August 7, 2009

Walnut Creek becoming epicenter of youth-led gay rights movement with downtown protest this Monday

They call themselves members of the New Civil Rights Movement. They are a group of young people, including high school and college students, from across the Bay Area, dedicated to promoting gay rights. About 200, some arriving by BART, gathered in Walnut Creek on June 15 at the corners of Civic Avenue and North Main Street.

The students are coming back to lead another sign and rainbow-flag bedecked rally, and this time they’re inviting all people who support gay rights to join them.

The Monday rally will start at noon and last until 3 p.m. Again, it will be at the corner of Civic and North Main Street. Says my source, a recent graduate of a local high school: “This time, we're not just looking for students. We want everyone there. So if you, your friends, or your family would like to show up and help us rally, bring yourself and your sign.”

UPDATE: Like readers, I was curious about where some of these young people come from and why Walnut Creek. Here are the answers from one of the organizers:

Typically [students come from] high schools like Las Lomas, Monte Vista, San Ramon Valley, Miramonte, Northgate, Orinda Prep, Carondelet, De La Salle, Bentley, and Oakland Tech to name a few off the top of my head. College students come as well, and so far we get people from DVC, San Francisco State, San Jose State, and we had a group from UC Santa Cruz come up as well.

Why Walnut Creek? Well, for most younger people, Walnut Creek is almost a central meeting place for high schoolers and college people in this area. It also gets a great deal of traffic throughout the day, the businesses that we protest near don't mind our presence, and it's easily accessed. We didn't want to go to San Francisco to protest because we knew that for the most part, there would be a lot of support. We wanted to go somewhere close to home ... but that would also stir up thought in people that aren't really at the heart of the matter, like San Francisco is. Not to say we want to create some sort of controversy, but to just evoke thought in local people and remind them that just because Prop. 8 passed, the fight is not close to over.

August 6, 2009

Mom tries to break through Orinda’s Code of Silence to find answers to the mystery of her son’s death

A grieving parent trying to make sense of the sudden, unexpected death of her child.

Unfortunately, this scenario plays out more often than we’d like to think. Or, maybe it’s that I’ve had more contact than most with a mother or father suffering the worst pain imaginable: the loss of their child.

I used to cover crime in Richmond, and, as you know, there was and continues to be too much killing going on in that town—mostly of young males, in their teens and early 20s. They usually died in what you could call street shootings—homicides that detectives loosely categorized gang- or drug-related. These victims also usually came from poor families, and are African-American, Latino or Southeast Asian.


These victims usually left behind a mother, and sometimes a father was in the picture, too. And the grief that tormented these parents was compounded by the fact that it was typicaly hard to get information about why this terrible thing had happened to their child and to their family.

You see, in the impoverished neighborhoods of Richmond, and in urban areas around the country, a Code of Silence persists around most crimes, notably homicide. A notable example: A young man, who was 17 or 18, was gunned down in the middle of a weekday afternoon in a public Richmond park. Dozens of people of all ages were around, and the boy was probably with friends. Someone in this crowd presumably saw the shooters, as well as if they arrived and left in a car. The victim’s friends might have even known the shooters’ names, or at least knew whether he had done something to tick anyone off.

The boy’s mother knew her son wasn’t a perfect angel. At the same time, she knew him in the way mothers often know their sons—as a loving boy full of promise. She wanted to know who and why someone took him from her. But when police started canvassing the neighborhood and interviewing the boy’s friends, they were met with shrugs and stony silence. To some extent, the reluctance to cooperate that these Richmond detectives encountered stems from deep-seated mistrust between police and the poor, minority residents of such neighborhoods. In any event, when I left that job a couple years later, that boy’s murder was still unsolved, as were so many others in the land of the Code of Silence.

Now, I turn my attention to the more recent death of a boy. But he didn’t die in some inner-city gang or drug shooting. He died at a party in a home in affluent—and largely white—Orinda.
Still, as with crimes in certain tough, violent neighborhoods of Richmond, a Code of Silence also surrounds this tragedy.


"There are kids and adults in our community who most definitely know what happened," says Marianne Payne, the mother of Joseph Loudon, the 16-year-old Orinda boy who died. "They are remaining silent at great cost to Joe. He deserves the truth."


