1

Filed 7/31/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

CALIFORNIA HIGH-SPEED RAIL AUTHORITY et 

al.,

Petitioners,

v.

THE SUPERIOR COURT OF SACRAMENTO 

COUNTY,

Respondent;

JOHN TOS et al.,

Real Parties in Interest.

C075668

(Super. Ct. Nos. 

34201100113919CUMCGDS, 

34201300140689CUMCGDS)

ORIGINAL PROCEEDING in mandate. Alternative writ of mandate issued.

Kamala D. Harris, Attorney General, Kathleen A. Kenealy, Chief Assistant 

Attorney General, Douglas J. Woods, Senior Assistant Attorney General, Constance L. 

LeLouis, Tamar Pachter, Sharon L. O’Grady, Paul Stein, and Stephanie F. Zook, Deputy 

Attorneys General, for Petitioners.

Hanson Bridgett, David J. Miller, and Julia H. Veit for Peninsula Corridor Joint 

Powers Board and San Mateo County Transit District as Amici Curiae on behalf of 

Petitioners.
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Adrienne D. Weil for Metropolitan Transportation Commission as Amicus Curiae 

on behalf of Petitioners.

Robert Fabela for Santa Clara Valley Transportation Authority as Amicus Curiae 

on behalf of Petitioners.

Therese M. Stewart, Chief Deputy City Attorney, for City and County of San 

Francisco as Amicus Curiae on behalf of Petitioners.

Altshuler Berzon, Scott A. Kronland, and Connie K. Chan for State Building and 

Construction Trades Council of California, AFL-CIO, as Amicus Curiae on behalf of 

Petitioners.

Gresham Savage Nolan & Tilden, Ellen Berkowitz, Stefanie G. Field, Daniel F. 

Freedman; Kelly Crane Law and Peter D. Kelly, III, for the Hon. Cathleen Galgiani, 

California State Senator, as Amicus Curiae on behalf of Petitioners.

John F. Krattli, County Counsel, Charles M. Safer, Assistant County Counsel, and 

Richard P. Chastang, Principal Deputy County Counsel, for Los Angeles County 

Metropolitan Transportation Authority as Amicus Curiae on behalf of Petitioners.

Joanna G. Africa for Southern California Association of Governments as Amicus 

Curiae on behalf of Petitioners.

No appearance for Respondent.

Howard Jarvis Taxpayers Foundation, Jonathan M. Coupal and Timothy A. Bittle 

for Real Party in Interest Howard Jarvis Taxpayers Association.

Griswold, LaSalle, Cobb, Dowd & Gin, and Raymond L. Carlson for Real Parties 

in Interest Kings County Water District and Citizens for California High-Speed Rail 

Accountability.

Law Offices of Stuart M. Flashman, Stuart M. Flashman; and Michael J. Brady for 

Real Parties in Interest John Tos, Aaron Fukuda, and County of Kings.

Theresa A. Goldner, County Counsel, Mark L. Nations, Chief Deputy County 

Counsel, and Nicole M. Misner, Deputy County Counsel, for Real Party in Interest 

County of Kern.

Pillsbury Winthrop Shaw Pittman, Andrew D. Bluth, Michael R. Barr, Kevin M. 

Fong, and Blaine I. Green for Real Party in Interest Union Pacific Railroad Company.
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Pacific Legal Foundation, Meriem L. Hubbard, Harold E. Johnson, and Ralph W. 

Kasarda for Real Party in Interest First Free Will Baptist Church.

Substantial legal questions loom in the trial court as to whether the high-speed rail 

project the California High-Speed Rail Authority (Authority) seeks to build is the project 

approved by the voters in 2008. Substantial financial and environmental questions 

remain to be answered by the Authority in the final funding plan the voters required for 

each corridor or usable segment of the project. (Sts. & Hy. Code, § 2704.08, subd. (d).)1 

But those questions are not before us in these validation and mandamus proceedings. 

The scope of our decision is quite narrow. Applying time-honored principles of statutory 

construction, separation of powers, and the availability of extraordinary writ relief, we 

conclude:

1. Contrary to the trial court’s determination, the High-Speed Passenger Train 

Finance Committee properly found that issuance of bonds for the project was necessary 

or desirable.

2. The preliminary section 2704.08, subdivision (c) funding plan was intended to 

provide guidance to the Legislature in acting on the Authority’s appropriation request. 

Because the Legislature appropriated bond proceeds following receipt of the preliminary 

funding plan approved by the Authority, the preliminary funding plan has served its 

purpose. A writ of mandamus will not lie to compel the idle act of rescinding and 

redoing it.

We therefore will issue a peremptory writ of mandate directing the trial court to 

enter judgment validating the authorization of the bond issuance for purposes of the 2008 

voter approved Safe, Reliable High-Speed Passenger Train Bond Act. (Bond Act)

 

1

 Further undesignated statutory references are to the Streets and Highways Code.
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(§ 2704 et seq.; see § 2704.04, subd. (a).) Further challenges by real parties in interest to 

the use of bond proceeds are premature. The writ will also compel the trial court to 

vacate its rulings requiring the Authority to perform the idle act of redoing the 

preliminary section 2704.08, subdivision (c) funding plan after the Legislature 

appropriated the bond funds.

FACTUAL AND PROCEDURAL CONTEXT2

On November 4, 2008, the voters of California passed Proposition 1A, the Bond 

Act, “to initiate the construction of a high-speed train system that connects the San 

Francisco Transbay Terminal to Los Angeles Union Station and Anaheim, and links the 

state’s major population centers, including Sacramento, the San Francisco Bay Area, the 

Central Valley, Los Angeles, the Inland Empire, Orange County, and San Diego . . . .” 

(§ 2704.04, subd. (a); see § 2704 et seq.) The Bond Act authorizes the issuance and sale 

of $9.95 billion in general obligation bonds “upon appropriation by the Legislature” 

(§ 2704.04, subd. (b)(1); see § 2704.10) to begin construction of a high-speed train 

system in California “consistent with the [A]uthority’s certified environmental impact 

reports of November 2005 and July 9, 2008, as subsequently modified pursuant to 

environmental studies conducted by the [A]uthority” (§ 2704.06).

The Bond Act sets forth specific criteria for the bond proceeds as well as for the 

design and capacity of the system. For instance, no more than $950 million of bond 

proceeds can be used for non-high-speed rail connectivity with high-speed rail lines. 

(§ 2704.095.) High-speed rail, the Act provides, will feature electric trains capable of 

operating at speeds of 200 miles per hour or greater, guaranteed maximum travel times 

between major destinations, and achievable operating headway (time between successive 

trains) of five minutes or less. (§ 2704.09, subds. (a), (b) & (c).)

 

2

 We refer to the parties throughout this opinion by their appellate court designations.
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The Authority is the administrative body with primary responsibility for 

overseeing the planning and construction of the high-speed rail system. (Sts. & Hy. 

Code, § 2704.01, term (b); Pub. Util. Code, § 185020.) The Authority is subject to the 

terms of the financing program set forth in article 2 and the fiscal provisions set forth in 

article 3 of the Bond Act. (Sts. & Hy. Code, §§ 2704.04 et seq., 2704.10 et seq.) The 

Argument in favor of Proposition 1A promised the voters: “Proposition 1A will protect 

taxpayer interests. [¶] • Public oversight and detailed independent review of financing 

plans. [¶] • Matching private and federal funding to be identified BEFORE state bond 

funds are spent. [¶] • 90% of the bond funds to be spent on system construction, not 

more studies, plans, and engineering activities.” (Voter Information Guide, General Elec. 

(Nov. 4, 2008) argument in favor of Prop. 1A, p. 6.)

The Bond Act incorporates by reference the State General Obligation Bond Law, 

Government Code section 16720 et seq. (Bond Law), which provides a uniform 

procedure for authorizing the issuance, sale, and repayment of general obligation bonds 

on behalf of the state. (Sts. & Hy. Code, § 2704.11.) The Bond Act designates the 

Authority to act as the “board” for purposes of all Bond Law procedures (Sts. & Hy. 

Code, § 2704.12, subd. (b)), including the authority to request that the “[c]ommittee” 

authorize the issuance of bonds (Gov. Code, § 16722, term (d)). The Bond Act also 

creates a High-Speed Passenger Train Finance Committee (Finance Committee) to serve 

in the same capacity as the “[c]ommittee” named in the Bond Law, “[s]olely for the 

purpose of authorizing the issuance and sale of the bonds authorized by [the Bond Act].”

(Sts. & Hy. Code, § 2704.12, subd. (a).)

Article 2, section 2704.08 is at the heart of the writ proceeding now before us. 

Pursuant to subdivision (a) of section 2704.08, the bond proceeds cannot be used for 

more than 50 percent of the total cost of construction for each usable segment or corridor. 

“Corridor,” as used in the Bond Act, is “a portion of the high-speed train system as 
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described in Section 2704.04” (§ 2704.01, term (f)),3 and “usable segment” is “a portion 

of a corridor that includes at least two stations” (§ 2704.01, term (g)). Section 2704.08 

compels the Authority to prepare a preliminary funding plan (§ 2704.08, subd. (c)) before 

the Legislature appropriates the funds and a final funding plan (§ 2704.08, subd. (d))

before the proceeds of bonds are committed for expenditure.

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 We must determine

whether a writ of mandamus is an appropriate remedy when, despite receipt of an 

allegedly deficient preliminary funding plan, the Legislature appropriates the requested 

funds, thereby authorizing the issuance and sale of bonds.

Streets and Highways Code section 2704.08, subdivision (c) provides as follows: 

“(c)(1) No later than 90 days prior to the submittal to the Legislature and the Governor of 

 

3

 Seven corridors are described:

 (A) Sacramento to Stockton to Fresno.

 (B) San Francisco Transbay Terminal to San Jose to Fresno.

 (C) Oakland to San Jose.

 (D) Fresno to Bakersfield to Palmdale to Los Angeles Union Station.

 (E) Los Angeles Union Station to Riverside to San Diego.

 (F) Los Angeles Union Station to Anaheim to Irvine.

 (G) Merced to Stockton to Oakland and San Francisco via the Altamont Corridor.

4

 We acknowledge that the statute does not characterize the Streets and Highways Code 

section 2704.08, subdivision (c) detailed funding plan as “preliminary” or the 

section 2704.08, subdivision (d) detailed funding plan as “final.” A contextual reading of 

the Bond Act, however, reveals that the two funding plans are part of a comprehensive 

legislative scheme: the first to be presented to the Legislature before the appropriation of 

bond funds and the second to be approved before the actual expenditure of bond 

proceeds. The inclusion of the subdivision (d) plan is an explicit recognition that new, 

and possibly different, information will be needed to supplement or augment the 

preappropriation subdivision (c) plan, and further, that the preappropriation or 

“preliminary” plan is in no way intended to be a final or conclusive administrative action. 

