The City of San Diego suing San Diego State University?! Really?
I couldn't fathom how these two entities could possibly get into a tiff. Until I read the opinion. Then it all made sense.
Okay, all of it didn't make sense. But at least I could fathom it.
The issue's about money. Not surprisingly. Basically, SDSU wants to expand, and has plans to do so. Which, actually, is good. I was surprised -- favorably -- that in this era of budget cuts and the like, SDSU actually plans on getting larger. In a big way, even. It's planning on adding an additional ten thousand students a year within fifteen years. Which means hiring almost a thousand new faculty members, plus support staff. Lots of new people in sunny, beautiful San Diego.
Which is a good thing. Except for one tiny problem. Traffic. As a San Diego resident, I can attest that traffic around SDSU is already pretty bad. Add another ten thousand students and it's going to get even worse. So to alleviate these problems, as part of the environmental impact report, SDSU identified a lot of traffic improvements that will need to be made. Bigger streets, better off ramps, etc. And the EIR also identified the portion of those costs that should fairly be allocated to SDSU and for which it should pay. Which added up to around $6.5 million.
But SDSU says: "That's fine. We'll pay you that money if the Legislature gives it to us. But we have no way of making them give it to us, so if they don't, that's your problem, not ours." At which point the City responded: "No, that's still your problem. You have to either promise the money or not get your environmental impact report certified." To which SDSU responds: "Stick it. We'll pay if we/the Legislature wants, and won't if we won't." So the City of San Diego then files a writ.
There are tons of disputes down below. Eventually, the trial court finds in favor of SDSU, and discharges the writ. The Court of Appeal reverses.
There are lots of interesting things about Justice McDonald's 83-page opinion, but I'll focus only on two components.
First, Justice McDonald is pretty bold here. The City's best argument is a statement from the California Supreme Court in Marina, a very similar case arising from the expansion of Cal State Monterey. In Marina, the California Supreme Court said, essentially, exactly what SDSU asserts here -- that since the Legislature is in control of the money, Cal State only has to ask for the money, and that's sufficient; if they don't get the money, that's the City's problem. And it was on the basis of that statement that the trial court below dismissed the writ.
But Justice McDonald doesn't agree. He agrees that the statement was made, of course. And also agrees that it supports the trial court's ruling. But he holds that it's dicta.
Which it is. But the thing is, it's dicta from the California Supreme Court. When they say jump, the Court of Appeal generally limits its response to an inquiry regarding height. The Court of Appeal almost invariably follows even dicta. Pragmatically, if you don't follow what they say, you're often very likely to get reversed. Moreover, doctrinally, if your duty is to predict what the California Supreme Court would do (which is what California law "is"), what they say is pretty good evidence of what they'd do.
But the Court of Appeal nonetheless doesn't do that here. Arguing that the relevant sentence was not only dicta, but not really explained either. And, further, that it's wrong. Holding -- and here's where Justice McDonald's pretty bold -- that if the California Supreme Court actually thought about the issue at length, they'd realize that what they said was not right, so would change it. Hence we'll do it for them and not follow that portion of the opinion.
Now, let me be clear: Justice McDonald may well be right on the merits. To say it how we'd say it in academia, money is fungible. SDSU already has lots of it, and they're only going to get more once they add another ten thousand students. So SDSU will have the money to pay for the improvements even if the Legislature refuses to give them another $6.5 million. It's only a question of whether they're willing to spend it. Given those facts, you could see why Justice McDonald might be inclined to hold that it's insufficient to merely say in response to an EIR that you're willing to ask for more money. At a bare minimum, SDSU will be getting more money from tuition, rent, parking, and the like if the expansion goes forward. Given those facts, it seems not unreasonable to consider requiring them to allocate some of this money towards paying for the improvements that make the resulting monetary largess by SDSU possible.
But just because Justce McDonald may be correct doesn't make it any less bold (or unusual) for him to refuse to follow dicta from a higher tribunal. It's still something that you don't usually see. Especially when, as here, the dicta the Court of Appeal refuses to follow is fairly recent. Which means that lots of the members of the Court who signed onto that dicta still possess the power to grant review and affirm that, yep, they meant what they said, and do not believe themselves to be as uninformed (or inattentive) as a lower court considered them to be.
So we'll see where it goes from here.
One other point. Not about the opinion, but rather about the underlying dispute. At issue here is $6.5 million. Not a huge amount in the scheme of things, particularly when it concerns governments. And we're not fighting about whetherlevel of government has to pay -- the Legislature or the City.
Look at how long this lawsuit has gone on (the writ was filed in 2006). Look at the caption and see how many lawyers are involved at all levels of the dispute, both for the City, for SDSU, and for various governmental amici. Imagine how much money has been spent on this dispute on both outside and governmental lawyers. Not to mention how much we've spent on the judicial side. All to figure out whether the State or City are obligated to pay a relatively trivial sum. A sum that's quickly getting burnt in attorney's fees in any event.
Assume that governments are populated by entirely reasonable people. (Counterfactually, I know.) Wouldn't, in such a world, this lawsuit be settled? In a heartbeat.
But this one wasn't. And isn't. And may well even take up additional time and resources once the case either continues on remand or goes up to the California Supreme Court. Or both.
Yes, I know, in tight budgetary times, governments feel increasing pressure, and so may fight to reduce their expenditures. But having everyone spend money on lawyers in order to simply pass the bill to another level of government -- with many of the same taxpayers, no less -- is largely to cut your nose off to spite your face.
It's silly. It shouldn't happen. And yet it does.