Stadium Foe Refuses to Play Ball With City

Like a baseball manager arguing nose to nose with an umpire, much of this city is furious at Bruce Henderson.

If City Hall, the Chamber of Commerce and the local newspaper could spit tobacco juice, the shoes of the former city councilman turned serial litigator would be covered in glop.

At issue is Henderson’s relentless opposition to the voter-approved plan to build a ballpark for the San Diego Padres as the centerpiece of the largest downtown redevelopment project in city history. Although he has not won a single round in court, his critics blame Henderson for the fact the project is stalled and its future in doubt.

Although litigation is an established part of American life, the San Diego ballpark controversy appears to be in a league of its own, and Henderson, a Republican lawyer of independent means and Libertarian tendencies, may be the Babe Ruth of opponents to public subsidies for professional sports venues.

Voters approved the ballpark by 59% in 1998. But 14 lawsuits--eight involving Henderson--have driven up costs to taxpayers by tens of millions, according to officials, and left the project at least two years behind schedule.

“We have never seen an experience as protracted as San Diego,” said Susan Goodenow, vice president of Eisner-Sanderson, a Washington, D.C.-based public affairs firm hired by major league baseball to work on stadium issues.

What galls ballpark backers is their suspicion that Henderson knows his legal challenges are destined to fail in court and that his real strategy is to kill the project through interminable delays and controversy.

“What Henderson has said to the body politic is: ‘You’re not really running the city, I am,’ ” said Padres President Bob Vizas.

Henderson, 58, defeated for reelection in 1992, is unruffled by criticism. He insists that his only goal is to keep taxpayers from getting gouged.

“One of the problems these folks have in dealing with me is that they don’t understand me,” Henderson said in his tastefully decorated home in Pacific Beach. “To them, if you don’t make money off the issue, you can’t possibly be interested. But my whole motivation is a feeling there is something terribly wrong in city government.”

The city and the Padres have prevailed at the trial court level in all 14 lawsuits. But unlike baseball, litigation is a sport in which it is possible to lose every game and still be declared the winner, officials complain.

“Bruce is a trailblazer,” said City Atty. Casey Gwinn. It is not meant as a compliment.

Gwinn and other Henderson detractors say he has discovered a doubleheader of truth that could haunt other cities and other civic projects as well:

* That public agencies are highly vulnerable when up against a determined opponent who, after losing in the political arena, shifts the fight to the courts with multiple lawsuits.

* That the bond market is enormously reluctant to sell bonds for projects that are under repeated legal attack.

Project Has Become a Political Hot Potato

The litigation onslaught--which began even before the 1998 ballot measure--has made the ballpark into a political hot potato. In a city where council members are elected by district, members tend to concentrate on matters of concern to their neighborhoods and avoid citywide issues enveloped by controversy.

George Mitrovich, president of the City Club of San Diego, a leading public forum, said the city has historically had a “timid political class” that shrinks from controversy. Big-ticket projects that require hard choices--fixing the sewer system, cleaning up Mission Bay, finding sites for a new airport and central library--linger for years.

“What Henderson has done is take his unique knowledge of the strengths and weaknesses of San Diego to derive a strategy to keep the project from ever happening,” said former U.S. Atty. Charles LaBella, now representing the Padres.

With two of Henderson’s lawsuits still on appeal--and Henderson hinting he may file yet more--the council will discuss Nov. 20 whether to issue $170-million worth of bonds to help pay the city’s share of the project.

The full price tag is $449 million. The Padres will pay 30%, and three public agencies--the city, the redevelopment corporation and the Unified Port District--will pay 70%. The city retains majority ownership.

City officials say the two remaining appeals, and the possibility of yet more litigation, will force the city to pay a higher interest rate and higher insurance premiums to cover the bonds. Gwinn estimates the increased cost, which he dubs the Henderson Tax, at up to $20 million.

Meant to be a 42,500-seat ballpark not unlike Baltimore’s Camden Yards or Cleveland’s Jacobs Field, the site is a fenced-off expanse of naked concrete and rusting iron. Work stopped 13 months ago, when the city declined to advance additional money until bonds were sold.

Gwinn has vowed to lobby the California Legislature to change state law to prohibit what he sees as the use of meritless lawsuits to drive up costs and undercut public support.

Henderson’s relationship with his clients is a matter of some dispute. The lawsuits were filed on behalf of several people who share some of his political views and have had at least a marginal role in local politics.

