In 2012, the High-Speed Rail Authority released the Revised 2012 Business
Plan, which called for near-term investments in northern and southern California, known
3 We deferred ruling on respondent’s request for judicial notice of a 2012 letter opinion
from Legislative Counsel asking whether the revised business plan complied with
Proposition 1A. The trial court denied the request without explanation. We grant it. The
Legislative Counsel opined that a 130-mile segment with some but not all of the features
needed for high-speed rail operation met the requirement of “suitable and ready for high-
speed train operation.” The Legislative Counsel reasoned: “Because, in our view, the
bond act authorizes interim use of a facility constructed with bond act funds by
conventional diesel-operated passenger train service, imposing a requirement to construct
the usable segment with features that may not be needed for a number of years, such as
electrification, could be determined to be an unreasonable result. Moreover, because it
could be many years before these features could be put to use, including them
immediately could lead to degradation of the electric catenary lines and related facilities
and result in a waste of government funds.” (Ops. Cal. Legis. Counsel, No. 1211030
(June 8, 2012) High-Speed Rail, p. 15.) However, “a post hoc expression of the
Legislative Counsel’s opinion of what the Legislature meant when it adopted [the statute]
. . . is only as persuasive as its reasoning.” (Grupe Development Co. v. Superior Court
(1993) 4 Cal.4th 911, 922; Mundy v. Superior Court (1995) 31 Cal.App.4th 1396, 1404.)
In this case, it is the voters’ intent that we seek to effectuate. (Santos v. Brown (2015)
238 Cal.App.4th 398, 409.) Moreover, notwithstanding the Legislative Counsel’s
opinion, the Legislature subsequently enacted section 2704.78 to explicitly provide an
expanded definition of “suitable and ready for high-speed train operation.”
6
as the ‘Bookends,’ which would enable high-speed trains to share infrastructure with
existing passenger rail service providers as part of a blended system, and is consistent
with Proposition 1A. [¶] . . . [¶]
“(g) It is the intent of the Legislature, in appropriating funding for initial
investments, that these projects should proceed to construction in the near-term to
provide economic benefits, create jobs, and advance improved, safer, and cleaner rail
transportation and that these initial investments are consistent with and further the goals
of Proposition 1A.
“(h) Consistent with Proposition 1A, these early investments will enable
passenger train service providers to begin using the improvements on a corridor or
useable segment thereof while additional work is completed to enable high-speed train
service.
“(i) Furthermore, it is the intent of the Legislature that nothing in this act relieves
the High-Speed Rail Authority from its duties under Proposition 1A, including the
submission to the Director of Finance of the plan required pursuant to subdivision (d) of
Section 2704.08 of the Streets and Highways Code.
“(j) As established in Proposition 1A, the required plan shall be informed by the
work of one or more independent financial services firms, financial consulting firms, or
other consultants, pursuant to paragraph (2) of subdivision (d) of Section 2704.08 of the
Streets and Highways Code.
“(k) This act clarifies that early investments in the Bookends and elsewhere along
the system . . . which will ultimately be used by high-speed rail trains, are consistent with
the intent of the Legislature in appropriating funding and is consistent with Proposition
1A.” (Stats. 2016, ch. 744, § 1.)
Section 2704.78 provides in relevant part: “(a) For purposes of the funding plan
required pursuant to subdivision (d) of Section 2704.08, a corridor or usable segment
thereof is ‘suitable and ready for high-speed train operation’ if the bond proceeds . . . are
7
to be used for a capital cost for a project that would enable high-speed trains to operate
immediately or after additional planned investments are made on the corridor or useable
segment thereof and passenger train service providers will benefit from the project in the
near-term.
“(b) In each report prepared pursuant to Sections 185033 and 185033.5 of the
Public Utilities Code, the authority shall include information describing the use of bond
proceeds appropriated . . . demonstrating that the investments made are consistent with
the authority's current business plan and advance the development of the Phase I blended
system as described in the business plan.” (§ 2704.78.)
On December 13, 2016, the Tos parties filed a complaint for declaratory and
injunctive relief challenging, inter alia, the constitutionality of Assembly Bill No. 1889
and thus section 2704.78. After a series of demurrers and amended complaints, on
July 16, 2018, the Tos parties filed a motion for judgment on the pleadings on the cause
of action in their second amended complaint for a declaration that Assembly Bill
No. 1889 is unconstitutional and invalid.
