BILL ANALYSIS
AB 153
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Date of Hearing: April 14, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 153 (Ma) - As Introduced: January 23, 2009
SUBJECT : HIGH-SPEED RAIL AUTHORITY
KEY ISSUE : SHOULD THE HIGH-SPEED RAIL AUTHORITY BE ABLE TO
EMPLOY ITS OWN LEGAL STAFF, OR CONTRACT WITH OTHER STATE
AGENCIES FOR LEGAL SERVICES, OR BOTH?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by the California High-Speed Rail
Authority, would authorize the Authority to employ its own legal
staff or to contract with other state agencies for legal
services, and would make various clarifying changes to
provisions regarding the powers and duties of the Authority,
including the power to exercise eminent domain. According to
the sponsor, the Authority currently contracts with the Attorney
General's office for legal counsel, but anticipates that its
need for legal services will soon outgrow this arrangement. The
Authority reasonably contends that by authorizing the hiring of
in-house legal counsel, this bill will ensure the Authority has
immediate availability to legal counsel as well as continuity of
representation in litigation or other legal matters. In
addition, the Authority states that it would benefit from having
in-house legal counsel who, over time, would develop special
knowledge and expertise of the areas of law unique to the
mission of the Authority and the high-speed train project. The
relevant provisions of this bill mirror those that authorize the
California Transportation Commission (CTC) to hire its own legal
counsel.
This bill contains various provisions that clarify the
Authority's ability to exercise eminent domain power to acquire
property, although the bill does not expand the eminent domain
power already held by the Authority, nor does it substantively
change any of the standard eminent domain requirements that the
Authority must follow under current law. The bill also extends
the Authority's existing ability to enter into contracts with
private or public entities to include contracts for the
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financing and maintenance of high-speed trains. There is no
known opposition.
SUMMARY : Authorizes the California High-Speed Rail Authority
(Authority) to employ its own legal staff or to contract with
other state agencies for legal services, and makes various
clarifying changes to provisions regarding the powers and duties
of the Authority. Specifically, this bill :
1)Adds language authorizing the Authority to employ its own
legal staff or to contract with other state agencies for legal
services, or both.
2)Clarifies that, with respect to commencing eminent domain
proceedings, a certain cross-reference to the "governing body"
of the High Speed Rail Authority means the Board of the
Authority.
3)Extends to the Authority a statutory exclusion, currently held
by several other state agencies, from the requirement that
real property interests acquired for or by state agencies be
acquired by the State Public Works Board.
4)Makes a conforming change clarifying that the Authority is
excluded from provisions that direct the State Public Works
Board to acquire property on behalf of agencies that lack
their own authority to acquire property, and also clarifies
that the Authority is among those agencies already able to
exercise eminent domain for property acquisition.
5)Deletes obsolete contingency language and extends the
Authority's existing ability to enter into contracts with
private or public entities to include contracts for the
financing and maintenance of high-speed trains.
EXISTING LAW :
1)Prohibits a state agency from employing legal counsel other
than the Attorney General, unless specifically authorized by
law to do so. (Government Code Sections 11041-11042.)
2)Authorizes the California Transportation Commission to employ
its own legal staff or contract with other state agencies for
legal services, or both. (Government Code Section 14513.)
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3)Authorizes the California High-Speed Rail Authority to acquire
rights-of-way through purchase or eminent domain. (Public
Utilities Code Section 185036(b).)
4)Prevents a public entity from commencing an eminent domain
proceeding until its governing body has adopted a resolution
of necessity meeting certain requirements. (Code of Civil
Procedure Section 1245.220.) Specifies the name of the
"governing body" with respect to taking of property by various
state departments and agencies. (Code of Civil Procedure
Section 1245.210.)
5)Provides that all land or other real property to be acquired
by or for any state agency shall be acquired by the State
Public Works Board, with certain exceptions for specified
state agencies. (Government Code Section 15853.)
6)Provides that the State Public Works Board is the only state
agency that may exercise the power of eminent domain to
acquire property needed by any state agency for an official
purpose, with certain exceptions for specified state agencies.
(Government Code Section 15855.)
7)Provides that, upon an appropriation in the Budget Act for
such purpose, the Authority shall prepare a plan for the
construction and operation of a high-speed train network for
the state, and that the plan, upon completion, shall be
submitted to the Legislature and the Governor for approval by
enactment of a statute. (Public Utilities Code Section
185032.)
8)Permits the Authority, upon appropriate approval of a
financial plan by the Legislature or the voters, to enter into
contracts for the design, construction, and operation of
high-speed trains and to set fares and schedules. (Public
Utilities Code Section 185036.)
COMMENTS : This bill, sponsored by the California High-Speed
Rail Authority (Authority), authorizes the Authority to employ
its own legal staff or to contract with other state agencies for
legal services, and makes various clarifying changes to
provisions regarding the powers and duties of the Authority,
including the power to exercise eminent domain.
