Sweet Melissa

Legal Updates - Cell Phones and Sharp Park

Today, the Board of Supervisors will meet with City Attorney Dennis Herrera in a closed session to discuss the lawsuit brought by CTIA-The Wireless Association against our law requiring cellphone retailers to identify the radiation absorption levels of the phones they sell. The cellphone labeling law will go into effect June 15.

According to the association, the Federal Communications Commission is the only body that can regulate radio frequency emissions, so The City needs to butt out. Also, forcing retailers to distribute pamphlets that say negative things about radiation levels is a violation of the retailers’ First Amendment right to free speech. The City’s response? The law doesn’t set a limit on radiation levels. It only requires certain labels, so it does not interfere with the FCC’s authority. (The First Amendment argument is new, so The City has yet to answer it.)

The lawsuit has been put on hold while city officials consider amending the law and regulations. Those proposed changes, I suspect, are the reason for today’s meeting.

In other legal news, there seems to be no end to the Sharp Park debacle in which golf-loving retirees are going head-to-head with environmentalists because the golf course at Sharp Park is home to garter snakes and red-legged frogs, each an endangered species. The most recent salvo is a lawsuit filed by certain environmental groups March 2 alleging that The City’s plan to continue operating the golf course while protecting the endangered animals is inadequate.

According to the gruesome complaint, snakes are often killed by golfers and lawn mowers, and “the California red-legged frog also became a staple of the diet of the forty-niners during the California Gold Rush, and eventually became an item on the menu of San Francisco’s finest dining establishments.”

Appellate Court Rules Against Alioto-Pier - She Will Appeal To California Supreme Court

Constant Readers,

Honestly, I love you people! Within seconds of the Appellate Court's decision going public, several of you sent it to me. 

So, here's the deal: the three judges issued a unanimous 21-page decision agreeing with the City Attorney that voters meant to cap all supervisorial service at 8 years, thus Alioto-Pier is ineligible to run for re-election. (Decision in a Word Doc here:  Download Appellate Decision.) Yes, I maintain that Appellate Court is wrong and that the trial court got it legally right, but the world's a crazy place.

Michela Alioto-Pier told me she will appeal to the California State Supreme Court. With the deadline for sending ballots to the printer on September 1, them papers better be filed right soon.

-Melissa 

All Reilly'd Up

UPDATE: The Judge has denied Reilly's attempt to file a brief in support of Herrera. It means her arguments won't be considered. PLUS the City Attorney has requested a hearing where the parties can present oral arguments. It will be held on Wednesday, August 18, at 1:30 p.m. I think we all know where I'll be spending my lunch break...

District 2 candidate Janet Reilly has filed court papers opposing Supervisor Michela Alioto-Pier’s effort to run for re-election. (Wanna see it? Here you go! PDF here: Download Reilly Brief.)

Actually, to be more accurate, Reilly has filed a motion asking to support City Attorney Dennis Herrera’s attempt to overrule a Superior Court ruling that Alioto-Pier can run for re-election.

At issue is Alioto-Pier’s appointment to fill Mayor Gavin Newsom’s seat after he was elected mayor in 2003. The board constitutes a four-year term for purposes of term limits. There were three years left on Newsom’s term when he left to become mayor. Alioto-Pier served as an appointee for one year, then won an election to serve the remaining two years of Newsom’s term. She went on to be elected to a regular four-year term. That term ends this year. No supervisor can serve more than two four-year terms.

The City Charter says anyone “appointed” to serve more than two years is counted as having served one full, four-year term. In this case, however, Alioto-Pier was not appointed for more than two years. But the city attorney has taken the position that our term-limits law prohibits anyone from serving more than eight years, period. (If re-elected, Alioto-Pier would end up serving 11.)

On July 22, Superior Court Judge Peter Busch severely disagreed with Herrera and ruled that Alioto-Pier is not termed out. Thus, she’s officially a candidate for District 2. However, the city attorney appealed the decision. The parties expect a ruling by Aug. 18.

That brings us to this most interesting new development: On Tuesday, Reilly submitted a 31-page brief in support of Herrera’s position that the lower court should be overruled. Much of Reilly’s documents repeat the same arguments made by the city attorney. However, one new section argues that allowing Alioto-Pier to run will “interfere with the [District 2] election.” In it, Reilly argues that other candidates can’t really raise money or ask for endorsements anymore since no one knows what the field looks like. In other words, Alioto-Pier shouldn’t be able to run because her decision to wait until June of this year to announce her candidacy has messed up the whole race.