The trial court denied the motion, finding that “[Assembly Bill No.] 1889 did not
impliedly repeal Proposition 1A by making ‘substantial changes in the scheme or design
which induced voter approval.’ (Veterans of Foreign Wars v. State of California (1974)
36 Cal.App.3d 688, 693-694.)” Deeming this result dispositive of all their claims, the
Tos parties and respondents State of California et al. stipulated to entry of judgment
pursuant to Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 402, to seek review from this
court on the constitutional validity of Assembly Bill No. 1889 and section 2704.78.4
4 The parties agree they entered into the stipulated judgment because all of the Tos
parties’ claims depended on a determination that Assembly Bill No. 1889 is
unconstitutional. The stipulated judgment is thus appealable under the exception in
Norgart to the general rule that consent judgments are not appealable except where
“ ‘consent was merely given to facilitate an appeal following adverse determination of a
8
DISCUSSION
Standard of Review
The Tos parties’ constitutional challenges are to section 2704.78 as written. “In
such a case we do not defer to the superior court’s ruling; we independently interpret the
law to determine whether or not it is constitutional.” (Griffith v. City of Santa Cruz
(2012) 207 Cal.App.4th 982, 990, citing Rental Housing Owners Assn. of Southern
Alameda County, Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 89-90; Vo v. City of
Garden Grove (2004) 115 Cal.App.4th 425, 433 [“Constitutional issues are always
reviewed de novo”]; see also California Advocates for Nursing Home Reform v. Smith
(2019) 38 Cal.App.5th 838, 864; People v. Health Laboratories of North America, Inc.
(2001) 87 Cal.App.4th 442, 445 [“The interpretation of a statute and the determination of
its constitutionality are questions of law”]; B.M. v. Superior Court (2019) 40 Cal.App.5th
742, 748 (B.M.).)
“ ‘In considering a facial challenge to a statute, we uphold the statute unless its
unconstitutionality plainly and unmistakably appears; all presumptions favor its
validity.’ ” (Hess Collection Winery v. Agricultural Labor Relations Bd. (2006)
140 Cal.App.4th 1584, 1595-1596, citing City of Los Angeles v. Superior Court (2002)
29 Cal.4th 1, 10-11; Pryor v. Municipal Court (1979) 25 Cal.3d 238, 253-255.) Statutes
are presumed to be constitutional and “ ‘will be given a construction consistent with
validity if at all possible.’ ” (Persky v. Bushey (2018) 21 Cal.App.5th 810, 818.)
“ ‘ “Invalidating legislation is serious business,” ’ and we cannot construe a statute
‘contrary to legislative intent merely to eliminate a potential constitutional conflict.’ ”
(Ibid.) “A challenge to the facial constitutionality of a statute cannot be sustained unless
the statutory terms ‘inevitably pose a present total and fatal conflict with applicable
critical issue.’ ” (Norgart v. Upjohn Co., supra, 21 Cal.4th at p. 400; Wilshire Ins. Co. v.
Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 634, fn. 6 [“The stipulated judgment,
made to hasten appeal rather than settle the dispute, is appealable”].)
9
constitutional prohibitions.’ ” (Ibid., citing Pacific Legal Foundation v. Brown (1981)
29 Cal.3d 168, 181.)
“We also bear in mind the well-established separation of powers principle that
‘[c]ourts should exercise judicial restraint in passing upon the acts of coordinate branches
of government; the presumption is in favor of constitutionality, and the validity of the
legislation must be clear before it can be declared unconstitutional.’ [Citation.]
Legislative findings are entitled to ‘ “great weight” ’ and ‘ “will be upheld unless they are
found to be unreasonable and arbitrary.” ’ ” (B.M., supra, 40 Cal.App.5th at pp. 748-749;
Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1252 (Amwest).)
Our inquiry also involves interpretation of section 2704.08, subdivision (d), passed
by initiative. “Statutes adopted by the voters must be construed liberally in favor of the
people’s right to exercise their reserved powers, and it is the duty of the courts to
jealously guard the right of the people by resolving doubts in favor of the use of those
reserved powers.” (Rail Authority, supra, 228 Cal.App.4th at p. 708.) “The voters as
well as the bondholders have an interest in the continued integrity of voter-ratified bond
proposals.” (Ibid.) “Yet the same basic rules of statutory construction apply to statutes
enacted by the voters as to statutes passed by the Legislature. [Citation.] We must look
to the plain language of the statute to determine the intent of the electors [citation]; but
the words of the statute are given their ordinary meaning in the context of the statute as a
whole and in light of the entire statutory scheme.” (Ibid.) To determine the intent of an
initiative statute, “we may also look to the ballot materials in support of its passage.”
(B.M., supra, 40 Cal.App.5th at p. 753; Amwest, supra, 11 Cal.4th at p. 1256; People v.
Superior Court (K.L.) (2019) 36 Cal.App.5th 529, 535.)
Finally, since the Tos parties’ assertion that section 2704.78 is unconstitutional
rests on article XVI, section 1 of the California Constitution, “[w]e must examine the text
of that constitutional provision, applying the same general principles as those on which
statutory construction is based.” (Persky v. Bushey, supra, 21 Cal.App.5th at p. 818.)
