Foothills Park Pseudo-Lawsuit: Is the City going to cave-in & defame its residents as "racists"? | A Pragmatist's Take | Douglas Moran | Palo Alto Online |

Local Blogs

A Pragmatist's Take

By Douglas Moran

E-mail Douglas Moran

About this blog: Real power doesn't reside with those who make the final decision, but with those who decide what qualifies as the viable choices. I stumbled across this insight as a teenager (in the 1960s). As a grad student, I belonged to an org...  (More)

View all posts from Douglas Moran

Foothills Park Pseudo-Lawsuit: Is the City going to cave-in & defame its residents as "racists"?

Uploaded: Oct 12, 2020
At the September 28 City Council meeting, there was a closed session to discuss a lawsuit against the City seeking to open Foothills Nature Preserve (previously Park) to unescorted non-residents. The lawsuit was filed on September 23 at 5:52 PM and the City has 30 calendar days to file a written response (Friday October 23?).

The public needs to be engaged now because, by the time something has been decided, it is irreversible, or nearly so. As a 35-year resident of Palo Alto, I have seen a lawsuit after lawsuit settled because a string of City Attorneys had claimed that the City couldn't afford justice.(foot#1)(foot#2) Many other times, the then-City Attorney was seen to be advocating for the claims against the City and not considering how to counter those claims. Note: This is from public sessions and the occasional after-the-fact leaks from closed sessions.

I had hoped that the August 3 City Council vote would have settled this matter for at least 2 years. I had hoped that the interval would have allowed for a better framing of the issues and the arguments. I had hoped that the advocates would have figured out that trying to bully people by labeling them as racists was counter-productive.
Yeah. "Hope springs eternal."
But a mere 50 days after that vote, the advocates launch a new attack. So it is "Once more unto the breach, dear friends, once more".

Since the arguments on both sides have little changed since last summer, this blog focuses on what you might learn from how they are presented in this lawsuit, and I hope to have minimized the reiterations. The primary addition in the lawsuit is the "Causes of Action".

A closed session discussion on the lawsuit was belatedly added to the ^Oct 19 Council agenda^ as 1A. The description uses the name of the second-listed plaintiff -- Gasque -- instead of the primary plaintiff -- the NAACP.

If, after reading this, you want to email a comment to City Council members, the address will be delivered to all of them. A suggested subject line is "10/19 Council meeting, item 1A (closed session): FHP Lawsuit".

A pseudo-lawsuit: I am not a lawyer, nor do I pretend to be one on the Internet. I have read a number of lawsuits and commentary on them, for example, to fact-check their portrayals in the media.(foot#3) I doubt that this lawsuit was ever intended to reach a judge: It has too many obvious failings in the presentation. It is littered with hyperbolic statements. It presents outright falsehoods, deceptions, and disingenuous statements. Many of its claims are missing citations. It hasn't been review for consistency -- there are apparent self-contradictions. I didn't see anything in the "Introduction" (^pg 2^) or the "Further Factual Allegations" (^pg 8^ ¶24) that was responsive to the extensive public discussion over the summer -- a failure to strengthen their case against likely counter-arguments.

A lawsuit doesn't have to have any chance of being legally successful to be successful. It may be designed to force a settlement through the threat of reputational damage, of being smeared in the media (smears are very profitable for the media, truth isn't). The famous "Where do I go to get my reputation back?" False allegations are easy to make, whereas defending against them can be expensive and time-consuming.

Parents of High School students: Consider whether the lawsuit could provide an exercise in close/critical reading.

Note: Terminology: "Foothills Park" was renamed "Foothills Nature Preserve" in a motion passed by the City Council on 2020-08-03 (^Action Minutes^). It becomes officially official only after a second reading, which I believe hasn't occurred. However, some pages on the City's website are already reflecting the name change.
Because the name change is new and the previous name is used in the lawsuit (of 2020-09-23), I will use the old name here. Otherwise, readers would have to search on both the old and new names.

Note: Notation for links into the lawsuit.
I am providing links into the lawsuit so that you can see the full context. In a legal document, paragraphs are numbered and are the basic level of reference. However, I currently have only a PDF of the lawsuit, and most browsers support only links to pages, not positions within the page.
My format for labels on links into the lawsuit is "pg X Y " where X is the page number where the paragraph begins, Y is the paragraph number. For page ranges, "pg" will also be used (not "pp"). In the few cases where the text is not part of a numbered paragraph -- such as headings -- I will use "pg X # Z " where Z is the line number in the left-hand margin of the page.
Aside: The default behavior for web browsers is to open a link in the same window/tab, which may be inconvenient/annoying in this situation. The mouse menu or the Settings/Options menu may offer a suitable alternative.

Notation: Double parentheses replace square brackets in original quotes -- square brackets are formatting characters here.