On the night of May 23, Joseph collapsed at a party hosted by an 18-year-old neighbor and rugby teammate. After someone finally noticed Joseph passed out and called 911, he was rushed to a nearby hospital where he was pronounced dead.


Joseph was to start his junior year at Miramonte High School, one of the top-ranked schools in the Bay Area. He was also an athlete. “Joe was a wonderful child and how he lived his life mattered greatly to him. He was an individual with great character and integrity,” Payne writes in an e-mail to me.


Payne adds that this past week her son would have been on a Boy Scout backpacking trip in New Mexico: “It is what he described as the ‘pinacle of all scout experiences’—a 14-day trek through the wilderness. He had been looking forward to it for years. We shopped at the REI sale on Mother's Day--and his new backpack and boots sit in my room, tags still attached as it is just too painful to think of returning them."


For a couple months, it was widely assumed that Joseph, like a fair number of teens in our community, had engaged in binge drinking and died of alcohol poisoning. Then, the coroner’s report came back with news that refuted that assumption, while raising other puzzling questions about his cause of death.


It turns out that, yes, Joseph had consumed a small amount of alcohol. But actually, what triggered the series of physical reactions that killed him—he officially died of asphyxiation after choking on his own vomit—was that his body contained high levels of a drug for which Joseph had no prescription or medical use. It’s also a medication that police had not come across before, specifically as a prescription drug that teens and adults might misuse for recreational purposes.


The drug is Papaverine, a vasodilator. That is, it helps people with circulatory problems. The newspapers have also made much of the fact that it is used by men who have difficulty with erectile function.


Payne has publicly vented her frustration with how Orinda police have handled the investigation. She sent a letter to Contra Costa District Attorney Bob Kochly, listing what she considered to be basic investigative steps that police failed to take, some of which the blogger the East Bay Daze mentions here.


She says she is disappointed by Kochly’s response: “While I understand Mrs. Payne's frustration, some of the questions she has may never be fully answered. This is simply the reality in many criminal investigations, regardless of how intensively the case is investigated."


To some extent, Kochly is right in saying that questions remain unanswered in many criminal investigations. That's certainly the case for crimes that occur in communities where the Code of Silence is a way of life.

But is the Code of Silence a way of life in Orinda, too?

I thought those of us who live in the East Bay suburbs--well we're comfortably assimilated in mainstream culture and are raised to believe in our criminal justice system and to have faith in police and other authorities. And we’re good, decent people right? We care about our kids, and those of our neighbors. We want to protect these kids and step forward and help when bad things happen to them. We don't live by a Code of Silence, and we don't tolerate disrespect for the law.

Right?

I’m sure the parents of Joseph’s friends, the parents whose kids attend Miramonte or were at the party where Joseph died, like to think of themselves as good, decent people. They like to think that they are raising good, decent kids.

Payne has hired a private investigator to find anyone in the area who had a prescription for Papaverine. One theory is that someone raided their parents’ or grandparents’ medicine cabinet for drugs to have fun with. Maybe someone brought some Papaverine pills to the party, not quite knowing what they are used for, and somehow this drug got into Joe’s body. He either took it knowingly, a possibility that Payne disputes, or someone slipped it to him without his knowledge.

Doc Gurly, the medical blogger for SFGate.com, wrote the following about possible circumstances surrounding Joseph’s death: “Working in a clinic that sees many people who use recreational substances, and also living in a suburban community like Joseph's—one thing is clear to me. People often take pills even when they're not sure exactly what the pill is. The person who's most likely to fall for a ‘bait and switch’ type of pill (someone sells it, promising Oxycontin, when the pill is actually a diuretic...) is the inexperienced user. Furthermore, people, in general, are quite trusting when it comes to taking random pills from people they know. Finally, suburban homes are goldmines of medicine cabinet wealth. Grandpa might be taking both Demerol and papaverine—and someone raided Grandpa's cabinet, not realizing he kept both those pills in the same bottle.

It seems clear that someone in the community knows something about how this drug got into Joseph’s body.

Payne just wants to find out why: “Why do I need answers? Every parent in Lamorinda should be seeking answers. This could very well have been anyone's son and without answers it may very well happen again. The truth must be known.”

Yes, she’s right. What happened to Joseph could happen to any of our kids, including my son in a few years—sooner than I’d like to acknowledge.

