Report on Blackwater Hearing, 5/30/08
First, thank you to all the activists who came down to the federal courthouse on very little notice.
It was a bit of a miracle that we even knew about this hearing. We had been told that the hearing would occur on Monday, June 2. The judge tried to explain that the hearing date was moved up to avoid the crush of Monday, and to other case was ending early, or something like that. It was clear, however, that the other case had run substantially over, and was still in process at 1:30 when we took our seats. It seemed that the judge, Marilyn Huff
, (Appointed by G.H.W. Bush) had elected to squeeze this in for Blackwater instead of taking a lunch break. No one know about it and I only got word because I looked through the court calendar yesterday, and miraculously ran across the hearing after I clicked on one judge at random. Had I not run into it at first, I may have not taken the time to look through all the judges to find the case. (They don't make it easy. The calendar is arranged according to judge, not what is going to be heard.)
Here is a picture of the folks who turned out on less than 24-hours notice. (THANKS!)
The hearing played out roughly as follows. First, the attorney for Blackwater, Michael Neil, (retired Marine Brigadier General who still sports his military haircut from the firm Neil Dymott
) was allowed to make his case. But before that started, they asked if they could play a recording of Mayor Jerry Sanders
making a statement on the Roger Hedgecock
show that it was his position that all the permits were appropriate. The attorney for the City, Don Mc Grath
objected, but all of his objections were overruled, and the judge allowed the playback. The recording device was operated by none other than Jerry Van Deweghe
(Assistant to Dennis Hollingsworth and technicality expert at the Potrero meeting when they had to postpone reconsideration of the Blackwater West project), and they made a big deal about bringing him in to press the button of the player because the attorney was apparently inept when it comes to pressing the "Play" button. Generally, it is extremely poor form for the Mayor to make comments regarding a case that is being litigated at the time, and this only buttresses the position that he is part of the team railroading this down the collective throats of the public.
Blackwater claims that all the inspections were completed and even a "final inspection" occurred, and these were done under a ministerial level of review. The judge sat quietly or generally seemed to affirm that she agreed with their position. She asked at one point if there were any permits that were not granted, (No) and referred to another location in Otay Mesa where a shooting range is operated, and was approved under the ministerial level of review. Blackwater asserted that they were a company that was disliked by some and was being discriminated against, and this was one reason the federal court was appropriate. They also played the national security card, claiming that the US Navy needed training by Blackwater or our national security was in serious jeopardy.
The attorney for the City started with the assertion that the case did not belong in federal court at all. He said that the state court is the place to hear this case. He also cited case law that supports the notion that workers who are conducting their discretionary powers in legislative governments cannot be overruled by the courts. It seems correct that Blackwater is attempting to overrule the discretionary powers of city government, using the federal courts to do so. He mentioned that the "final inspection" was only for 5,000 sqft, and not for the entire project. He also made the case that the Development Service Department head, Kelly Broughton, was exercising his appropriate discretionary power by lifting the review level required by the project from ministerial to discretionary. Certainly, the head of the deparment can decide what type of review a project can require, particularly when the project was worked on in a piecemeal fashion, and was with Southwest Law Enforcement, and Raven Development, neither of whom were in the room.
This is a unbelievable precedent, meaning that if you don't like the ruling of the planning department, then perhaps you should go to federal court. With enough money, you can probably work the system, just like Blackwater is. His second point is that there is no "irreparable" harm. The claim that Blackwater might lose money or lose a contract is not irreparable. Money is not a harm that is irreparable as it can be repaid. He cited the case of the Colosseum, where the football league claimed they were harmed irreparably, and the court found that it was based on nothing more than business that might or might not be lost in the future.
I thought for a moment that the judge might be listening to his case about the jurisdiction, as she furrowed her brow for a moment. The matter of a bond came up. Apparently, the City wants BW to post a bond in case there are other lawsuits that must be defended by neighbors in the area who do not wish to have such an entity present in their neighborhood. I think BW said 250 (perhaps 250K) whereas the city asked for $5 million (I think).
With that, the judge stated that she was ruling that the federal courts did have jurisdiction, and that she was siding with Blackwater, but needed more time to decide on the value of the bond. She said she would have a written statement on June 3, 2008, and she apologized to Blackwater for the imposition this might have on their business.
Leaving the courthouse, we discussed the implications of the federal courts reaching into city government and deciding discretionary matters for officials in government. Yet another egregious overstep by our federal government, and a slap in the face of the local community who never had a chance to review these plans.
Meanwhile, the City Clerk's office called me to say that my appeal was being returned as inappropriate. They will be mailing this to me next week with a check, he said. (I'm not sure of our next step on this at this point, but I am reviewing it with some experts to determine what we should do...)