----"Defame its residents as racists"----

The lawsuit alleges that the restriction on access to Foothills Park originated in racism -- intent to exclude non-Whites (^pg 2^ ¶1) -- is racist (^pg 20^ ¶59: "shameful vestige"), and has been reaffirmed multiple times over the years (^pg 15^ #22), including this August. The invited inference is that Palo Altans are racist. This is not hyperbolic excess, but has been part of the media strategy of the plaintiffs, as witnessed by regional coverage and national coverage that is largely the expected republishing of local and regional coverage.(foot#4)

If the City settles the lawsuit, even if it gets a retraction of the accusation, that will only give the defamation more credibility -- people's reaction will likely be "If it wasn't true, why did they settle?"

----Underlying theory of the case: Racism in the distant past proves racism now----

The lawsuits allegation that the access restriction is racist depends on claims of actions in the distant past -- the 1920s through the 1950s -- including events outside of, and inapplicable to, Palo Alto. It also cherry-picks quotes from individuals without suitable context to assess whether that quote was a personal opinion or more representative, nor to assess their seriousness, knowledge, and credibility. Too many of the claims are made without citations. Some citations are to documents that may exist only in archives, if at all, and with those citations being copies of ones found in other documents.

Nothing more simply illustrates that the plaintiffs regard the access restriction as racial discrimination than the inclusion of the event of the night of July 5 where "Desegregation" was written in very large letters outside the Park entrance. (^pg 15^ ¶38 + Figure 7 photo).

^pg 4^ ¶7: Major deception: "Housing discrimination in Palo Alto was notorious."
The plaintiffs provide no evidence of this. The quotes from the two realtors do not indicate whether they were speaking from personal experience -- they could have been talking about their understanding of the residential real estate industry in general.

Continuing: "Indeed, according to one local historian: '((A)) realtor bluntly told the Palo Alto Times ((in 1956)): 'It's pretty well proven that when Negroes come in, property values drop. ...' ' " The quote actually began "In 1956, one Burlingame realtor" (emphasis added). The manipulation of this quote should warn you to not trust anything else the plaintiffs allege in this lawsuit -- or at least be highly skeptical and dismiss anything that cannot be independently verified.
The quote's immediate source is "^Housing Discrimination: A Closed Door in Palo Alto^", paragraph 8, which quotes from a daily newspaper without giving the date or title of the article. So we are presented with a report of a report of a report.
The "local historian" who wrote the article is uncredited, but the title suggests bias in the approach.

^pg 3^ ¶6: "The history of housing discrimination in and around Palo Alto included, ..." (emphasis added).
This claim could be true even if there were no housing discrimination in Palo Alto. The inclusion of "and around" indicates that the plaintiffs are aware of the weakness of their claims and the need to bolster them.

"... (1) a resolution passed by the Palo Alto Chamber of Commerce calling for the creation of a 'segregated district for the Oriental and colored people of the city' ;"
This resolution was also cited in paragraph 3 of the ^history source used in ¶7 (cited above)^, but that source inconveniently included "Eventually the plan died".

Similarly, on ^pg 8^ ¶24, the lawsuit states "In 1959--at a time when the discriminatory practices described above were occurring--..."
Were occurring where? The unnatural absence of "in Palo Alto" suggests that the plaintiffs did not want to be in the positions of defending such a claim.
"In law, it is good policy never to plead what you need not, lest you oblige yourself to prove what you cannot." - Abraham Lincoln (1848, in a letter)

"... (2) the placement of racially restrictive covenants in deeds for the sale of homes in subdivisions throughout the City, which prevented African-Americans or other persons of color from owning such homes;" (emphasis added).
Again, from the ^history source used in ¶7 (cited above)^, "the majority of subdivisions established in the city between 1925 and 1950 included" the covenant. The difference between "majority" and "throughout" is not trivial: This is a legal document, not a polemic.
"Throughout" is defined as "all the way from one end to the other of: in or to every part of" (^Merriam-Webster^).

Note the ending date for the "majority". In 1954, ^Joseph Eichler^ started building 1700 houses in Palo Alto, and he famously refused to discriminate. See the ^history source used in ¶7 (cited above)^. See also an article cited in my blogs: "^They Like Eich: How midcentury house designer Joseph Eichler made a comeback^" by Leora Tanjuatco, Curbed, 2015-09-23.

What this claim ignores is also notable: the ^Unruh Civil Rights Act^ of 1959 -- the same year as the Park purchase -- outlawed housing discrimination, thereby invalidating such covenants (although there were disputes about this for years).

"... (3) FHA and VA restrictions on insuring mortgages for homeowners in non-white neighborhoods (so-called 'redlining' );"
The plaintiffs offer no evidence of redlining having occurred in Palo Alto, and given its definition, it is implausible that it did.

"... (4) 'block busting' ..."
It is unclear what block-busting in neighboring communities had to do with Palo Alto. If block-busting had occurred in Palo Alto, it would have -- by definition -- increased the Black population of Palo Alto.