10
“ ‘The aim of constitutional interpretation is to determine and effectuate the intent of
those who enacted the constitutional provision at issue. [Citation.] To determine that
intent, we begin by examining the constitutional text, giving the words their ordinary
meanings.’ ” (Ibid.) “ ‘ “If the language is clear, there is no need for construction.
[Citation.] If the language is ambiguous, however, we consider extrinsic evidence of the
enacting body’s intent.” ’ ” (Greene v. Marin County Flood Control & Water
Conservation Dist. (2010) 49 Cal.4th 277, 290, quoting Professional Engineers in
California Government v. Kempton (2007) 40 Cal.4th 1016, 1037.)
Constitutionality of Section 2704.78
The Tos parties contend that cases interpreting and applying article XVI, section 1
of the California Constitution “make clear that once the voters have been presented with
and approved such a bond measure; the Legislature may not make ‘substantial changes in
the scheme or design which induced voter approval.’ ”5 As we will discuss further, the
5 Article XVI, section 1 of the California Constitution provides in relevant part: “The
Legislature shall not, in any manner create any debt or debts, liability or liabilities, which
shall, singly or in the aggregate with any previous debts or liabilities, exceed the sum of
three hundred thousand dollars ($300,000), except in case of war to repel invasion or
suppress insurrection, unless the same shall be authorized by law for some single object
or work to be distinctly specified therein which law shall provide ways and means,
exclusive of loans, for the payment of the interest of such debt or liability as it falls due,
and also to pay and discharge the principal of such debt or liability within 50 years of the
time of the contracting thereof, and shall be irrepealable until the principal and interest
thereon shall be paid and discharged, and such law may make provision for a sinking
fund to pay the principal of such debt or liability to commence at a time after the
incurring of such debt or liability of not more than a period of one-fourth of the time of
maturity of such debt or liability; but no such law shall take effect unless it has been
passed by a two-thirds vote of all the members elected to each house of the Legislature
and until, at a general election or at a direct primary, it shall have been submitted to the
people and shall have received a majority of all the votes cast for and against it at such
election; and all moneys raised by authority of such law shall be applied only to the
specific object therein stated or to the payment of the debt thereby created. Full publicity
as to matters to be voted upon by the people is afforded by the setting out of the complete
text of the proposed laws, together with the arguments for and against them, in the ballot
11
Tos parties quote a passage from Veterans of Foreign Wars v. State of California, supra,36 Cal.App.3d 688 (Veterans), in which the appellate court concluded that the
Legislature violated article XVI, section 1 when it appropriated funds for the expenses of
maintaining county veterans’ service offices from the proceeds of bonds approved by
voters to finance farm and home acquisition for veterans. (Veterans, at p. 695.)
The Tos parties also cite in support of this proposition our opinion in Rail
Authority, where we said: “It is true that a bond act approved by the voters can, by its
terms, limit the purposes for which the bond proceeds can be spent. (O’Farrell v. County
of Sonoma (1922) 189 Cal. 343, 348-349 (O’Farrell).) ‘Whether the limitation be
deemed to be contractual [citation] or of a status analogous to such relation [citation] or a
restriction implied by the requirement of popular approval of the bonds [citation], it does
restrict the power of the public body in the expenditure of the bond issue proceeds, and
hence in the nature of the project to be completed and paid for.’ (Mills v. S.F. Bay Area
Rapid Transit Dist. (1968) 261 Cal.App.2d 666, 668 (Mills).) More importantly, article
XVI, section 1 of the California Constitution requires that the works funded by a bond
measure shall be ‘distinctly specified’ in the measure presented to the voters, and that any
bonds to be issued as authorized by the bond act approved by the voters ‘shall be applied
only to the specific object therein stated.’ ” (Rail Authority, supra, 228 Cal.App.4th at
p. 701.)
Thus, we focus on whether the expanded meaning of “suitable and ready for high-
speed train operation” in section 2704.78 violates the requirement in article XVI, section
pamphlet mailed to each elector preceding the election at which they are submitted, and
the only requirement for publication of such law shall be that it be set out at length in
ballot pamphlets which the Secretary of State shall cause to be printed. The Legislature
may, at any time after the approval of such law by the people, reduce the amount of the
indebtedness authorized by the law to an amount not less than the amount contracted at
the time of the reduction, or it may repeal the law if no debt shall have been contracted in
pursuance thereof.” (Cal. Const, art. XVI, § 1.)