Indeed, the Legislature characterized the subdivision (c) funding plan as the 

“preappropriation review process” and the subdivision (d) funding plan as the 

“preexpenditure review process.” (Pub. Util. Code, § 185033, subd. (b)(2).) For these 

reasons, we will refer to the section 2704.08, subdivision (c) plan as preliminary and the 

section 2704.08, subdivision (d) plan as final.
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the initial request for appropriation of proceeds of bonds authorized by this chapter for 

any eligible capital costs on each corridor, or usable segment thereof . . . the authority 

shall have approved and submitted to the Director of Finance, the peer review group 

established pursuant to Section 185035 of the Public Utilities Code, and the policy 

committees with jurisdiction over transportation matters and the fiscal committees in both 

houses of the Legislature, a detailed funding plan for that corridor or a usable segment 

thereof.

“(2) The plan shall include, identify, or certify to all of the following:

“(A) The corridor, or usable segment thereof, in which the authority is proposing 

to invest bond proceeds.

“(B) A description of the expected terms and conditions associated with any lease 

agreement or franchise 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.

“(C) The estimated full cost of constructing the corridor or usable segment thereof, 

including an estimate of cost escalation during construction and appropriate reserves for 

contingencies.

“(D) The sources of all funds to be invested in the corridor, or usable segment 

thereof, and the anticipated time of receipt of those funds based on expected 

commitments, authorizations, agreements, allocations, or other means.

“(E) The projected ridership and operating revenue estimate based on projected 

high-speed passenger train operations on the corridor or usable segment.

“(F) All known or foreseeable risks associated with the construction and operation 

of high-speed passenger train service along the corridor or usable segment thereof and the 

process and actions the authority will undertake to manage those risks.

“(G) Construction of the corridor or usable segment thereof can be completed as 

proposed in the plan.
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“(H) The corridor or usable segment thereof would be suitable and ready for highspeed train operation.

“(I) One or more passenger service providers can begin using the tracks or stations 

for passenger train service.

“(J) The planned passenger service by the authority in the corridor or usable 

segment thereof will not require a local, state, or federal operating subsidy.

“(K) The authority has completed all necessary project level environmental 

clearances necessary to proceed to construction.”

Section 2704.08, subdivision (d) requires a final, preexpenditure funding plan as 

follows: “Prior to committing any proceeds of bonds described in paragraph (1) of 

subdivision (b) of Section 2704.04 for expenditure for construction and real property and 

equipment acquisition on each corridor, or usable segment thereof, other than for costs 

described in subdivision (g), the authority shall have approved and concurrently 

submitted to the Director of Finance and the Chairperson of the Joint Legislative Budget 

Committee the following: (1) a detailed funding plan for that corridor or usable segment 

thereof that (A) identifies the corridor or usable segment thereof, and the estimated full 

cost of constructing the corridor or usable segment thereof, (B) identifies the sources of 

all funds to be used and anticipates time of receipt thereof based on offered commitments 

by private parties, and authorizations, allocations, or other assurances received from 

governmental agencies, (C) includes a projected ridership and operating revenue report, 

(D) includes a construction cost projection including estimates of cost escalation during 

construction and appropriate reserves for contingencies, (E) includes a report describing 

any material changes from the plan submitted pursuant to subdivision (c) for this corridor 

or usable segment thereof, and (F) describes the 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; and (2) a report or reports, prepared by one or more financial services firms, 
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financial consulting firms, or other consultants, independent of any parties, other than the 

authority, involved in funding or constructing the high-speed train system, indicating that 

(A) construction of the corridor or usable segment thereof can be completed as proposed 

in the plan submitted pursuant to paragraph (1), (B) if so completed, the corridor or 

usable segment thereof would be suitable and ready for high-speed train operation, 

(C) upon completion, one or more passenger service providers can begin using the tracks 

or stations for passenger train service, (D) the planned passenger train service to be 

provided by the authority, or pursuant to its authority, will not require operating subsidy, 

and (E) an assessment of risk and the risk mitigation strategies proposed to be employed. 

The Director of Finance shall review the plan within 60 days of its submission by the 

authority and, after receiving any communication from the Joint Legislative Budget 

Committee, if the director finds that the plan is likely to be successfully implemented as 

proposed, the authority may enter into commitments to expend bond funds that are 

subject to this subdivision and accept offered commitments from private parties.”

Proposition 1A also established the Finance Committee, which consists of five 

senior government officials: the California State Treasurer; the Director of the 

Department of Finance; the California State Controller; the Secretary of Business, 

Transportation and Housing; and the chairperson of the Authority. (§ 2704.12, subd. (a).) 

The Finance Committee is the administrative body with primary responsibility for 

authorizing the issuance of bonds that will be used to finance initial construction of the 

high-speed rail system. (Ibid.) Section 2704.13 provides, in relevant part: “The 

committee shall determine whether or not it is necessary or desirable to issue bonds 

authorized pursuant to this chapter in order to carry out the actions specified in 

Sections 2704.06 and 2704.095 and, if so, the amount of bonds to be issued and sold. 

Successive issues of bonds may be issued and sold to carry out those actions 

progressively, and it is not necessary that all of the bonds authorized be issued and sold at 

any one time. The committee shall consider program funding needs, revenue projections, 
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financial market conditions, and other necessary factors in determining the term for the 

bonds to be issued. In addition to all other powers specifically granted in this chapter and 

the State General Obligation Bond Law, the committee may do all things necessary or 

convenient to carry out the powers and purposes of this article, including the approval of 

any indenture relating to the bonds, and the delegation of necessary duties to the 

chairperson and to the Treasurer as agent for the sale of the bonds.”

The peer review group plays another significant role in providing financial 

oversight and monitoring the feasibility of the Authority’s plans. Public Utilities Code 

section 185035 provides, in relevant part: “(a) The authority shall establish an 

independent peer review group for the purpose of reviewing the planning, engineering, 

financing, and other elements of the authority’s plans and issuing an analysis of 

appropriateness and accuracy of the authority’s assumptions and an analysis of the 

viability of the authority’s financing plan, including the funding plan for each corridor 

required pursuant to subdivision (b) of Section 2704.08 of the Streets and Highways 

Code. [¶] . . . [¶] (c) The peer review group shall evaluate the authority’s funding plans 

and prepare its independent judgment as to the feasibility and reasonableness of the plans, 

appropriateness of assumptions, analyses, and estimates, and any other observations or 

evaluations it deems necessary.”

The Authority is also required to “prepare, publish, adopt, and submit to the 

Legislature, not later than January 1, 2012, and every two years thereafter, a business 

plan. At least 60 days prior to the publication of the plan, the authority shall publish a 

draft business plan for public review and comment. The draft plan shall also be 

submitted to the Senate Committee on Transportation and Housing, the Assembly 

Committee on Transportation, the Senate Committee on Budget and Fiscal Review, and 

the Assembly Committee on Budget.” (Pub. Util. Code, § 185033, former subd. (a), as 

amended by Stats. 2009, ch. 618, § 1.) “The business plan shall identify all of the 

following: the type of service the authority anticipates it will develop, such as local, 
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express, commuter, regional, or interregional; a description of the primary benefits the 

system will provide; a forecast of the anticipated patronage, operating and maintenance 

costs, and capital costs for the system; an estimate and description of the total anticipated 

federal, state, local, and other funds the authority intends to access to fund the 

construction and operation of the system; and the proposed chronology for the 

construction of the eligible corridors of the statewide high-speed train system. The 

business plan shall also include a discussion of all reasonably foreseeable risks the 

project may encounter, including, but not limited to, risks associated with the project’s 

finances, patronage, right-of-way acquisition, environmental clearances, construction, 

equipment, and technology, and other risks associated with the project’s development. 

The plan shall describe the authority’s strategies, processes, or other actions it intends to 

utilize to manage those risks.” (Ibid.)

The Authority certified the preliminary funding plan two days after issuing the 

“Draft 2012 Business Plan” (draft business plan). The draft business plan identified the 

“corridor, or usable segment thereof,” as one of two alternative initial operating sections 

(IOS): IOS-North, a usable segment of approximately 290 miles from Bakersfield in the 

south to San Jose in the north, or IOS-South, an alternative usable segment of 

approximately 300 miles from Merced in the north to the San Fernando Valley in the 

south. To the consternation of the peer review group, the preliminary funding plan 

expressly incorporated the draft business plan and proposed an investment of $2.684 

billion in bonds authorized under Proposition 1A, the amount needed to supplement the 

$3.316 billion in federal funds awarded for construction of the initial construction section

(ICS), a 130-mile conventional rail portion of the system. Because of the stringent 60-

day deadline to complete its assessment of the preliminary funding plan, the peer review 

group was put “in the position of reaching findings and conclusions on the Funding Plan 

based upon the content of a foundational Business Plan document that is still in draft 

form.” (See Pub. Util. Code, § 185035.)
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On November 14, 2011, John Tos, Aaron Fukuda, and County of Kings (the Tos 

real parties) filed their initial complaint for declaratory relief, injunctive relief, and for 

relief pursuant to Code of Civil Procedure section 526a and the private attorney general 

doctrine (Tos action), alleging, among other things, that the preliminary funding plan 

violated the Bond Act. On December 13, 2011, the complaint was amended to add a 

cause of action seeking relief in the form of a writ of mandamus/prohibition. On 

January 3, 2012, the peer review group submitted a report to the Legislature outlining 

weaknesses in the preliminary funding plan and draft business plan, and offering a 

number of suggestions to improve the viability of the high-speed rail project.

On April 19, 2012, the Authority adopted the “Revised 2012 Business Plan” 

(revised business plan). The revised business plan identifies a 300-mile “usable 

segment” from Merced to the San Fernando Valley (IOS-South), but unlike the draft 

business plan, the revised business plan commits “to build not just an initial construction 

segment but in fact an Initial Operating Section (IOS) of high-speed rail.” Moreover, the 

revised business plan introduced a “blended systems” 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 investment in the bookends. Across the state, transportation 

systems will be improved and jobs will be created through the implementation of those 

improvements.”

On April 17, 2012, the Legislative Analyst’s office (LAO) issued a report 

providing a negative critique of the revised business plan for the Legislature. The report 

states: “In April 2012, the [Authority] released its most recent business plan that 

estimates the cost of constructing the first phase of the high-speed train project at 

$68 billion. However, the [Authority] only has secured about $9 billion in voter 

approved bond funds and $3.5 billion in federal funds. Thus, the availability of future 
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funding to construct the system is highly uncertain.” (Legis. Analyst, The 2012-13 

Budget: Funding Requests for High-Speed Rail, Apr. 17, 2012, p. 1.) Thus, the LAO 

concludes: “We find that [the Authority] has not provided sufficient detail and 

justification to the Legislature regarding its plan to build a high-speed train system. 