^pg 4^ ¶8: Deception: "The effects of this pervasive discrimination are still felt to this day. Palo Alto has a far lower proportion of Black residents than neighboring communities such as East Palo Alto and Menlo Park. ... 2019 ... just 1.6%."
More appropriate comparisons are Santa Clara County and San Mateo County, where the proportion of Black residents are 2.4% and 2.8% in the 2010 Census, compared to Palo Alto's then 1.8%. Reminder that percentages can be misleading. For example, between the 1950 and 1960 Censuses, Palo Alto's Black residents increased in number by 56% (542 to 847) but decreased as a proportion from 2.1% to 1.6%. If one wanted to "Lie with Statistics", you could claim that Whites suffered a much larger decrease of 0.8% without noting that it was from 96.2% to 95.4%.
These statistics were part of the public discussion in June and July, for example, my 2020-07-27 blog "^Foothills Park: City does NOT want to hear from most of you^".

Since the discriminatory covents applied to both Blacks and Asian -- and to a lesser extent Jews -- why is the Asian population of Palo Alto well over 30%, rather than under 1% that this claim would have us believe?
^pg 12^ ¶30: "... heighten historic disparities."
Again, the experience of Asian-Americans contradicts this assertion.

Contrary to the lawsuit's narrative -- and absent -- is Palo Alto's annexation in 1954 of what is now the Ventura Neighborhood, a neighborhood of predominantly Black homeowners. Why would a city that was supposedly trying to keep Blacks from buying homes want to include properties that were already owned by Blacks?

----Causes of Action----

The lawsuit's seven causes of action, the first six (^pg 21-25^) allege violations of the US and California Constitutions with regard to freedom of travel, freedom of speech, and freedom of assembly. My understanding is that these are questions of interpretation of the law and application of precedents, and are to be decided by judges. Yet the plaintiffs "demand trial by jury of all issues so triable." My understanding is that lawsuits alleging violations of the US Constitution are normally filed in Federal court, not a state court, as this one is.

The seventh (^pg 25^ ¶88) alleges that staffing the entrance booth -- currently on weekends and holidays and available as needed for other tasks -- is wasteful spending. My understanding is that there is a very high bar to be met before a court may preempt the normal managerial/administrative functions of government bodies. The two plaintiffs who are residents of Palo Alto ask the court to overrule the decision of Palo Alto's elected representatives as to what are desirable and appropriate staffing levels in Foothills Park based on their own opinions.

The lawsuit does barely more than claim constitutional violations. The laws on freedom of speech and of assembly depend upon many factors, often including the appropriateness of the location for the activity and the availability of suitable alternatives. Some decisions involve very nuanced distinctions, some of which seem bizarre to a layperson.(foot#5) The problem for a layperson like me is spotting the decisions and sections of decisions that should be ignored.(foot#6)

--Right to Travel: Causes of Action 1 (Federal) and 2 (California)--

^pg 21-22^ ¶61-¶70: Their claim of "right to travel" includes no constraints on this right in order to support their desire to allow non-residents to take any route they wanted through the Park and to stop and stay at destinations with the Park. If this argument were to be taken seriously, it would grant everyone the right to go through your yard -- even your house -- as a shortcut, or just for novelty. And go to many other places.
My (non-lawyer) understanding of the right to travel is that it is much more coarse-grained: between states at the federal level and between cities... at the state level.

^pg 10^ ¶28: The plaintiffs complain "But non-residents may do so onlyif they enter and leave the Park on foot along that trail and never leave that trail during their time in the Park. ... are not legally allowed to step foot off of that trail." ("only" is in italics in the original). Would not their requested voiding of these travel restrictions against off-trail travel result in damage to habitat, both plants and soils, and disruptions that would cause wildlife to change their behavior, including becoming less visible or abandoning areas of the Park?

If you connect the sections, the lawsuit contradicts itself on environmental damage: It claims none will occur while asking to facilitate it. And it dismisses residents' concerns about environmental issues, says they are not legitimate and "serve no compelling governmental interest". (^pg 21^ ¶65 by indirect inclusion through ¶61 of ¶1-¶60.

--Freedom of Speech and Assembly: Causes of Action 3-6--

Freedom of Speech and Assembly emerged from the ancient Greek agora and the Roman forum, both of which were a combination of market, gathering place, and meeting place (voting, speeches ...). This came to include the town squares. Freedom of speech is meaningless if you cannot go to where the potential audience is, with exceptions for places where it is inappropriate. The decisions on access to parks seem to come from parks that are similar to town squares, and don't address the situation that nature preserves can also carry the designation "park" -- counter the claim in ^pg 22^ ¶73.

In gray-area situations about appropriateness, questions of whether there are suitable alternatives are considered.

To my mind, Foothills Park is a horrible place for a demonstration. It is remote from likely participants -- way up a steep, winding, narrow road where sharing the road with bicycles can greatly lengthen travel time, and thus could greatly suppress attendance. Similarly, it is very inconvenient for media coverage, especially the larger vans used by TV stations. A demonstration is unlikely to even be seen by more than a few people, and largely ignored by them. A much better choice would be a plaza, park, street ... in town.