I don’t think Reilly’s brief will affect the case, but I can’t say that I blame her or any other District 2 candidate for being upset at campaigning and fundraising for months only to find out who the candidates are right before the ballots go to print. As much as ­Alioto-­Pier might have declared her intent to run for re-election prior to June (though she was running for state insurance commissioner until the end of January when she dropped out due to illness), that our well-intentioned city attorney continues to pursue this loser of a case through the courts adds to the infuriating uncertainty about the District 2 ballot.

“I understand why she’s disappointed and frustrated,” Alioto-Pier said of Janet Reilly. “But her anger should be focused on the City Attorney.”

Healthy San Francisco: The D.C. - S.F. Connection

Those of you concerned with the fate of Healthy San Francisco — The City’s universal health care plan — ought to be paying close attention to the replacement of United States Supreme Court Justice John Paul Stevens, who will retire this summer.

By way of background, the Golden Gate Restaurant Association has challenged the mandate that employers pay a certain amount per employee, per hour to the program. According to the association, the employer contribution part conflicts with federal law, and since federal law always wins, the requirement that employers pay into the system is unlawful. The city attorney has argued that there is no such conflict. The Supreme Court has yet to decide whether it will take up the case.

In October 2009, the U.S. Supreme Court asked U.S. Solicitor General Elena Kagan to weigh in on whether this case is important enough for the court to decide. It seems that Kagan is a busy gal these days, what with being on the short list to replace retiring Stevens, and has yet to issue an opinion. (There’s no deadline, but these things are usually done within three to four months.)

I can’t say that I blame her for not wanting to touch this issue while the nomination process is lingering. On the one hand, the Obama administration has recently made it clear that it supports “Progressive Federalism” — basically letting local governments experiment with solutions to various problems. On the other hand, business groups are concerned with the expense and burden of complying with the requirements of little Healthy San Franciscos around the nation. They are calling on Republicans to push for a more expansive view of federal jurisdiction.

You can bet that whoever is nominated to replace Stevens will have to answer questions about the scope of federal law, and Healthy San Francisco will be the example at the center of the controversy. Until then, don’t expect Kagan’s office to jump into the debate.

Sit/Lie Law Prolly Not Unconstitutional (Absent An Enforcement Problem)

Am I the only one who thinks it’s funny that the same San Francisco supervisors who insisted that we push the limits of the law when it comes to sanctuary for arrested youths are suddenly reluctant to enact a sit-lie law that a court would give the side-eye? The sudden and profound respect for the law supervisors now possess is nothing short of remarkable. [If they hate the law, just say so! If they think there is a right to sit in the sidewalk, say that, too. But a professed fear of an adverse verdict is just silly in light of other legislation.]

At the Public Safety Committee hearing on whether The City should adopt a sit-lie ordinance, people repeatedly brought up the notion that such a law would be unconstitutional. Indeed, sometimes such laws have been struck down, but now that Mistermayor has released an actual proposal, we can check out whether it’s lawful.

Of course, for us lawyers, it’s impossible to give a yes or no answer. Complications are to lawyers what splinters are to carpenters, but I’ll do my best.

The sit-lie law proposed by Mayor Gavin Newsom prohibits sitting or lying down on public sidewalks anywhere in The City between 7 a.m. and 11 p.m. daily, with certain exceptions. (Here is a pdf: Download SitLieOrdinance.)As it’s written, it could survive a legal challenge, but it’s a little broad. If a city is going to prohibit a type of regular behavior like sitting, it generally needs to be limited to just what’s necessary to accomplish the stated goal (in this case, the goals are safety and “economic vitality”).

That the proposed ban would be citywide and in effect until 11 p.m. may cause a problem. Indeed, Mistermayor’s proposal is modeled after a Seattle law that has withstood constitutional challenges at the state and federal levels. However, Seattle’s law only applies to commercial zones and is only in effect from 7 a.m. to 9 p.m. I suspect San Francisco’s will be amended thusly before all is said and done.

You know, because we wouldn’t want to do anything illegal (ahem).

[I've been getting emails all morning about this one, and people have legitimate legal questions.  However, word limitations mean that I can only cut to the chase in the paper. Obviously there are many other issues. I'll be putting up a longer piece about this on Saturday.]