Payne’s quest for information probably stems from other needs as well. A terrible thing happened to her child. A terrible thing has happened to her and her family. Something I learned from those parents in Richmond: When terrible things happen to people, they often need information about why and how. Those answers can be crucial for some parents to piece together some narrative of the terrible thing that has happened. This narrative helps them make sense out of the chaos that surrounds the traumatic event. It can also help survivors endure their grief, lessen some of their suffering, and lead to what’s called “closure.”


I’m not sure how much closure there ever will be for Marianne Payne and to what extent she’ll ever be able to get over her grief. Sadly, I don’t know how a parent ever gets over the sudden, unexpected death of a child. Still, it’s likely that having more information—more than what she has now—will help Payne. If only a little.


So, if you know something, contact Payne’s private investigator, Mike Mahoney, at (925) 648-3605. You can also visit the website that Loudon's friends and family have set up on behalf on this inquiry.

One Neiman Marcus complaint: It’s a chain store! But wait, Broadway Plaza has always had chain stores…


A common refrain I read in some of the complaints about Neiman Marcus: It is not “local.”

Since Neiman Marcus is part of a chain with headquarters based far away (Dallas, Texas), readers ask why the city is working so hard to bring this high-end, chain department store to Walnut Creek—when it could be doing more to support local businesses?

Yes, a reasonable question: Certainly, it would be nice to know that the city is supporting the business needs of local, home-grown merchants. Perhaps city and business leaders could fill us in on what they are doing to support “local.”

As I said, one strong objection to Neiman Marcus is that it is not local. This objection suggests that the more than half-century of retail success in Walnut Creek’s downtown is due to local businesses.

Is that really true? The above photo of Broadway Plaza in the 1950s, with national chain JC Penney's serving as the shopping mall's anchor suggests that things have been rather complicated, even from the beginning.


I’m sure that Walnut Creek’s downtown thrived on a mix of “chain” retailers, like JC Penney's, and local merchants—with those local merchants selling unique and targeted products to their hometown Walnut Creek consumers.

Still, I have to confess, as a native of Walnut Creek, I mostly remember shopping at the downtown chain stores, and depending on those retailers for basic needs: clothing, housewares, toiletries, groceries.

Speaking of clothing, there was always Capwells, an Oakland-based department store that operated in the space now occupied by Macy’s.

Capwell’s later became the Emporium, based in San Francisco. There was also the above-mentioned JC Penney (in the former David M. Brian location), again for basic clothing needs. For everything else—pet supplies, sewing supplies, little gifts—there was Woolworth’s, the original five-and-dime. I also recall shopping at our local Gemco on North Main Street. This discount department store, owned by San Leandro-based Luckys, was later sold and taken over by Target.

Speaking of JC Penney’s, its desire to have a store in Walnut Creek was the genesis of Broadway shopping center in 1949. This information about Penney’s wanting to establish an “outpost” in the post-World War II East Bay suburban frontier comes from Brad Rovanpera, who, up until Thursday, was the public information officer for the City of Walnut Creek. He’s retiring from the city after 24 years.

He has also served as Walnut Creek’s official historian. As Rovanpera tells me, JC Penney’s desire to push into the fertile but still undeveloped lands east of the Oakland Hills “prompted a search for a suitable site, and [Broadway Plaza] was born.”

He notes that other chains also made their way into Walnut Creek: Sear’s, Smith’s, and I. Magnin.

I don’t remember Sear’s being in Walnut Creek, but I do remember shopping with my mother at I. Magnin, which was considered something of a special treat, as San Francisco-based I. Magnin was considered rather posh. I also have a vague memory of when another chain, Bullock’s, based in Los Angeles, arrived in town. This was around the time of the 1976 presidential race, when Gerald Ford was running against Jimmy Carter for president. I remember when Gerald Ford came to Walnut Creek to give a brief speech. The afternoon of Ford’s speech, we got out of school early to head down to the area in front of the new Bullock’s (now the site of Nordstrom) to hear Mr. Ford speak.

Flash forward from Walnut Creek's past and to our current growth and retail controversy:

So, the word “chain” has a negative connotation for some people. In the debate about Neiman Marcus, “chain” equates to “outside influences”—deep-pocketed outside influences that are trying to bend the will and needs of a local population to their self-interest and greed.