12
1 of the California Constitution that the works funded be “distinctly specified” in the
bond measure and funds be applied to that “specific object.” Respondents argue that
“specific object” of the Bond Act is set forth broadly in section 2704.04, subdivision (a),
“to initiate the construction of a high-speed train system . . . .” In addition, section
2704.04, subdivision (d), sets forth one specific prohibition on the use of bond funds:
“Proceeds of bonds authorized pursuant to this chapter shall not be used for any operating
or maintenance costs of trains or facilities.” In sum, under section 2704.04, the “specific
object” of the Bond Act is to fund initial construction of a high-speed train system but not
pay the cost of operating or maintaining trains or facilities. To the extent that section
2704.78 is consistent with this “specific object,” the statute does not violate article XVI,
section 1 of the California Constitution.
Metropolitan Water Dist. v. Marquardt (1963) 59 Cal.2d 159 (Marquardt)
supports the interpretation of “specific object” as a broad plan that embraces matters
reasonably germane to the plan. In Marquardt, a bond act added sections to the Water
Code “ ‘relating to provision for the development of water resources of the State’ ” by
providing funds through the sale of bonds. (Id. at p. 171.) The Water Code section
added by the bond act enumerated various facilities to be funded, including the Feather
River dam and reservoir, an aqueduct system to deliver water to various parts of the state,
various facilities to conserve and transfer water in the Sacramento-San Joaquin Delta,
facilities for removing drainage water from the San Joaquin Valley, facilities for the
generation and transmission of electrical energy, water development facilities in local
areas, and other facilities deemed necessary to supply water in the Delta. (Id. at pp. 171-
172.)
The primary challenge to this bond act was that it violated section 24 of article IV
of the California Constitution that “every act shall embrace but one subject and that
subject shall be expressed in the title.” (Marquardt, supra, 59 Cal.2d at p. 171.) The
court held that section 24 of article IV “must be construed liberally so as to uphold
13
legislation all parts of which are reasonably germane, and a provision which is auxiliary
to and promotive of the main purpose of the act or has a necessary and natural connection
with that purpose is germane within this rule.” (Marquardt, at pp. 172-173.) “[T]he
general purpose of a statute being declared, the details provided for its accomplishment
will be regarded as necessary incidents.” (Id. at p. 173, citing Perry v. Jordan (1949)
34 Cal.2d 87, 92-93.)
The court also considered whether the act authorizing $1.75 billion in bonds
violated section 1 of article XVI of the California Constitution. The court held that it did
not, analogizing the question whether the bond act was for a “ ‘single object or work’ ” as
these words are used in section 1 of article XVI to the question whether the bond act
embraces one “ ‘subject’ ” under section 24 of article IV. (Marquardt, supra, 59 Cal.2d
at p. 175.) The court held “the matters embraced by the bond act are germane to one
plan, and the obligations created are for a ‘single object.’ ” (Ibid.) “Under these
circumstances it is apparent that specification of a plan in broad and general terms will be
sufficient to meet the requirement of section 1 of article XVI that the object be ‘distinctly
specified’ in the act . . . .” (Id. at p. 175.)
Under the reasoning in Marquardt, the broad and general statement that the
purpose of the Bond Act is to initiate construction but not operation of a high-speed train
system is the “single object or work distinctly specified” against which the question
whether section 2704.78 violates section 1 of article XVI is measured. Plainly, section
2704.78 does not. As the Legislative findings for section 2704.78 indicate, the statute
was enacted in furtherance of the blended system approach introduced in 2012 in the
revised business plan. (Stats. 2016, ch. 744, § 1, subd. (c); Rail Authority, supra,
228 Cal.App.4th at p. 691.) Under the blended systems approach, the high-speed train
system shares corridors and segments with existing commuter train systems. Such
corridors and segments are improved in preparation for high-speed rail, while at the same
time providing immediate benefits to the passengers currently using them. The blended
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systems approach is “germane” to the “specific object” of the Bond Act, i.e., the plan for
initial construction of a high-speed train system. By the same token, section 2704.78 is
germane to the plan of the Bond Act.
The Tos parties maintain that “suitable and ready for high-speed train operation”
can only mean (1) that the segment must be “suitable” for high-speed train operation with
the “track structure, slope limits, curvature limits, power supply, signaling equipment,
etc. appropriate to allow a high-speed train to operate safely and reliably,” and (2)
“ready” such that “even if the design of the system were suitable for high-speed train
operation, if some part of the design had not yet been implemented—e.g., the signaling
system had not been installed or properly tested and certified, the segment would still not
be prepared or available, and hence not ready for high-speed train operation.” In short,
according to the Tos parties, this phrase mandates complete construction of, and only of,
a corridor or segment upon which a high-speed train could immediately travel at speeds
up to 200 miles (at least for the length of that corridor or segment).6
Even adopting the Tos parties’ interpretation of the phrase “suitable and ready for
high-speed train operation,” which is undefined in the Bond Act, as not extending to the
6 We granted the Tos parties’ request for judicial notice of the text of bills, legislative
committee reports, and the Governor’s Budget, May Revision 2008-09 relating to the
Bond Act, all of which were judicially noticed by the trial court. Our review of these
materials indicates that the funding plans required by section 2704.08, subdivisions (c)
and (d), were a significant feature of Assembly Bill No. 1889. The Tos parties point to
the statement in the Governor’s budget revision that “there must be a complete funding
plan that provides assurance that all funding needed to provide service on that portion of
the system is secured” as support for restricting all bond funds to construction of
immediately operational high-speed rail. However, the Governor’s budget revision also
called for amendments to the bond bill to “ensure an appropriate balance between
assuring expenditures of the bond funds will result in operational high-speed rail services
and providing the flexibility needed to attract federal and local government, as well as
private sector, participation in funding, constructing, and operating the system.” The
“blended system” approach and section 2704.78 strike that balance.
