Monday, February 04, 2013

Court of Appeal decision on the Bicycle Plan was not a "triumph" for the city


The problem reporters have when they act as stenographers for City Hall is that when the city lies they look dumb. Will Reisman had that problem last month with his story on the Court of Appeal's ruling on our successful Bicycle Plan appeal.
 
The headline in the hard copy of the Examiner that day: "S.F. bike plan triumphs in court."
 
But the online version of the story toned down the headline to make it more accurate: "San Francisco city attorney views latest ruling on bike plan as victory for cyclists."

That's more accurate because Reisman's story is based on puffery from the City Attorney's office:
 
The City Attorney’s Office is still reviewing the decision but is gratified by the ruling, spokesman Matt Dorsey said. “This decisively affirms the adequacy of our environmental review,” he said. “The decision identified a relatively small number of technical shortcomings in a 35,000-page record, and we’re confident that the issues the court raised can easily be remedied in the record.” There is a chance that elements of the bike plan need to be re-approved by supervisors, or be re-argued in Superior Court.
 
More than just a "chance," since in fact on page 81 of the decision, after a discussion of CEQA's rules on findings and impacts, we have this important sentence: "This failure by the Board of Supervisors to proceed in the manner required by CEQA establishes a prejudicial abuse of discretion."
 
That means that our appeal was successful, which is verified on the last page in the "Disposition," which says that the case "is remanded to the trial court with directions to modify the writ of mandate (or issue a new writ if necessary) requiring the San Francisco Board of Supervisors to comply with CEQA as stated in this opinion."
 
After talking to our lawyer about the decision, Bob Egelko in the Chronicle made a similar mistake in a January 17 item in the City Insider:
 
"The city needs to go back to the drawing board," Miles said. The court didn't go that far, though, and she and her client are combing through the 83-page ruling before deciding whether to appeal to the state Supreme Court.
 
Wrong! The Court of Appeal did in fact "go that far," since it reversed Judge Busch's decision, sending it back to the Superior Court where the city must show that it's corrected the errors the court found. Like Reisman Egelko quotes Matt Dorsey, designated bullshitter for the City Attorney: "The issues raised by the court can be easily remedied."
 
Maybe so but our appeal was still successful, since winning on a single issue sends the case back to the lower court for more proceedings to fix the problem found by the higher court.
 
Reisman notes that "Anderson did not return requests for comment Tuesday." That's right, but Anderson hadn't even read the decision yet, and, in any event, I'm not a lawyer.
 
The city has now asked the Court of Appeal for a rehearing on the case, which is hardly the action of a "gratified" and "triumphant" city.


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