^pg 22^ ¶72: "... expressing their views on the Ordinance and the City’s unlawful exclusion of non-residents at the Park -- a site which is uniquely important for the expression of such views."
Is choosing a backdrop and other staging regarded as fundamental to freedom of speech?

The lawsuit needs to establish that Foothills Park meets the above criteria, for example, appropriate use can be shown by existing similar usage, and so:

Falsehood (likely): ^pg 13^ ¶35 "In addition, protests or attempted protests concerning the Ordinance have frequently occurred at the Park."
The plaintiffs' evidence is instead that demonstrations are at best rare -- a total of 5 -- which occurred during the period of June 27 to August 12. (^pg 14-15^ ¶36-¶40). Some occurred outside the Park, including when it was closed for the night. All these demonstrations occurred after the June 18 Letter that is Exhibit A (^pg 29-31^) and after plaintiff Cordell threatened a lawsuit on June 22 or 23. (Source: "^Despite calls for action, Palo Alto is in no rush to expand Foothills Park access: City Council votes to defer discussion of contentious issue until after its summer break^", Palo Alto Online, 2020-06-23). The timing suggests that the tiny/small demonstrations were not organic, but rather to support this lawsuit.

Deception: The lawsuit attempts to address the appropriateness of Foothills Park for demonstrations with a quote about the Oak Grove: "a wonderful place for events of all sorts, from weddings to graduation parties to reunions." (^pg 2^ ¶2; ^pg 13^ ¶34) Although they provided no citation for this statement, I believe it is from the City's webpage on ^Oak Grove^. However, they omit constraints, for example, "Foothills Park is a nature preserve. If you are considering a non-typical nature preserve use please call the rangers in advance to inquire if it is allowed or appropriate."
If you are unfamiliar with the Oak Grove, this webpage has a good picture. I wouldn't stage a demonstration or rally there: Participants would wander off or become little groups. And the shade and shadows impede getting good photos and video to publicize what happened.

Deception: The lawsuit characterizes the Interpretative Center as "regularly booked for meeting." (^pg 2^ ¶2). The presence of displays decreases its desirability and usability except for a limited category of small meetings.

----Major deception: Pilot program & ordinance update, 2019-2020----

^pg 18^ ¶51: "The report and recommendation of the PRC noted that the pilot program would not require new capital expenditure and only that 'incremental ((operational)) costs may be incurred,' ..."
PRC = City of Palo Alto's Parks and Recreation Commission: Unpaid members appointed by the City Council. The Commission meets less than monthly.
Although the report did state the quoted passage, what the lawsuit fails to include is that at the August 3 City Council meeting and a July 28 public meeting, City Staff stated that capital improvements were likely needed. My blog of 2020-06-21 "^Foothills Park controversy back to Council yet-again on Tuesday: Why, oh, why?^" presented my concerns about the proposal: the apparent failure to explore costs, identify a funding source, or have a management plan (goals, analytics, ...).

^pg 18^ ¶52: "Even this limited attempt to open the Park was met by delay, avoidance, and opposition. By June 2020, more than six months after the PRC had passed its formal recommendation, the Council had still not addressed the issue."
When COVID-19 hit, that formal recommendation gotten near the front of the queue for Council consideration. That the plaintiffs argue that this pilot program was more important than responding to the pandemic says much about their (lack of) perspective. Similarly for the signatories of the letter in Exhibit A.

^pg 19^ ¶53: "The Palo Alto Mayor and City Manager scheduled the issue for discussion on June 23, 2020. But on June 22, the day before the scheduled meeting, the City Council voted 5-2 to further postpone discussion."
The postponement was because of recognition that the agenda was overloaded with items that the Council needed to deal with before the scheduled July recess. There were already two full Council meetings each week as well as committee meetings and related obligations. The pilot program was on the agenda for a Special Session of Council. The overloading of the agendas was apparent well in advance and I blogged about it a week earlier (2020-06-14) in "^Never let a crisis go to waste: Overloading the City Council agenda^".

^pg 19^ ¶54: Overstates the role of Mayor Fine in agendizing the pilot program: The agenda is set in a consultation between the Mayor, Vice Mayor, and City Manager. The scare quotes around the term substitute motion are very strange because substitute motions are common during Council proceedings, including when plaintiff Cordell was a Councilmember (they are part of Roberts Rules of Order).

This paragraph characterizes fiscal responsibility as sabotaging the pilot program, characterizing the Council queries about the expected costs of the program as sabotaging it. Characterized as unnecessary costs are parking lot improvement to accommodate increased usage and "monitoring equipment" that would be used to determine the success or failure of the program. This reinforces that the pilot program proposal hadn't been fleshed out enough to warrant Council consideration. Rather than using this to reject the proposal, Council allowed the advocates to try to find ways to financial viability.