Specifically, funding for the project remains highly speculative and important details 

have not been sorted out. We recommend the Legislature not approve the Governor’s 

various budget proposals to provide additional funding for the project. However, we 

recommend that some minimal funding be provided to continue planning efforts that are 

currently underway.” (Ibid.)

On July 18, 2012, nearly four years after adoption of the Bond Act and after 

extensive studies, planning, public hearings, and debate, the Legislature enacted Senate 

Bill No. 1029 (Stats. 2012, ch. 152), thereby appropriating state funds and federal grants 

for high-speed rail as follows:

A total of $819,333,000 “for capital improvement projects to intercity and 

commuter rail lines and urban rail systems that provide direct connectivity to the highspeed train system and its facilities . . . .” (Stats. 2012, ch. 152, §§ 1, 2.)

“Bookend” funding of $1.1 billion “for expenditure for state operations, local 

assistance, or capital outlay . . . .” (Stats. 2012, ch. 152, § 3.)

A total of $48,354,000 “[f]or capital outlay, High-Speed Rail Authority, payable 

from the Federal Trust Fund . . . .” (Stats. 2012, ch. 152, §§ 4, 6.)

A total of $204,173,000 “[f]or capital outlay, High-Speed Rail Authority, payable 

from the High-Speed Passenger Train Bond Fund . . . .” (Stats. 2012, ch. 152, §§ 5, 7.)

To acquire and build the IOS, $3,240,676,000, payable from the Federal Trust 

Fund. (Stats. 2012, ch. 152, § 8.)

To acquire and build the IOS, $2,609,076,000, payable from the High-Speed 

Passenger Train Bond Fund. (Stats. 2012, ch. 152, § 9.)
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As will be described in further detail, post, the Legislature itself enforced the rigid 

reporting provisions of section 2704.08, subdivision (c) of the Bond Act by requiring the 

Authority to submit additional reports and obtain additional approvals before the funds 

appropriated could be encumbered. (Stats. 2012, ch. 152, § 3.)

On March 18, 2013, the Authority adopted Resolution # HSRA 13-03 requesting

the Finance Committee “to authorize issuance of bonds and commercial paper notes 

under the Bond Act to provide funds for the projects as authorized in sections 2704.04 

and 2704.06 of the California Streets and Highways Code in the aggregate principal 

amount of $8,599,715,000.” That same day, the Finance Committee, consistent with 

section 2704.13, adopted Resolution IX (2013) declaring that it was necessary and 

desirable “to authorize the issuance hereunder of $8,599,715,000 in [the] principal 

amount (the ‘Authorized Amount’) of general obligation bonds (the ‘Bonds’) and other 

obligations pursuant to this Resolution to carry out the purposes” of the Bond Act.

If our arithmetic is correct, therefore, in 2012 the Legislature appropriated a total 

of $4,732,582,000 in Bond Act funds and $3,289,030,000 from the Federal Trust Fund to 

finance high-speed rail in California. Of the $8,021,609,000 total funds appropriated by 

the Legislature, approximately $6.1 billion was appropriated to finance IOS-South. In 

2013 the Authority requested, and the Finance Committee authorized, the issuance of 

bonds under the Bond Act in the aggregate principal amount of $8,599,715,000.

The following day, March 19, 2013, the Authority and the Finance Committee 

filed a validation action to obtain a judgment validating the bonds so they could be sold 

on the capital markets. (Code Civ. Proc., § 860 et seq.; Gov, Code, § 17700.) John Tos, 

Aaron Fukuda, County of Kings, Howard Jarvis Taxpayers Association, Kings County 

Water District, Citizens for California High-Speed Rail Accountability, Eugene Voiland, 

County of Kern, and First Free Will Baptist Church opposed the action; Union Pacific 

Railroad Company filed a responsive pleading as an interested party in the validation 

action (collectively, real parties in interest).
15

The trial court bifurcated the writ of mandate issues from the other remedies the 

Tos real parties sought in the Tos action. Over time, the Tos real parties had amended 

their complaint several times, with the operative allegations contained in the second 

amended complaint, which set forth 12 sweeping causes of action. However, at the first 

hearing on May 31, 2013, the scope of the petition for a writ of mandamus was narrowed

to two deficiencies in the preliminary funding plan, which are at issue before us in this 

appeal.

First, the Tos real parties allege that it will cost at least an additional $20 billion to 

complete the last 170 miles of the 300-mile usable segment, and contrary to the 

mandatory terms of Proposition 1A, the sources of these funds have not been identified 

and committed. (§ 2704.08, subd. (c)(2)(D) [“(2) The [preliminary funding] plan shall 

include, identify, or certify to all of the following: [¶] . . . [¶] (D) The sources of all 

funds to be invested in the corridor, or usable segment thereof, and the anticipated time of 

receipt of those funds based on expected commitments, authorizations, agreements, 

allocations, or other means.”].)

Second, the Tos real parties complain that the Authority failed to obtain the 

necessary environmental clearances before approving the preliminary funding plan. 

(§ 2704.08, subd. (c)(2)(K) [“(2) The [preliminary funding] plan shall include, identify, 

or certify to all of the following: [¶] . . . [¶] (K) The Authority has completed all 

necessary project level environmental clearances necessary to proceed to construction.”].) 

“[The Tos real parties] specifically allege that the environmental review process required 

by Proposition 1A is far from complete, it is in its infancy with respect to the section 

between Fresno and Bakersfield. In addition, major environmental litigation has just 

been filed in the Central Valley challenging the adequacy of some of the environmental 

studies. Additionally, [the Tos real parties] allege that the environmental clearances 

necessary for defendants to commence construction of the Central Valley project have 
16

not been obtained from the U.S. Corps of Engineers, the U.S. Fish and Wildlife Service, 

and the San Joaquin Valley Air Pollution Control District.”

On August 16, 2013, the trial court issued a 15-page ruling explaining that the 

preliminary funding plan submitted by the Authority to the Legislature did not comply 

with the Bond Act. (§ 2704.08, subd. (c)(2)(D) & (K).)

There is no dispute that the Authority identified the necessary funding sources for 

the ICS, amounting to approximately $6 billion in combined federal and state funding. 

The court pointed out, however, that section 2704.08, subdivision (c)(2)(D) requires 

identification of funding sources for the entire IOS, and the full cost of completing IOSSouth was projected to be in excess of $26 billion. In the trial court’s view, 

subdivision (c)(2)(D) “required the Authority to identify sources of funds that were more 

than merely theoretically possible, but instead were reasonably expected to be actually 

available when needed. This is clear from the language of the statute requiring the 

Authority to describe the ‘anticipated time of receipt of those funds based on expected

commitments, authorizations, agreements, allocations, or other means.’ (Emphasis added 

[by trial court].) Such language, especially the use of the highlighted terms ‘anticipated’ 

and ‘expected’, indicates that the identification of funds must be based on a reasonable 

present expectation of receipt on a projected date, and not merely a hope or possibility 

that such funds may become available.”

The trial court quoted at some length from the draft business plan, rather than the 

revised business plan. The court noted the draft business plan explicitly stated “that 

funds for construction of the remainder of the IOS would be identified at a later time 

(‘not later than 2015’)” and “candidly acknowledged that committed funding for 

construction of the IOS in the years 2015 to 2021 ‘is not fully identified’, and that ‘the 

mix, timing, and amount of federal funding for later sections of the [high-speed rail] is 

not known at this time.” The court concluded, “This language demonstrates that the 
17

funding plan failed to comply with the statute, because it simply did not identify funds 

available for the completion of the entire IOS.”

Rejecting arguments lodged by the Attorney General construing the statute to 

allow completion of all environmental clearances before construction rather than before 

the preliminary funding plan is approved, the trial court held: “Subsection (K), on its 

face, requires the Authority to certify that it has completed all necessary project level 

environmental clearances necessary to proceed to construction. As the language from the 

funding plan quoted above demonstrates, the plan does not address project level 

environmental clearances for the entire IOS at all, but only addresses the ICS. Moreover, 

the funding plan explicitly states that project level environmental clearances have not yet 

been completed even for the ICS. It is therefore manifest that the funding plan does not 

comply with the plain language of the statute.”

Although the trial court found the preliminary funding plan was deficient, the 

court remained uncertain whether a writ of mandate would lie to compel the Authority to 

rescind it in light of its conclusion that a writ would not issue to invalidate the legislative 

appropriation both on substantive and procedural grounds.

Substantively, the court explained: “Nothing in Section 2704.08[,

subdivision] (c)(2), or elsewhere in Proposition 1A, provides that the Legislature shall not 

or may not make an appropriation for the high-speed rail program if the initial funding 

plan required by Section 2704.08[, subdivision] (c)(2) fails to comply with all the 

requirements of the statute. Lacking such a consequence for the Authority’s noncompliance, Proposition 1A appears to entrust the question of whether to make an 

appropriation based on the funding plan to the Legislature’s collective judgment. The 

terms of Proposition 1A itself give the Court no authority to interfere with that exercise 

of judgment.”

Procedurally, the court pointed out that the Tos real parties did not seek 

invalidation of the legislative appropriation in the second amended complaint and raised 
18

the issue for the first time in their reply brief. The court subscribed to the general rule 

that, in fairness to petitioners, arguments raised for the first time in reply would not be 

considered.

If, as the trial court found, the appropriation was not subject to challenge, the 

question posed is whether a writ of mandate to rescind the preliminary funding plan 

would have any real and practical effect. The court asked for supplemental briefing to 

determine whether the writ could invalidate any subsequent approvals by the Authority or 

any of the other petitioners. If so, the court intimated that a writ might offer a real and 

practical benefit.

A second hearing was held on November 8, 2013, and the court issued its second 

ruling on November 25, 2013. The trial court issued a writ of mandate directing the 

Authority to rescind its approval of the November 3, 2011, preliminary funding plan 

because “the preparation and approval of a detailed funding plan that complies with all of 

the requirements of Streets and Highways Code section 2704.08[, subdivision] (c) is a 

necessary prerequisite for the preparation and approval of a second detailed funding plan 

under subdivision (d) of the statute, which in turn is a necessary prerequisite to the 

Authority’s expenditure of any bond proceeds for construction or real property and 

equipment acquisition, other than for costs described in subdivision (g).” Thus, the trial 

court concluded, the writ would have a real and practical effect.

The court, however, denied the Tos real parties the many other remedies they 

sought. It refused to issue a writ to invalidate any subsequent approvals made by the 

Authority in reliance on the November 3, 2011, preliminary funding plan, including 

contracts with Caltrans and Tutor-Perini-Parsons, because there was insufficient evidence 

the Authority, in utilizing federal grant money, had violated any of the limitations set by 

Proposition 1A and the contracts contained termination clauses to assure that the state did 

not transgress those limitations. The court also refused to (1) enjoin the Authority from 

submitting a final funding plan until its preliminary funding plan complies with 
19

section 2704.08, subdivision (c); (2) issue a temporary restraining order to prohibit the 

Authority from using federal grant money; and (3) order an accounting of past and 

projected expenditures on the high-speed rail project.

