San Diego Will Appeal America’s Cup Decision

Claiming the public interest is at stake, the San Diego City Council voted Tuesday to appeal a New York judge’s decision validating New Zealand’s challenge to sail for the America’s Cup next year.

In doing so, the City Council threw the first counterpunch in what could be a legal barrage by several parties seeking to overturn the ruling.

Today, the San Diego Yacht Club and the Sail America Foundation--the organization responsible for managing the next Cup defense--are scheduled to announce how they will respond to the court decision, and an appeal is among options under consideration.

In New York, a spokesman for Atty. Gen. Robert Abrams said Tuesday that an appeal by Abrams is very likely.

Meanwhile, a report in an Australian newspaper quoted skipper Dennis Conner as saying that any race held next year would be a head-to-head match between San Diego and New Zealand, with no other competitors. Yacht club and Sail America officials have suggested strongly that that’s what they plan to do, but they want to withhold a formal announcement until today.

Mayor Maureen O’Connor, in explaining the city’s decision, which occurred during an hourlong closed session, said, “The City Council has unanimously authorized the city attorney to work with the New York law firm we have contracted with to intervene on the city’s behalf and to appeal.”

City Atty. John Witt added: “The City Council has decided there is a great public interest in the outcome of this point of litigation.”

Last Wednesday, New York Supreme Court Justice Carmen Beauchamp Ciparick approved Auckland banker Michael Fay’s unprecedented demand that he be allowed to race for the Cup next year in a huge sailboat with a 90-foot waterline.

The ruling--made in New York because that court has jurisdiction over legal issues concerning Cup competition--upset the yacht club and Sail America’s plans to hold a multinational regatta in San Diego in 1991 using 12-meter boats, the only type of vessels used in Cup racing for the past 30 years. A 12-meter is roughly half as large as the boat Fay proposes to use.

No Headway Made

The yacht club, Sail America and the New York attorney general’s office--involved at the urging of O’Connor--had sought in court to scuttle Fay’s challenge outright, and additionally asked that the 2 1/2-page Deed of Gift, the 100-year-old document governing Cup racing upon which Fay based his suit, be amended to outlaw such challenges. The judge said no to both requests.

San Diego was not a direct participant in the suit, but it filed a third-party brief supporting the yacht club’s position.

Tuesday’s decision means the City Council will now attempt to intervene directly. Assistant City Atty. Curtis Fitzpatrick, the city’s legal official in charge of Cup litigation, said the city will attempt to intervene on the basis that San Diego has an overriding public interest in ensuring a Cup regatta is held in the city in 1991.

“The city’s intention here is to do whatever it can to be sure that the 1991 regatta takes place here,” Fitzpatrick said.

O’Connor said she will ask New York Mayor Ed Koch to “encourage” Abrams, the New York attorney general, to also appeal. After last week’s ruling, Abrams said he would support an effort to overturn the ruling.

David Fishlow, Abrams’ spokesman, said in a phone interview Tuesday it is likely the attorney general’s office will also appeal, but a final decision on the matter hasn’t been made. An appeal would be filed with the Appellate Division of the Supreme Court of New York, the equivalent of California’s Court of Appeal, Fishlow said.

Timetable Could Be Jolted

Fishlow confirmed that under a provision of New York law, an appeal made by the attorney general automatically stays an order made by the lower court. In this case, such an appeal would hold in abeyance Ciparick’s ruling until the appeal was settled. More important, such a delay could also place on hold the 10-month timetable for Cup racing triggered by Fay’s challenge.

Both Assistant City Atty. Fitzpatrick and attorney James Quinn, the New York lawyer whose firm--Weil, Gotshal & Manges--will be paid as much as $50,000 to handle San Diego’s appeal, said Tuesday the city has yet to decide whether it will also seek a stay of the ruling as part of their appeal. They said, however, that appeals by both the city and the attorney general would be consolidated, as would any appeal made by the yacht club and Sail America.

“Obviously, the city will take all the steps it can to protect the interests of the city and the people,” Quinn said. Officials estimated an appeal could take anywhere from six to 18 months.

Response to the City Council’s decision was greeted with enthusiasm by yacht club and Sail America officials, who were well aware of the impending action.

“We’re really glad they would support us,” said a Sail America spokeswoman.

A spokesman for Fay said the merchant banker would withhold comment until the yacht club and Sail America make their announcement today. But in an interview Tuesday morning on the Roger Hedgecock radio talk show--before the City Council voted to appeal--Fay said from New Zealand that the city had no business getting involved.

‘No Place for Politicians’

“The City of San Diego isn’t part of the America’s Cup,” Fay said. “ . . . I think the court has really said it’s up to yacht clubs under the rules and perhaps (it’s) not the place for politicians, cities and people with political or financial interests.”

Conner, the skipper who captured the America’s Cup in Australia 10 months ago aboard Stars & Stripes, is in Australia.

According to an article in last weekend’s Sydney newspaper, the Times on Sunday, Conner said he didn’t think Australia or any other country would be invited to participate in the Fay challenge.

“It will be a race, United States against New Zealand, and the rest of the world will be shut out,” Conner was quoted as saying.

Alan Bond, the Australian yachtsman who has been involved in several Cup competitions, has said the San Diego Yacht Club should open up the competition forced by Fay’s challenge to other countries and syndicates such as his.