15
expanded meaning in section 2704.78, we noted in Rail Authority, that there are “many
cases in which the courts have broadly construed the purpose of the relevant bond acts to
allow projects to proceed that would appear to be either at odds with, or beyond the scope
of, the articulated purpose of the act or the description of the project on the ballot.” (Rail
Authority, supra, 228 Cal.App.4th at pp. 701-702.) We cited as an example East Bay
Mun. Util. Dist. v. Sindelar (1971) 16 Cal.App.3d 910 (East Bay), where the voters
authorized bonds to fund a 10-year water development project in the East Bay in 1958
and the court issued a peremptory writ of mandate to compel the treasurer to issue
additional bonds in 1970 to finance the project. (Rail Authority, at p. 702.) Even though
“the construction of the water system was complete and the language of the promotional
materials for the ballot measure represented that the construction program would end
within 10 years and no additional bonds would be issued or sold, the court found the
bond proposition had been submitted to the voters ‘in broad and general terms.’ ” (Ibid.)
Here, the Official Voter Information Guide for Proposition 1A similarly described
the bond issue broadly. The guide stated in the official title and summary portion that the
Bond Act “[p]rovides for a bond issue of $9.95 billion to establish high-speed train
service linking Southern California counties, the Sacramento/San Joaquin Valley, and the
San Francisco Bay Area.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2008) Official
Title and Summary of Prop. 1A, p. 4 (Voter Information Guide).) The guide also
contained analysis by the Legislative Analyst that “[t]his measure authorizes the state to
sell $9.95 billion in general obligation bonds to fund (1) pre-construction activities and
construction of a high-speed passenger train system in California, and (2) capital
improvements to passenger rail systems that expand capacity, improve safety, or enable
train riders to connect to the high-speed train system.” (Voter Information Guide, supra,
Analysis of Prop. 1A by the Legis. Analyst, p. 5.)
Analysis by the Legislative Counsel of the funding process is also relatively broad:
“The measure requires accountability and oversight of the authority’s use of bond funds
16
authorized by this measure for a high-speed train system. Specifically, the bond funds
must be appropriated by the Legislature, and the State Auditor must periodically audit the
use of bond funds. In addition, the authority generally must submit to the Department of
Finance and the Legislature a detailed funding plan for each corridor or segment of a
corridor, before bond funds would be appropriated for that corridor or segment. The
funding plans must also be reviewed by a committee whose members include financial
experts and high-speed train experts. An updated funding plan is required to be
submitted and approved by the Director of Finance before the authority can spend the
bond funds, once appropriated.” (Voter Information Guide, supra, Analysis of Prop. 1A
by the Legis. Analyst, p. 5.)
This analysis does not enumerate or refer to the subjects specified in section
2704.08, subdivision (c) and (d), let alone mention or allude to the phrase “suitable and
ready for high-speed train operation” on which the Tos parties rely. We noted in Rail
Authority that East Bay quoted “the rationale” of Clark v. Los Angeles (1911) 160 Cal.
317, 320, that “ ‘ “[t]he purpose for which . . . [bond] . . . elections are required is to
obtain the assent of the voters to a public debt, to the amount, and the object proposed.
The amount must, of course, be stated on the ballot; the general purpose must be stated
with sufficient certainty to inform the voters and not mislead them, as to the object
intended; but the details of the proposed work or improvement need not be given at
length in the ballot.” ’ ” (Rail Authority, supra, 228 Cal.App.4th at pp. 702-703; East
Bay, supra, 16 Cal.App.3d at p. 919.)
However, the Tos parties point out that the Legislative Analyst states in the guide
that $9 billion is allocated to develop the high-speed train system and the remaining $950
million to improve the capacity or safety of other passenger rail systems or allow
passengers to connect to the high-speed train system. (Voter Information Guide, supra,
Analysis of Prop. 1A by the Legis. Analyst, p. 5; see also §§ 2704.04, subd. (b) [$9
billion in net bond proceeds for planning, engineering and capital costs of high-speed
17
train system], 2704.095 [$950 million in net bond proceeds for intercity, commuter and
urban rail lines that connect to high-speed train system, are part of the high-speed train
system, or provide capacity enhancements and safety improvements].) It may be argued
the blended system approach adopted in the revised business plan and reflected in section
2704.78, subdivision (a), changes that allocation to allow expenditure of all $9.95 billion
in bond proceeds on the projects set forth in both sections 2704.04, subdivision (b), and
2704.095.