On the same day the trial court issued its ruling in the Tos action, it denied the 

Authority and Finance Committee’s request for a validation judgment approving the 

issuance of more than $8 billion in bonds. The court found that the Finance Committee’s 

determination that issuance of the bonds was necessary or desirable was a quasilegislative act that must be supported by evidence in the record. The court explained that 

it could “find no evidence in the record of proceedings submitted by [the Authority and 

the Finance Committee] that supports a determination that it was necessary or desirable 

to authorize the issuance of more than eight billion dollars in bonds under Proposition 1A 

as of March 18, 2013. The record of proceedings in this matter consists of little more 

than the Authority’s Resolution requesting that the Finance Committee authorize issuance 

of bonds, and the Finance Committee’s Resolutions doing so. The Finance Committee’s 

Resolutions contain bare findings of necessity and desirability which contain no 

explanations of how, or on what basis, it made those findings. Specifically, the findings 

contain no summary of the factors the Finance Committee considered and no description 

of the content of any documentary or other evidence it may have received and 

considered. Thus the findings themselves do not assist the Court in determining whether 

those findings are supported by any evidence.”

The Authority, the Finance Committee, and others thereafter filed a petition for a 

writ of mandamus for relief in both cases.5 Petitioners ask us to issue a peremptory writ 

 

5

 Petitioners also include Governor Edmund G. Brown, Jr.; State Treasurer Bill Lockyer; 

Director of the Department of Finance, Michael Cohen; and Secretary of the State 

Transportation Agency, Brian Kelly. Petitioners initially filed their petition with the 

California Supreme Court. The Supreme Court transferred the case to us.
20

of mandate directing the trial court to vacate its writ in the Tos action and to vacate its 

ruling in the validation case, and to enter a judgment validating the bonds authorized by 

the Finance Committee.

DISCUSSION

I

The Validation Action

Neither the Bond Law, the Bond Act, nor any of the validation cases we could find 

support the trial court’s highly unusual scrutiny of the Finance Committee’s 

determination that it is “necessary or desirable” to grant the Authority’s request to 

authorize the issuance of the bonds. The Attorney General, supported by amici curiae, 

argues the trial court’s notion that the voters intended the Finance Committee to serve as 

the “ ‘ “keeper of the checkbook” ’ ” not only thwarts progress building a high-speed rail

system in California, but jeopardizes the financing of public infrastructure throughout the 

state by interfering with the Legislature’s exercise of its appropriation authority, invents 

judicial remedies where none are provided by law, and subverts the very purpose of the 

validation statutes. We agree.

Validation actions embody a strong public policy to facilitate a public agency’s 

ability to finance infrastructure for the public good. Recognizing that litigation often 

impairs a public agency’s ability to sell bonds on the capital market, the validation 

statutes place great importance on the need for a speedy and single dispositive final 

judgment. We must construe the validating statutes so as to effectuate their purpose. 

(Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 842-843.)

By refusing to validate the authorization of bonds due to a lack of evidence “in the 

record of proceedings” before the Finance Committee, the court imposed requirements on 

the Finance Committee that do not appear in any of the governing statutes and thereby 

denied the Authority the speedy, dispositive judgment the validation action was designed 

to provide. Neither the Bond Law nor the specific Bond Act requires the Finance 
21

Committee to make any factual findings or to explain the basis for its determination. 

Similarly, real parties in interest do not point to any statute that requires the Finance 

Committee to hold an evidentiary hearing. Without limitation or restriction, the Bond 

Act and the Bond Law grant the Finance Committee broad discretion to determine 

whether it is “necessary or desirable” to authorize the issuance of bonds to carry out the 

purposes of the Bond Act. (Sts. & Hy. Code, § 2704.13; Gov. Code, §§ 16722, subd. (a), 

16730.)

Cases construing the “necessary or desirable” language uniformly recognize the 

breadth of discretion it confers upon an administrative or legislative body. In construing 

the “necessary or desirable” language, the Fourth District Court of Appeal wrote that the 

words “are probably so elastic as not to impose any substantive requirements.” (Boelts v. 

City of Lake Forest (2005) 127 Cal.App.4th 116, 128, fn. 13 (Boelts).) Similarly, over 

eight decades ago, the Second Appellate District held that a legislative body’s discretion 

should not be curtailed by implying requirements that it justify its determination of 

necessary or desirable. (City of Monrovia v. Black (1928) 88 Cal.App. 686, 690.) The 

court concluded, “In the absence of any such requirement in the statute, the determination 

of the legislative body that the fact exists on which their power to act depends is 

sufficiently indicated by their proceeding to act.” (Ibid.)

And as far back as 1947, the Second District Court of Appeal characterized the 

law as “well settled” and explained: “[T]he question as to whether such a rule is 

‘necessary and desirable’ is not a judicial question. The courts are not charged with the 

responsibility of determining the wisdom of the rule. That question was for the board to 

determine. And as the trial judge observed, ‘That the board deemed the rule desirable is 

evidenced conclusively by its adoption.’ ” (Perez v. Board of Police Commrs. (1947) 

78 Cal.App.2d 638, 643.)

The Authority does not suggest that the validity of bond authorization is never 

subject to judicial review, that a bond finance committee can or should approve every 
22

request for bond authorization as a matter of course, or that courts must validate every 

authorization of bonds for which validation is sought. Rather, the Authority focuses on 

the exceptionally broad discretion conferred on any administrative or legislative body 

charged with making the mere determination that an action is desirable. Given such 

unencumbered discretion, there is little room for judicial intervention. Real parties in 

interest simply fail to appreciate the critical distinction between other types of challenges 

to validation and the very specific determination made by the Finance Committee that the 

issuance of the bonds was necessary or desirable. Thus, their reliance on Boelts, supra,

127 Cal.App.4th 116 and Poway Royal Mobilehome Owners Assn. v. City of Poway

(2007) 149 Cal.App.4th 1460 (Poway) misses the mark.

Indeed, Boelts highlights the distinction real parties in interest ignore. The case 

involved a reverse validation action challenging the validity of an amendment to a 

redevelopment plan. (Boelts, supra, 127 Cal.App.4th at p. 125.) The community 

redevelopment laws required the city to make a finding that the project area was blighted 

“based on clearly articulated and documented evidence.” (Health & Saf. Code, § 33367, 

subd. (d); see Boelts, at p. 127.) Because the governing statute expressly circumscribed 

the legislative body’s discretion by requiring evidence to support the finding, the court 

invoked the familiar substantial evidence standard of review. (Boelts, at p. 134.) By 

contrast, the statutory requirement that the legislative body find that an amendment to a 

redevelopment plan was “ ‘necessary or desirable’ ” was not substantive and did not limit 

the city’s discretion. (Id. at p. 128, fn. 13.) The “necessary or desirable” determination 

was not subject to judicial review in Boelts.

Poway, supra, 149 Cal.App.4th 1460 also is inapposite. According to pertinent 

federal law, the city was required to hold a public hearing before the bond qualified to be 

used for a residential rental project for low income residents. (26 U.S.C. 

§ 147(f)(2)(B)(i); Poway, at p. 1482.) The city noticed a hearing and thereafter adopted 

resolutions approving the sale of a mobile home park to the redevelopment agency. 
23

(Poway, at p. 1482.) The homeowners association challenged a judgment in the ensuing 

validation action, claiming the city presented no evidence at the hearing to support the 

sale. (Ibid.) Because the city was compelled by law to hold a hearing, the Court of 

Appeal invoked the substantial evidence standard of review. “We examine the 

administrative record to determine whether substantial evidence supports the trial court’s 

findings.” (Id. at p. 1479.)

Finance committees under the Bond Law, and the Finance Committee established 

by the Bond Act, are given the statutory charge to determine when the issuance of bonds 

is “necessary or desirable,” but they are not required to conduct a hearing, take evidence, 

or make findings. The Bond Act does not require the Authority to provide any support to 

the Finance Committee for its request for authorization of the issuance of the bonds, 

apparently contemplating that all the necessary support is provided through the reports 

the Authority is required by section 2704.08 to submit to the Legislature. Real parties in 

interest have cited no statute that imposes duties on a finance committee commensurate 

with the evidentiary requirements compelled by the statutes applicable in Boelts and 

Poway. As a result, real parties in interest offer neither a statute nor an analogous case to 

support the novel proposition that a “necessary or desirable” determination must be 

supported by substantial evidence in the administrative record.

Moreover, such an intrusive standard would offend the fundamental separation of 

powers between the legislative and judicial branches of government. The Supreme Court 

has cautioned courts to exercise a highly deferential and limited review, “out of deference 

to the separation of powers between the Legislature and the judiciary, to the legislative 

delegation of administrative authority to the agency, and to the presumed expertise of the 

agency within its scope of authority.” (California Hotel & Motel Assn. v. Industrial 

Welfare Com. (1979) 25 Cal.3d 200, 211-212.) Where, as here, the administrative 

agency performs a discretionary quasi-legislative act, judicial review is at the far end of a 

continuum requiring the utmost deference. (Carrancho v. California Air Resources 
24

Board (2003) 111 Cal.App.4th 1255, 1265.) An agency’s exercise of discretionary 

legislative power will be disturbed “only if the action taken is so palpably unreasonable 

and arbitrary as to show an abuse of discretion as a matter of law. This is a highly 

deferential test. [Citation.]” (Ibid.)

There is no support for real parties in interest’s allegation that the Finance 

Committee’s determination was arbitrary, capricious, or palpably unreasonable as a 

matter of law. The only basis required by the Bond Act for the Finance Committee to act 

is the Authority’s request to the Finance Committee. (Sts. & Hy. Code, § 2704.11, 

subd. (a), incorporating Gov. Code, § 16730; Sts. & Hy. Code, § 2704.13.) The request 

contained all the information that the Finance Committee needed to authorize bonds for 

validation–the fact that the Authority was requesting the authorization of bonds pursuant 

to the Bond Act and only for purposes authorized by the Bond Act. The Finance 

Committee also had before it a draft resolution detailing the authorization of the bonds 

and the structure of the eventual sales, including that the bonds sold would not exceed the 

appropriation authorized by the Legislature. As a result, the Finance Committee’s 

determination that it is “necessary or desirable” to authorize issuance of the bonds to 

carry out the purposes of the Bond Act rests on the draft resolution and the Finance 

Committee’s assessment of need, unencumbered by the need to identify the facts or 

express reasons for supporting the determination. Real parties in interest would have us 

impose more of an evidentiary burden on the Finance Committee than is required by the 

governing statute, and thus would have us cramp the broad discretion the Finance 

Committee is afforded by the applicable statutes and intrude into the quasi-legislative role 

it was assigned by the voters. We reject the invitation to embark upon such an 

unwarranted and unwise intrusion into the administrative process.

