Volume 43 Number 09 Archives — Page 2 of 2 — San Francisco Bay Guardian Archive 1966

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Still fighting

November 25, 2008

› news@sfbg.com

The workers at the Woodfin Suites Hotel in Emeryville have had to fight hard for their rights against an intractable employer — one with a history of harassment and denying them proper pay — but the workers could be on the verge of yet another small victory.

The Emeryville City Council could decide Monday, Dec. 1 whether to award about $200,000 in back wages owed to the workers, thus potentially touching off yet another chapter in a long legal battle pitting local workers and voters against a conservative, out-of-town hotel owner.

This case stems from Measure C, a living wage ordinance passed by city voters in November 2005 that was aimed at hotel housecleaners. The measure requires that hotels pay all employees a minimum wage of $9 per hour and overtime pay for workers who clean more than 5,000 square feet of floor space.

Brooke Anderson, executive director of the East Bay Alliance for a Sustainable Economy (EBASE), said the measure came about after talking to housekeepers who complained about the long hours and stressful workloads. EBASE, an Oakland community-organizing nonprofit, ran the campaign to pass Measure C along with UNITE-HERE Local 2850 and the Alameda Central Labor Council.

Rosa, a Woodfin employee who asked not to be identified, has cleaned the hotel’s luxurious suites for three years. She said that prior to Measure C’s implementation, she struggled to complete her daily workload. "It was an excessive amount of work. If we didn’t finish, we had to clock out and work without pay."

Through communication with the workers after the measure went into effect Dec. 5, 2005, EBASE found that Woodfin and the Marriott Courtyard Hotel were not in compliance. "We had workers start taking journals down saying, ‘I cleaned this many rooms today, what I should have been paid was X, what I did get paid was Y’," Anderson said.

By fall 2006, Woodfin and Marriott workers went public with their complaints, "essentially blowing the whistle on their hotels’ not complying with the law," Anderson said.

Both groups of workers testified before the City Council. Marriot quickly came into compliance, raising wages across the board and paying back wages for the year spent out of compliance. Woodfin slowly came into compliance, dropping the room load from about 17 to around 9 over the next three months.

Yet in June 2007, city officials found that Woodfin owed about $250,000 in back wages. The hotel appealed the ruling, arguing that Measure C was unconstitutional. In April, the Alameda Superior Court ruled that the law is constitutional and that the city of Emeryville has the right to demand back wages, but it took issue with the methodology used to calculate the owed amount. The judge ordered the city to revise its back wage order and hold another hearing.

The city reissued its order in August, calling for around $200,000 in back wages. Woodfin appealed the ruling; a first hearing was held Nov. 17, and a final decision is expected Dec. 1.

Woodfin’s argument this round, according to spokesperson Tim Rosales, is that Emeryville did not clarify its requirements until 2007 so the company cannot be held accountable for regulations it believed it was complying with. Rosales said the city passed "implementing regulations" in 2007 and "tried to retroactively apply those 2007 rules to 2006."

"It would be as if the IRS applied this year’s tax increases to last year’s taxes and asked you to pay the difference," he said. Additionally, Woodfin cleans each large suite with a team of housekeepers, making it difficult to calculate individual square footage.

EBASE counters that Woodfin purposely ignored Measure C’s regulations, which it vehemently opposed during the election. Anderson also said the hotel has a long history of using intimidation tactics throughout the two-year struggle.

The Guardian broke the story last year ("Calling in the feds," 6/13/07) that the owner of Woodfin Suites, Sam Hardage, used connections with US Rep. Brian Bilbray (R-San Diego) to have the Immigrations and Customs Enforcement officials audit his own hotel, which he then used as a pretext for trying to fire some of his workers.

"The real question," Emeryville City Council Member John Fricke told the Guardian, "is why has the Woodfin hotel chosen to invest so much money fighting Measure C.

"It’s pretty clear that the Woodfin has spent many times the back wage it owes and paid that to lawyers," he said.

Rosales said that the hotel was battling on a matter of principle. "One could argue that were going to be doing business in Emeryville for a very long time," he said. "We want to find some clarity on the issue so the city can’t adopt measures and apply them retroactively."

Both sides hope for a favorable outcome Dec. 1, but remain entrenched and ready to defend their positions.

"We are confident that a favorable decision will be made and we hope that the hotel will pay," Rosa said. "[The dispute] has made me stronger both as a person, and as a member of the working class."

Woodfin is confident but prepared to continue fighting.

"Really what we want to do is find some good resolution between ourselves and the city," Rosales said. If they don’t, he said, "I think we could find ourselves back in court." *

After the bubble

November 25, 2008

› amanda@sfbg.com

Speculators will be able to sit on tracts of San Francisco land until the market improves. Development impact fees will be set too low to cover the costs of neighborhood improvements like parks, streets, and transit. Affordable housing development is intimately tied to a busted market rate-housing boom.