Of course, Neiman Marcus wants to promote its own self-interest. That’s capitalism, isn't it?
Probably everyone engaging in this Neiman Marcus debate has some kind of self-interest at stake, proponents and opponents alike, including rival mall developer, Taubman Centers.

(Oh, and don't get me started on my basically cynical view of human nature and self-interest.)

But just because Neiman Marcus is an “outside” chain, and Macerich is an “outside” Southern California-based owner of Broadway Plaza, and they want to promote their financial self-interest by opening a Neiman Marcus in Walnut Creek--is that bad for Walnut Creek?

Isn’t that, more or less, how things have always been done in Broadway Plaza’s 60-year history? The outside chain coming in to provide that retail anchor?
Anyway, thanks Brad Rovanpera, for this fun photo of Broadway Plaza in the 1950s. And good luck in your future post retirement.

Oops! Glossy DeSaulnier brochure, which got past US State Department's Tauscher endorsement ban, arrives in my mailbox today!


This arrived in my mailbox today. It's a glossy, eight-page brochure from state Senator Mark DeSaulnier with a full-page color photo of him with Ellen Tauscher, whose former 10th congressional seat he is running to fill. As you can see, it reads "Mark DeSaulnier is my choice for Congress."

Way back, Tauscher, who gave up her seat to fill a top U.S. State Department post, endorsed DeSaulnier as the candidate to replace her as our local representative in Washington, D.C.

But things got very complicated last week, when it was announced on Friday that the State Department had asked DeSaulnier to stop using Tauscher's name in all his ads and campaign materials. This announcement was made public last Friday.

Nearly a week later, this brochure turns up in my mailbox. No postmark on it, so who knows when it was mailed? Before the endorsement ban? After?

DeSaulnier's use of Tauscher's endorsement doesn't break any laws, but a legal advisor to the U.S. State Department explained why he should withdraw her name from his campaign materials: “Under Secretary Tauscher is committed to the highest standards of ethical conduct. To avoid even the appearance of impropriety, on behalf of Undersecretary Tauscher, I have asked Senator DeSaulnier to remove all references in his campaign material of any endorsement she may have made."

August 5, 2009

City council decides to end the agony: Let voters decide on Neiman Marcus

I’ve barely stepped foot in the Neiman Marcus in San Francisco, except to ooh and ahh over the big, multi-story-all tree at Christmas time. Also, I know a fair share of Walnut Creek residents who say this luxury department store is out of their price range.

Nonetheless, I say, let Neiman Marcus come to Broadway Plaza. Or, as the City Council voted Tuesday night, let the voters decide. Specifically, let the voters say “yes” or “no” to allowing a two-story, 92,000-square-foot department store, such as Neiman Marcus, to come to Walnut Creek. The City Council approved this project May 19.

Actually, I don’t live within the city limits and can’t vote on this Neiman Marcus initiative. So, in this narrow technical way, this issue doesn’t matter to me.

On the other hand, I live near downtown, and the issue does matter to me, because I’m annoyed and worn out by this whole stupid controversy. It is just stupid that it has been drawn out in such an ugly, costly way--a battle between rival mall developers that has swept up residents into what amounts to a battle over the soul of our town.

We’re talking a department store, folks.

I don’t agree with all that Councilwoman Sue Rainey said at Tuesday night’s council meeting, but she was astute in pointing out that this project will only add about 40,000-square feet of additional space to downtown—about half the size of Nordstrom. Are those 40,000-square-feet worth all this political and legal fuss, and street-level harassment of residents, allegedly by anti-Neiman Marcus petition gatherers?

No, it’s not.

Again as Rainey pointed out, city staff have spent countless hours verifying signatures on three different petitions submitted, and on preparing reports, and researching legal issues. “At some point, this has to come to an end,” she said. “The city cannot keep up doing this and do other work at the same time. … It is very upsetting.”

Unfortunately, Rainey undercut herself somewhat by suggesting that the city had been listening all along to residents’ concerns about this project. With all due respect, Madam Councilwoman, the city has not. The prior council, who initially approved a larger scale version of this project back in the fall, did not. By the way, this prior proposal had an absolutely boneheaded proposal to turn all of the five-story South Main Street garage into valet parking during peak shopping times.

Sure, there were the "dark evil forces," as some see it, of Taubman, the Michigan-based rival mall developer. Tauban, which owns Sunvalley shopping mall and has interests in the San Ramon city center project, which Neiman Marcus was seriously considering as an East Bay location, stepped in to pour big bucks into funding the anti-Neiman Marcus drive.

