Today’s regular editorial, to be found in its usual place in the opinion section, was written on Tuesday, before the trial court decision on the three lawsuits against the University of California. But Judge Barbara Miller’s decision, faxed to attorneys late in the day on Tuesday, puts the Berkeley City Council suddenly on the hot seat. Because of the judge’s curious timing—some angry friends of the oaks even call it prejudicial—plaintiffs, including the City of Berkeley, have only a short week in which to file their appeals. It’s especially tough because Tuesday night was supposed to have been the last City Council meeting before the summer recess, and many other members of plaintiff groups and their attorneys are on vacation, to be expected at this time of year.
Here’s the concrete version of what has to be balanced: the plaintiffs’ sunk costs from the trial level against the possible added cost of going forward. In this equation, since Judge Miller stuck the plaintiffs with the lion’s share of the expenses, appealing only makes sense.
It’s usually taken for granted that the cost of appealing is but a fraction of trial costs, since the expensive presentation of evidence is over and done with—appeals are mostly just writing. An appeal is like a lottery ticket with much better than usual odds of winning. Experienced legal commentators, in this paper and elsewhere, have given plaintiffs a good chance of winning on appeal, some noting a number of probable errors in the trial record.
If the city wins, it’s likely that the sunk costs of the trial will be recouped. As poker players would say, you have to know when to hold ’em and when to fold ’em, and this is not the time to fold.
In the intangible category, appealing also makes sense. The City of Berkeley is embarking on what could be a lengthy power struggle, stretching over decades, to determine whose city this is. One view is that it’s home to more than 100,000 residents, including students, employees and faculty members of the University of California at Berkeley. The contrary view is that it’s become just one vast industrial park to be sliced and diced at the behest of the local industry, which happens to be in the sports biz at this site.
The worst outcome of this controversy, for both city and university, and a very likely one, is that the gym will be built but the stadium won’t be rehabbed, because of its location smack dab on top of the Hayward fault—a key part of the trial court’s decision. That would leave both parties stuck with a large new white elephant in a location that is worse than awkward, snuggled right up to an aging and unusable shell.
In a previous piece we used the German word lebensraum, literally “living space,” to characterize the university’s desires. A younger copy editor wasn’t familiar with the word. It has unpleasant associations with Hitler’s expansion of Germany into Poland, but it’s a concept that clearly describes the institutional tendency toward infinite territorial expansion in the name of progress.
One of the key grounds on which environmental attorneys say the trial decision is vulnerable on appeal is failing to consider more environmentally sound alternatives than just adding more concrete to an already compromised site. In a world threatened by climate change, where green ideas have suddenly gained new currency, perhaps it’s time to acknowledge that we can no longer just build our way out of problems. The City of Berkeley now has the ability—and the responsibility—to teach the university something in this regard.
And a good chance to save local taxpayers some money in the bargain.