N.Y. Judge Denies San Diego the Right to Appeal Cup Decision

Times Staff Writer

San Diego officials have suffered yet another legal setback in their effort to ensure that the city is the host for a billion-dollar America's Cup extravaganza in 1991.

A New York Supreme Court judge has ruled that the City of San Diego has no standing to appeal a November court judgment that opened the way for a New Zealand club to challenge for the America's Cup later this year. San Diego authorities would dearly like to overturn the earlier decision because it threatens the much-anticipated 1991 regatta, which is already scheduled for San Diego and could generate more than $1 billion in business, according to city estimates.

The latest ruling, handed down by Supreme Court Justice Carmen Beauchamp Ciparick on Dec. 30 but made public Monday, essentially takes the legal fight out of the city's hands and places responsibility for a future appeal squarely with the New York attorney general's office and/or the San Diego Yacht Club. A notice of appeal of the earlier decision would have to be filed in New York by Jan. 20, lawyers said.

San Diego still has the option of appealing the most recent ruling in the hope of having it overturned and winning an opportunity to fight the earlier decision directly in court. City lawyers said they were studying that possibility.

'Very Disappointed'

"We're very disappointed," said Paul Downey, press secretary for Mayor Maureen O'Connor. "We felt confident that the judge would make a fair and equitable decision, and we don't think she did. For whatever reason, she doesn't feel San Diego has standing, despite the fact that we could lose a billion dollars to the local economy."

However, a spokesman for group heading the New Zealand challenge said the ruling was proper. Michael Fay, the Auckland banker who heads the challenge, has maintained that San Diego has no place getting involved in the dispute--a view apparently shared by Ciparick.

"Rather than being real and substantial," Ciparick wrote in her five-page decision, "the only interest of the City of San Diego or any other city in this controversy is peripheral."

Apart from lacking standing, Judge Ciparick noted that San Diego officials were slow to seek to become involved in the case directly. City officials, apparently confident that their interests were being adequately represented by the other parties in the dispute, only filed a motion to "intervene" directly in the matter after the judgment was handed down in November.

Ciparick was also the author of the bombshell Nov. 25 decision that validated the New Zealand club's bid to force a controversial defense of the coveted Cup in 1988.

The site and exact time of the 1988 match has yet to be determined. At the insistence of the New Zealand group, the challenge will involve boats that are about twice the size of the 12-meter variety used in Cup competition for the past 30 years. If the San Diego Yacht Club fails to defend the Cup successfully this year, the future of the next regatta would rest with the New Zealand club, a turn of events that would likely doom San Diego's cherished plans for 1991.

An Appeal Slated

Although no papers have yet been filed, the office of New York Atty. Gen. Robert Abrams has indicated that it will appeal the critical November ruling. (New York law makes the attorney general a kind of trustee for the public's interest in the century-old Deed of Gift that governs Cup competition, granting Abrams the standing to appeal.)

If San Diego cannot join in a prospective appeal by Abrams' office, lawyers say the city will certainly file court papers in support of the appeal. Abrams' office could not be reached for comment Wednesday.

The San Diego Yacht Club, current holders of the Cup, is still considering whether to appeal the November court ruling, said Douglas Alford, the club's commodore and himself a lawyer. Alford said it was "unfortunate" that the city was denied the opportunity to intervene in the case. However, the club is also preparing to defend the Cup later this year.

Adding to the city's anger with Ciparick is the fact that the judge denied Mayor O'Connor the opportunity to argue the city's case in court last month--after the mayor had made a cross-country trip expressly for that purpose. Ciparick ruled that the city had failed to request time for oral arguments. Downey, the mayoral spokesman, called the decision "rude."

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