[Note from TwistNHook: Well, after 4 years at Cal, 3 years at law school, and 1 year of being a licensed California lawyer, I took a look at Judge Miller’s ruling the other day and said "Please, join me in a round of WHA?!?!?!??! I paid how much for law school to not be able to figure this out? Ai!"
Even if they were loath to admit it, I think most people would think something along those lines. Luckily for us, Oaktown Mario is a not one of those people. He’s a better man than us. Well, he’s a better man than me, that’s for sure. And he left a super sick comment in Ragnarok’s post below. We thought we’d highlight it, because it’s a lot better than anything we could have written.
CBKWit, I’d watch out if I were you. As the writer with least seniority you might get booted for Oaktown Mario. Just kidding! We were going to kick you out anyway and it in no way relates to Oaktown Mario’s awesomeness. Either way, here’s his thoughts on the ruling.]
Because no one really seems to know what is going on with Judge Miller’s ruling, I decided to locate it and read it for myself. It is available on the Alameda County Superior Court website which can be accessed by going to www.courtinfo.ca.gov and then choosing “Courts” and going to the Alameda County Superior Court website. Once there you should choose “DomainWeb”, then “Case Summary” and then enter the following case number RG 06301644 (zeros not ‘Os’). Click on “Register of Actions” which will bring up court actions by dates. The most recent is “Order Additional evidence relating to claims arising under the Alquist-Priolo Earthquake Fault Zone.” You have to have a Java 5 version, so if you were like me and had a Java 6 version, that version needs to be uninstalled and Java 5 needs to be installed. When you first enter the DomainWeb you get a message about this; follow the instructions.
What follows is my opinion only based on reading the Judge’s ruling, the Alquist-Priolo Act, and a few cases on the issue. You should also know I am not an expert on this type of law – I know a shitload about labor and employment law but not the issues involved in this case.
The first thing that struck me as odd is that most news articles about the case touted the ruling as a “partial victory” for the tree sitters, the city, and the other Plaintiffs. While technically that may be correct, the ruling should not be seen as a victory for either side in this sense: the Judge does rule that the Alquist-Priolo Act (“AP”) does apply to the University as a “state agency with the responsibility to prohibit the location and development of structures for human occupancy across the trace of active faults.” Apparently, UC was initially contending that the Act “might not” apply to the University (why I do not know) “despite numerous statements in the administrative record that UC not only would comply with Alquist-Priolo but that it was required to comply.” UC’s contention on this issues seems to be one of those trial strategies where UC raises something they know they will lose on, but do it anyway so that the Judge can rule against it on that issue, while ruling for it on the more important issue (separate structure vs. same structure). This gives the Judge something to show that she is not partial to UC if it ultimately prevails. The fact is, UC lawyers had to know that AP applies to it because it has applied in the past. Example: In Better Alternatives for Neighborhoods v The Regents (1989) 212 Cal App. 3d 663, a 1989 decision, a neighborhood group sued the University to prevent it from building the Foothill Student Housing Project and other buildings. That decision discussed the efforts made by the University to comply with AP and how it ultimately did comply. Therefore, more than 15 years ago the University took it as a given that AP applied to it and complied with its requirements in winning that suit. For these reasons, I don’t think UC attorneys realistically believed that AP did not apply to it because of this and other prior decisions and because of the UC’s actual attempt to comply with AP in this case, as noted by Judge Miller. So this part of the ruling should not be considered a victory for anyone.
The rest of the decision merely analyzes the positions of each party as to “the structural nature of the SAHPC in relation to the California Memorial Stadium (CMS).” The Judge begins by noting that there is no controlling definition of the words “alteration, “addition,” or “structure” and that Plaintiffs urge a common sense definition of these words, while UC urges a technical definition of these terms. This is critical because the University “never considered whether the SAHPC was an alteration or addition to the CMS . . . or whether the cost to construct the SAHPC might violate the Act’s valuation limitations as being more than 50 percent of the value of the CMS.” Instead, the University has always maintained the SAHPC was an independent structure.
