Judge Hoffer’s Face, Nullification, & Ash Wednesday: the Stadium Brown Act Suit!

For once there was a crowd at today’s Ash Wednesday hearing on the People’s Homeless Task Force Brown Act suit against the City of Anaheim for its Angel Stadium Giveaway. Usually it’s just me and Donna, and a few City employees like Mike Lyster.

But this time there were seven of us plaintiffs, a lot of press, and folks we didn’t even know. The delegation of city shysters was larger than ever, including for the first time City Attorney Rob Fabela who sat silently behind the others like Rick Moranis (right) improbably cast as a mafia consigliere.

But the point is, there was plenty of press this time, so you’ll soon be able to peruse several reports – from the Voice’s Spencer Custodio, the Register’s Alicia Robinson, and the Times‘ Bill Shaikin – so I’ll just start with something Donna and I noticed and were unable to ignore, an insight that is likely unique to us:

Hoffer’s Face

This Duane Roberts-resembling jurist (now older than the picture above) has a very expressive face, and the way he looked at our lone Amazon-like Brown Act attorney Kelly Aviles, when she held forth, was unmistakably different from how he looked at the team of half a dozen male attorneys trying to pull Anaheim’s bacon from the fire. When Kelly spoke he couldn’t stop from smiling, with his eyebrows raised encouragingly like he was gazing at his favorite, talented daughter – sometimes he seemed to be saying, with his eyes, “I think I know what you’re about to say next, do go on!”

Whereas when he listened to the city’s lawyers (usually fronted for by prosaic spaghetti-thrower Thomas Brown) his smile became a weary smirk, and his eyebrows turned into inverted bowl-like curves, as though he were thinking, “You’ve got to be shitting me.” We coulda been projecting a little, and Kelly told us afterward, “I don’t get my hopes up too much by the way a judge looks, sometimes they try to be extra nice to you when they’re about to rule against you because they feel sorry for you.” But I don’t think so.

Nullification is the word, is the word…

I hadn’t heard the word “Nullification” so much since South Carolina got slapped down by Andrew Jackson in 1832. But I guess that’s the term for what we’re requesting – for the entire rotten deal between the City and Arte Moreno’s company SRB to be nullified, extinguished, and have to be done again from scratch, or not even. The Brown Act does prescribe OTHER “remedies” less drastic than nullification that the Judge could settle on.

Brown, in one of his many “you’ve got to be shitting me” moments, claimed that Kelly had never mentioned the other remedies, so the City was of necessity woefully unprepared if any of those other remedies were ordered. Kelly was able to quickly show that this was untrue – she’d listed all the possible remedies in her very first filing.

As I intimated, it WAS Ash Wednesday, BUT…

…but if you thought the City team was going to humbly confess their transgressions, express contrition and penitence, work to “cure” their offense …. I’m afraid you’ve got the wrong City, the wrong legal team.

But it’s all right – there are 39 more days left in Lent, and Judge Hoffer’s decision should come well before Holy Week.

His Honor did NOT make any final decision today. He estimates it could take him up to 30 days to issue a preliminary decision (although he could legally take 90.) And when that’s done both sides will have ten days to respond, THEN he’ll come back with the final one! (And I imagine that if The People prevail, the City will appeal, because it is THAT important to Anaheim’s power structure to give Arte exactly what he wants as quickly as possible.)

Seven Questions from Judge Hoffer

At the outset of the two-hour hearing, Hoffer announced that he had a few questions for the two parties, “only a few, in fact just a page.” In fact there were seven of these questions, a nice godly number for the holy season, and without further BS:

QUESTION 1. To Aviles: “Assuming the declarations from Councilman Moreno and former City Manager Zapata are true, how exactly did the City violate the Brown Act?

KA: [paraphrased from my notes] One of my pet peeves, as a Brown Act attorney, is the abuse of the idea of a “real estate exemption.” The law is very clear that only two aspects of a real estate deal can be discussed in closed session: the PRICE and TERMS OF PURCHASE, NOT the fundamental choice between a lease and a SALE (of the City’s biggest public asset no less!) It is CLEAR that the City DIDN’T WANT THE PEOPLE TO KNOW THEY WERE CONSIDERING A SALE!