On that score, we explained in Rail Authority: “The courts have been particularly
attuned to the fluidity of the planning process for large public works projects. In fact, the
Supreme Court has allowed substantial deviation between the preliminary plans
submitted to the voters and the eventual final project, admonishing: ‘[T]he authority to
issue bonds is not so bound up with the preliminary plans as to sources of supply upon
which the estimate is based that the proceeds of a valid issue of bonds cannot be used to
carry out a modified plan if the change is deemed advantageous.’ (Cullen v. Glendora
Water Co. (1896) 113 Cal. 503, 510.) Similarly, the court broadly construed the purpose
of the proposition approving the Bay Area Rapid Transit District and sanctioned the
relocation of one of the terminal stations. The court wrote, ‘Obviously, the statutes, the
notice of election and the ballot proposition itself contemplate a broad authority for
construction of a three-county rapid transit system. In the wide scope of this substantial
transit project, the deviation of 1 1/2 miles in location of a single station is but a minor
change in the tentative plan which was relied upon only to forecast feasibility of the
project as a whole.’ (Mills[ v. S.F. Bay Area Rapid Transit Dist.], supra, 261 Cal.App.2d
at p. 669.)” (Rail Authority, supra, 228 Cal.App.4th at p. 703.)
Significantly, we observed, “The development of a high-speed rail system for the
State of California is even more complex than a regional water or transportation system.”
(Rail Authority, supra, 228 Cal.App.4th at p. 703; see also Note, State Water
Development: Legal Aspects of California’s Feather River Project (1960) 12 Stan.
18
L.Rev. 439, 458 [“when the components of a large-scale development project have
reasonable economic and engineering interdependence the courts should not strictly apply
the single purpose requirement”].)
Further, we find support for the principle that a bond law may be altered without
violating the “single object or work” requirement from the history of the California
Constitution and construction by the courts of Iowa and New York, the states from which
California borrowed this constitutional provision. “As a matter of history it is well
known that our Constitution is in many respects copied from that of Iowa. Upon motion
of Mr. Gwin, the Constitution of Iowa was adopted by the Constitutional Convention as a
basis for ours, for the reason, as stated by him, that it was one of the latest and shortest.”
(Bourland v. Hildreth (1864) 26 Cal. 161, 257 (dis. opn. of Sanderson, C.J.); Browne,
Rep. of the Debates in Convention of Cal. on Formation of the State Const. (1850) p. 24
(Debates of Convention).) Mr. Gwin in fact printed a copy of the Iowa Constitution for
the members of the convention to use to draft the California Constitution at the Monterey
convention in 1849. (Debates of Convention, supra, at p. 24.)
The brief debate in the California convention on adopting the state debt provision
from the Iowa Constitution concerned what the amount of the debt limitation requiring a
vote of the people should be in light of the amount in the Iowa Constitution ($100,000)
and a similar provision in the New York Constitution ($1 million), settling on $300,000.
(Debates of Convention, supra, at pp. 165-166.) The article adopted remains much
unchanged from that time to the amended Constitution adopted by the state in in 1879 to
the present day, including the requirement that the “single object or work” of the bond
measure “be distinctly specified” and the money raised be applied to that “specific
object.” (Debates of Convention, supra, at p. 166; Constitution of the State of California
Annotated (1946) p. 1270.)
In Knorr v. Beardsley (1949) 240 Iowa 828 [38 N.W.2d 236] (Knorr), the plaintiff
contended that the Iowa Constitution was violated when an act adopted by the voters
19
authorizing issuance of $85 million in bonds to pay service compensation to World War
II veterans was amended to appropriate $50 million from a surplus in the state’s general
fund and limit the bond authorization to $35 million. (Knorr, supra, 38 N.W.2d at
pp. 239, 240, 241.) The plaintiff relied, inter alia, on a number of sections of the Iowa
Constitution regarding state indebtedness, which contained the “ ‘single work or object
. . . distinctly specified’ ” and “ ‘specific object’ ” nearly identical to the language found
in section 1 of article XVI of the California Constitution. (Knorr, at p. 242.)
The Iowa court held that the amendment did not change the single object of the
bond act. (Knorr, supra, 38 N.W.2d at p. 246.) The court observed that the Iowa
Constitution drew liberally from and followed closely the New York constitutional
provision regarding state debts. (Knorr, at p. 246.) Under this provision, the New York
Legislature had authorized large indebtedness in the establishment and maintenance of
the Erie Canal. (Ibid.) When later legislation provided alterations in canal routes,
injunctions were sought on the ground that this legislation “was an attempt to amend the
earlier statutes which had been approved by the voters, without submitting the
amendment to voters.” (Ibid.) The injunctions were denied in each case. (Ibid.)