Real parties in interest make two arguments we can summarily dismiss. First, they 

assert that the Finance Committee’s determination “whether or not” issuance of the bonds 

is necessary or desirable is subject to a substantial evidence standard of review, insisting 
25

that the addition of the two words “or not” alters the calculus on the amount of discretion

the Finance Committee wields and therefore the quantum of evidence needed to justify 

the exercise of that discretion. The argument is without merit. The term “whether” 

necessarily means “whether or not.” Either way, the Finance Committee must decide if

issuance is necessary or desirable, and the mere redundancy of the language does not 

thereby increase the scrutiny a court must give to that determination.

Second, real parties in interest suggest that to allow the Finance Committee utmost 

discretion in determining whether issuance is necessary or desirable is to allow it to 

operate as a mere “rubber stamp.” Real parties in interest further contend that in that case 

there is no purpose for the Finance Committee and we should not assume the voters 

would engage in the idle act of creating a meaningless decision-making body. Their 

argument requires us to presume that the State Treasurer, the Director of the Department 

of Finance, the Controller, the Secretary of Business, Transportation and Housing, and 

the Chairperson of the Authority, all members of the Finance Committee with 

considerable public finance expertise, would shirk their responsibility to prudently 

control the timing of the authorization of the bonds. We do not agree that the creation of 

a Finance Committee with considerable discretion to employ its expertise would act as a 

mere rubber stamp. Rather, by enacting the Bond Act, the voters decided to mimic the 

same bifurcation of roles included in the Bond Law; that is, the voters intended to 

establish one body with expertise over managing the project and a second body with 

considerable public finance expertise to exercise its discretion over the timing and 

amount of the issuance of the bonds. Our deference to the Finance Committee’s 

determination as to when the bonds are necessary or desirable does not render the voters’ 

reliance on its expertise an idle act.

Real parties in interest insist that even if we reject their argument that the 

“necessary or desirable” finding was not supported by substantial evidence, we should 

not enter judgment validating the bonds because the Authority improperly requested the 
26

Legislature to appropriate bond funds for a project that has morphed into something 

materially different from the project approved by the voters. Real parties in interest ask 

us to remand the validation to the trial court to make this determination. Their challenges 

are premature.

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.”

Real parties in interest acknowledge that there is no published appellate decision 

denying validation of a bond authorization before there has been an actual bond 

expenditure for a project differing significantly from the project approved by the voters.6 

There are, however, many cases in which the courts have broadly construed the purpose 

of the relevant bond act to allow projects to proceed that would appear to be either at 

 

6

 The cases real parties in interest cite, as well as an opinion of the Attorney General, are 

inapposite because they did not involve challenges to mere authorizations of bond 

issuance solely for purposes authorized by the voters in the Bond Act. (California 

Statewide Communities Development Authority v. All Persons Interested etc. (2007) 

40 Cal.4th 788, 795; Morgan Hill Unified School Dist. v. Amoroso (1988) 

204 Cal.App.3d 1083, 1086-1087; 92 Ops.Cal.Atty.Gen. 1 (2009).) Nor do real parties in 

interest here raise any constitutional challenge to the authorization.
27

odds with, or beyond the scope of, the articulated purpose of the act or the description of 

the project on the ballot.

For example, in East Bay Mun. Util. Dist. v. Sindelar (1971) 16 Cal.App.3d 910 

(EBMUD), the voters approved a measure allowing the utility district to incur a bonded 

indebtedness to finance a 10-year “Water Development Project for the East Bay Area” in 

1958. (Id. at pp. 914-915.) By 1967 the construction of its physical components had 

been completed, with $84 million in authorized but unissued bonds remaining. The 

district celebrated the completion of the project. But in 1970 the board of directors 

authorized the issuance and sale of another $12 million in bonds based on its 

determination the bonds “ ‘were deemed necessary and desirable . . . to provide 

additional moneys to finance the Water Development Project for East Bay Area as 

authorized at . . . [the 1958 bond] . . . election.’ ” (Id. at pp. 915-916.) The district 

treasurer refused to sign the duly authorized bonds on the following grounds: 

“ ‘1. That . . . [the district] . . . is without authority to issue said Bonds of Series G or any 

part thereof for the reason that the Water Development Project for East Bay Area has 

been fully constructed and completed and that no authority exists for the issuance of said 

bonds purely for the expansion of the water system of the District based upon the 

expanded area and increased water demand of the District since the date of . . . [the 

1958 bond] . . . election, to wit, since June 3, 1958. 2. That it was generally understood 

by the electors of the District voting upon the proposition for the issuance of said bonds 

that the construction program would end within a period of ten years and that no 

additional bonds would be issued or sold more than ten years after the date of said 

election and that the authority to issue and sell said bonds accordingly expired on June 3, 

1968, to wit, ten years from the date of said election. 3. That more than twelve years

have elapsed since the date of said election and by reason solely of the lapse of time the 

authority granted by the electors for the issuance and sale of the bonds has ceased to have 
28

any effect and the authority of the District to issue and sell said bonds has accordingly 

expired.’ ” (Id. at p. 917.)

The Court of Appeal issued a peremptory writ of mandate to compel the treasurer 

to execute the bonds. (EBMUD, supra, 16 Cal.App.3d at p. 920.) Despite the fact that 

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.” (Id. at 

p. 919.) Quoting the rationale of Clark v. Los Angeles (1911) 160 Cal. 317, 320, the 

court stated: “ ‘The purpose for which . . . [bond] . . . elections are required is to obtain 

the assent of the voters to a public debt, to the amount, and for 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.’ [Citation.] Thus, the language of the district’s Ordinance No. 191, and of the 

ballot proposition which it addressed to the electorate, was sufficiently specific as to the 

object and purposes of the bonds proposed.”

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 
29

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, supra, 

261 Cal.App.2d at p. 669.)

The development of a high-speed rail system for the state of California is even 

more complex than a regional water or transportation system. The Authority is obligated 

to prepare preliminary and final funding plans as well as business plans every two years 

as it fine-tunes the construction of the project. Thus, it may be that the specifics of the 

project deviate from some of the preliminary planning documents or constitute minor 

changes from tentative plans. We cannot and should not decide whether any future use of 

bond funds will stray too far from the express language used in Proposition 1A to 

describe the purpose and parameters of the Bond Act. The pleadings and the trial court’s 

rulings, in fact, were extremely limited in scope.

The complaint filed by the Authority and the Finance Committee was limited to 

the validity of the issuance of the bonds for any purpose authorized by the Bond Act, and 

as a consequence, it did not identify any particular use of the bond proceeds. Nor did the 

bond resolutions identify any particular use. Because there is no final funding plan and 

the design of the system remains in flux, as does the funding mechanism to support it, we 

simply cannot determine whether the project will comply with the specific requirements 

of the Bond Act and whether any future deviations will be considered significant or 

trivial.7 To allow real parties in interest to prematurely challenge future potential uses of 

 

7

 We reject the First Free Will Baptist Church’s contention that Senate Bill No. 1029 and 

the revised business plan set forth the uses of the bond proceeds and those documents 

demonstrate that the high-speed rail system to be built is not the same project approved 

by the voters. Senate Bill No. 1029 expressly requires the Authority to prepare many 

more reports, approvals, and certifications, and the revised business plan is subject to 
30

the bonds would undermine the purpose of the validation action and interpose an infinite 

number of obstacles to the public financing of public projects.

The Attorney General points out that whether or not any particular later 

expenditure of bond funds would comply with the Bond Act is not relevant to the validity 

of bond authorization and, as the cases cited by real parties in interest demonstrate, can 

be adjudicated in separate actions. (See, e.g., Tooker v. San Francisco Bay Area Rapid 

Transit Dist. (1972) 22 Cal.App.3d 643, 649, 652.) The trial court agreed. “Issues 

regarding the use of proceeds are separate from the issue raised in this validation action, 

which is whether the bonds were properly authorized.” In denying requests for judicial 

notice of documents from the Tos action because they were irrelevant, the court 

recognized that the only statutes and documents it would consider in the validation action 

were those relating to bond authorization. The court ruled that “[t]he issue before the 

Court in this validation proceeding is strictly limited to whether the Finance Committee’s 

determination that issuance of bonds was necessary and desirable as of March 18, 2013 is 

supported by any evidence in the record. . . . [¶] . . . [¶] Because this ruling disposes of 

the validation action, the Court finds it unnecessary to address or resolve any of the other 

arguments raised by the [real parties in interest] in opposition to the complaint.” Thus, 

the trial court did not rule on the issue real parties in interest urge us to decide.

The validity of the authorization, therefore, is the only issue framed by the 

pleadings and decided by the trial court. The final funding plan and additional reports 

required by section 2704.08, subdivision (d) are yet to be prepared and approved by the 

Authority, let alone submitted to and approved by the Director of the Department of 

Finance. It is unclear, therefore, whether the final funding plan will recommend the 

expenditure of bond funds to “be applied only to the specific object” described in 

 

biennial revision and updates. Moreover, the final funding plan has not been submitted. 

Simply put, it is too soon to determine how the Authority will specifically use the bond 

proceeds. At issue is authorization, not expenditure.
31

Proposition 1A. (Cal. Const., supra, art. XVI, § 1.) In other words, it is too soon to 

determine whether the project will be consistent with the parameters the voters approved.

Real party in interest Union Pacific Railroad Company urges us to expressly limit 

the scope of the validation judgment. We agree that an introductory paragraph describing 

the “Nature of the Action” in the validation complaint is at odds with the position the 

Authority has taken in its briefing submitted to this court and, together with a few overly 

broad phrases in one paragraph of the prayer, justifies Union Pacific’s concerns that a 

judgment validating authorization might also validate future unlawful expenditures. The 

paragraph reads: “[Petitioners] further request a judgment declaring that all proceedings 

taken by [petitioners] in connection with the issuance and sale of the bonds, the 

commercial paper notes, and the refunding bonds are in conformity with the applicable 

provisions of all laws and enactments at any time in force or controlling upon such 

proceedings, whether imposed by constitution, statute, regulation, or otherwise; and that 

once declared valid, any challenges (including pending challenges) based on uses of 

proceeds of the bonds, commercial paper notes, or refunding bonds will not affect the 

determination of validity of the bonds, commercial paper notes, and refunding bonds, or 

the determination of validity of any contracts related to the issuance and sale of the 

bonds, commercial paper notes, or refunding bonds.”

