SANTA CRUZ – Nick Bulaich had a brief appearance in court Friday morning, only to be told he was no longer welcome.
After originally being asked to join the pending lawsuit that pits the city of Watsonville against the California State Department of Health Services over the state’s attempt to force the city to fluoridate its water supply, Bulaich was blocked by Irwin Joseph of the Santa Cruz County Superior Court from joining the suit as an intervener.
“I have lost my right to speak,” Bulaich stated outside of the courtroom after the decision. “As of now, no residents from Watsonville are allowed to speak on this issue.”
Joseph decided that Bulaich and his attorney Gary Wesley would expand the case into something that it is not and that they would raise issues that were not pertinent to the original case.
Wesley, an attorney from Mountain View, said Joseph believes the case is simple and straightforward, but that it is not.
He also stated that he was considering filing a separate case in Sacramento dealing with the issues that his client was attempting to raise in the Watsonville case. The issues include everything from the Measure S passage to the agreement originally made between the city, the California Dental Association and the California Dental Association Foundation, which stipulated that if the initiative was passed by voters, the agreement would be void.
Measure S passed in the November 2002 elections.
“We are considering making a move in another court to see if we can get a precedent set and a decision made before this particular case is decided,” Wesley said.
What this all means is that now the case is the city of Watsonville versus the state with the CDA and CDAF each acting as interveners.
Watsonville City Attorney Allan Smith said the case now has no factual disputes, but rather differing interpretations of the law.
“There is not going to be a long list of evidence or anything like that,” Smith explained. “It is going to a legal argument over the agreement originally made between the city and the CDAF and other interpretations of state law.”
Because Bulaich would have argued a personal issue with regards to the case, Smith said, the loss of him as an intervener for the plaintiff would not affect how the city proceeded in the case.
Both the CDA and the CDAF were allowed to join the suit as interveners to no objection from the city.
However, after the conclusion of the morning’s proceedings, Bulaich and his lawyer were told that the individual presiding over the hearing was not a judge, but a commissioner.
Bulaich said neither he nor his lawyer was aware of this and that it is improper to have a commissioner hand down a ruling if not all parties had been previously notified and agreed to allow the commissioner to make a ruling.
“We went back to the courthouse and the clerk confirmed that Joseph is not a judge, but is instead a commissioner,” Bulaich said. “We did not know that and that is not legal.”
Wesley said he was surprised a piece of paper was not circulated informing everyone that Joseph was a commissioner before the hearing or that Joseph himself did not declare at the beginning of the hearing that he was not a judge.
Wesley said the first thing he is going to do is to write a letter to Joseph asking him to explain the situation and how it can be fixed.
Depending on what the response is, Wesley will decide whether to proceed in fighting it or go ahead with his original plan to take the case elsewhere.
“It may just be that we are dealing with the wrong court,” Wesley said. “What we may do is just go ahead with our frontal assault on (the Department of) Health Services in Sacramento.”
Attempts to get a comment on the matter from the County Superior Court failed.
In April 2002, the Watsonville City Council agreed to accept a grant from the CDA that would fund the construction of a fluoridation system and pay for part of the first years operation.
Under Section 116410 of the California Public Health Code, all chartered cities that have more than 10,000 hookups must fluoridate its water if outside funding is made available.
However, Citizens for Safe Drinking Water, a statewide organization with a local chapter, began a grassroots drive to defeat the action as a Section of the original agreement between the city and the CDA included a clause that allowed the contract to be void if a voter passed initiative rejected the action.
In November 2002, Measure S went to a vote and passed.
Despite the voter initiative, the State Department of Health Services ordered the City of Watsonville to proceed with the installation of the fluoride equipment due to outside funding being offered by the CDAF.
Though Watsonville is not very high on a printed priority list written by the DHS, it has decided to use Watsonville as a test case to see how future challenges may play out in court.
Commissioner Joseph scheduled another pretrial meeting to be held Jan. 23, 2004, to set a trial date.
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