UPDATE ON BERKELEY ZONING CASE

Jim Ewbank

After the temporary restraining order was denied, the Plaintiffs began serving summons on the Chapters and House Corporations.  As of February 15, 2010, less than ½ have been properly served.

Jim Ewbank of Ewbank & Byrom, P.C. in Austin, Texas and Mike Osborne of Archer Norris, PLC in Walnut Creek, California, have been retained by approximately 30 of the 37 fraternities to vigorously defend the case under a Joint Defense Agreement.  Mr. Osborne will be lead counsel and Mr. Ewbank will coordinate and provide consultation on the case.  Mr. Osborne has handled several fraternity-related personal injury cases in California, and Mr. Ewbank has been active nationally in fraternity representation and risk management for over 20 years.

The Plaintiffs’ Complaint contains the following causes of action: private nuisance, public nuisance under the City of Berkeley Municipal Code, public nuisance under the California Water Code (because the defendants have allegedly “permitted, caused or threatened to cause the contamination of public waters of this state through discharge of unauthorized and illegal waste in the public waters”), public nuisance under the California Integrated Waste Management Act, unfair competition, general nuisance, violations of business and professions code, violations of the penal code, intentional tort, and for injunctive relief.

It is anticipated that the defendants will oppose certification of the class action, aggressively conduct discovery and file a series of motions designed to narrow the causes of action and reduce the number of groups currently named in the case.  Privately, the Plaintiffs’ attorneys have said their goal is to force each fraternity to employ a live-in adult supervisor, like many of the sororities, but the Complaint seeks to regulate or even shut down the houses.  In fact, the Plaintiffs’ attorneys have publicly stated their intent to use the same “public nuisance” laws used to shut down or control gangs to impose their demands on all these fraternities.

It is important that this case be defended and defeated to protect the fraternities’ First Amendment rights of assembly and association, and be narrowed down to what is essentially a neighborhood dispute between a few neighbors.  If this method of control/regulation is allowed in Berkeley, the same approach can be used in every neighborhood that has a high concentration of fraternity houses.

Editor’s Note

The unprecedented case involving all of the men’s fraternity chapters at the University of California Berkeley is proceeding.  Jim Ewbank is co-counsel to many of the defendants in the case.  What follows is a brief status update he provided on the case.  This is a case that will garner much attention nation-wide as it proceeds.