Turning to the City’s team, Hoffer continued, “How DO you legally make the decision between a lease and a sale?” and Brown babbled back, “The Attorney General has given us that standard – PRICE is ALWAYS DEPENDENT on PROPERTY RIGHTS! And we are talking about property rights. Also there is ZERO EVIDENCE that the City ever INTENDED to hide information.”

Then, as though he thought he may not be allowed any more time to speak that morning, Brown launched in to criticizing the Moreno and Zapata declarations: “They were inartfully written and included DOUBLE HEARSAY! They are full of phrases like ‘Somebody said this,’ or ‘The Angels said that…'” He continued with the supposed contradiction of what Jose said on the dais in Dec 20 of 2019 which has already been explained – at the time Jose was not an expert on the Brown Act and was TRUSTING ATTORNEY FABELA. Hoffer’s eyebrows turned quizzical. (Illustration at left)

QUESTION 2. Is there any official act on record that set up the “negotiating team” (of Mayor Sidhu, Attorney Fabela, and CM Zapata?)

KA: No, there is not, not on record, we don’t know WHEN or how that was formed. The Mayor came & announced the formation at a meeting in the summer of 2019. Any sanctioned subgroup ALSO has to follow the Brown Act, just as the Council does. This entity, this subgroup was created specifically to CIRCUMVENT TRANSPARENCY AND AVOID OPEN DISCUSSION. And this little subgroup created the contract with SRB, and the actions they decided AGAINST are ALSO actions.

Tom Brown For the City: At the July 16 meeting it was clear that Council intended to designate ONE COUNCILMEMBER (the Mayor) to “work with staff.” I RESENT this speculation on the Council’s intent! There wasn’t really any “TEAM” per se, it was AMORPHOUS, an always-changing group of staff and outside consultants, depending what the needs were at the time.

KA: The City claims there’s “no evidence” of a negotiating team being created; THERE WAS A FUCKING PRESS RELEASE [she didn’t say “fucking” in court] announcing the creation of a negotiating team, put out under Mayor Sidhu’s name. (That would have probably been produced by City Spokesman Mike Lyster (right) who maintained a poker face in court while sitting up front like somebody important.) The City’s own records mention this team as early as June 4, for Christ’s sake! [She didn’t say “for Christ’s sake.”]

QUESTION 3. Can you give a distinction between “individual briefings” and “serial communications?”

KA: The City totally engaged in serial communications and the remedy should be NULLIFICATION of the whole deal. [I may have missed something here.]

TB: It’s totally OK to communicate this way, and this is where Tom Brown pointed out that the Brown Act contains other remedies less severe than nullification – declaratory relief, injunctive relief, “writ relief,” or being thrown into the Briar Patch – which Kelly has never enumerated and so if Judge Hoffer ever orders any of those, the City will be WOEFULLY UNPREPARED TO FIGHT THEM!

And as I said, Kelly was able to show that yes, she did mention all these remedies except the Briar Patch in her very first filing.

QUESTION 4. Who would be the APPROPRIATE negotiator for the City, if not the City Manager (Chris Zapata, who was fired soon after)?

KA: Maybe so. But minutes from one 2020 meeting show Councilman Trevor O’Neil addressing Zapata (right) as “the lead negotiator,” and Chris interrupted Trevor, saying, “I want to be clear, I was NEVER the lead negotiator. My TEAM was with Mayor Sidhu and City Attorney Fabela.” So there you go.

TB: “We properly named and identified the City Manager.” And Brown talked, as he and Kelly did at other times, about “Safe Harbor” which I’m not up to snuff on. BUT this is also where Tom Brown started emphasizing how “deferential” the law should be when a government tries reasonably hard to be open. Or in his exact words, “There is NO LIABILITY when there is SUBTANTIAL compliance.” Yeah right.

QUESTION 5. Hoffer actually skipped question 5, after mentioning that it was about a “Covid meeting” – i.e. an important meeting in September 2020 when many details of the deal were finalized, and in which the public could not participate (apart from sending e-mails) because Mayor Sidhu refuses (and still refuses) to allow Zoom or teleconference comments. Kelly believes this is another Brown Act violation and so do we plaintiffs. Anyway, even though Hoffer didn’t ask the question, both sides wanted to comment on it later.

