Stephan Volker is not a man for reasonable discourse. He is a man of bluster and histrionics. After Cal received the favorable ruling, he had this to say:
Volker said he is confident of eventual victory. "I have prosecuted over 100 appeals, and prevailed in about 85 percent of them," he said.
Hmmm. Sounds impressive. 100 appeals. 85% success rate. Maybe this isn't just bluster, maybe he's an appeals God. Maybe UC student Matthew Taylor was correct at the Council Meeting the other day. Maybe Volker, going at it alone, will dominate Cal at the appeals level and then we'll have to start over. And the sacred trees will have already been cut down, insulting Native Americans and WWI Veterans everywhere. And then we'll all cry.
So, to see if this dark, dark eventuality might hit, let's take a look at Volker's experience at the Appeals level. Can he pull this off?
"I'm trying to save Cal from itself!"
Firstly, as a reminder Volker is trying to get a Writ of Supersedeas. OakTownMario gave us a rundown on what that is here.
And then he gave us the general requirements to get one here. To recap, here are the four focuses:
(1) the likelihood that the party seeking the injunction will succeed on the merits of the claim;
(2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief;
(3) the probability that granting the injunction will cause substantial harm to others;
(4) whether the public interest is advanced by the issuance of the injunction.
As hilarious as it would be to read Volker's arguments on there, it is obvious to even the most insane tree-sitter (sorry for the redundancy there) that Cal will most likely prevail there. 1, 2, and 3 all weigh strongly in Cal's favo(u)r (especially 1 and 3). 4 probably also weighs strongly in Cal's favor insomuch as there is no real public interest advanced here. Although I'm sure Volker will have some grand Volkerisms on that issue.
And frankly, if I understand the bonding situation correctly, the only way Volker can continue with the appeal is if they *don't* get the bond. They can't pay the bajillions of dollars it'd cost if they have to pay for the bond. So, the trees are coming down, people. Don't worry about it.
But, because I'm bored and I love bursting the bubbles of pretense, let's take a look at what Volker can probably do at the Appeals level. To limit this, let's just look at Volker's cases in the 1st District, where our case currently sits. He has 16. Not 16 live. 16 overall (technically, 19 if you count our case, which is listed thricely).
The #1 thing that pops out is that all of the cases involve him suing public entities, be they cities or counties or public utilities. So, this case was certainly not his first time going mano a entity-ano. And lord knows, it won't be his last. So, let's take a look at the 16.
1. Suing Tiburon.
It appears over a Synagogue of some sort, I'm not quite sure. Volker represents the Appellant, which I believe means he lost at the Trial Court level. This one was filed in May of this year and is still live. Volker's brief is due in late August. Better get cracking, Volky! So, we can't really count this yet.
Let's keep track of both how he did at the trial court level and how he did at the Appellate level. TC 0-1 AC 0-0. He lost at the Trial Court and no result yet at the Appeals Court.
I love Mill Valley, how dare he does that. This one also was filed in May and is live. Due date for opening brief, early September. Work starting to pile up here. Can Volker handle all this? He again represents the Appellant. So, let's say TC 0-2 AC 0-0.
3. Suing Oakland.
Volksy again represents the Appellant here (the party appealing). This situation is confusing. It appears some of his co-counsel bailed on him. He then dismissed part of the appeal, but it looks like some of it continues. The final note is that it was dismissed for failure to file the opening brief. I am not sure exactly what is going on here, but it certainly doesn't sound like a successful appeal. Co-Counsel bailing. Dismissed for failure to file documents.
Let's not forget that Tree-Sitter Legal Expert Antonio Rossman seemingly took an attack against Volker in his most recent screed. He wrote:
At least this time other plaintiffs still control the destiny of the litigation, in contrast to the unfortunate LRDP outcome. They will need to file an appeal this coming week and simultaneously seek a writ of supersedeas and immediate stay from the Court of Appeal. This can easily be done by competent counsel; it’s been done before on one day’s notice.
The bolding is mine. Competent counsel? Danzig seems to believe Rossman's support of the Appeal has been all for a "Hire Me" drive. It seems he might be saying "Volker's terrible, hire me and I'll get the job done." OakTownMario seems to agree with this assessment. Let's not forget, this is the guy who failed to file a Motion For New Trial correctly, causing it to be rejected.
When he finally was able to file for the Motion For New Trial correctly, OakTownMario had this to say about the new Motion, which relates to the shoring of the SAHPC.
So it really looks like Volker is grasping at straws here because (1) this argument should really have been presented sooner; (2) the Building Code at issue does not compel a different reading of the AP than the judge has already made; (3) the Code at issue appears to not apply to UC. [Perhaps some of you with building code knowledge can help out here?]
