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Judge favors city in judgment hearing, leaves hope for opponents

By Matthew Smith, Good Morning El Paso Weekend Anchor / Reporter
Published On: Feb 20 2013 09:07:29 PM CST
Updated On: Jan 14 2014 10:19:29 PM CST

An Austin judge says the City of El Paso can begin selling bonds to fund the construction of a downtown ballpark. Plus, a detail that might prevent an appeal from happening. ABC-7 is the only El Paso TV station in Austin for the hearing.

Austin, TEXAS -

The wheels of government inched forward once again following a ruling made by Austin Judge Tim Sulak's from inside his 353rd District courtroom.

Sulak was tapped to oversee a declaratory judgment hearing sought by the city to ensure it's timeline to tear down City Hall, and build a downtown ballpark.

Among the rulings sought by the city, authorization that they could sell bonds to fund the venue project approved during a November election. They also wanted Sulak to confirm that petitions to repeal a previous city council wouldn't require a vote during the upcoming May election.

The city won the first issue, but the judge declined to rule on the petitions saying he didn't want to overstep his judicial powers and extend himself into the executive branch.

"(Making a decision on the petitions) seems to be painting with a broader brush than my judicial philosophy," said Sulak.

That gave the opponents of the "Save City Hall" initiative a glimmer of hope.  However, whether they will have their way remains to be determined as the rulings continue to stack up against them.

"It's up to council," said Carl Starr. "They wanted direction from the court and he refused to give it so whatever influence the people can exercise on council will prevail."

Election?

What remains unknown at this time is whether items will ever go before voters in May. It's long been assumed that a May ballot would include language from Salvador Gomez's petition to repeal a June 26 decision by City Council. However, during the hearing on Wednesday an attorney representing the city of El Paso seemed to question that.

"We've only seen the first reading of the ballot," said Scott Incerto, arguing that Gomez's petition may not be legal per the city charter.

If the petition is placed on the ballot, there is also a lingering question of whether the city would be willing to knock down City Hall with a pending election.

Ron McGinnis, a key witness of the men behind a lawsuit to stop the destruction of City Hall, said it would be "stupid" of the city to do so, citing a pending case in state court that seeks damages for former Mayor Ray Salazar if City Hall is knocked down.

Timeline

The next question is, 'What happens next?' According to deputy city attorney Laura Gordon, they can continue forward with their plans.

When asked if a March 31 demolition date was still feasible she declined to comment on a construction timeline, citing city staff as more in sync with those processes. Gordon did tell ABC-7 moments after the Austin decision that she was confident things would move forward.

"We can issue the bonds, the project can continue," said Gordon. "There is no injunction so that is giving us a clear direction on what was important and substanitive."

But the decision by the judge can be appealed with 30 days. Carl Starr, one of the several people who traveled to Austin to fight the city, said they're still considering such a move. It wouldn't be a cheap decision. Judge Sulak issued a $1,000,000 surety bond. That means if the opponents of City Hall decide to appeal the decision they would need to come up with $100,000 to push the issue to a higher court.

"Of course that causes pause, but we have time," said Starr, referencing that people tied to the fight have homes they could offer as collateral, and that numerous people are involved. He wasn't ready to say whether they were willing to go that route, yet.

Confusion

There is still a lot of information to be clarified.

The judge went through a 10-page document proposed by the city late Wednesday and marked items he wasn't comfortable with.

"Some of this language gives me concern," said Sulak as he went through each item, most of which were tied to language ruling that the city didn't need to allow a May election.

Sulak spent more than 15 minutes clarifying his ruling, and is giving the city of El Paso a chance to go back and rewrite the points he brought up issues over. The opponents of the city will also have a say in how the item is worded, but the ruling has already been made.

Further confusing the situation is the fact that a second group of petitioners are collecting another round of signatures in an attempt to bring their item onto a future ballot.

"This is a huge confusing mess, in many ways I believe it was done so intentionally," said McGinnis.

At times Jesus B. Ochoa, who was representing Salazar, said he believed the city could have put forth one of the petitions he signed. Ochoa had made similar claims during a November federal court trial that failed. No proof has been offered, however, Ochoa points to the fact that the print was small and hard to read. He said he signed the document himself because it read "Save City Hall" in large print, but admitted in court that it's wording may not accomplish that feat.

David v. Goliath

A trend continued in Austin. The city continues to lawyer up.

Gordon referred to the city "rallying the troops" whenever another lawsuit is filed. Inside the courtroom it seemed the opponents of the city were out-manned.

The city employed three high-powered lawyers, not including a fourth lawyer representing Mountain Star Sports who was in the courtroom as an "intervenor" in the case. They also have the deputy city attorney and the city's bond council, among others, who were in the courtroom at all times.

Meanwhile, Starr and Gomez represent themselves. Gomez admitted that as a lay person it was a challenge during his closing statement, "We tried to make good faith efforts to express what we wanted."

Ochoa represented Salazar.  However, he hadn't practiced law since 1987 when he suffered a heart attack. Paul Moreno, a former politician and lawyer, was also in the courtroom at times but had to leave and has previously cited health conditions for his reason for not being a larger part of the opposition.

The combination left the opposition representing themselves, and at times it seemed to effect them. In actuality, the city only lost out on one of the judgments they sought and it wasn't due to evidence put forth by Starr, Gomez and Ochoa but the judge's preference not to rule on the petitions.

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