The requirement to be "revenue neutral" must be seen in the context of a Council that had just spent months making large, contentious, and painful budget cuts. The advocates of the program were asking Council to cede to the City Manager the power to determine the amount of funding for the project and to reshuffle that budget, taking funds from other (hard-hit) programs for this new initiative.

Notice also the repeated attribution of malicious motives to the above decisions supported by nothing more than the plaintiffs' biased beliefs, for example, "The discussion made clear ..."

^pg 20^ ¶55: more of the same.

^pg 20^ ¶56 - ¶57: "The Council’s suggestion that it might place access to the Park on a ballot measure in 2022 provides further evidence of the Council majority’s intent to delay opening the Park and maintain the status quo."
False. In an ^online survey^, 83% of the 1095 responses favored a referendum of Palo Alto voters. Having a referendum was part of the original substitute motion. When informed that it was too late to get the referendum on the 2020 ballot, Council opted to have it on the 2022 ballot, but was then informed that the current Council (2019-2020) could not obligate the next Council (2021-2022), so the motion was changed to "direct Staff to bring this item to the Council in 2022 for a possible ballot measure" (^Action Minutes^).

A major reason that so many Palo Altans wanted a referendum was that the issue had become so contentious. A major reason for the contentiousness was that advocates for the change, including many of the plaintiffs, had declared the access restriction to be racist and imputed racism to those that disagreed with them. That anger was heightened by many of the advocates making claims that those being defamed viewed as false or irrelevant.

^pg 20^ ¶57: Disingenuous: Equates expenditures after the expected recovery from the current recession to expenditures now.

----Major Falsehood: Enforcement and penalties----

^pg 11^ #8: "The City Aggressively Enforces the Residents-Only Ordinance"
False: The plaintiffs should know that "aggressively" is false because the level of enforcement has been a significant part of the discussions of this issue.

^pg 11^ ¶29: "City staffs the entry gate ... particularly during weekends and holidays."
Deception: From presentation after presentation by Staff, and repeated in discussions by residents, the gate is rarely staffed outside weekends and holidays. "Particularly" is such a gross exaggeration that I regarded it as an intentional deception.

^pg 2^ ¶3: "crime, punishable by up to six months’ imprisonment and a fine of up to $1,000, for non-residents to enter or remain in the Park."
Disingenuous: Testimony at the August 3 Council meeting by Staff responsible for enforcement stated that the rangers didn't impose this penalty, but only penalties similar to traffic tickets. At this meeting, the maximum penalty was reduced from a misdemeanor to an infraction, which thereby eliminated the possibility of jail time and reduced the maximum fine to $250 (this had been publicly proposed in one of my blogs). The lawsuit gives its account of that Council meeting, so it is implausible that plaintiffs were unaware of this major aspect.

----Distortions and unsupported ascribing of intentions----

^pg 12^ ¶32: "In an attempt to deter non-residents from traveling to the Park, the City openly publicizes the exclusionary Ordinance and related restrictions, which apply to entry and use of all facilities, including group assembly and meeting facilities."
False: The City does not publicize the Ordinance, but rather the rules implementing the ordinance.
Ascribing intent: No evidence provided of an intent to "deter". A more reasonable interpretation is to not have people take the trip to the park -- a narrow, windy Page Mill Road -- unaware that they will not be admitted.
The "related restrictions" mentioned include "Dogs not admitted weekends and holidays".
How do these related rules function to "deter non-residents" as opposed to residents? Instead, they support the characterization that the rules are to inform potential visitors beforehand.
-- ^pg 12^ ¶33: "states that 'East Palo Alto addresses' are 'NOT ACCEPTED.' ":
Because of its name, many people think that East Palo Alto is part of Palo Alto when it is a separate city in a different county. This statement is present to help people unaware of the difference to not be inconvenienced by the confusion.


In multiple passages, the lawsuit implies that the preferences of a small group of some prominent people and officials should outweigh the choices of the citizenry.

The lawsuit seeks to have a judge replace the judgment of elected officials and professional staff with his own. The latter are accessible to the public through public outreach meetings, hearings, individual communications -- email comments, office hours, spontaneous encounters -- and they are accountable to the public, directly through elections and indirectly through the elected officials.
"The government closest to the people serves the people best." - Thomas Jefferson.

In an ^online survey^, 81% of 1112 responses were "Yes" to "Should the Foothills Park remain 'for residents only' ?". 90% of 1106 responses were "No" to "Do you believe that it is morally wrong to restrict Foothills Park to residents and their guests?"

^pg 20^ ¶59: "...organizations, community leaders, and faith groups ...".

