Let them play golf

An appeals judge throws out the cast against the city's plans for changing Tenison Park

citizens group trying to keep Tenison Park in Old East Dallas from becoming a semi-private high-end golf club suffered a defeat recently when an appeals court tossed out their suit.

Justice Michael J. O'Neill of the 5th District Texas Court of Appeals said in an opinion July 8 that individuals, such as the people suing to stop a $5 million development deal at Tenison, can sue only to protect themselves from harm. They can't sue, O'Neill ruled, to protect the general public.

Last Thanksgiving Day weekend, city bulldozers were poised to rip out hundreds of trees from Tenison Park West golf course -- part of a plan to double the greens fees and devote the course more to a trade of conventioneers and well-off visitors rather than local and blue-collar players.

Arguing that the deed donating the land for the park clearly intended it for ordinary people, a coalition of citizens won a last-minute injunction from District Judge John Marshall halting the work. The injunction held until O'Neill tossed it out.

Opponents of the city's plans for Tenison say the problem with O'Neill's ruling is bigger than just Tenison golf course. Allowed to stand, O'Neill's take on the right of citizens to sue the city could spell doom for many efforts to resist an unresponsive Dallas City Hall.

"The average citizen is totally ignored at City Hall," says Maelissa Watson, co-counsel in the suit. "City Hall is responsive only to the supporters of the Dallas Plan and the development interests."

Watson and James Murphy, lead counsel for the group opposing the city's plans, vow they will continue to push their legal battle as far as it can go.

"I was shocked by O'Neill's ruling," Murphy said. "What that basically says is that the city is the king, and the king is above any type of question."

Assistant City Attorney Ron Stutes, who handled the matter for the city, did not return phone calls from the Dallas Observer.

O'Neill's ruling said specifically that the group suing the city "lack[s] standing," which means it doesn't have the kind of personal stake in the situation required by law before a person can sue.

The group had gone after the city on several grounds, but the main idea was that Tenison Park was given to the city with the understanding that it would serve "the general public," not just rich people. As members of that general public, the plaintiffs said they had a right to sue to stop the city from essentially taking their park away from them.

But in his ruling, Justice O'Neill said that's not what the law provides. A citizen can sue the city, O'Neill said, only if the city's action hurts him in some way that is "peculiar to himself individually."

Presumably the city has been equitable if, as a result of its actions, the whole public gets screwed equally. In that case, our system provides a range of remedies, from electing a new city council to going down to the harbor and dumping all of the tea on the ships overboard (not mentioned as a possibility in O'Neill's opinion).

But lawsuits, no.

The Tenison plans have drawn skepticism from city council member Veletta Lill, who lives nearby and whose district includes the park, but the plan enjoys strong support from other council members.

An additional ground for suing the city was invoked in a "friend-of-the-court" brief filed by Dallas builder and legal gadfly Richard Finlan. Finlan, who is not an attorney but is well known in the local courts and legal profession for his "pro se" filings against the Dallas school district, told the appeals court he thought the city's plan for Tenison Park would violate the city charter, which requires the city to honor the terms under which it accepts gifts of property.

By promising to use the land for a park, then turning it into what Finlan says is essentially a private enterprise, the city is violating its own charter.

O'Neill's ruling took note of Finlan's position and seemed to suggest, however faintly, that he might have an argument, but O'Neill said friend-of-the-court briefs, designed normally to endorse what the main lawsuit says, can't be used to present new arguments. The court told Finlan, "no cigar."

James Murphy says the hole in O'Neill's logic is that it creates a world where no one can stop the city once it has set upon a course of doing wrong to the general public.

"If the city is doing something illegal," he asks, "who has the right to stop it?"

Murphy vows that O'Neill's ruling does not mean bulldozers will roll on Tenison Park anytime soon. "I think we may request a rehearing of the entire court," he says, "and that will have the effect of holding it up."

Then, if necessary, he says his clients intend to carry out appeals to the state Supreme Court and to the U.S. Supreme Court.

Watson, who lives near Tenison, is equally determined to fight this one all the way. "This ruling is based on an idea of sovereign immunity that is equivalent to the 16th-century concept of the divine right of kings," she says.

"Today, as we approach the 21st century, it seems very obsolete that a city government can take on itself the sovereign immunity of kings."

 
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