Notes from the underground garage

How two experienced Club leaders got a legal education without trying

Pinky Kushner and Howard Strassner have been active Club volunteers and key leaders in the San Francisco Group for many years. When they took on the task of filing a complex lawsuit without a lawyer, however, they got to learn even more than they bargained for. In this article Pinky and Howard tell about their experience and what they learned.

When San Francisco voters passed Measure J in 1998, we were not happy, but we were not too worried. The measure would allow construction of an underground garage in Golden Gate Park, but the people writing the measure had invited the participation of a group of environmental advocates, and had incorporated our most important concern: that the "principal purpose" was to "reduce the impact of automobiles and "create a pedestrian oasis".

Over the following years our mistake became clear: the ordinance nowhere defined "pedestrian oasis". As the Golden Gate Park Concourse Authority developed plans for the project, and as two separate legal challenges were dismissed by the courts, the project looked worse and worse. The clincher came this past November, when the Concourse Authority and the Recreation and Park Department decided that to provide a court-mandated "dedicated" access to the garage from the south, they would double the capacity of Martin Luther King Drive through the park from two to four lanes. Further the city was not going to prepare any Supplemental Environmental Impact Report (EIR) to study the consequences of the change; instead it issued an "Addendum", with inadequate consideration of increased traffic and its impacts on pedestrians and transit - and no public involvement whatsoever.

In December Pinky took the fateful step of asking the Superior Court to grant a writ of mandamus to overturn the city's decision for not complying with the California Environmental Quality Act (CEQA). It was Howard's bad fortune to miss the meeting at which Pinky volunteered herself for the legal effort. Noting Howard's absence, she immediately volunteered him to help, as well.

Fortunately, Howard agreed, with no reluctance, and we embarked on bringing a suit in propria persona, which means a challenge of the law on one's own, without legal representation. (We knew that funding wasn't available for the perhaps-$100,000 cost of bringing the case with attorneys.)

Pinky drafted several friends from the environmental community with writing and editing skills, plus some free and some very cut-rate guidance in legal strategy. Folks just seemed to want to help. A real aid to the project was the very user-friendly CEQA website. We learned to prepare, in legal format, the original request for writ; an opening trial brief; and a first and then a second response brief. We attended a couple of preliminary hearings plus two confidential settlement discussions. Early in the process the court combined our request with the two earlier lawsuits, thus bringing the extra responsibilities and agonies of working with real attorneys and coordinating briefs. (An early lesson was that a "brief" is not brief, but often 25 - 30 pages long.) We navigated the "administrative record" of 135 specially prepared volumes that formed a stack about 12 feet tall, and the over-a-foot-tall pile of legal briefs.

The most challenging effort was the first one: to prepare the request for a writ of mandamus, a highly technical document, full of very strict requirements, which forms the basis for all the subsequent documents. Several attorney friends hadn't heard of such a writ since law school. Fortunately, the arms of the Sierra Club are broad, and we located a friendly Club attorney who provided a sample request for writ.

After five months we found ourselves in a hearing before a judge, presenting the essentials of our case, along with one remaining attorney for the other challengers, and against attorneys from two prominent firms and the city attorney's office. The next step (much to our surprise) was a request from the judge for each side to write a proposed decision for the judge to consider. We finished this stage in late May.

At the end of the hearing, the judge gave us two compliments that we value highly. He said that the briefs from our non-professional duo competed in style and substance with the best that his court had seen. He acknowledged and thanked us for the respect we had shown the process and for our public concerns.

Pinky and Howard are both retired, but Pinky worked many long days on the computer and phone. If volunteers with full-time employment had tried a similar undertaking, it would have required a large group working evenings and weekends under a rigid hierarchy to meet the courts' rigid technical and time requirements.

Any day we are hoping to hear the judge's ruling on the case. With luck, through self-representation we will win, or at least come to a settlement close to what is best for the environment, or perhaps we will be launched into the wild and wonderful world of appeals courts. Win, lose, or strung out in court for decades, we have had a rich experience that will influence all our future environmental efforts.

Some concrete lessons that we learned

In our court experiences, we learned some very concrete lessons for the future. Back in the beginning, when we were involved in discussing the language of the proposed ballot measure, we should have discussed it among our environmental friends as widely and thoroughly as possible. Then, we should have consulted a bona-fide environmental lawyer, the best we could find and afford. An early review by a professional, even if it cost real money, would have been a bargain, staving off many and perhaps all of the problems, and improving the chances in any later legal battle.

A second lesson. When we write letters to legislators or commissioners about specific issues, we always try to be brief. When commenting on Environmental Impact Reports and Studies, however, or in other matters where legal action may some day be necessary, one should be complete and always mark the comments with the words "for the record".

One more lesson. As advocates for the environment, we often testify at all sorts of meetings and hearings. From now on we will always accompany our verbal statements with written letters, signed by us and co-signed by as many good folk as possible. These letters form powerful items in what we have learned to call "the administrative record". Without the letters, our statements may stand, but they are more difficult to locate and only reflect the single speaker. If our letter is not ready, we should at least testify that our more complete comments will be coming in writing "for the record". That way, even if our comments are only partial, we may be able to use our longer written material in a later brief.

Pinky Kushner and Howard Strassner