The Knorr court noted that, in the last of these opinions, the New York court
explained that the vote to contract indebtedness “ ‘was not taken for the purpose of
specifically and in detail indorsing the plans for the canal, but rather to authorize the
contracting of indebtedness in behalf of the State for the single specified work of
improving the canals of the State.’ ” (Knorr, supra, 38 N.W.2d at p. 246, italics omitted,
quoting Kibbee v. Lyons (1922) 195 N.Y.S. 563, 566.) “As the construction of the Barge
Canal progressed, and the needs to accomplish its purpose were developed, such changes
became necessary. But, regardless of the changes in detail, the ‘single work or object’ for
which the indebtedness of the state was authorized was being carried out and the public
moneys borrowed expended thereon. The Legislature, without a vote of the people, had
not the power to amend the Barge Canal Act in such manner as to divert these state funds
20
to a work other than the single work or object contemplated when the Barge Canal Act
was approved; but it could amend the act and the plans for the canal in any respect which
did not so divert the funds or interfere with or destroy that ‘single work or object.’ ”
(Kibbee, at p. 566.) The New York court held that the legislature had the power to
decline to build a particular spur of the Erie Canal that was no longer necessary or useful
and “that the abandonment of this part of the work is not a radical or fundamental change
from the single work or object for which the moneys of the State were appropriated . . . .”
(Kibbee, at p. 568; Knorr, at p. 247; see also People ex rel. Jordan v. Wotherspoon
(1916) 157 N.Y.S. 923, 925 [“The change in the route of the canal . . . is not a radical or
fundamental one. There was no attempt to divert the moneys to some other work. It
applied to the single work or object of building the Barge canal, and simply changed the
location from an impractical route to one that the authorities deem to be a more suitable
one”].)
The reasoning of the courts in Iowa and New York applies here. As the ballot
materials show, the voters approved bonds to initiate construction of a high-speed train
system under a multistep financing process requiring a preliminary plan for appropriation
of funds and final plan for expenditure of funds. This was the “single object or work” of
Proposition 1A. The vote was not taken to endorse every detail of the construction and
financial planning process. By 2012, when the revised business plan was adopted, it was
determined that the “ ‘blended systems’ approach that integrates high-speed rail with
existing commuter lines in various urban areas” would give passengers “ ‘more options,
faster travel times, and greater reliability and safety,’ ” “ ‘[b]enefits will be delivered
faster,’ ” and “ ‘[a]cross the state, transportation systems will be improved and jobs will
be created through the implementation of those improvements.’ ” (Rail Authority, supra,
228 Cal.App.4th at p. 691.) The near-term benefits of improving existing rail lines to
provide economic benefits, create jobs, and provide safer and cleaner transportation,
21
while additional work is completed on high-speed train service, is consistent with the
“single work or object” of Proposition 1A. (Stats. 2016, ch. 744, § 1, subds. (g), (h).)
Significantly, as the Legislature found in enacting section 2704.78, nothing in the
statute relieved the Authority of its duty to submit the funding plan required by section
2704.08, subdivision (d), to the Director of Finance or eliminated the requirement that
plan be informed by the work of one or more independent financial services firms,
financial consulting firms, or other consultants pursuant to subdivision (d)(2) of section
2704.08. (Stats. 2016, ch. 744, § 1, subds. (i), (j).)
We conclude section 2704.78 is consistent with the “single object or work” of the
Bond Act approved by the voters as Proposition 1A and thus does not violate section 1 of
article XVI of the California Constitution.7
Veterans and O’Farrell
The Tos parties rely on Veterans, supra, 36 Cal.App.3d 688 and O’Farrell v.
County of Sonoma, supra, 189 Cal. 343 (O’Farrell). Both are distinguishable and neither
is sufficient to invalidate section 2704.78, enacted in the context of a complex public
works project like the high-speed train system.
This court’s opinion in Veterans involved a bond act approved by the voters to
create a fund to aid veterans in the acquisition of and payments for farms and homes.
(Veterans, supra, 36 Cal.App.3d at p. 693 & fn. 3.) The Legislature began appropriating
$500,000 annually from the fund to pay the operating expenses of maintaining county
veterans’ services offices. (Id. at p. 692.) In Veterans, we focused on the language in
7 In Rail Authority, real party in interest First Free Will Baptist Church contended that
the revised business plan including the blended system approach demonstrated “that the
high-speed rail system to be built is not the same project approved by the voters.” (Rail
Authority, supra, 228 Cal.App.4th at p. 704, fn. 7.) We rejected this contention as “too
soon to determine how the Authority will specifically use the bond proceeds.” (Ibid.)