The prayer, for the most part, is more carefully crafted. Each of the following 

paragraphs limits the validation to the actual authorization and all the “conditions, things, 

and acts required by law to exist, happen, or be performed” before the authorization:

“[3.]a. All conditions, things, and acts required by law to exist, happen, or be 

performed precedent to the adoption of the Resolutions, and the terms and conditions 

thereof, including the authorization for the issuance and sale of the Bonds, Notes, and any 

Refunding Bonds, have existed, happened, and been performed in the time, form, and 

manner required by law.
32

“b. [Petitioners] are legally existing and have the authority under the law to cause 

the issuance and sale of the Bonds and Notes and to cause the issuance and sale of 

Refunding Bonds to refund Bonds, Notes, or Refunding Bonds previously issued, as 

authorized by the Bond Act and the Resolutions; [¶] . . . [¶]

“d. The Bonds, Notes, and Refunding Bonds to be issued pursuant to the Bond 

Act, when executed and delivered, will constitute valid and binding general obligations of 

the State, and any contracts related to the issuance and sale of the Bonds, Notes, or 

Refunding Bonds will constitute valid and binding obligations of the State, under the 

Constitution and laws of the State of California[.]”

Paragraph 3.c., however, gives rise to the same concern as the introductory 

paragraph. The first part of paragraph 3.c. is consistent with the argument the Authority 

has advanced throughout these proceedings, and that is, the validation judgment does not 

determine the validity of future uses of the bond proceeds. The innocuous language 

reads: “All proceedings by and for [petitioners] in connection with the Bonds, Notes, and 

Refunding Bonds to be issued pursuant to the Bond Act, including the adoption of the 

Resolutions and the authorization of the Bonds, Notes, and any Refunding Bonds, were, 

are . . . .” But then the language becomes susceptible to Union Pacific’s charge that it is 

dangerously overbroad, with the potential to foreclose future challenges to unlawful uses 

of the bond proceeds. The paragraph finishes as follows: “and will be valid and binding, 

and were, are, and will be in conformity with the applicable provisions of all laws and 

enactments in force or controlling upon such proceedings, whether imposed by law, 

Constitution, statute, regulation, or otherwise[.]”

By contrast, paragraph 3.e. expressly limits the validation judgment to the 

authorization of the bonds and not to use of the proceeds. Paragraph 3.e. states: “Any 

challenges (including pending challenges) based on uses of proceeds of the Bonds, Notes, 

or Refunding Bonds will not affect the determination of validity of the Bonds, Notes, and 

any Refunding Bonds to be issued and sold, or the determination of validity of any 
33

contracts related to the issuance and sale of the Bonds, Notes, or Refunding Bonds.” 

Despite the plain language of paragraph 3.e., the overly broad language used in the last 

phrases of paragraph 3.c. gives rise to unnecessary ambiguity and potential mischief. To 

ensure there is no ambiguity, we will direct the trial court to delete this language as set 

forth in our disposition.

II

The Tos Action

Petitioners ask us to direct the trial court to vacate the peremptory writ of mandate 

commanding them to rescind the preliminary funding plan and to redo that plan. 

(§ 2704.08, subd. (c).) Although we agree with the Tos real parties that the voters clearly 

intended to place the Authority in a financial straitjacket by establishing a mandatory 

multistep process to ensure the financial viability of the project, we agree with petitioners 

that issuance of the writ violates very basic principles circumscribing when and against 

whom a writ of mandate may issue. In short, the Tos real parties’ challenge to the 

preliminary funding plan was too late to have any practical effect, and it is too early to 

challenge a yet-to-be approved final funding plan as required by section 2704.08, 

subdivision (d).

A. What are the guiding legal principles?

Four simple words resolve the issues before us: clear, present, ministerial, and 

duty. The refrain is a familiar one. To obtain writ relief under Code of Civil Procedure 

section 1085, a petitioner must demonstrate that the respondent has a clear, present, and 

ministerial duty that inures to the petitioner’s benefit. (County of San Diego v. State of 

California (2008) 164 Cal.App.4th 580, 593 (County of San Diego); Carrancho, supra,

111 Cal.App.4th at pp. 1264-1265; Agosto v. Board of Trustees of Grossmont-Cuyamaca 

Community College Dist. (2010) 189 Cal.App.4th 330, 335-336; Tomra Pacific, Inc. v. 

Chiang (2011) 199 Cal.App.4th 463, 491.) From this general principle, several others 

follow. A writ is not available to enforce abstract rights (Gardner v. Superior Court
34

(2010) 185 Cal.App.4th 1003, 1008), to command futile acts with no practical benefits 

(County of San Diego, supra, 164 Cal.App.4th at pp. 595-596; Associated Students of 

North Peralta Community College v. Board of Trustees (1979) 92 Cal.App.3d 672, 680-

681), or to intermeddle in the preliminary stages of an administrative planning process 

(California Water Impact Network v. Newhall County Water Dist. (2008) 

161 Cal.App.4th 1464 (C-WIN).) Nor will a writ lie if the respondent has an obligation to 

act under another law (City of Fremont v. San Francisco Bay Area Rapid Transit Dist.

(1995) 34 Cal.App.4th 1780, 1790), the petitioner’s rights are otherwise protected 

(Duncan v. Superior Court (1935) 3 Cal.2d 143, 145), or in the absence of prejudice 

(Board of Supervisors v. Rechenmacher (1951) 105 Cal.App.2d 39, 43; In re C. T. (2002) 

100 Cal.App.4th 101, 111). In other words, a writ of mandate must be necessary 

(Duncan, supra, 3 Cal.2d at p. 145); courts will not issue a useless or unenforceable writ 

(County of San Diego, supra, 164 Cal.App.4th at pp. 595-596). A writ is not to be used 

to control the exercise of discretion, but to ensure that ministerial duties have been 

fulfilled. (California School Bds. Assn. v. State of California (2011) 192 Cal.App.4th

770, 797.)

The Tos real parties insist that the Authority had a ministerial duty to prepare a 

preliminary funding plan that includes, identifies, or certifies each of the 11 components

set forth in the statute. (§ 2704.08, subd. (c)(2)(A)-(K).) Where, as here, the purported 

duty is defined in a statute enacted by the people, a pure question of law is presented and 

well-worn principles of statutory construction guide our review. (California Chamber of 

Commerce v. Brown (2011) 196 Cal.App.4th 233, 248-249.) Statutory construction is an 

inherently judicial task and our review is de novo. (Carrancho, supra, 111 Cal.App.4th

at p. 1266.) “ ‘Whether a particular statute is intended to impose a mandatory duty, 

rather than a mere obligation to perform a discretionary function, is a question of 

statutory interpretation for the courts.’ [Citation.]” (Haggis v. City of Los Angeles

(2000) 22 Cal.4th 490, 499.)
35

As pointed out by the Tos real parties, ascertaining the will of the electorate is 

paramount. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46, 56.) 

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. (Shaw v. 

People ex rel. Chiang (2009) 175 Cal.App.4th 577, 596 (Shaw).) “The voters as well as 

the bondholders have an interest in the continued integrity of voter-ratified bond 

proposals.” (Veterans of Foreign Wars v. State of California (1974) 36 Cal.App.3d 688, 

692.) And, as the Tos real parties remind us, an administrative agency cannot change 

course after the electors have voted. (O’Farrell, supra, 189 Cal. 343, 344, 349.)

Yet the same basic rules of statutory construction apply to statutes enacted by the 

voters as to statutes passed by the Legislature. (Professional Engineers in California 

Government v. Kempton (2007) 40 Cal.4th 1016, 1037.) We must look to the plain 

language of the statute to determine the intent of the electors (Terminal Plaza Corp. v. 

City and County of San Francisco (1986) 186 Cal.App.3d 814, 826); 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 (Professional Engineers, supra, 40 Cal.4th at p. 1037; 

Doe v. Albany Unified School Dist. (2010) 190 Cal.App.4th 668, 675-676).

The question posed is whether there was a clear and present ministerial duty 

imposed by the Bond Act on the Authority to redo the preliminary funding plan at the 

time the trial court issued the writ, given that the Legislature appropriated the funds 

despite the Authority’s failure to submit a preliminary funding plan in compliance with 

the Bond Act.

B. Is there a clear and present ministerial duty to redo the preliminary funding 

plan?

The parties present opposing views about the intent of the voters and the scope of 

the duties they created under the Bond Act. The Attorney General argues the voters 
36

approved the act to construct a high-speed rail system as quickly as possible to reduce 

traffic congestion and greenhouse gasses and to create jobs. (Stats. 2008, ch. 267, § 8.) 

While the Attorney General concedes the voters imposed more financial restraints on the 

Authority than in more typical infrastructure projects, she insists the duty to prepare a 

preliminary funding plan mandated by section 2704.08, subdivision (c) was for the 

exclusive benefit of the Legislature, not the voters or the bondholders. In her view, the 

preliminary funding plan informed the Legislature about the Authority’s projections and 

progress and generated additional input from the peer review group and others. Thus, it 

achieved the purpose envisioned by the voters, and there is no language in the statute to 

evidence an additional intent to curtail the Legislature’s prerogative to approve the 

appropriation in spite of a deficient preliminary funding plan.

The Tos real parties, on the other hand, discount the environmental and economic 

benefits the voters sought to achieve and emphasize the extraordinary duties the voters 

imposed on the Authority to substantiate the financial and environmental viability of the 

project before the bonds could be authorized, sold, and spent. The Tos real parties further 

contend the mandatory language of the statute was designed for the express benefit of the 

voters; that is, the voters insisted on an elaborate financial mechanism to ensure they 

would not be obligated to subsidize a boondoggle or pay for a stranded segment of the 

rail system. Because high-speed rail is the most expensive public infrastructure project in 

the state’s history, the Tos real parties passionately argue that the voters were only 

willing to bear such an enormous cost by minimizing the risk, imposing a clear and 

nondiscretionary “High-Speed Passenger Train Financing Program” on the Authority, 

and mandating a number of other restrictive fiscal protections.

As a matter of statutory construction, there is merit to many of the Tos real parties’ 

arguments. We give effect, as we must, to the plain language of article 2 as an 

indispensable part of the entire Bond Act. Article 2 is dedicated exclusively to the 

“High-Speed Passenger Train Financing Program.” As described above, the Authority is 
37

required to prepare and certify not one, but two, different funding plans. The preliminary 

funding plan, at issue in these proceedings, must be prepared and submitted to the 

Legislature at least 90 days before the Authority requests the Legislature to appropriate 

bond funds. (§ 2704.08, subd. (c).) The preliminary funding plan also must be submitted 

to a peer review group, the Director of the Department of Finance, the policy committees 

with jurisdiction over transportation matters, and the fiscal committees in both houses of 

the Legislature. (Ibid.) The Authority did, in fact, submit its preliminary funding plan to 

each of the designated groups or committees, many of whom unabashedly registered their 

concerns and dissent.