So, clearly, this is a man who has had some hiccups so far in our analysis. To put it mildly. Adding in this Suing Oakland case, Volker is TC 0-3 and AC 0-1.
Man, Volker must hate the Purple People. Here, Volker is again representing the Appellant. This one is still live, albeit nearing an end. All briefing has been done and Volker managed to avoid a Motion To Dismiss. The most recent entry in the docket is a Request For Judicial Notice by the Respondent, which was granted. Not sure what the Judge took notice of.
So, this puts Volker at TC 0-4 and AC 0-1. Many of his cases so far are still live.
5. Friberg v. Bates.
HE'S SUING BERKELEY! The Bates here is Tom Bates, the mayor of Berkeley. Cal is also a real party in interest AS IS THE REGENTS. This is incestuous. He wants Berkeley to join him in suing Cal in our case, but he's suing Bates as an adversarial party in another suit.
Here, he is again the Appellant. It's live. So, it puts Volker at TC 0-5 and AC 0-1.
6. Suing the Public Utilities Commission.
Volker is again representing the Appellant. Many of his clients have innocuous names for clearly obstructionist NIMBY like creations. Names like "San Franciscans For Responsible Growth" and here it is "Californians For Renewable Energy." The docket is very short here. It looks like a Petition For Writ Of Review was filed, the PUC responded and then the Petition is denied. All in the span of about 2 months.
So, although I don't have a lot of information about this case, I feel that it should be placed in the loss column. That puts Volker at TC 0-6 and AC 0-2.
7. Suing SF.
Well, this is different. Volker reps the Respondent here. And he wins! He represents "Save Golden Gate Park." From what, I'm not sure. It appears the lower court judgment is affirmed. Volker gets 1 in the win column.
TC 1-6 and AC 1-2. Making some headway here!
8. Suing SF.
This case appears related in some way to the previous one. Many of the parties are the same and Volker reps Save GG Park. It appears Volker won at the trial court level. This one includes the immediate stay (which I believe is the 20 day stay) and the writ of superseades. It appears SF gets one against Volker.
What is odd here is that there is a flurry of action, then it says Appeal Moot; Appeal Dismissed. Then, 2 months later it says Remittitur issued. Not entirely sure what that is. But previously it said the appeal was dismissed. To be nice, let's give this to Volky.
TC 2-6. AC 2-2. He has tied it up! Kind of.
Here, Volker represents the Appellant "Save Our Sunol." If that isn't the name of an obstructionist NIMBY, I don't know what is. Volker is clearly the King of the Faux-Environmentalist NIMBY organizations! It appears that Volker loses this, appeals to the Supreme Court and they deny his Petition for review. So, now Volker is at TC 2-7 and AC 2-3 and SC 0-1.
Actually, excuse me, he reps Morgan Hill, as Appellant, against Bechtel and a bunch of other entities. Californians For Renewable Energy show up again. This one is confusing. They rule against Volker. He motions for a new hearing. They say "Sure." They rule against him again, affirming the TC judgment. Fair enough. TC 2-8 and AC 2-4 and SC 0-1.
I know it's been a lot of reading so far. Bear with me. Ha! I said bear! Either way, may this photo of The Stiffarm give you the strength to continue.
Volker represents the Appellant here. Man, Volker has it rough here. He keeps asking for extensions for time (all delay tactics?) until the website clearly notes: NO FURTHER ARB EXTENSIONS in all caps. Then, he loses. Affirmed in full. TC 2-9, AC 2-5 and SC 0-1.
This case is not the only one where Volker asks for many extensions of time. Maybe it is because he has a full case load. Maybe it is because he is lazy. Maybe it is because many of these cases are similar to ours and are merely delay after delay after delay. Who knows?
Ok, this one is big. First, Volker reps the Appellant, "Friends Of Eel River." He asks for a bajillion time extensions. Then, he wins! And the appeals court remands it to the TC with directions for the Respondent to (NO!) vacate their EIR. OH NOES! Respondents ask for a rehearing and that gets denied.
Let's hope this doesn't happen to us. It won't, but here is a direct success. This is our clear worst case scenario. *sigh* TC 2-10, AC 3-5, and SC 0-1.
13. Suing Solano County.
Volker represents "Stop The Montezuma Project" here. At least this title is more representative of their obstructionist intent. They are the Appellant. Another request for extension of time here. And he still apparently didn't file his brief on time. He even apparently called in and tried to plead his case. Then, he tries to motion to allow for a late filing. The Respondents oppose it and win that motion.
So, it appears here that the case was dismissed for failure to file documents on time. This wasn't the first time I'd seen it in my analysis. And as an attorney, that can make you liable for malpractice. I mean how do you go to your client and say "I asked for extra time, they gave it to me, and I still couldn't turn it in on time." You don't have to be a lawyer to see the sloppyness here. TC 2-11, AC 3-6, and SC 0-1.
