A federal judge hearing a lawsuit between the developer of Leisure World and the Marine Corps received "dramatic and unnecessary hospitalities" from the Marines and should consider removing himself from the case, an appellate court said Wednesday.
Besides flying in a Marine fighter plane over a piece of property that is the focus of the suit, U.S. District Judge Laughlin E. Waters was involved in a full day of events at El Toro Marine Corps Air Station, including a complete physical examination, parachute and safety training and preflight and post-flight briefings, according to the U.S. Circuit Court of Appeals.
Additionally, Waters "was given a code name, presented with a squadron patch and pin and welcomed to the ranks of the U.S. Marine Corps," Justice Anthony Kennedy wrote in his opinion.
"This gratuitous display was necessarily distressing" to lawyers for Ross Cortese, the founder of the Laguna Hills retirement community, and other plaintiffs in the suit, Kennedy said.
And although "in all of the circumstances of the case, the appearance of impartiality was not open to question," Kennedy said, Waters "might prefer, in the exercise of his sound discretion, to reassign the case to another judge."
Waters could not be reached for comment Wednesday.
The dispute involves a 170-acre parcel lying directly under the landing approach path to El Toro. Waters had ruled in favor of the Marines, upholding their right to restrict development in that path and ruling that they could remove a savings and loan firm's warehouse built within the restricted area.
The appellate court reversed Waters' ruling that the military had obtained a permanent interest in the disputed property through a 1974 settlement on the grounds that the agreement constituted a covenant rather than a permanent easement.
The justices also ordered Waters to reconsider whether the establishment of a neighboring business park was sufficient to enforce restrictions on the property's use.
A court awarded Rossmoor $4.2 million in 1974 after ruling that the military had forced the company into a land-use arrangement that greatly reduced the value of its property by preventing residential development on a 700-acre clear zone. Rossmoor, however, was still allowed to build two golf courses, a water treatment plant, a trailer park and three clubhouses on the property.
After announcing in 1980 that it planned to build the business park on the remaining 170 acres near El Toro Road and Moulton Parkway, the company sued the government to secure use of the parcel.
Rossmoor claimed in its suit that conditions regarding the safety zone had changed because the military had allowed another business park to be built under the landing path on land next to its own.
It was during that litigation that Waters, at the suggestion of government attorneys, decided to view the disputed property and safety zone from the air.
Radio Link Broke Down
Rossmoor attorneys wanted to accompany the judge on the flight, according to appellate court Justice Kennedy, but Waters instead chose to fly in an A-6 jet fighter which had room for only the pilot and himself.
During the flight, promised radio communication between the judge and the attorneys on the ground failed, making "it difficult for Rossmoor's counsel to rebut the government's presentation and difficult for any meaningful review of the court's ultimate decision," Kennedy said.
Of the training and briefings Waters underwent at El Toro, a base spokesman, Lt. Timothy H. Hoyle, said they were standard safety procedures required for anyone to fly in high-performance military aircraft.
"We can't take anyone up in two-seat aircraft without" them, Hoyle said. "They're just part of the legalities of taking him up."
Assistant U.S. Atty. James R. Arnold, who represented the government in the suit, agreed with Hoyle, saying the training "was not a matter of hospitality."
Arnold also said that the Marine Corps had asked the government attorneys if it would be appropriate to give squadron mementos to Waters.
"We asked the Rossmoor attorneys and they had no objection," Arnold said.