His clients--derided as “Henderson’s band of merry men”--only occasionally show up for court appearances, and Henderson says he has authority to devise legal strategies.

One client has filed twice for bankruptcy, another had his bar license suspended in a bad-check case, and a third sued for “dissolution” of the Department of Motor Vehicles after being stopped for a traffic violation.

Although he denies it, Henderson’s critics say he uses his clients as fronts for his own views and to skirt a “vexatious litigant” law that can be used to ban someone from filing lawsuits if a judge declares that he or she has filed repeated meritless claims. The law generally covers clients, not lawyers.

Robert Fellmeth, law professor at the University of San Diego, said the ballpark delay is “the poster child” for the need to reform state law.

“Henderson ought to be able to have his day in court, but to give one person a virtual veto over a political decision made by 1.5 million people is just plain wrong,” Fellmeth said.

Clark Kelso, a government and public policy specialist at the McGeorge School of Law in Sacramento, said that, in theory, public agencies have the same rights as private companies to go to court to have an opponent declared a “vexatious litigant.” In reality, courts are reluctant to limit the right of citizens to sue government, he said.

But Kelso noted that individuals and companies--unlike public agencies--can sue and collect for damages if they prove that frivolous lawsuits have cost them money. The Padres assert that the Henderson lawsuits have cost them $40 million to $50 million because of inflation, the cost of shutting down construction, and lost income as the park’s opening day has been pushed from 2002 to 2004 at the earliest.

Henderson is accustomed to derision. Before he took on the ballpark controversy, he sued the city over the plan to expand what was then San Diego Jack Murphy Stadium, the Padres’ current home. Among other barbs, the San Diego Union-Tribune editorialized that Henderson should consider moving.

Although the litigation failed, the City Council backed down rather than be forced to put an $18-million portion of the plan to a public vote. The telecommunications giant Qualcomm swooped in with $18 million in replacement cash in exchange for naming rights--which left Henderson to assert that he had saved taxpayers a bundle.

During his council years he intervened in federal court to keep the Environmental Protection Agency from forcing the city to install a multibillion-dollar sewage treatment system. His council colleagues were prepared to acquiesce to the EPA, but Henderson, backed by scientists from Scripps Institution of Oceanography, convinced a federal judge that the plant was not needed.

Despite that victory, Henderson lost his reelection campaign in 1992. He has since lost two races for the state Assembly, one for city attorney and one in a council comeback attempt.

“[Padres owner] John Moores should have gotten me elected to Assembly,” Henderson said with a laugh. “I’d be up in Sacramento giving Gov. [Gray] Davis problems and not getting anywhere.”

Among Henderson’s anti-ballpark arguments have been that the ballot measure did not explain the project adequately; that the environmental review was insufficient; that the project should be subject to a referendum; and that midyear budgeting increases are impermissible.

“It could be that I just do a poor job of arguing,” said Henderson, a graduate of Harvard and the UC Berkeley law school. “Or it could be that the courts are naturally reluctant to get involved and tend to support government and say, ‘If government has any cogent argument, we’ll accept it.’ ”

When Henderson’s successor on the council, Valerie Stallings, was snared in scandal over unreported gifts she received from Padres owner Moores, Henderson filed a lawsuit to determine if Stallings had leaked inside information to the computer software magnate. Stallings resigned in January after pleading guilty to two misdemeanor counts.

Support Solid for Stadium, Mayor Says

Mayor Dick Murphy said he feels that Henderson’s tactics may backfire. “Bruce Henderson’s lawsuits have probably galvanized support for the ballpark on the council,” said Murphy.

Councilman George Stevens, the council’s senior member, calls Henderson “the undertaker,” a reference to a dictum by San Diego pioneer and sugar baron John Spreckels that for every good idea in San Diego there is a naysayer looking to bury it.

One city official suggests that Henderson, who practiced law in Japan, is enamored of mythical Japanese warriors who wage lonely battles against impossible odds. But there is a contrary view that it was San Diego, not Japan, that molded Henderson.

Steve Erie, history professor at UC San Diego, said the city’s “hierarchical, authoritarian culture” is a civilian equivalent of the command-and-control structure of the military and tends to quickly stifle most dissenters.

“We only have a handful of gadflies in San Diego,” Erie said, “and those who survive have had to be hardy, creative and absolutely immune to critique and personal attack--like Henderson.”