14. Suing SF (again!).
Volker, working with another attorney, represents the Appellant here. He requests sufficient extensions of time here that it notes TWICE in the Docket that he should NOT be allowed any more extensions of time. It looks like after that period, Volker tries to motion for an extension of time and they fight over that. Most of the Docket seems to be battles over timing. Volker either really sucked here or was trying to delay, delay, delay, delay. Eventually, they have oral argument and the Court issues an Order.
The Docket doesn't say the result, but elsewise it says the Dispostion was "Dismissed by opinion" leading me to believe this Appeal was dismissed by the opinion. Well, that Berkeley education came in helpful, didn't it? So, TC 2-12, AC 3-7, and SC 0-1.
15. Suing Marin County.
Well, actually, this one is confusing. Volker does rep the Appellant, but not as a plaintiff or defendant, but instead the Real Party In Interest. I am not sure how that relates to the trial court level. Let's give Volker a push here, for now. Quickly, off the bat Volker's appeal is dismissed for failure to file some papers. He motions to reinstate his appeal, which is granted.
Then, more extension of time, they fight over calendaring and finally get to oral argument. The docket does note that an Order was entered, that the loser there appealed to the SC and was not heard by the SC. They don't give much more information. The Disposition says "Reversed In Full." I am a bit confused about the Real Party In Interest aspect here, but for the sake of niceness, let's assume that means the lower court decision was reversed by the Appeal.
So, Volker would win this one here. Kind of. TC 2-12, AC 4-8, SC 1-2. He pushed at the TC level, because I'm too dumb to figure out his role there (although as appellant it seems likely he did not win, but let's be nice). Then, it is a bit unclear, but it looks like he won at the AC level and then avoided a review by the SC. Go Volker!
16. Suing Nobody, really. This is the Walnut Creek case.
He writes an Amicus Curae on behalf of the Sierra Club. I believe that means he just has an interest in 1 side (here, WC) and writes a "friendly" brief in support of them. It is unclear what other role Volker had here. Push across the board. Volker's side appears to win the AC level, but lose at the SC level (i.e. the most important level). But I don't know what Volker had to do with any of that.
So, final tally. Trial Court 2-12. Appeals Court 4-8. Supreme Court 1-2. And that is being kind with a few tallies.
What sort of trends did we learn in looking through his 1st District Appeals cases here:
1. Representing the faux-environmentalist NIMBY organizations against the big bad municipalities. Pretty much all of his opponents were public entities of some sort. He was trying to stop projects be they related to the Eel River or the Montezuma Water Project. He is the King of Obstruction.
2. In line with his generally obstructionist goals, delay delay delay delay. He asks for Extensions all the frigging time. In a few separate cases, it notes IN ALL CAPS that he is not allowed anymore extensions. We might anticipate this here. It all depends.
If the AC does give an injunction (rare), he'll delay delay delay delay delay delay delay delay. If there is no injunction and the trees come down et al, then, I could see it either way. Because remember, it is not really about the trees. It's about power and putting Cal in its place. So, think of it from Volker's perspective. He is going to win, right? And when he wins, Cal will have to vacate its EIR, unapprove the project, and start over from square 1. This will put Cal in its place. And the more Cal has to fix, the more in its place it'll be.
So, by delaying a lot, Cal will get more and more of the construction accomplished, which it will then, in theory, have to change. However, right now, Cal is flying high and Volker is shamed. Power has shifted away from Volker, so he might want to get some back asap. Delays only push the power shift further out.
This is all in Volker's head, because I do not believe an injunction will be granted OR Cal will lose.
3. Sloppy, sloppy work. Just look at the numbers. He loses most at the TC level and then gets about half at the AC level (with our generous analysis). Some of the losses might stem from bad facts. Some of the losses might stem from bad briefs or bad arguments. But some of those losses DO stem from failure to file documents or filing them late (after having received extensions of time as is!). In some situations, he was able to get out of the late filing, but not always.
And looking at his docket, he has several live appeals which have important dates coming up soon. He'll be running those, too, while working on this one. Meaning that he might have to ask for extensions of time, anyway, just to manage his workload, but also that he might slip up due to the workload.
Look, long story short, I probably just wasted your time. All conditions point towards this being meaningless. The injunction will expire, the construction process will begin. Volker's appeal, if he sticks with it, will be a losing effort. By crunching the numbers here, however, it becomes obvious that, if the 1st District cases are a representative sample of the rest of his work, that there is even LESS to fear. And that his bluster is just that, bluster. He is not the Appeals God he claims to be.