California High-Speed Rail Authority v. Superior Court (228 Cal. App. 4th 676, 2014)

Opinion

RAYE, P. J,

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).) 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 for the 21st Century (Bond Act). (§ 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 CONTEXT

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 [Aluthority” (§ 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).)

The Authority is the administrative body with primary responsibility for overseeing the planning and construction of the high-speed rail system. (§ 2704.01, subd. (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. (§§ 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. [1] • 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, Gen. 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. (§ 2704.11.) The Bond Act designates the Authority to act as the “board” for purposes of all Bond Law procedures (§ 2704.12, subd. (b)), including the authority to request that the “[c]ommittee” authorize the issuance of bonds (Gov. Code, § 16722, subd. (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].” (§ 2704*12, subd. (a).)

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 described in Section 2704.04” (§ 2704.01, subd. (f)), and “usable segment” is “a portion of a corridor that includes at least two stations” (§ 2704.01, subd. (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. 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.

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 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.

“(H) The corridor or usable segment thereof would be suitable and ready for high-speed 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, 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 State Treasurer; the Director of the Department of Finance; the 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, 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, 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.)

On November 14, 2011, John Tos, Aaron Fukuda, and County of Kings (the Tos real parties in interest) 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 (Tas 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 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 funding to construct the system is highly uncertain.” (Legis. Analyst’s Off., The 2012-13 Budget: Funding Requests for High-Speed Rail (Apr. 17, 2012) p. 1.) Thus, the Legislative Analyst 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 (2011-2012 Reg. Sess.) (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.)

As will be described in further detail, post, the Legislature itself enforced the rigid reporting provisions of section 2704.08, subdivision (c), part 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).

The trial court bifurcated the writ of mandate issues from the other remedies the Tos real parties in interest sought in the Tos action. Over time, the Tos real parties in interest 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 in interest 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 in interest 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 in interest] 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 in interest] allege that the environmental clearances necessary for defendants to commence construction of the Central Valley project have 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 IOS-South 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 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 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.”

Procedurally, the court pointed out that the Tos real parties in interest did not seek invalidation of the legislative appropriation in the second amended complaint and raised 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 in interest 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 the Department of Transportation 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 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 quasi-legislative 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. Petitioners ask us to issue a peremptory writ 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 [73 Cal.Rptr.2d 427].)

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 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. (§ 2704.13; see 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 [25 Cal.Rptr.3d 164] (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 [264 P. 286].) 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 [178 P.2d 537].)

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 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 [58 Cal.Rptr.3d 153] (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. (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 [157 Cal.Rptr. 840, 599 P.2d 31].) 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 Board (2003) 111 Cal.App.4th 1255, 1265 [4 Cal.Rptr.3d 536].) 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. (§§ 2704.11, subd. (a) [incorporating Gov. Code, § 16730], 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 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 decisionmaking 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 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 [208 P. 117] (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 [68 Cal.Rptr. 317] (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. 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 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 [94 Cal.Rptr. 431] (East Bay), 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 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. (East Bay, 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 [116 P. 966], 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 [45 P. 822].) Similarly, the court broadly construed the purpose of the proposition approving the Bay Area Rapid Transit District and sanctioned the relocation of one of the terminal stations. The court wrote, “Obviously, the statutes, the notice of election and the ballot proposition itself contemplate a broad authority for construction of a three-county rapid transit system. In the wide scope of this substantial transit project, the deviation of 1 1/2 miles in location of a single station is but a minor change in the tentative plan which was relied upon only to forecast feasibility of the project as a whole.” (Mills, 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. To allow real parties in interest to prematurely challenge future potential uses of 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 [99 Cal.Rptr. 361].) 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 Proposition 1A. (Cal. Const., 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.

“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.