^pg 20^ ¶58: "As the Mayor of Palo Alto correctly stated during the August 3, 2020 Council meeting, 'You don’t put civil rights to a vote.' "
Wrong, wrong, wrong. The US has repeatedly put civil rights to a vote, in our legislatures and in referendums. For example, the Civil Rights Act of 1964 passed the US Senate by a vote of 73-27 and the House by 289-126.
Deceptive: The mayor of Palo Alto is not a popularly elected official, but elected by the City Council to a one-year term as a first-among-equals, with very little power, including chairing Council meetings, ceremonial duties, and a point of contact. He is not authorized to speak for the City or the Council without their approval, although the current mayor, Adrian Fine, has arrogated his power to himself, with resulting controversies and retractions. Adrian Fine was speaking as an individual who happened to also be mayor.
That the plaintiffs choose to include such an elitist, anti-democratic proclamation is suggestive of their attitudes.

----Lesser Unsupported Claims, Deceptions, ...----

^pg 8^ ¶24: On the sale of Foothills Park: "At Mrs. Lee’s insistence, the land was to be preserved as a park for the benefit of all people ." (emphasis added)
In the months of discussion, I don't remember seeing the highlighted portion mentioned. The absence of any citation, much less an attached exhibit, makes this highly questionable.

^pg 15^ ¶42: Major newsworthy events without a single citation and a vague date: "the early 1970s". This is indicative of someone's 45+ year-old, vague recollections that were included without any confirming research.

^pg 16^ ¶44: Deceptive: Presents a 1964 offer by Santa Clara County as a contribution to the 1959 purchase and attributes motivations for the rejection without providing any supporting evidence.
Disingenuous: Claims that two of the surrounding towns that were approached to participate in the purchase -- Los Altos Hills and Portola Valley -- lacked sufficient governmental resources to do so. This ignores the other ways that those towns could have participated. For example, before the Barron Park neighborhood (mine) was annexed to Palo Alto, it created a property tax assessment district to purchase the land that is now Cornelis Bol Park (^map^).

^pg 15^ ¶41: "The City has stated that it believes Foothills Park is the only public park in California with a ban on non-residents."
Ignoring whether this is relevant to the law, what person said this? What was their position? Was it an authorized statement or personal? Was it based on actually researching the issue, or simply repeating what they had heard bandied about?


^pg 10^ ¶28: The plaintiff argues that there aren't access points with parking in the non-Palo Alto portions of the Bay-to-Ridge Trail that are close enough to Foothills Park, and thus Foothills Park should be made available.

^pg 17^ ¶47: After dismissing the possibility of overuse of the park, the plaintiffs suggest two remedies should that happen. The first is "enforcing the existing cap on the number of persons visiting the Park at any one time, regardless of resident status , ..." The second is to charge fees low enough to not discourage anyone from visiting -- just how is that going to reduce visitors to an appropriate level for the Park?

^pg 16^ ¶45: The observation that owners typically take better care of their possessions than do non-owners is found to be "deeply offensive and arguably racist and classist".


Just one example to inspire you to look for the many other examples:
^pg 1^ ¶1 : "But the park is a gated paradise..."
Reality: Most of the entrances -- hiking trails -- are not gated.
Snark/Humor: I am one of the volunteers that takes care of the ^Barron Park Donkeys^. During my feeding sessions (Sunday 5pm PDT/4pm PST), I welcome people to the donkeys' "gated residence", since, after all, we wouldn't have pastures in Palo Alto, would we?

1. ^Lawyer to a potential client: "You have a pretty good case, Mr. Pitkin. How much justice can you afford?"^. Classic New Yorker cartoon by Bernard Handelsman.

2. Examples of settling unreasonable lawsuits:
• Way back when Palo Alto awarded the Cable TV franchise to Cable Co-op, an individual sued the City on constitutional grounds. Although Palo Alto had followed federal regulations on the process and the plaintiff had no experience, no financing, no stated way to perform the work, Palo Alto wound up paying off the plaintiff. Just another day in a judicial system that facilitates and rewards frivolous and abusive lawsuits.
• During the collapse of Enron, the City Attorney allegedly made errors in how the contract was terminated. You might think that this would be moot, what with Enron being unable to deliver on the contract. However, the group representing Enron's creditors sued Palo Alto Utilities and other utilities for the value of the contract -- yes, they were demanding payment for electricity that Enron had not, and was unable to, deliver. Palo Alto paid the creditors well over $20M with the explanation that the NY judge was assessed to be favoring the creditors over the law, and that we could lose much more. The other California utilities refused to settle, and won.

3. Reading lawsuits on current events:
With Congress and state legislatures increasingly dodging important controversial issues, they have intentionally and effectively ceded much of the important law-making to the courts. Consequently, if you want to look into the details, you may need to look at the pleadings by the attorneys and the decisions by the judges.
By the way, if you are interested in discussions of how lawyers and judges approach issues, I recommend YouTube channel ^Viva Frei^. Although he is a Montreal attorney, he gives insightful coverage of US cases. While he does his own vlogs, he is also very good at managing discussions with other attorneys, especially Robert Barnes. These discussions tend to be high on content, both about the law and the politics surrounding the US Federal judicial system.
I strongly recommend against YouTuber "Legal Eagle": he is glib, lets political partisanship override legal assessments, and makes mistakes that even I can easily spot.

