Court denies Abatti motion

IMPERIAL — A recent Fourth District Court of Appeal decision in the farmer Michael Abatti’s ongoing legal dispute with Imperial Irrigation District over water rights apparently has no bearing over whether he can pursue the matter in the U.S. Supreme Court.

On Wednesday, the appellate court denied Abatti’s motion to recall the remittitur, that is, a request for a stay on further proceedings in the case in lower court.

Previously it was argued the stay would have to be granted for the case to go to the nation’s highest court, but the IID in a court filing admitted that was incorrect.

IID Board of Directors President Norma Sierra Galindo said she thinks Abatti might hold off on any plans to file an appeal with the nation’s highest court with the makeup of the IID board changing.

With both Javier Gonzalez and John Brooks Hamby winning seats on the IID board, Galindo said she thinks this gives Abatti the sympathetic majority he wants, so there might be no reason for him to file the appeal.

IID attorney Jennifer Meeker on Tuesday filed a response to Abatti’s request for the stay.

First, and most importantly, she wrote in her 16-page brief that Abatti erred in saying the remittitur must be recalled to protect the right to file a Petition for Certiorari with the U.S. Supreme Court.

In her brief, Meeker said the Abattis should have cited some authority showing that their concern had any legal basis, and they did not.

“To the contrary, the authority identified by IID supports the conclusion that the issuance of the remittitur has no impact on Abatti’s ability to petition for review in the United States Supreme Court,” Meeker wrote.

A remittitur is a transmittal of a case back to the trial court so that the case can be retried, or an order entered consistent with the appeals court decision such as dismissing the plaintiff case or awarding costs to the winning party on appeal. It is also a mechanism to send the case back to the trial court.

Abatti, in a previous court filing, pointed out the appellate court ruled against IID in regard to the Equitable Distribution Plan, and therefore the district should be responsible for his legal fees.

However, IID Attorney Frank Oswalt said since the stay was denied, the district will now ask the trial court for its own attorney fees, even though the Fourth Court of Appeals ruled both parties would have to pay their court costs and fees.

Oswalt said the trial court will have to deal with the changing of the EDP, as well.

Meeker, in her response to Abatti’s request for a stay, wrote grounds to recall a remittitur are narrow and well-settled.

She wrote that while a remittitur may be recalled where a decision was predicated upon a mistake of fact by the appellate court or was the result of inadvertence on the part of the court that Abatti cited, she believes no authority that a remittitur may be recalled due to the mistake of fact or inadvertence of counsel.