This is the future of the eastern South of Market, Potrero Hill, Central Waterfront, and Mission District neighborhoods as laid out in the Eastern Neighborhoods Plan, a community rezoning effort that began in 2001 that now fills a binder thicker than a weightlifter’s bicep.

After more than 30 public hearings, the plan is approaching final approval by the Board of Supervisors. While some are lauding all the heavy lifting that’s been done to get it to this stage, there are still some noticeable shortcomings.

"The plan itself is despicably deficient in terms of affordable housing," housing activist Calvin Welch told the Guardian. That sentiment was echoed by spokespeople from the Mission Anti-Displacement Coalition and the South of Market Community Action Network, who may join together in a legal challenge of the plan’s Environmental Impact Report for failing to properly consider socioeconomic impacts.

"There will be environmental impacts in terms of displacement, increased amounts of traffic and cars, increased levels of noise," said April Veneracion, SOMCAN’s organization director. "The Board of Supervisors could have addressed these inadequacies in the EIR with amendments."

Some last minute amendments were added that would audit the financing of projects and reduce land speculation — but due to a tricky legislative maneuver, even these concessions could be axed by a veto from Mayor Gavin Newsom.

The bulk of the plan rezones vast tracts of industrial land on the eastern flank of the city for housing, mixed urban use (including retail and commercial sites), and a light industrial category called "production, distribution, and repair" (PDR) that protects many of the working-class jobs remaining in San Francisco.

Building height limits will increase in some areas and remain at 40 feet in others. Between 7,000 and 10,000 new units of housing are anticipated, with affordable housing rates between 15 to 25 percent, depending on the location and project.

However, the one method of financing affordable housing — known as inclusionary housing, which requires market-rate developers to include a certain percentage of affordable units — is entirely linked to a now-waning economic boom. "Events have rendered it meaningless," said Welch. "The Eastern Neighborhoods Plan is a plan predicated on a red-hot real estate market. Planning has no ability to shift with the market and the market, since mid-September, has changed radically."

The Controller’s Office recently readjusted the city’s revenue projections, suggesting a $90 to $125 million budget shortfall in the current fiscal year, with 40 to 49 percent of that directly connected to flagging real estate transactions.

Yet housing in the Eastern Neighborhoods Plan remains primarily composed of market-rate units, fetching upward of $700,000 apiece, with "middle-income" units discounted to half that, and below-market-rate apartments still costing over $200,000 each. Development impact fees are set for $10 per square foot of construction — not enough to cover the proposed improvements that would make these industrial areas pleasant and safe for everyday residential living and working.

"In order to support the population that’s expected to move in, you need transit improvements, park improvements, street improvements," said Tony Kelly of the Potrero Boosters, a neighborhood group. "Less than half [of these] have been funded by the project."

He characterized the approved parts of the plan as "pretty weak." "They’re rezoning 500 acres of industrial land for housing — predominantly market-rate — right at a time when no one’s building market-rate housing," Kelly said. He also said the plan lacked many creative financing ideas. "When the area plans were presented to our neighborhood back in 2006, the Planning Department outlined all the things a neighborhood needs. There was a chart with 18 different ways to pay for it. How many are now in the plan? One."

Ways to ensure that developer fees are used well and land doesn’t sit fallow were introduced at the last minute. Amendments to the plan, made by Sup. Aaron Peskin, require audits of the neighborhood improvement fees and forcing developers to actually build rather than speculate — but they received a potentially fatal last-minute blow.

The Board’s first vote on the plan occurred during the Nov. 18 meeting and the bulk of the plan received unanimous support (minus Sup. Chris Daly, who is recused from voting because he owns property in the plan area).

But late in the game, a standoff arose between Peskin and Sup. Sean Elsbernd, who opposed blindly rubberstamping the last-minute amendments offered by Peskin during the previous night’s Land Use and Economic Development Committee hearing.

"We saw the actual language of this if you looked in your e-mail in the last two hours," Elsbernd said during the heat of the Board hearing. "I’d like a week to read the changes made by you last night."

The Board voted to continue the matter for a week, but then, at the end of that day’s business, Peskin rescinded the vote and forced the issue. As promised, Elsbernd severed the four Peskin amendments — a legislative tactic that allows one supervisor to slice out parts of legislation and place them into individual files for separate votes.

Peskin countered by severing another amendment, added by Sup. Gerardo Sandoval, which would have allowed special height increases for two lots on Mission Street, where the New Mission Theatre and the Giant Value store currently sit. Gus Murad, who owns the properties as well as the adjacent restaurant Medjool, has been lobbying to convert the properties to commercial and residential space.

The supervisors shot down the "spot zoning" amendment that would let future buildings on the two sites to be built higher than what’s currently allowed on Mission Street. MAC spokesperson Nick Pagoulatos later applauded the move: "It would have been a ridiculous exception to make and one that clearly favored one developer."

Despite Elsbernd’s move to sever the amendments, all four passed, but didn’t receive enough votes to block a veto from Newsom. Supervisors Carmen Chu and Michela Alioto-Pier voted with Elsbernd.

