Will Judge Hoffer’s Bizarre Stadium Ruling Be Appealed?

Well, that’s the last time I try to predict how a judge will rule based on the way his face looks as he listens to each party. Maybe our Brown Act attorney Kelly Aviles was right when she warned us, “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.”

In any case, Judge David Hoffer in his “preliminary ruling” (unlikely to change when both parties respond this week) bought all of the Anaheim kleptocracy’s arguments hook, line, and sinker. According to Hoffer, the Sidhu Council Majority did everything right in its pursuit of the Stadium deal, substantially followed the Brown Act, and will not be required to do any of it over.

Naturally the Sidhu Council Majority is ecstatic over this outcome, but there is a lot in Hoffer’s 25-page ruling that is nonsensical, self-contradictory, and just weird. My colleague Tom Fielder has already written an excellent critique of it which I’ll include below, but I want to point out a couple things first:

The Alleged Parthenogenesis of the Negotiating Team

There is no denying that there was a “negotiating team” that worked out the details of the terrible deal over the last half of 2019. This “negotiating team” consisted of Mayor Sidhu, City Manager Zapata and City Attorney Fabela, and was referred to numerous times on the official record. You can even watch, right here, at the July 16, 2019 Council meeting, when Mayor Sidhu requests and gets appointed as “the exclusive Council representative on the City negotiating team” – those are his very words at 2:37 and later – he uses the words “negotiating team” repeatedly.

And we the petitioners claim that this “negotiating team” was created in order to ensure secrecy and skirt the Brown Act, because the terms Sidhu planned on were so unfavorable to the City.

But Judge Hoffer states in his ruling that there was actually no negotiating team because there was no official Council act creating one – see page 14 of Hoffer’s decision, “the City created no such team… there was no charter, ordinance, resolution or formal action that created a negotiating team.” And yet, there WAS undeniably a negotiating team, referred to at the time by all parties and the press, which worked in secret on many important details, but was not, rules Hoffer, subject to the Brown Act, because… it created itself somehow. It just came into being.

It’s all a little confusing, and calls to mind both the Christian doctrine of the Virgin Birth, and the biological phenomenon of “parthenogenesis,” by which some invertebrates can reproduce from an ovum without fertilization (and a term many of us only know thanks to Shriekback.) So… if any City or County just ALLOWS a “team” to take shape or form itself, it can do anything in secrecy? Good to know.

Discrediting Zapata & Moreno because Fabela says so.

In a September 24, 2019 closed-session meeting, the Anaheim Council made the decision to SELL, rather than continue to LEASE, the Stadium to Angels owner Arte Moreno, in a violation of the Brown Act as commonly understood. OR… so swore two men who were at that meeting, Councilman Jose Moreno (the only current Councilmember not elected with money from the Chamber of Commerce which has been the prime driver of this deal) and then-City Manager Chris Zapata (left – who was later fired for giving asked-for but unwelcome opinions.) You see, the Brown Act has till now been pretty clearly understood to allow closed discussion of “price and terms of payment” in a Real Estate decision, but not as BASIC a question as Whether To Sell.

Last month, Mayor Sidhu and “his Council majority” bitched at length about what a traitor Moreno was for snitching on what happened in closed session. And for many weeks the public waited, in vain, for other Councilmembers present at that meeting to swear OTHERWISE, but none ever did – not Sidhu, not Lucille Kring, not Jordan Brandman, not Steven Faessel, and not Trevor O’Neil. Never mind, Judge Hoffer has decided now that Zapata and Moreno are “not credible.” (Not that that even matters, as, covering all his bases, Hoffer also rules that even if it’d happened as as Zapata and Moreno described it still woulda been okay – see Fielder below.)

And on what grounds does Hoffer find Moreno and Zapata not credible? For one thing, he dredges up Moreno’s public statement of Dec. 2019 that the Brown Act was followed – a statement Sidhu has repeatedly pointed to, and which has been easily explained by Moreno’s incomplete knowledge, at the time, of that act, and his complete trust, at the time, of City Attorney Rob Fabela. But beyond that, Hoffer relies on the declaration of Fabela that that’s NOT what happened September 24, 2019.

Having seen, and remaining keenly aware, of what happened to former City Attorney Cristina Talley AND Chris Zapata – both fired unceremoniously from their six-figure jobs for telling the Anaheim Council things they didn’t want to hear – Mr. Fabela has become the Life-Cereal Mikey of Saying What Sidhu Needs Said.

Now I hand you over to the worthy Thomas Fielder:

Fielder on the “Real Estate Exemption”

A large part of Judge Hoffer’s reasoning stands on the assumption that the decision to sell a property is “inextricably intertwined” with the price and payment terms that one might hope to obtain, should one decide to sell.

Excuse me? We can be fairly confident that 99% of homeowners in Orange County know the price they can get for their homes, but only a tiny fraction of them are actually planning to sell.

So, sure, it’s quite reasonable to obtain an appraisal without deciding to sell. But it is also possible for a landowner (or the landowner’s “negotiator”) to decide to sell before they know exactly what price will be paid. This happens frequently, I would guess, in cases where job offers require relocation.

Of course, it may also happen when the buyer thinks he can make a ton of money off the property, and has made all the necessary political “contributions” to the lead negotiator. In such cases, the decision to sell may be entirely unrelated to the price and terms, because the fee for making that decision has already been paid.

So, I’m sorry to inform Judge Hoffer that his reasoning is quite simply wrong.  

Hoffer compounds this error by misinterpreting Section 54956.8 of the Brown Act, which clearly states (and he quotes!) that only the PRICE and TERMS OF PAYMENT are the factors that can be discussed behind closed doors, not the decision to sell itself. Curiously, he mentions several times how careful people were about only discussing prices and terms of payment in the closed-door meetings, and yet he concludes that any discussion of a price somehow means that you must also be discussing the decision to sell.

Fielder on Magically Non-existent Closed Sessions.

This is not the only place in his proposed statement where Judge Hoffer includes quotations that contradict his own reasoning. Another occurs on page 23, near the end. He states, and even underlines, the fact that NO INTERVENING CLOSED SESSIONS occurred between December 29, 2019, when the initial version of the sales agreement was presented at a public meeting, and September 29, 2020, when the amended (and eventually passed) version was first presented. 

So if no closed-door sessions were held, and no open-door sessions were held, how exactly was that amended version negotiated? Over cocktails between Harry and Arte? By telepathy?

But Hoffer seems to think the above scenario proves how open and honest the city has been. (They didn’t do ANYTHING behind closed doors! ) And he practically waxed ecstatic about the number of public comments received at the latter meetings, as if that somehow proves how open and above-board the whole process has been. I mean, if you receive 10 or 20 times the average number of comments at a council meeting, that has to mean everything is hunky-dory, right? 

It can’t possibly mean people are really upset about being railroaded into a bad deal, can it?

Will There Be an Appeal?

[Vern here again.] Yeah, I hope there will be an appeal. We are discussing it. It’s pretty rare that Brown Act attorney Kelly Aviles loses a case. And this is much bigger than just us Anaheim fools and our most precious public asset – this case will resonate statewide for years. How this case turns out will teach other crooked City Councils and County Boards of Supervisors what THEY can get away with in secret. How this case turns out will determine how serious the Brown Act really is.

But we can’t close this without also throwing some shade on Anaheim voters, who are going to continue to be swindled as long as we keep electing swindlers. If something drastic doesn’t happen, at this rate we’ll be getting $54 million for our $500 million property.

Please, this Fall, THINK!

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.