SF found to have played no role in Bologna deaths

The City Attorney’s Office scored a grim victory Monday when a Superior Court judge tossed out the lawsuit filed by two members of the Bologna family. You may recall that convicted criminal Edwin Ramos allegedly shot and killed Anthony Bologna and his sons Michael and Matthew in June 2008.

The suit against The City claimed that the repeated re-release of Ramos by city police and probation authorities, plus the failure to turn Ramos (who is not a legal U.S. citizen) over to federal immigration officials, meant that San Francisco was legally responsible for the deaths of the three Bologna family members. Among other things, the judge held that Ramos might have posed a general threat to others, but because authorities didn’t know specifically who Ramos would target, The City had no duty to protect the Bolognas.(Judge's Order PDF here Download Bologna Case.)

Just three months ago, anti-immigration activist Kris Kobach joined the suit as an attorney for the Bologna family, so you can bet this case will be appealed.

Campaign laws may face suits

A recent and very significant Supreme Court ruling in the Citizens United case struck down certain limitations on political contributions by corporations. San Francisco certainly has its fair share of campaign regulations, so I asked local election law guru Jim Sutton of the Sutton Law Firm to weigh in on whether our city rules are safe.

According to Sutton, we don’t have any laws exactly like the ones the Supreme Court declared unconstitutional. However, he said, “For the last 10 or 15 years, there has been a shift at the Supreme Court level away from regulation of political activity. At the same time, local governments have imposed more and more regulations. The real effect of the Citizens United case may be to inspire groups on the left and the right to bring lawsuits challenging those restrictions.”

NOTE: I'll be following-up on this with some thoughts on what local laws could be challenged.

Lawsuit goes after city’s voting system

Sometimes it’s pretty weird being a lawyer at a City Hall cocktail party. Paranoia is the house wine of San Francisco, so I’m always being cornered by someone who wants me to know that California “isn’t legally a state” or that I should be suing the city administrator on behalf of the Farallon Islands.

“Uh huh. OK,” I nod and smile, careful not to feed the political animals.

All of this is why, years ago, when a friend told me his “legal theory” that our system of ranked-choice voting is unconstitutional, I didn’t think much of it.

Well, lo and behold, some folks have actually filed a lawsuit in federal court claiming that very thing. (Complaint here: Download IRV Lawsuit.)

Their argument is this: We only get three votes regardless of the number of candidates. When there are more than three candidates, anyone who votes for the three least-popular candidates gets shafted because they are left out of the final rounds when the winner is picked. According to the lawsuit, it’s like holding a general election where there are four candidates (A, B, C and D) and if A and B end up in a runoff, anyone who voted for C or D is banned from the runoff.

This, according to the plaintiffs, deprives people of a constitutional right to equal voting power.

One named plaintiff is former supervisor candidate Ron Dudum, who lost to Ed Jew in a 2006 ranked-choice election. “Why now?” I asked Dudum. “Because there are supervisors races this year and a mayor’s race next year, and I want to make sure my vote counts,” he said.

Website Bonuses:

(1) SFWeekly did a great article about this here. 

(2) Lot of jurisdictions have adopted IRV and are keeping an eye on this lawsuit, but Oakland is probably watching with particular interest because it is supposed to use IRV for the first time in this year's Mayoral race. Word is that Don Perata is trying to wiggle out of using IRV because his fundraising prowess puts him in a better position to handle two elections (a general and a runoff) instead of one. At any rate, he's raising all sorts of objections to the system. Read more here.

Melissa Explains it All: The 'Body Armor' Case

NOTE: Here is a PDF of the ruling, which sets forth the facts and law I'm talking about - Download Saleem Case

In 1994, San Francisco police Officer James Guelff was shot and killed by a carjacker who was wearing body armor. In response to that incident and several other shootings involving gunmen wearing bulletproof gear, the state adopted a law in 1998 prohibiting people with violent felony convictions from possessing body armor.

In 2007, Etham Saleem, who was on parole for a voluntary manslaughter conviction, was stopped by Los Angeles police and found to be wearing a “10-pound, camouflage-patterned vest.”

One officer recognized it as the kind worn by Marines in Iraq.

Saleem was convicted of a felony for wearing the vest and sent back to prison for eight years. Since then, Saleem’s lawyers have been arguing that the law against felons having body armor is too vague to be enforced. In December, a California appeals court agreed with them.

