After months of wrangling by all sides, the trial court case regarding the Student Athlete High Performance Center (SAHPC) finally wrapped up on Tuesday evening. Judge Barbara Miller issued her final judgment. The judgment was similar to her previous judgment on July 22nd, minus two notable exceptions.
The first exception was key to why a new judgment was entered. Her previous judgment had left one item open, allowing for the University to submit data on the value of Memorial Stadium up to 30 days after the judgment was made. This, along with a motion for a retrial which has since been dropped, prompted an appellate judge to rule that the trial case had not been completed and that an appeal could not be filed until the trial case wrapped up. The removal of that language from the updated final judgment ensures that the judgment is indeed final.
The second exception was in regards to when the injunction would be lifted. The previous judgment had ordered that the injunction be lifted seven days after the judgment was entered. Those seven days were really twenty seven days in practice because when an appeal was filed, the injunction would be extended twenty days.
The University requested that the injunction be lifted immediately in this version of the judgment to ensure that any appeals could be handled quickly. In response to this, Judge Miller indicated that some sort of an assurance that the University leave time for the filing of an appeal. At first, the University merely promised not to start on the project for two days after the ruling if the injunction was ended immediately.
After further negotiating with the other parties, the University further agreed to not start on the project until an appellate judge ruled regarding a new appellate injunction.
These concessions proved to be enough for Judge Miller and the language of the final judgment ended the injunction immediately.
The Road Ahead
As was expected, the California Oak Foundation (COF) and the Panoramic Hills Association (PHA) filed an appeal yesterday with the 1st Appellate District of the California Appellate Courts. The action on that appeal will determine when the SAHPC project can move forward.
The specific portion of the appeal that is most important is what is called a "Petition for a Writ of Supersedeas". This is an attempt by the COF and the PHA to get a new injunction placed on the project while the appeal is being heard. As soon as the appellate judge rules on this petition, it will be much clearer when construction can begin.
If the judge either rejects the appeal entirely or rejects the petition for the new injunction, construction can begin immediately thereafter. However, if the judge decides to grant the injunction, the University will have to wait until that injunction expires to start construction.
One of two different injunctions could be put in place. The first would be an injunction for the entire length of the appeal. If this appeal is heard in full, it could take months if not over a year. It goes without saying that this injunction would be a huge blow to the University.
The more likely injunction would be an injunction just until a hearing could be had on the merits of an injunction for the length of the case. In this hearing, the parties involved will discuss the merits of the case, the merits of an injunction and the ability of the COF and the PHA to post a bond to ensure that any increased construction costs created by the delay could be offset should the COF and PHA lose.
This hearing could be anything from a week to a month or two from now. As such, assuming that the University is victorious in that hearing, this injunction would only be another delay, albeit a minor one.
When the appellate judge makes their decision regarding the petition is not entirely clear. In the case of the previous rejected appeal, it took a little less than two weeks. Observers seem to think it will likely be a little less this time, although their justification for that optimism is weak at best. In any case, it will likely not be months from now.
The next question is whether the appellate judge will grant the injunction when they rule. In this case, it seems unlikely. Injunctions at the appellate level are rare to begin with. With the City of Berkeley thus far deciding that it wants nothing to do with an appeal, the PHA and the COF would need to post a multi-million dollar bond.
While the PHA could probably raise the money, it is unlikely that they'll have the will to do so. With that being the case, the appellate judge would have to put in place a bond-less injunction, something that, by the normal logic of things, be a nearly unprecedented move.
What this all means is that the University is likely a couple weeks, or at worst a couple months if an injunction hearing was held, from a final victory in this case. Assuming the appellate judge doesn't do the unthinkable, the trees may be cut down before the Bears lose a game.
Ken Crawford is a sportswriter for BearTerritory. A lifelong Cal football observer, Crawford covered the Bears during the 2007 season, which included the memorable 31-24 victory over Oregon at Autzen Stadium in Eugene. Crawford will continue to handle Cal football assignments during the 2008 season.