The SAHPC Case: What Happens Next?

During a recent conversation attended by lead-UC-attorney Charles Olson, Athletic Director Sandy Barbour, and a group of private individuals who support UC's efforts to build a new Student Athlete High Performance Center, talks initially centered on the court case and the various issues that had been argued there.

Olson expressed his belief that a ruling favorable to the University could be forthcoming within weeks.

That idea led in turn to a conversation about the events that might follow a favorable decision, including whether the plaintiffs might appeal the ruling.

This was all speculative, of course, because the judge has not yet ruled.

Attorneys for both the Panoramic Hills Neighborhood Association and for the California Oak Foundation told media during the court hearings that they would appeal an adverse ruling, but so far the City of Berkeley has been silent on the issue.

If a ruling favorable to UC were to occur, the injunction that has so far prevented project construction would dissolve; UC has said they have made full preparations to begin work as soon as they are permitted to do so.

One of the first steps would be the removal of the tree-sitters and the oak grove at the site so that excavations could begin.

To prevent this from happening, the plaintiffs would have to appeal the decision to the Court of Appeals and, at the same time, ask for another injunction to again halt the project, but that request might come with a heavy cost to the plaintiffs.

Unless a public agency - the City of Berkeley in this case - is involved in the appeal, the plaintiffs would be required to post a bond with the court to cover UC's costs (and cost overruns) that would result from the injunction and the ensuing project delays.

UC spokesmen say estimates of hard costs alone could be in excess of ten million dollars. Not only would a bond of that magnitude be nearly impossible for the Panoramic Hills and Oak Foundation people to raise, "success" in doing so would expose them to a probable risk of loss of the full amount to the University if their appeal failed.

Because the city was a plaintiff in the first round of hearings, a bond was not required, and the other plaintiffs got a free ride when their lawsuits were consolidated with the city's (so that the entire matter could be heard by one judge and ruled upon just once).

So now - again, assuming a favorable ruling - the decision by the city to join an appeal or not will be the critical factor in determining what happens next.

If the city joins an appeal (that according to California law the Court of Appeals must hear) the bond exemption would apply and the other plaintiffs would once again get a free ride on the injunction.

Olson explained that in an appeal the entire case would have to be argued again in a court system that he said is much slower than the Superior Court where the case was first heard. Thus an appeal and another injunction (the worst case scenario) would inevitably result in major delays for the project.

That all said, there are two significant factors here that work in UC's favor.

First, Olson said that the appeals court only rarely issues injunctions.

In the UC case, the appeals court would (in addition) have in-hand the extensive record of the first round of hearings and the UC-favorable ruling made by a judge who had given all the parties ample time and documentation to make their case. Those facts would weigh on the UC side of the ledger and reduce the (already unlikely) chance of an injunction being issued.

If an injunction is not issued, UC would be able to proceed with construction - so then there would seem to be little for plaintiffs to gain by continuing their appeal.

Second, the city initially authorized $250,000 for legal costs for the lawsuit. We have heard estimates that their expenses to date are at least $50,000 over budget. An appeal would be even more expensive, and the city might not have the stomach - or taxpayer support - to appeal a case that they had already lost at the first level.

Without the city, the other plaintiffs would probably not be able to raise the bond for an injunction, so again, continuing the appeal would seem to be nearly pointless.

In summary: An injunction is improbable on two counts, a) the appeals court rarely issues them, and b) without the city the other plaintiffs could not afford one.

For the city to authorize further expenditures on the case, five affirmative votes (of nine) on the City Council would be required. Council meetings are held weekly, and special meetings can be called upon 3 days notice. Thus logistics alone might hamper the ability of the notoriously indecisive council to expeditiously authorize the funds needed for an appeal.

As this is written, the Council has not yet considered the matter.

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