A lawyer named Rossmann wrote a case for appeal in the Daily Planet newspaper. The Hippies are using this as their main case to get the City to appeal the case. The case for appeal can be read here:
This case to appeal the ruling is a "PLEASE HIRE ME" pitch. It reeks of it. However Rossmann is only providing a case for delay, not to overturn. I'll repeat that, HE'S ONLY ARGUING FOR MORE DELAYS. Based on what I've read, I doubt any judge would even accept this appeal on its merits. However you have to wonder if the City of Berkeley would give it a shot just to delay. Because by now Rossmann knows they can't win, he basically admits this.
Who is Rossmann?
He is a career Environmental lawyer who has consistently represented small public entities against universities and cities. "Public" vs "public" seems to be his specialty. He has also represented the City of Berkeley when it was suing the UC on two other occasions: 1) Sewer fee case, 2) Parking Space Rental Tax case. Judge Miller also threw out a case (Inyo) that he argued in court and that made him famous. I can't imagine he would take something like that personally, he's a professional. Before the case even started in 2005, he wrote an editorial against the UC in this case in the same newspaper. Btw: He's not a full Boalt professor, he's a guest lecturer.
The case for appeal:
DELAY WITH LOOPHOLE: His case is based procedural mistakes just to delay. He concedes that once the judge releases the writ, the case will be over and the UC will start to build. He is proposing a loophole where he appeals BEFORE the writ comes out so that Judge Miller's decision becomes basically worthless until the appeal is heard. He says he can delay the case for "two years." (if this isn't a please hire me request, i don't know what is). See appendix for exact wording of the loophole*.
MILLER CAN'T THROW OUT MY CASE: Vokler used the case County of Inyo vs City of Los Angeles to prove that the SAHPC and the stadium were one project. Miller threw this case out and said that it didn't apply. Rossmann wants to appeal because he says it *does* apply. Oh yeah, I forgot to mention, THIS WAS ROSSMANN'S SIGNATURE CASE. He was the lawyer for Inyo and it made him famous and he still teaches a class on it now. Taking it a bit personally are we?
PROCEDURAL MISTAKES vs EVIDENCE: In most cases you use evidence to support your claims and that's what the UC did and won. Indeed he admits, "If 'substantial evidence' were the only test, the university would be assured of a victory on appeal as broad as its success before Judge Miller." So Rossmann suggests appealing based procedural mistakes that the UC made. "The analysis of appellate success must then address to what extent the University failed to proceed as required by law." This is why the world hates distrusts despises hires lawyers.
PROCEDURAL MISTAKE #1: "More alternatives," is the procedural mistake they plan on using. He said the court requested alternatives before the Miller case started, but once the case was underway, Miller just used the ones in the EIR. Miller shot down all five alternatives in the EIR. So Rossmann is suggesting to appeal the case and hold the injunction while these "other cures" are investigated. (Of course they were probably going to be the same ones as the ones in the EIR.) This is the CORE of his delay strategy. These alternatives will be in a "supplemental" EIR and everyone will do this all over again.
PROCEDURAL MISTAKE #2: Final EIR was approved by "Committee of Regents" and not by the full body. For certain projects that meet some criteria you must give ALL the regents an opportunity to vote on the EIR, therefore the approved EIR is invalid. This is a nitpick, even Rossmann admits, "But while the plaintiffs’ assignment of error here could obviously be cured easily, with the regents just placing the matter before their full body, the point of law merits appellate review." So even Rossmann admits this is weak. If this isn't obvious lawyer bullshit delay tactics, I don't know what is.
CONCLUSION: Any decent lawyer would admit that this is pretty thin stuff and that this appeal is not based on merit, but just on procedural delays. But it's up to the City of Berkeley now because they would have to pay for this appeal without the help of the Hill people. Plus they would have to pay the delay costs incurred by the UC if they lose this appeal. Remember that. If you were the City, would you roll the dice on this thin appeal? I wouldn't.
The question then becomes: is there merit in an appeal to change this decision? If the opponents can mount a meritorious appeal, they find themselves in an extremely advantageous position: under Judge Miller’s ruling the proponents cannot proceed until she discharges the writ of mandate to come, but by appealing the judgment partially in their favor the opponents will take jurisdiction of the case to the court of appeal and beyond Judge Miller’s ability to discharge the writ while that appeal is pending. Assuming that an appeal is filed, and neither Judge Miller nor the court of appeal take the extraordinary action of allowing the project to begin, we can anticipate a further stay of one to two years’ duration. - Rossmann