The Tos parties did not renew that contention in this case.
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section 1 of article XVI of the California Constitution that a bond law “ ‘shall be
irrepealable until the principal and interest [of the bonds] shall be paid and discharged.’ ”
(Veterans, at p. 693.) We concluded “[t]he constitutional injunction against later repeal
of the bond law aims to prevent the Legislature from making substantial changes in the
scheme or design which induced voter approval.” (Ibid.) Analogizing to the principle
that where a later statute that supersedes or substantially modifies an earlier statute, the
former by implication partially repeals the latter, we said, “When part of a fund wholly
committed by statute is later appropriated to an alien purpose, the appropriation
necessarily causes a partial repeal by implication.” (Id. at p. 694.) However, we
cautioned that “ ‘[Repeals by implication] will occur only where the two acts are so
inconsistent that there is no possibility of concurrent operation, or where the later
provision gives undebatable evidence of an intent to supersede the earlier . . . .’ ” (Ibid.)
Here, the Bond Act was not a relatively simple proposition as in Veterans.
Proceeds from the Bond Act funded a large and complex public works project including:
construction of tracks, structures, power systems, stations and other related facilities and
equipment; acquisition of rolling stock; mitigation of environmental impacts; and
relocation of displaced property owners and occupants. (§§ 2704.04, subd. (c), 2704.09.)
Like the water system in Marquardt, supra, 59 Cal.2d 159 and Cullen v. Glendora Water
Co., supra, 113 Cal. 503 and the transit system in Mills v. S.F. Bay Area Rapid Transit
Dist., supra, 261 Cal.App.2d 666, “courts have been particularly attuned to the fluidity of
the planning process” in allowing deviations from such bond propositions submitted to
the voters. (Rail Authority, supra, 228 Cal.App.4th at p. 703.) Indeed, section 2704.04,
subdivision (c), acknowledges the need for fluidity in providing for application of bond
proceeds to as-yet unidentified “other related capital facilities and equipment” and “such
other purposes related to the [enumerated purposes], for the procurement thereof, and for
the financing or refinancing thereof, as may be set forth in a statute hereafter enacted.”
23
Moreover, the blended systems approach introduced in the revised business plan in
2012 and reflected in section 2704.78 is not “ ‘so inconsistent that there is no possibility
of concurrent operation’ ” with the Bond Act generally or 2704.08, subdivision (d), in
particular. (Veterans, supra, 36 Cal.App.3d at p. 694.) Section 2704.78 furthered the
initial construction of the high-speed rail system by funding investments in improvement
of existing train systems that would be shared with the high-speed train system, while
additional work is completed to enable high-speed train service. (Stats. 2016, ch. 744,
§ 1, subds. (g), (h).) Moreover, the expanded “suitable and ready for high-speed train
operation” condition, as defined in section 2704.78, subdivision (a), continued to be
subject to the independent consultant review and reporting process required by
subdivision (d)(2) of section 2704.08. In other words, prior to expenditure of bond
proceeds on an existing system, the expenditure would be subject to evaluation whether it
improved a shared system while additional work is completed for high-speed train service
and passenger providers benefited in the near-term.
We conclude that section 2704.78 did not effect an implied partial repeal of the
Bond Act.
O’Farrell is factually inapposite to this case. In O’Farrell, the ballot proposition
described the exact scope of the road that was to be constructed with bond funds.
(O’Farrell, supra, 189 Cal. at pp. 347-348.) The court concluded that the county did not
have discretion to build only a part of the road. (Ibid.) As noted, the Bond Act did not
specify project details but rather acknowledged in section 2704.04, subdivision (c), that
additional related capital equipment and facilities and purposes would be funded with
bond proceeds as the project progressed. The project in O’Farrell, construction of a
single four-mile road, bears no resemblance to a complex public works project like the
high-speed train system. In addition, subsequent cases have not found O’Farrell to bar
reasonable changes in executing projects financed by bonds. (See, e.g., Sacramento-Yolo
Port Dist. v. Rodda (1949) 90 Cal.App.2d 837, 840 [when the authority proposing the
24
bond issue “has not confined itself to an absolutely definite and inflexible plan of
construction and expenditure by the proposal submitting the bond issue, and has
proceeded free from fraud and in good faith in accordance with such broad program,
there is no reason why it cannot be permitted to carry on the improvement to the extent of
the funds available”]; City of San Diego v. Millan (1932) 127 Cal.App. 521, 530
[substituting types of dams funded by bond issue].)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs. (Cal. Rules of
Court, rule 8.278(a)(1) & (2).)
/s/
RAYE, P. J.
We concur:
/s/
BLEASE, J.
/s/
ROBIE, J.
25