Court: Berkeley Appeals Must Wait for Final Trial Judgment

By Richard Brenneman
Thursday August 14, 2008 - 08:50:00 AM

Three state appellate court justices said Thursday that it is too soon for them to hear the plaintiffs’ appeal challenging the trial court decision on UC Berkeley’s plans for Memorial Stadium and the adjacent grove. 

The ruling leaves an injunction barring construction and demolition of the grove in place. 

With a hearing on the trial court judge’s ruling scheduled for Aug. 25, the injunction will probably continue until Sept. 1—the Monday following the first Cal Bears home game at the stadium. 

Presiding Justice William R. McGuiness of Division Three of the court’s First District was joined in the ruling by Associate Justices Peter J. Siggins and Martin J. Jenkins 

Michael Lozeau, attorney for the Panoramic Hill Association, and Stephan Volker for the California Oak Foundation had filed an appeal challenging the July 25 ruling by Alameda County Superior Court Judge Barbara J. Miller. 

The judge ruled largely in favor of the university’s plans, though rejecting the university’s claim that it is exempt from the state law governing construction on earthquake faults and its theory of how the law’s economic limitations on additions and renovations to the stadium should be calculated. 

The appellate ruling said that while Miller issued three rulings and a document she called a “judgment,” she has not yet issued the final judgment that would end her jurisdiction over the case and allow an appeal because she gave the university until Aug. 21 to file a supplemental filing with her court.  

The Aug. 25 hearing in Miller’s court will focus on the judge’s order to all parties to show cause why she shouldn’t issue her final judgment as well a motion by the plaintiffs asking Miller to vacate her decision and grant a new trial. 

That hearing, possibly the last while Miller still exercises jurisdiction over the case, comes just five days before the Cal Bears host their first home game at the stadium against Michigan State University. 

If the judge does issue her judgment then, the existing bar on construction activities at the grove—which includes cutting the trees—would remain in place for seven more days. 

“Between Michael and myself, we will exercise every option to keep it in place,” Volker said. 

The grove itself remains isolated behind a pair of fences and a phalanx of barricades staffed by police officers gathered from across the UC system and backed by private security guards, who will presumably be out in force on game day.  

“We will continue to do whatever is necessary to ensure the safety of the campus community, the people at the game and the people in the trees,” said Dan Mogulof, the university’s executive public affairs director.