In-House Legal Counsel : According to the sponsor, with approval
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of Proposition 1A in the November 2008 election, the Authority
will now begin transitioning into a more traditional state
agency. The Authority anticipates a greater need for legal
counsel when, for example, it decides to exercise its eminent
domain power to acquire rights-of-way for train tracks,
maintenance facilities, storage yards, and related structures.
These ongoing activities will only grow in size and complexity,
thus necessitating the availability of legal services on a more
regular basis.
The Authority reports that it currently contracts with the
Attorney General's office for legal counsel, and shares the
services of a deputy Attorney General who also serves the
California Transportation Commission. According to the sponsor,
the ability to employ dedicated, in-house legal staff would
benefit the Authority in several ways. First, the Authority
would benefit by having legal counsel who would be immediately
available and could ensure continuity of representation in
litigation or other legal matters. In addition, the Authority
would best be served by having in-house legal counsel who, over
time, would develop special knowledge and expertise of the areas
of law unique to the mission of the Authority and the high-speed
train project. At the same time, the Authority wishes to retain
the ability to contract with other state agencies, such as the
Attorney General, for legal services when appropriate.
The proposed legal counsel provisions of this bill mirror those
that grant such authority to the California Transportation
Commission (CTC). According to the sponsor, the CTC is an
appropriate model in this case because, like the High-Speed Rail
Authority, the CTC is a regulatory policy body that oversees
transportation projects and programs, and makes decisions on
project funding allocations, scheduling, and similar matters.
The sponsor also notes that the Department of Transportation has
its own in-house counsel due to the volume and substance of its
transportation-related legal activities.
Eminent Domain : Although this bill proposes several changes to
current law regarding the exercise of eminent domain, the bill
does not expand the eminent domain power already held by the
High Speed Rail Authority, nor does it substantively change any
of the standard eminent domain requirements that the Authority
must follow under current law.
The power of eminent domain may be exercised to acquire property
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for a particular purpose only by a person authorized by statute
to do so. (Code of Civil Procedure Section 1240.020.) Current
law specifically grants the Authority the power to acquire
rights-of-way through purchase or eminent domain. (Public
Utilities Code Section 185036.) There are a number of other
state departments and agencies that also possess this
independent power of eminent domain, including the Department of
Transportation, Department of Water Resources, and the Regents
of the University of California. Although current law provides
that the State Public Works Board is the only state agency that
may exercise the power of eminent domain to acquire property
needed by any state agency for any state purpose of function,
the law also exempts from this requirement those specified state
departments and agencies having eminent domain power (Government
Code Section 15855(b).) By extending this exemption to the High
Speed Rail Authority, this bill would clarify that the Authority
may independently exercise its power of eminent domain to
acquire property for its official purpose, rather than having to
rely on the Public Works Board to do so.
Extensive procedural and legal requirements govern the actual
exercise of the eminent domain power by an authorized state
agency. (Title 7 of Part 3 of the Code of Civil Procedure.)
This bill does not change or otherwise affect the application of
these requirements to the California High-Speed Rail Authority.
Prior Legislation : Several provisions of this bill first
appeared in version 98 of AB 981 (Ma) of 2007-2008, including
authorization of the California High-Speed Rail Authority to
employ its own legal staff. However, the provisions relating to
the Authority's exercise of eminent domain and its authority to
enter into contracts for the financing and maintenance of
high-speed trains did not appear in last year's bill. Although
version 98 of AB 981 passed off the Assembly Floor, the author
later amended the bill in Senate committee to reflect a
different subject matter.
Pending Related Legislation: AB 733 (Galgiani) would allow the
High-Speed Rail Authority to consider, to the extent permitted
by federal and state law, the creation of jobs in California
when awarding major contracts or purchasing high-speed trains
and related equipment and supplies. The statutory authority
sought under AB 733 does not conflict with the additional
authorizations sought under this bill.
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AB 1375 (Galgiani) proposes to repeal and reenact the California
High-Speed Train Act (Division 19.5 of the Public Utilities
Code), the enabling legislation for the High-Speed Rail
Authority. Under AB 1375, the Authority would continue to
exist, but would operate primarily as a policy-making body. AB
1375 would instead create the Department of High-Speed Trains
and charge it with responsibility for implementing the policy
decisions of the Authority. Under the structural reorganization
proposed by AB 1375, this bill would become unnecessary to the
extent that it seeks to grant the High-Speed Rail Authority with
powers needed for implementation of the high-speed rail system.
REGISTERED SUPPORT / OPPOSITION :
Support
California High-Speed Rail Authority (sponsor)
American Federation of State, County and Municipal Employees
(AFSCME)
State Building and Construction Trades Council of California
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334