APPEAL STATUS

23MAY2022

Friends and Supporters:

 

This is to update you on the legal actions OTGHA has taken since the suit was filed in mid-December 2021, the subsequent Denial by the SF Superior Court of our Request for a Preliminary Injunction filed on January 31, 2022, and the Order of Denial filed on February 9, 2022. OTGHA, et. al. filed its Notice of Appeal on March 21, 2022.  We expect to file our Opening Brief to the First Appellate District before the end of May 31, 2022.
 

We decided to wait until the Board of Supervisors' Meeting on May 3, 2022, to see how they would vote on the permanent JFK closure. Now that JFK was permanently closed on May 3, 2022, by a final 7-4 vote of the SF Board of Supervisors, the continuing illegality of the closure of those roads is not as clear. It will still be important to secure a judicial ruling as to the illegality of those road closures at least until the BoS's recent action. But as to the preliminary injunction directing reopening, our appeal now focuses on the Great Highway.  

 

  • We believe all the normal channels should have been followed including the production of an Environmental Impact Report before closing such a heavily traveled, essential and safe highway. 

 

  • The partial closure made the Great Highway available to some people using RPD's preferred modes of transportation while making it unavailable to others, such as people in cars, which is discriminatory and illegal under the law. 

 

  • We believe the Judge was mistaken in his reasoning that the continued closure was necessary due to a state of emergency because the shelter-in-place emergency was no longer in effect at the time of our hearing requesting a Preliminary Injunction, and life has largely returned to normal.  Additionally, to the extent a road might properly be closed temporarily under the law, the governing statutes contemplate brief closures for specific purposes, not the 2+ year closure we have seen.

 

Our expectation regarding what steps will follow in court are:

 

  • OTGHA will file our Appellants' Opening Brief before the end of May 31, 2022;
     

  • OTGHA  already has the Reporter's Transcript from the January 31, 2022, hearing. We requested the Clerk's Transcript to be prepared to submit by the Superior Court to the First Appellate District Court of Appeals;
     

  • The First Appellate District now controls the timeline for hearing our Appeal. We have a Stipulation from the Defendants/Respondents that will stay any Discovery requests by either side in the underlying lawsuit until the Appeal is heard. We will be requesting an Expedited Appeal since some of the named plaintiffs in the suit are over the age of 70 and because of that the law permits us to request a quicker Appeal time to address our issues;
     

  • Respondents SF Recreation and Parks Department and Phil Ginsburg, its GM, will file a brief opposing our appeal;
     

  • We will then file a final reply brief, addressing matters raised in the opposition; and
     

  • The appellate court will schedule oral argument.

 

We acknowledge that it takes time to get our Appeal heard but that is how the system works and the Appellate Court controls the timing issues. We will keep you updated once we receive the schedule from the First Appellate District.

We thank you and look forward to your continued financial and political support as we navigate this process to oppose the closure of the Upper Great Highway and other road closures.