The Judge then states that she must determine whether the SAHPC is a structure that is independent of the CMS or is part of the CMS. This is the heart of the case and her decision on this issue will determine the fate of this case by sending UC back to step one or by giving license to continue with the project. She then discusses the evolving nature of the parties’ position on this issue where the Plaintiffs initially argued that the SAHPC is an addition to the CMS and the UC arguing it is a separate structure. Later however, attorneys for both sides essentially argued that the court and counsel were non-experts and could not properly interpret the design documents to resolve the separate vs. addition issue. The Judge concludes that “the court is not in a position to assess the quality of this evidence without the aid of expert opinion.” The Judge then orders the parties to submit expert evidence in the form of “written declarations.” She states that “Such evidence shall address the design features of the SAHPC as depicted in the design documents in the record, including whether that evidence is sufficient to demonstrate that the SAHPC will be structurally independent from the CMS . . . and the significance of this structural independence.” The Judge plans to issue a Decision by February 6, 2008 unless extensions are requested – which seems likely.
The Two Huge Remaining Issues to be Resolved
1. Is the SAHPC a separate structure from the CMS or is it an addition to the CMS?
If separate, then for all intents, UC can proceed with plans.
2. If not, then what is the value of CMS (another huge issue) and does the cost of the SAHPC and upgrades to the stadium exceed 50% of the CMS value? If the cost of the “upgrades” exceed 50% of the value of CMS, then the project violates AP and cannot proceed. If not, then it can proceed. UC attorneys claim the value of the stadium must be what it would be valued at to repair it and make it “sellable;” Plaintiffs argue the value should be determined “as is.”
The Court’s Standard of Review of the UC’s Actions
This is very important and guides the court in how it reviews the UC’s judgment on 1 and 2. Again, this is only my opinion, and is based on a very minimal review of the documents and issues. To give a more meaningful review I would probably have to spend hundreds of hours reviewing court docs and legal precedent. Also, because of the existence of the current litigation, it is obvious opinions differ. But FWIW here is my opinion.
The University has the primary responsibility and judgment to determine if its project complies with AP. Unless the Plaintiffs can show the UC “abused its discretion,” in determining: (1) that the SAHPC is a separate structure and (2) that the value of the “upgrades” does not exceed 50% of the cost of Memorial, then the Plaintiffs will lose. Why? What does “abuse of discretion” mean? Basically under an abuse of discretion standard the court will look at whether there is “substantial evidence” to support the opinion/judgment arrived at by the University. Although the evidence in the record may also support the opinion of the Plaintiffs and their experts, a difference of opinion cannot cause the court to rule that UC is wrong. In other words, the court does not have the power to “judge the intrinsic value of the evidence or to weigh it,” but instead can only ask “is there enough evidence in the record to support what UC wants to do?” If there is, it must not substitute its own judgment for that of the UC and cannot tell UC to exercise its discretion in a particular manner (i.e. to make a different decision based on the evidence).
As an example, in the 1989 case I cited above, the UC determined that there was no active fault where it proposed to build the student housing. Plaintiffs experts - which included the California Department of Conservation’s Division of Mines and Geology -said that there was an active fault. Wait a second, isn’t that a scientific question? I mean there is an active fault or there isn’t an active fault, right? Well UC said there was not one and the Plaintiffs experts said there was one, and the court found that UC opinion was supported by the evidence even though the Plaintiffs’ opinion may also have been supported by the same evidence. Yes, that’s right, the court said it could not substitute its judgment for that of the UC and must defer to the UC, which is acting as an administrative body in making a decision to build.
So what does this all mean? I would be shocked if the University lost this case. That really doesn’t mean anything b/c judges do stupid shit all the time but seriously, if the University can’t win this case it would be a huge “fumble” by the judge (sorry, that was stupid). I would be way more concerned if I were the Plaintiffs than if I were the University. Also, I think the judge has already made up her mind on the issue but wants to appear to be making a thorough and careful decision by asking for expert opinion. The one thing that judges care about most all the time, and especially in high profile cases, is to not be overturned on appeal. So what better way to not be overturned than to ask for more evidence? And basically, if it comes down to experts disagreeing with each other, under the few cases I have reviewed, the judge can’t say “Plaintiffs’ experts are smarter, better, etc.” So I think UC will win . . . but then again what do I know?
[Comment from Ragnarok: Mario, clearly you know quite a bit. TwistNHook and I were both *very* impressed by your comment, and felt it needed its own post on the front page. As this trial continues, please don’t hesitate to send us further thoughts and analysis; we’d love to read/post them.]