The Tos real parties point to glaring deficiencies in the preliminary funding plan. 

The trial court denied the Authority’s motion for judgment on the pleadings on many of 

the Tos real parties’ substantive claims raised in their complaint, which remain pending 

in the trial court, including a number of ways in which the Tos real parties assert the 

preliminary funding plan is deficient. We denied the Authority’s petition for a writ of 

mandate to compel the trial court to grant the motion for judgment on the pleadings, and 

as a result, those issues are proceeding to trial. (Cal. High-Speed Rail Authority v. Super. 

Ct. (Apr. 15, 2014, C076042 [petn. den. by order].) As described in our statement of 

facts, the writ proceeding before this court involves only two specific deficiencies: (1) 

the Authority failed to identify all the sources for funding the initial usable segment of 

the project, and (2) it failed to complete all necessary project-level environmental 

clearances necessary to proceed to construction.

The language of section 2704.08, subdivisions (c)(2)(D) and (K) appears

unambiguous and mandatory. The duty to identify the sources of funding and to 

complete the environmental clearances is consistent with the very purpose of article 2; 

that is, the voters designed a financing program to ensure that construction of a segment 

would not begin until potential financial or environmental obstacles were cleared.
38

Nevertheless, mandate does not lie to vindicate abstract rights. Mandamus is 

steeped in practicality. For this reason, there must be a present duty for a writ of 

mandamus to issue. Here the question is not whether the Authority had a mandatory and 

ministerial duty to issue a preliminary funding plan compliant with section 2704.08, 

subdivisions (c)(2)(D) and (K) at the time the plan was approved and then submitted to 

the Legislature, for that critical time period has passed. Rather, the question is whether 

the Authority has a mandatory ministerial duty to rescind the plan and redo it after the 

Legislature appropriated the funds for issuance of the bonds approved by the voters. It is 

the intervening appropriation by the Legislature that presents an insurmountable hurdle 

for the Tos real parties. We explain this practical impediment in light of the whole 

statutory scheme.

The Bond Act compels the Authority to prepare a preliminary funding plan for 

submission to the Legislature and the Governor and a final funding plan for approval by 

the Director of the Department of Finance before committing any proceeds of bonds. 

The Tos real parties focus on the mandatory language indicating that the preliminary 

funding plan shall identify the sources of all the funding for the usable segment and shall 

certify that all environmental clearances have been obtained. But under the Bond Act,

bond funds cannot be committed and spent until the second and final funding plan is 

approved by the Authority and submitted to the Director of the Department of Finance 

and the Chairperson of the Joint Legislative Budget Committee, and an independent 

financial consultant prepares a report. This latter report is particularly significant in that 

the independent consultant must certify that construction can be completed as proposed 

and is suitable for high-speed rail; the planned passenger train service will not require an 

operating subsidy; and upon completion, passenger service providers can begin using the 

tracks or stations. (§ 2704.08, subdivision (d).) As a result, the first funding plan,

outlined in section 2704.08, subdivision (c), is indeed “preliminary” since commitments 

cannot be made and construction cannot begin until a second, final funding plan is 
39

approved, an independent report attests to the financial integrity of the plan, the Joint 

Legislative Budget Committee reviews it, and the Director of the Department of Finance 

finds “the plan is likely to be successfully implemented.” (§ 2704.08, subd. (d).)

Furthermore, the Legislature attached conditions to its appropriation of over 

$8 billion to finance high-speed rail. As to the $1.1 billion appropriation for “Bookend” 

funding, the Legislature restricted the encumbrance of the funds to ensure the final 

funding plan was compliant with the Bond Act and all the necessary environmental 

clearances had been obtained. As enacted, Senate Bill No. 1029 provides:

“5. No funds appropriated in this item shall be encumbered prior to the HighSpeed Rail Authority submitting a detailed funding plan for the project or projects in 

accordance with subdivision (d) of Section 2704.08 of the Streets and Highways Code to 

(a) the Department of Finance, (b) the Chairperson of the Joint Legislative Budget 

Committee, and (c) the peer review group established pursuant to Section 185035 of the 

Public Utilities Code.

“6. No funds appropriated in this item shall be encumbered for construction of a 

project prior to completion of all project-level environmental clearances necessary to 

proceed to construction and the final notices being contained in the funding plan for the 

project.

“7. Prior to the obligation of funds to any specific project, and subject to the 

approval of the Department of Finance, the High-Speed Rail Authority Board shall 

develop an accountability plan, consistent with Executive Order S-02-07, to establish 

criteria and procedures to govern the expenditure of the bond funds in this appropriation, 

and the outcomes that such expenditures are intended to achieve, including a detailed 

project description and project cost. The procedures shall ensure that the investments 

comply with requirements of applicable state and federal laws, and are consistent with 

and advance the state high-speed train system. . . .” (Stats. 2012, ch. 152, § 3, 

provisions 5-7, approved by Governor July 18, 2012.)
40

This multilayer approval process is reminiscent of the statutory scenario in C-WIN, 

supra, 161 Cal.App.4th 1464. Before the developer could begin construction of a large 

industrial/business park in the city of Santa Clarita (City), two reports were necessary: a 

water supply assessment (WSA) and an environmental impact report (EIR).8 (Id. at 

pp. 1471-1472.) The California Water Impact Network (C-WIN) sought a writ of 

mandate to set aside the WSA prepared by the water district at the request of the City 

before the EIR had been approved and certified. (Id. at p. 1471.) C-WIN argued it was 

entitled to directly challenge the WSA because it was a final determination by the water 

supplier concerning the sufficiency of the water supply for a proposed project. (Ibid.) 

The Court of Appeal disagreed. (Ibid.)

Pursuant to the so-called “WSA law” (Wat. Code, §§ 10910-10915), the water 

supplier most likely to serve the project must, at the request of the lead agency under the 

California Environmental Quality Act (CEQA; Pub. Resources Code, § 21000 et seq.), 

prepare the WSA. (C-WIN, supra, 161 Cal.App.4th at pp. 1478-1480.) The Water Code 

specifically mandates what information the WSA must include, and like the Tos real 

parties here, C-WIN asserted the assessment was fatally deficient because it did not 

satisfy the statutory requirements and was therefore subject to attack under either 

administrative or traditional mandamus. (C-WIN, at pp. 1480, 1483-1484.) The Court of 

Appeal held that the petition failed to satisfy prerequisites common to both forms of 

mandamus relief. (Id. at p. 1484.) In short, the WSA was not a final determination, 

finding, or decision as necessary to obtain relief by mandamus of either variety. (Id. at 

p. 1485.)

The court explained: “Thus, in our view the WSA is . . . a technical, informational 

advisory opinion of the water provider. Though the WSA is required by statute to 

 

8

 The WSA would become a part of the EIR.
41

include an assessment of certain statutorily identified water supply issues and is required 

to be included in the EIR, the WSA’s role in the EIR process is akin to that of other 

informational opinions provided by other entities concerning potential environmental 

impacts–such as traffic, population density or air quality. The fact that the duties of the 

water provider in preparing the WSA and responsibility of the lead agency in requesting 

the WSA are committed to statute does not change the fundamental nature of the WSA 

itself as an advisory and informational document.” (C-WIN, supra, 161 Cal.App.4th at

p. 1486.) 

In determining the propriety of mandamus relief, the Bond Act bears considerable 

similarity to the Water Code and CEQA provisions at issue in C-WIN. The preliminary

funding plan submitted to the Legislature, like the WSA, “is but an interlocutory and 

preliminary step in [a multistep] process, and in general, interim determinations are not 

subject to mandamus review.” (C-WIN, supra, 161 Cal.App.4th at p. 1486.) In C-WIN, 

the court concluded that the lead agency, and not the water supplier, made the final 

determination for mandamus purposes about the sufficiency of the water supply. (Ibid.) 

The WSA must be incorporated into the final EIR, and the lead agency is not required to 

accept the WSA’s conclusions. (Id. at p. 1487.) “The power to ‘evaluate’ the WSA 

necessarily invests the lead agency with the authority to consider, assess and examine the 

quality of the information in the WSA and endows the lead agency with the right to pass 

judgment upon the WSA.” (Ibid.)

Similarly, the preliminary funding plan plays an equally interlocutory and 

advisory role midstream in the approval process. The Authority must submit the plan to a 

number of groups, committees, and agencies, including the Legislature, but bond 

proceeds cannot be committed and construction cannot begin until the final funding plan 

is sent to the Joint Legislative Budget Committee and approved by the Director of the 

Department of Finance. And as pointed out above, the Director of the Department of 

Finance must simultaneously review a report prepared by an independent financial 
42

consultant. Thus, the Tos real parties would have us intermeddle in the fluid 

intermediary steps involved in studying the financial viability of high-speed rail in 

California.

We concede there are differences between the WSA law and the Bond Act,

including the very different roles of the lead agency from the roles of the Legislature and, 

ultimately, the Director of the Department of Finance. But those differences do not 

diminish or detract from the basic principle that mandamus must be used only to review a 

final determination, and a writ can issue only if there is a present statutory duty to act. 

Here, the preliminary funding plan under attack, like the WSA, helped an intermediate 

body make an informed decision. But it is the second and final funding plan, like the 

final EIR, that will provide the ultimate decision maker with the most important and 

expansive information necessary to make the final determination whether the high-speed 

rail project is financially viable. The Authority now has a clear, present, and mandatory 

duty to include or certify to all the information required in subdivision (d) of 

section 2704.08 in its final funding plan and, together with the report of the independent 

financial consultant, to provide the Director of the Department of Finance with the 

assurances the voters intended that the high-speed rail system can and will be completed 

as provided in the Bond Act. The Legislature appropriated the bond proceeds based on 

the preliminary funding plan, however deficient, and there is no present duty to redo the 

plan. The writ therefore should not have been issued.

C. Did the trial court err by refusing to issue a writ compelling rescission of the 

legislative appropriation?

The Tos real parties have been tepid in challenging the Legislature’s appropriation 

and for a very good reason. Judicial intrusion into legislative appropriations risks 

violating the separation of powers doctrine. “ ‘[T]he entire law-making authority of the 

state, except the people’s right of initiative and referendum, is vested in the Legislature, 

and that body may exercise any and all legislative powers which are not expressly or by 
43

necessary implication denied to it by the Constitution. . . . [A]ll intendments favor the 

exercise of the Legislature’s plenary authority: “If there is any doubt as to the 

Legislature’s power to act in any given case, the doubt should be resolved in favor of the 

Legislature’s action.” ’ ” (Shaw, supra, 175 Cal.App.4th at p. 595.)