4. Examples of regional and national media coverage focusing on "exclusive" (racist):
"^An exclusive park in the heart of Silicon Valley faces a racial justice reckoning^", NBC News, 2020-08-23.
"^Palo Alto Lawmakers Vote To Keep Outsiders Out Of Foothills Park^", MSN, republished from ^CBS San Francisco (KPIX)^.
"^Lawsuit Demands City of Palo Alto Cease Its Discriminatory Policy of Blocking Non-Residents from Use of Public Park^", ACLU of North California, 2020-09-15. This press release was widely republished in other media, for example: in ^ of Yuba County California^.
"^Civil rights organizations file lawsuit over residents-only park policy in Palo Alto^", ABC 7 News (KGO-TV), 2020-09-15.
"^ACLU sues Palo Alto over residents-only park^", 2020-09-15.
and many more in local TV coverage and regional newspapers including SF Gate, Mercury News (Bay Area News Group), KTVU-TV (Oakland-SF)
The lawsuit has become a ^Wikipedia page^ that opens with "Palo Alto's Foothills Park is a 1,400-acre (570 ha) park and nature preserve in the Santa Cruz Mountains of California. Only residents or city employees of Palo Alto and their guests have access to it, a restriction that has sparked 'decades-long' controversy and a 2020 ACLU lawsuit." with footnotes citing articles with titles containing "unconstitutional", "discriminatory", "desegregate", and "racial justice".

5. Nuanced/bizarre distinctions in freedom of speech decisions:
For example, one decision seemed to state that someone walking through a beach area while wearing a T-shirt with a political message was deserving of protections and privileged above those of someone wearing a non-political T-shirt. The assumption was that the former wanted to positively influence beach-goers as to the message on the T-shirt.

6. What legal decisions to ignore:
Aside: Years ago, a colleague was attempting to use Artificial Intelligence to improve search results on a legal case database. She expected that spotting bad decisions would be difficult and a significant part of the task, but confessed (complained?) to greatly underestimated it. Bad decisions were not overturned -- or otherwise indicated in the database -- because other judges were simply ignoring them. They knew that judge to be incompetent, incapacitated -- chemically, psychologically, or medically -- or "ethically challenged".

An ^abbreviated index by topic and chronologically^ is available.

----Warning on Comments Disappearing during Submission----
If you are writing a long comment, do not write it inside the comment box below, but rather write it elsewhere and copy-and-paste it into here. Every now and then, a comment will disappear during the SUBMIT process.
Details: This has happened to me and to others, but it has not been reliably reproducible. It happens between the submission of the CAPTCHA and the redisplay of the page that should have your comment added. I have suspicions that it involves the browser's security and ad-blocking settings and ads whose coding includes suspicious actions.

----Boilerplate on Commenting----
The ^Guidelines^ for comments on this blog are different from those on Town Square Forums. I am attempting to foster more civility and substantive comments by deleting violations of the guidelines.

I am particularly strict about misrepresenting what others have said (me or other commenters). If I judge your comment as likely to provoke a response of "That is not what was said", do not be surprised to have it deleted. My primary goal is to avoid unnecessary and undesirable back-and-forth, but such misrepresentations also indicate that the author is unwilling/unable to participate in a meaningful, respectful conversation on the topic.
A slur is not an argument. Neither are other forms of vilification of other participants.

If you behave like a ^Troll^, do not waste your time protesting when you get treated like one.
What is it worth to you?


Posted by CeCi Kettendorf, a resident of Adobe-Meadow,
on Oct 12, 2020 at 7:42 pm

CeCi Kettendorf is a registered user.

I just returned from Marshfield, Massachusetts, a beach town north of Cape Cod on open ocean. I often walk along the beach to the town beach, which fronts a "Residents Only" parking lot. Anyone can walk to the beach, but you must be a resident of the town to park there. There are many other public beaches the public can access for a fee up and down the coast. Several baby sea turtles have turned up there, so there is hope the once thriving sea turtle population on the Cape, thought extinct, may make a comeback. So the beach may possibly now enjoy more protection from foot a preserve.
I tell this tale because everyone rolled their eyes in disbelief when I explained the similarities between the Foothill Preserve policy in Palo Alto and the Residents Only policy of the town beach of Marshfield, and then told of the Foothill lawsuit. "Only in California!!!!" accompanied by laughter, was the universal opinion of the Yankees with whom I spoke, friends all.
Thank you, Mr. Moran, for your brilliant examination.

Posted by Not a lawyer bro, a resident of Duveneck/St. Francis,
on Oct 13, 2020 at 10:06 am

Not a lawyer bro is a registered user.

Lmao maybe if you are not a lawyer and you have no legal degree, you shouldn't be criticizing the quality of a lawsuit from the ACLU. Just saying.