KA repeated her belief that Sidhu’s refusal to allow video or teleconference comment is a Brown Act violation, as well as a dishonest interpretation of Governor Newsom’s Covid-era order that Councils could phone in with no public presence – the Governor NEVER intended to “limit public comment.”

According to the City’s Tom Brown, the Governor said (somewhere) that it’s all good “as long as you let the people e-mail!” He also protested that AB 361, which imposes a Zoom obligation, was passed after that 2020 meeting, and didn’t go into effect until a year after it. Two things: Sidhu and his obedient Council majority are STILL defying AB 361 and eschewing Zoom; plus I really doubt that Kelly ever brought up a law that wasn’t in effect at the time; no, I really suspect Tom was just throwing spaghetti again, and Kelly didn’t even bother responding.

QUESTION 6. Does an eventual open session vote really “cure and correct” past Brown Act offenses?

TB and the City had been contending that: “We cured it TWICE, on 12/20/2019 and on 10/29/2020!” And they brought up some slightly comparable 2004 case called “Fowler.” Kelly protested that “Fowler is not only totally outdated, contradicted by more recent case law, and completely different, THIS CASE HERE FAR EXCEEDS THE OFFENSES OF FOWLER. “There have been VIOLATION AFTER VIOLATION!”

And here is where Tom Brown uttered the unforgettably darling words, “Just because an issue is a big deal to the public doesn’t really make it a big deal. People ALWAYS think that a case they care about is a big deal.” THIS is what the City’s (apparent) lead attorney says about you and me caring about our City’s most valuable public asset. (I think at this point some other hack took Tom Brown’s place.)

QUESTION 7. Is there ANY authority for excluding Moreno’s and Zapata’s declarations? (As the City wants to do.)

ALTERNATE CITY HACK reading off same notes as TB: These declarations are UNINTELLIGIBLE, your Honor, PLUS we were AMBUSHED by them, we had no idea they were coming! EVERY SENTENCE is REPLETE with AMBIGUITY and HEARSAY! Statements like “They finalized the deal behind closed doors” – who is “they?”

Actually, the reason these two declarations were very CAUTIOUS and purposely vague is due to Jose’s and Chris’ intense awareness that they WERE disclosing discussions during Closed Session. That’s why their descriptions are general summaries of what was discussed and decided. That’s why they don’t say something like, for example:

“At that point the Mayor walked in wearing a Hawaiian shirt and size 15 clown shoes, stretched his hands out wide and announced, ‘MY COUNCIL, MY COUNCIL. I have decided that we are going to give this Stadium property to my friend Arte for as little money as we can manage. It’s the least we can do for him – if it weren’t for Arte, not all of us would be here!’ Lucille Kring, downing her fourth glass of wine, slurred, “Well this’ll save us the cost of a …” trailed off and fell asleep.

“I (Jose) then asked the City Attorney, ‘Is this legal, what we’re doing here? Is this compliant with the Brown Act?’ and Rob answered, ‘Whatever the Mayor wants, we can do. He has all the authority here, to do whatever he wants. Please don’t fire me!’

“Denise Barnes then piped up, ‘A lot of people, nice good people that I know with very good hearts, are NOT… GOING… to like this!’ Trevor cackled, ‘Well then fuck them! Let ’em move to Corona!’

And right then Jordan stood up so quickly that his chair fell over backwards, and laughed hysterically, ‘I’d like to rip all their tits off! Like my mother would say!’ Then he stomped off toward the bathroom. A baggie fell out of his pocket, and after a minute he came back to retrieve it, with a red face, and left again. That was the last we saw him that night, but we did make the decision to sell the property, over my and Denise’s objections.”

So rejoice and be glad that Jose Moreno and Chris Zapata were vague and general in their description of that infamous Anaheim closed session; it could have been a lot worse. Vern out for now…

About Vern Nelson

Greatest pianist/composer in Orange County, and official troubador of both Anaheim and Huntington Beach (the two ends of the Santa Ana Aquifer.) Performs regularly both solo, and with his savage-jazz quintet The Vern Nelson Problem. Reach at vernpnelson@gmail.com, or 714-235-VERN.