The trial court found that the Tos real parties did not challenge the legislative

appropriation until filing a reply brief, and on that basis alone, the trial court rejected the 

argument. The court, however, also rejected the Tos real parties’ argument on 

substantive grounds. The court explained: “Nothing in Section 2704.08 (c)(2), or 

elsewhere in Proposition 1A, provides that the Legislature shall not or may not make an 

appropriation for the high-speed rail program if the initial funding plan required by 

Section 2704.08 (c)(2) fails to comply with all the requirements of the statute. Lacking 

such a consequence for the Authority’s non-compliance, Proposition 1A appears to 

entrust the question of whether to make an appropriation based on the funding plan to the 

Legislature’s collective judgment. The terms of Proposition 1A itself give the Court no 

authority to interfere with that exercise of judgment.”

Urging us to reverse the trial court’s ruling, the Tos real parties argue that the 

Legislature cannot appropriate funds for high-speed rail when the preliminary funding 

plan it considered did not comply with the Bond Act. We disagree. “[L]egislative 

restraint imposed through judicial interpretation of less than unequivocal language would 

inevitably lead to inappropriate judicial interference with the prerogatives of a coordinate 

branch of government. Accordingly, the only judicial standard commensurate with the 

separation of powers doctrine is one of strict construction to ensure that restrictions on 

the Legislature are in fact imposed by the people rather than by the courts in the guise of 

interpretation.” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1218 

(Schabarum).) We return, as we must, to the plain language of the statute. As the trial 

court aptly noted, there is nothing in the statute compelling the Legislature to ensure that 

the preliminary funding plan was compliant; nothing in the statute defining any 
44

ministerial duties the Legislature was obliged to perform; and there is nothing in the 

statute describing any consequences to the Authority for failing to produce a preliminary 

funding plan certifying that each of the 11 components have been included.

We agree with the trial court that the Bond Act provides no basis for allowing the 

judiciary to interfere with the collective judgment of the Legislature in approving the 

issuance of bonds even if the funding plan it considered did not meet the letter of the law. 

Rather, the legislative judgment to move forward with the project before all funding 

sources were identified and all environmental clearances were obtained involves the type 

of decision making peculiar to the discretionary power of a legislative body. “ ‘Mandate 

will not issue to compel action unless it is shown the duty to do the thing asked for is 

plain and unmixed with discretionary power or the exercise of judgment. [Citation.]’ ” 

(County of San Diego, supra, 164 Cal.App.4th at p. 596.)

We accept the Tos real parties’ argument, as we expressed in Shaw, that courts 

have the power to invalidate an unconstitutional legislative appropriation. (Shaw, supra, 

175 Cal.App.4th at p. 596.) But in Shaw, the voters made clear what the Legislature 

could and could not do. The approved ballot measure expressly stated the Legislature 

could amend the statute only if the amendment was consistent with, and furthered the 

purpose of, the section. (Id. at p. 597.) Here the Bond Act does not curtail the exercise 

of the Legislature’s plenary authority to appropriate. The fact that the Bond Act requires 

the Authority to prepare a preliminary funding plan and to present it to the Legislature 

before an appropriation is made does not evidence an intent to prevent the Legislature 

from acting if the preliminary funding plan is not perfectly compliant with the Bond Act.

Beyond the plain language of the Bond Act, we are obliged to respect the separate 

constitutional role of the Legislature. (Cal. Const., art. III, § 3; Butt v. State of California

(1992) 4 Cal.4th 668, 695.) “Respect for the Legislature’s constitutional role demands 

that the courts refuse to judge the wisdom of legislation or the motives of the legislators.” 

(Schabarum, supra, 60 Cal.App.4th at p. 1219.) In particular, the separation-of-powers 
45

principles limit judicial authority over appropriations. (Newton-Enloe v. Horton (2011) 

193 Cal.App.4th 1480, 1491.) Thus, in deference to a coordinate branch of government 

and in the absence of a clear directive from the people to constrain the discretion of the 

Legislature, we will not circumscribe legislative action or intrude on the Legislature’s 

inherent right to appropriate the funding for high-speed rail. The trial court properly 

refused to issue a writ dictating if, or how, the Legislature should act in the face of a 

deficient preliminary funding plan. We too must defer to the legislative prerogative to 

control appropriations.

In sum, we conclude as follows: 1) as a matter of statutory construction, the 

voters intended to impose mandatory financial restraints on the Authority, including the 

duty to prepare two funding plans, each of which included specific criteria outlined in 

section 2704.08, subdivisions (c) and (d), respectively; 2) applying well-established 

principles restraining the issuance of writs of mandamus, the trial court erred by 

compelling the Authority to rescind the preliminary funding plan when there had been no 

final determination, finding, or decision and a second and final funding plan will be 

forthcoming; there was no present duty to redo an informational, interlocutory plan after 

the Legislature had authorized the issuance of the bonds; and to require such an idle act 

would merely vindicate an abstract right with no practical effect; and 3) applying the 

inviolate constitutional restraint imposed on the judiciary by the separation of powers 

doctrine, we cannot dictate to the Legislature how it should utilize a deficient preliminary 

funding plan.

D. Additional arguments.

The Tos real parties and amici curiae raise a number of additional arguments that 

are without merit. Echoing the trial court’s creative reasoning, the Tos real parties 

attempt to make the efficacy of the final funding plan contingent on the preliminary 

funding plan. In other words, the argument goes, the Authority cannot meet its 

mandatory ministerial duty to approve a final funding plan as required by 
46

section 2704.08, subdivision (d) if it does not generate a statutorily compliant 

section 2704.08, subdivision (c) funding plan. The trial court expressed its concern that 

the Authority could begin construction of high-speed rail in the absence of the necessary 

environmental clearances because subdivision (d), unlike subdivision (c), did not require 

the Authority to certify that the environmental clearances had been obtained. As a result, 

the trial court concluded the project could evade environmental review once the 

Legislature overlooked the deficiency and approved the sale of the bonds. Not so.

Once again, we begin with a careful examination of the language of the statute. 

Simply put, the Bond Act does not require a fully compliant preliminary funding plan 

before a final plan may be approved. There is nothing in the statute connecting the two 

plans. Moreover, it is reasonable to infer, as the Attorney General suggests, that the two 

plans serve very different purposes–the preliminary plan to inform the Legislature of the 

progress made before it authorizes the issuance of bonds, and the final plan to ensure the 

financial integrity of the project before proceeds of the bonds are committed.

Second, a writ of mandate does not lie if the public agency has an obligation to 

perform under another law. (City of Fremont, supra, 34 Cal.App.4th at p. 1790.) The 

Authority has repeated frequently that it will have all the requisite environmental 

clearances before construction begins. CEQA certainly demands nothing less. The Tos 

real parties, in fact, concede that state and federal law require environmental clearance 

before starting construction. Because the Authority must comply with CEQA before the 

project proceeds, a writ of mandate is not necessary.

Third, the Legislature forewarned the Authority to complete all the project-level 

environmental clearances. Indeed, as to the appropriation to finance improvements to the 

“Bookends,” “[n]o funds appropriated in this item shall be encumbered for construction 

of a project prior to completion of all project-level environmental clearances necessary to 

proceed to construction and the final notices being contained in the funding plan for the 

project.” (Stats. 2012, ch. 152, § 3, provision 6.) The Legislature thereby compelled the 
47

Authority to complete its responsibility to obtain the environmental clearances it had not 

obtained at the time it drafted its preliminary funding plan before it could encumber the 

appropriated bond funds. In effect, the Legislature simply gave the Authority an 

extension of time to complete its section 2704.08, subdivision (c)(2)(K) duty and assured 

it would be able to certify to the environmental clearances within the section 2704.08, 

subdivision (d) final funding plan.

Finally, section 2704.08, subdivision (d) requires a report describing any material 

changes from the section 2704.08, subdivision (c) preliminary funding plan. Given that 

CEQA requires the environmental clearances described in subdivision (d), the report 

undoubtedly will describe how and when the clearances were obtained in the period of 

time between the approval of the preliminary and final funding plans. In addition, the 

independent financial consultant must indicate that the construction “can be completed as 

proposed.” (§ 2704.08, subd. (d).) The construction cannot be completed if the 

environmental clearances have not been obtained. The environmental clearance 

provision does not render the two funding plans interdependent, and in the absence of the 

writ issued by the trial court, the project will not evade environmental review. 

The Kings County Water District contends it was prejudiced by petitioners’ 

unreasonable two-month delay in filing the writ petition after entry of the ruling, and 

therefore, their petition is barred by laches and estoppel. The water district points out 

that the court did not sign the order until January 3, 2014, and it was not served on them 

until January 16, just eight days before petitioners filed their petition, originally before 

the Supreme Court. Their delay was not unreasonable, and the water district fails to 

demonstrate how it suffered prejudice. Nor is there any merit in the water district’s claim 

that federal preemption is involved in either the Tos action or the validation action. The 

estoppel claim is utterly without merit.
48

DISPOSITION

Let a peremptory writ of mandate issue directing respondent court to 1) vacate its 

order of November 25, 2013, and the peremptory writ of mandate issued thereon 

requiring the Authority to rescind and reissue its preliminary funding plan under Streets 

and Highways Code section 2704.08, subdivision (c), and 2) enter judgment on the 

complaint for validation filed by the Authority and the Finance Committee, as follows:

1. All conditions, things, and acts required by law to exist, happen, or be 

performed precedent to the adoption of the resolutions, and the terms and conditions 

thereof, including the authorization for the issuance and sale of the bonds, notes, and any 

refunding bonds, have existed, happened, and been performed in the time, form, and 

manner required by law.

2. Petitioners are legally existing and have the authority under the law to cause the 

issuance and sale of the bonds and notes and to cause the issuance and sale of refunding 

bonds to refund bonds, notes, or refunding bonds previously issued, as authorized by the 

Bond Act and the resolutions.

3. All proceedings by and for petitioners in connection with the bonds, notes, and 

refunding bonds to be issued pursuant to the Bond Act, including the adoption of the 

resolutions and the authorization of the bonds, notes, and any refunding bonds, were and 

are valid and binding.

4. The bonds, notes, and refunding bonds to be issued pursuant to the Bond Act, 

when executed and delivered, will constitute valid and binding general obligations of the 

state, and any contracts related to the issuance and sale of the bonds, notes, or refunding 

bonds will constitute valid and binding obligations of the state, under the Constitution 

and laws of the state of California.

5. Any challenges (including pending challenges) based on uses of proceeds of 

the bonds, notes, or refunding bonds will not affect the determination of validity of the 

bonds, notes, and any refunding bonds to be issued and sold, or the determination of the 
49

validity of any contracts related to the issuance and sale of the bonds, notes, or refunding 

bonds.

The stay previously ordered is vacated upon finality of this decision. The parties 

shall share costs in this original proceeding. (Cal. Rules of Court, rule 8.493(a), (b).)

 RAYE , P. J.

We concur:

 ROBIE , J.

 BUTZ , J.