The Contra Costa Times reports today that Taubman spent $234,000 on two referenda aimed at blocking this project. To be fair, though, Macerich, the owner of Broadway Plaza, spent $217,000 to support the initiative that the council voted to put on the Nov. 3 ballot. And about 70 individuals and organizations, including Mayor Gary Skrel, donated and raised more than $75,000 to support the initiative.

Besides these two rival mall developers contibuting to this controversy, the prior council helped create an environment of frustration among residents--that their concerns were not being heard. Taubman easily exploited those frustration.

I have to give it to Kish Rajan, who came into office after the city’s initial approval, for acknowledging at Tuesday night's meeting that legal challenges to that initial proposal—which, yes, were funded by Tauban—resulted in a “better proposal.”

“That’s because the people dissented,” he said. “I’m proud that the process resulted in a better project.”

After those legal challenges, Macerich in January withdrew their initial proposal, went back to the drawing board, and returned with a somewhat smaller project and an idea to make room in Broadway Plaza garages and other city parking structures for any influx of Neiman shoppers.

Macerich and the city also got out and held a series of community workshops.

If only these two groups had displayed more community relations savvy way back when and realized that attempting to seek public buy-in is prerequisite for this kind of major development project ...

Yes, I digress.

Back to Tuesday night's meeting: About 30 residents spoke, and most want Neiman Marcus to come to Broadway Plaza and most spoke in favor of the city putting ithe initiative on its May 19 decision up for a vote. These speakers also vented their frustration about the confusion and chaos and ugliness that has sprouted up over this project. The competing referenda and initiatives. How many? It’s hard to keep count.

And what’s the difference between a referendum and an initiative in the first place? One speaker referred to herself as community-minded and college-educated and said she was confused. Even Councilwoman Cindy Silva asked the city attorney for clarification, perhaps for her benefit or for the benefit of idiots like me who read the staff report but were still confused.

I could make an attempt to explain the difference, and the subtle differences between what each of these referenda and initiatives were seeking in terms of the project itself. But let’s say that right now I’m writing more as average citizen, and to me, the question should be simple.

Neiman Marcus? Yes or no? I say, yes. As I said, I might never step foot in the store, and I've been critical of the city's initial handling of this project.

But other people presumably will shop at Neiman Marcus, spend money, and help increase sales tax revenues for the city. A number of speakers at Tuesday’s city council meeting--people with a long history in Walnut Creek civic activism, and in the arts, open spaces, recreation, and in business and economic development—all proclaimed that this store would be good for downtown. It would be good for its economic health and eventual recovery from this slow times. It would be good for the city overall, and all those services we cherish--arts, recreation, public safety.

The speakers, who included representatives from Macerich and Neiman Marcus, also spoke of the store’s desire to be a community partner—which I translate to mean that Neiman Marcus might be willing to donate dollars to local nonprofits or to sponsor community events.

Not that I wanted to get into the technical aspects of what an initiative is—and a reader is free to chime in—but the city council basically had to make a decision about what to do with this pro-Neiman Marcus initiative. That's because the petition garnered signatures from 15 percent of registered voters, and state law says the council had to adopt the initiative outright, or put it on the ballot for voters to decide. The council decided to put it on the November 3 ballot for voters to decide.

So that’s where we are. We’ll have to see if that group of citizens who oppose Neiman Marcus, and who are financed by Taubman, will file any more legal challenges. Like they did last Friday afternoon in a last-ditch pathetic attempt to stop last night’s decision from going forward. A Contra Costa County Superior Court judge knocked that bid down on Tuesday, before the meeting.

Well, I hope that the plaintiffs of this suit, and the outspoken Neiman Marcus opponents, Ann Hinshaw, Selma King, and Ed Dimmick, can take some consolation in the fact that they enjoyed some success in getting changes made to the project--as Kish Rajan said.

Now it's time for them to shut up. I'm sick of them, and their obstructionism. Sorry to put it that way, but I am.

Actually, I mean they can shut up in terms of any more legal challenges, or mounting further referenda or petitions. Now, they can turn their attention to campaigning against the store, if they so choose. They can put their efforts into trying to convince voters why bringing a new department store to Walnut Creek is a bad idea.