[[Blogger: Please don't flag this comment as "Objectionable" -- I respond to it below. ]]

Posted by toransu, a resident of Barron Park,
on Oct 13, 2020 at 12:29 pm

toransu is a registered user.

[[ Merely an insult, which is not an argument.]]

Posted by council watcher, a resident of College Terrace,
on Oct 13, 2020 at 12:43 pm

council watcher is a registered user.

Thank you Doug for the comments. If the ACLU also filed a lawsuit against San Francisco for their exclusionary policy of only allowing residents to use San Francisco's private Camp Mather they would have more credibility.

Posted by Douglas Moran, a Palo Alto Online blogger,
on Oct 13, 2020 at 3:09 pm

Douglas Moran is a registered user.

@ "Not a lawyer bro"

First, your comment is an Appeal to Authority fallacy. You assume that since the ACLU lent their name to this lawsuit, it must have been written by a highly skilled lawyer. Many ACLU lawsuits are handled as pro-bono work by big law firms, in this case, Munger, Tolles & Olson LLP, with associates (entry-level lawyers) doing most of the work.
You have provided zero evidence or argument that my critique is wrong, in part or in whole.

Second, where is the evidence in the actual writing of this lawsuit that it was written by a competent lawyer? Or even a lawyer. It's much closer to what one would expect from a public relations person.

Posted by Norman Beamer, a resident of Crescent Park,
on Oct 13, 2020 at 9:38 pm

Norman Beamer is a registered user.

I believe the only metro areas in the bay area that were redlined were San Francisco, Oakland and San Jose. This is based on the original redlining document created by the Home Owners' Loan Corporation between 1935 and 1940 during the Roosevelt administration, as researched by the University of Richmond.
See Web Link

Posted by Concerned, a resident of Crescent Park,
on Oct 14, 2020 at 10:56 am

Concerned is a registered user.

Thank you for your thoughtful analysis.

Only standing up to frivolous lawsuits will protect Palo Alto from a stream of additional suits on whatever someone wants the city to succumb to.

Hopefully the council will resist.

Posted by Resident 1-Adobe Meadows, a resident of Adobe-Meadow,
on Oct 14, 2020 at 11:54 am

Resident 1-Adobe Meadows is a registered user.

The ACLU has a bunch of young, just-out-of-school lawyers that need experience in the judicial process. A legal organization by definition does not have the final word on anything - as noted by the type of questions on-going for the Supreme Court. Yes - Camp Mather is the exact example of a city exercising exclusionary rights over property owned by them.

You can point to our state AG Becerra who is proud of his over 100 legal cases against the US government and other states to "legislate" our "values". He is the exact example of what is being argued today - using the court system to legislate city, county, state, and federal government issues. The ACLU is a partner in the court packing argument - they get trotted out for these type of nebulous activities. And given the political climate they think they can get away with this. Time for the checks and balances - there is no case - there is no racism. And any attempt to allude to same is a type of coercion.

Posted by rita vrhel, a resident of Crescent Park,
on Oct 15, 2020 at 2:56 pm

rita vrhel is a registered user.

Thank you Doug, for another thoughtful blog.

The City of Palo Alto does seem to have a history of just "folding" when a lawsuit is filed. Sounds like they may be getting ready to do that again.

Soon they will have taught everyone the easiest way to forward your agenda is to file a "lawsuit'. Right after the City Council voted not to open the Preserve, consider a revenue neutral pilot program for opening the Preserve to non-residents and put the issue before the voters.A well thought out plan.

God forbid! The voters should have a say!

As a long time ACLU supporter, I am very disappointed they did not take the time to do the basic research you have done.

I would encourage all residents to email the City Council/City Manager telling them how you feel on settling this "lawsuit" in private without public comment. Also, how do you feel about opening Foothill Preserve to non-residents? Now is your opportunity. Next week may be too late. Thank you.

Follow this blogger.
Sign up to be notified of new posts by this blogger.



Post a comment

Sorry, but further commenting on this topic has been closed.

Stay informed.

Get the day's top headlines from Palo Alto Online sent to your inbox in the Express newsletter.

Burning just one "old style" light bulb can cost $150 or more per year
By Sherry Listgarten | 12 comments | 3,073 views

Banning the public from PA City Hall
By Diana Diamond | 27 comments | 2,224 views

Pacifica’s first brewery closes its doors
By The Peninsula Foodist | 0 comments | 1,961 views

Holiday Fun in San Francisco- Take the Walking Tour for An Evening of Sparkle!
By Laura Stec | 8 comments | 1,639 views

Premiere! “I Do I Don’t: How to build a better marriage” – Here, a page/weekday
By Chandrama Anderson | 2 comments | 1,477 views


Palo Alto Weekly Holiday Fund

For the last 30 years, the Palo Alto Weekly Holiday Fund has given away almost $10 million to local nonprofits serving children and families. 100% of the funds go directly to local programs. It’s a great way to ensure your charitable donations are working at home.