A quick legal primer: The reason courts sometimes eliminate a law for being “too vague” is because, regardless of what’s in the muddled minds of politicians who create laws, regular folks have to be able to know whether they are committing a crime. Thus, they have a right to laws that are clear. For example, a law against “pet humiliation” is too vague, but a ban on dog shoes is fine — and hopefully in the works.

In the Saleem case, the court found that the definition of body armor is too technical (involving “ballistic resistance,” for example) for a layman like Saleem to understand whether what he was wearing was unlawful.

That there was a "Body Armor" label on the inside of Saleem’s vest was apparently not enough to put him on notice.

One judge dissented from the court’s ruling, pointing to a previous case in which a (rather imaginative and optimistic) man argued that laws against driving while drunk are too vague because regular people don’t know what their exact blood-alcohol content is at a given time. In that case, the court ruled that once the person is aware of the general behavior that’s prohibited, there’s nothing wrong with applying some technical standards on the back end. According to the dissenting judge, the appeals court should have ruled the same way in the Saleem case.

State Attorney General Jerry Brown says he will appeal the case to the state Supreme Court, and the San Francisco Board of Supervisors is considering a resolution encouraging the high court to agree to review the case.

Regardless of what happens with the court battle, already there are murmurs that the state Legislature may change the law to make it more understandable. Perhaps a law that defines body armor to include “military-issued garments that say 'Body Armor' on them” would do the trick. Perhaps it should be written in crayon.

Palmer: Court case may affect SF rental housing requirements

Developers of rental housing in California had a little something extra to be thankful for Nov. 26. A recent court case — Palmer/Sixth Street Properties v. City of Los Angeles — likely invalidated certain below market rental requirements in more than 100 localities across the state, including San Francisco. (DOC of case here: Download Palmer case.)

In the Palmer case, Los Angeles did something similar to what we do here in San Francisco: require that new rental developments include a certain number of units for low-income households and declare a maximum amount that can be charged to rent those units.

Palmer (a developer) sued on the grounds that the local low-rental requirement violated a state law, the Costa-Hawkins Rental Housing Act, that says landlords get to set initial rental rates. A state appellate court agreed with Palmer and struck down the Los Angeles requirement. In the court’s opinion, it did not matter that (as is the case in San Francisco) a landlord could choose to pay a fee to the city in lieu of providing the low-rate units.

(Note: The Costa-Hawkins Act only applies to rental units, not condos, and does not apply to rental developments that receive government assistance.)

The appellate court decision came down in July, but the California Supreme Court only recently refused to rehear the case. Now that we are stuck with the July ruling, freaking out may officially commence in San Francisco because our below market rental requirements are similar to (though not exactly like) the ones declared unlawful in Los Angeles.

Already, organizations like Tenants Together are calling for the state Legislature to amend the Costa-Hawkins Act to allow for low-rate rental set-asides.

One San Francisco developer, who asked not to be named, told me that no one knows how the Palmer case may affect rental projects currently being negotiated. His company plans to consult with its own lawyers, stay in communication with the Planning Department and see what the city attorney advises. I asked the City Attorney’s Office for a copy of anything it had written on the Palmer case and was told that there is a memorandum, but it’s confidential.

Obviously, I haven’t seen the memo, but “everything is fine” is rarely a secret worth keeping.

BONUS MATERIAL:

From the City Attorney's Office:

It's no secret that the Palmer decision has potential implications for inclusionary housing policies in California that involve rentals. Nothing in Palmer, however, should implicate inclusionary policies for ownership projects, or projects that receive direct, public sector financial contributions.

I can't compromise attorney-client confidentiality by discussing our office's legal advice. But I think it's safe to say that city attorneys and county counsels across the state are working with their clients to assess how Palmer may affect their own local ordinances.

As part of those discussions, it's often the case that options are presented to address potential impacts -- including pursuing legislative fixes. Courts make decisions every day that have potential impacts on local governments. It's our job is to inform our clients about what those are, and to make sure that their policy decisions are fully informed of the legal risks and options.

From Assemblyman Tom Ammiano's Office:

We are aware and are looking at the Palmer case with regards to inclusionary housing and are in discussions with housing advocates and nonprofit housing developers about the best course of action given the ramifications of the decision.