In any event, let it now be up to voters to decide.

August 2, 2009

More Neiman Marcus ugliness: Opponents file suit to block City Council action on special election decision



As the Walnut Creek City Council was set Tuesday to consider whether to call a November 3 special election on the whole Neiman Marcus controversy, opponents of the project filed a awsuit, according to the Contra Costa Times.

Opponents want to block the City Council from accepting a staff recommendation that the November 3 ballot be based on what could be considered a pro-Neiman Marcus initiative.

The opponents, Walnut Creek residents Selma King and Ann Hinshaw, had put forth their own referendum. This referendum objected to the City Council’s May 19 decision to allow Broadway Plaza to build a two-story, 92,000-square-foot luxury department store.

They circulated a petition, gathered more than 7,000 signatures, purported to be from registered Walnut Creek voters, and filed it with the city. The city certified that the petition had the required number of signatures. This petition, if you don't already know, received financial backing from Taubman Centers, a mall company in rivalry with Macerich, which owns Broadway Plaza.

Meanwhile, Walnut Creek residents who want Neiman Marcus to come to Walnut Creek circulated their own petition to place an initiative on the ballot. That petition also received the necessary number of signatures from registered voters. The initiative asks voters to approve building Neiman Marcus.

Legally, the King-Hinshaw referendum halted the project, and city staff figured the best way out of this mess was to have the City Council hand off the issue to voters.

But basing the ballot measure on the initiative, rather than on the referendum, “takes away the Walnut Creek citizens’ right to vote,” Hinshaw and King said in a joint statement, according to the Times.

City staff must have seen their objections to their referendum being sidelined—and possibly even this legal maneuver—coming.

In their agenda report, city staff offer these reasons for rejecting the King-Hinshaw referendum:
“Placing the initiative on the ballot will give Walnut Creek voters the full opportunity to decide whether the project is In the best interests of the City. Therefore, not placing the referenda on the same ballot at this time will not diminish the right of the voters to vote on the project.”

The city had the option to put both the referendum and the initiative on the ballot, but having both on the ballot “would create confusion," staff said. “Further if the referenda and the initiative were all approved at the same election, it would result in the approval of two, subtly different projects, creating legal ambiguity about which approval takes precedence.”

Meanwhile, here is a summary of the project so far, which you can read in full on the city’s website:

On May 19, the City Council approved construction of the two-story, 92,000-square-foot Neiman Marcus. (This was a scaled down version of the project that the City Council approved in the fall. The original project would have involved a three-story Neiman Marcus, as well as transforming the five-story South Main Street garage into valet parking during peak shopping times to accommodate any influx of Neiman shoppers).

After the May 19 approval, the city subsequently received the two petitions from the anti- and pro-Neiman groups.

Petition 1: This King-Hinshaw challenge was based on the project’s size, specifically with what’s called the floor-area ratio. To fit two stories of a department store onto 1.59 acres at the corner of South Main Street and Mount Diablo Boulevard, the store would need a higher floor-area ratio than allowed under the city’s General Plan. At its May 19 meeting, the city said “okay” to a General Plan amendment, allowing an increase in that ratio.

Petition 2: The initiative would allow voters to say “yes” or “no” to the project that was approved by the city on May 19. Besides increasing the floor-area ratio, the city said yes to an interesting idea for how Broadway Plaza would accommodate additional shoppers needing parking space. The idea has to do with instituting an employee-only attendant parking program and installing mechanical lifts, and stacked and tandem parking spaces, into the South Main Street parking garage.

Once the first petition for the referendum was filed, on July 2, and the city, under state law, had to halt the project and think about calling for a special election.

So that’s what staff says the City Council should do: Call a special election.

“Given the long, significant public engagement in this project, staff believes that the Walnut Creek voters should be given the opportunity to vote on the initiative without delay,” staff says.

"Significant public engagement"--That's putting it, uh, politely.

A special election will be costly: About $300,000 but some of those costs could be offset, according to the Contra Costa County Elections division, by the fact that the CD10 special election is also scheduled for that day, as are elections involving the city of San Ramon and two local school districts.

Back to the lawsuit: While King tells the Times that it is presumptuous to think Macerich's initiative is an impartial measure, City Attorney Paul Valle-Riestra suggests the lawsuit is presumptuous, in that it asks the court to set aside a decision that had not yet been made yet.