The mayor’s ability to line-item veto some key protections sought by neighborhood activists was at the heart of the move. "That’s absolutely right," Elsbernd told the Guardian, who added that although he hadn’t spoken with Newsom and didn’t know his intentions, "These are issues that absolutely concern me."

The amendments add "metering" and "use it or lose it" provisions to the plan. Metering is essentially an audit performed by the board every five years to ensure that collected developer impact fees are used properly. Peskin said that while they couldn’t meet all the requests of neighborhood groups and housing rights activists, "this was something that we could do that made good public policy sense."

Elsbernd told the Guardian he didn’t object to the concept of metering but would like oversight by the Controller’s Office. "Metering gives the Board of Supervisors full power and takes the executive out of the mix," he said of the plan as it stands now, adding that it should be viewed as a long-term protection. "This is not about Mayor Gavin Newsom. It’s about Mayor Mirkarimi or Mayor Peskin."

The "use it or lose it" requirements are designed to reduce speculation by mandating that a developer with a project that has received a green light from the Planning Department must procure a building permit within three years, after which they have one year to break ground. Currently, there’s no limit to the amount of time a developer can sit on a property, which becomes more valuable after receiving city approval.

Elsbernd said, "Three years is just not fair," but again, he said he thought there was a middle ground and would like to see project developers given opportunities to make cases for extensions. However, if the developer has one of those grandfathered projects that doesn’t have to meet the new, stricter inclusionary housing regulations or pay public benefits charges, they should "have to pay full fare, full affordability, full fees," said Elsbernd.

A second vote on the plan and its amendments is scheduled for the Nov. 25 Board meeting, after Guardian press deadline, but Elsbernd expressed optimism about a compromise as part of last-minute dealmaking. "I would say there’s a possibility, as colleagues realize the potential mayoral veto."

Still, Welch pointed out that resistance to a "use it or lose it" protection is proof that San Francisco’s real estate market is in no way immune to the economic crisis afflicting the rest of the country. "The assumption built into the Eastern Neighborhoods Plan was this robust growing market for condo development and I think the bubble has burst," said Welch. "If that isn’t the case, then why would developers care about a requirement that says you have to build in three years? The Mayor’s Office told me the phones were melting after Monday night’s amendments passed."

But Welch said one of the great ironies of a market-rate housing crash is that it makes nonprofit housing development even more competitive. "That’s why we pushed so hard for ‘use it or lose it.’ It forces developers to say to the city ‘we’ll do it,’ or ‘would you like to buy the site?’<0x2009>" He said the city should be poised to buy those sites in order to build affordable housing and suggested the city lobby Barack Obama’s administration for the funds to do it as part of the large infrastructure improvements planned by the president-elect.

"I think the way housing is financed is going to be totally transformed and the federal government is going to play a bigger role," said Welch. *

San Francisco needs a New Deal

November 25, 2008

By Christopher D. Cook and Eric Quezada

OPINION On the night the voters spoke, word began filtering through Palm Pilots and iPhones about sweeping budget cuts likely to carve a hole in vital city programs. It’s ugly: massive cuts to the Department of Public Health and numerous social service programs. As usual, programs helping those most in need are getting cut the most. Why aren’t we instead raising revenue from those who have the most?

In this year of "change," we need a fundamental shift in our city’s taxing and spending priorities — a bold New Deal for San Francisco that enlarges the public pie that everyone’s scuffling over, and that creates green jobs and new housing opportunities targeting poor neighborhoods and districts.

It’s time to get serious about taxing and redistributing wealth to stimulate new economic opportunities. The passage of Propositions N and Q — expanding real estate transfer and payroll taxes — is a good start. We need to tax wealth in new ways that replenish the local economy, creating green living-wage jobs with health care and opportunities for small businesses and community-serving groups.

City leaders can make San Francisco a model of good sense by demanding that our wealthiest citizens and corporations help fund a program that creates jobs and economic opportunity for the rest of us. Particularly in the city’s eastern neighborhoods, Districts 9, 10, and 11 (and parts of 6), poverty and economic stress are rampant and families are pressed to their limits — unable to afford health care, working multiple jobs, living in overcrowded apartments, and often in shamefully dilapidated housing conditions.

With home prices declining but rents and foreclosures skyrocketing, the city needs to help thousands of working-class residents who provide vital services — teachers, service-industry workers, and cash-poor immigrants — to remain in San Francisco. Now is the time to prioritize production, public infrastructure, education, and cooperation for the common good; our economy needs a stimulus based on solidarity and collective good.

We’re being presented with false scarcity and false choices — do we cut housing or health care to meet the budget? Few are asking the key question: why don’t we have more money to work with, in this vastly wealthy region?

In an earlier New Deal, President Franklin D. Roosevelt imposed a 90 percent tax on upper income brackets — making it virtually illegal for people to earn so much more than others. Locally, city leaders should explore a gross receipts tax on large firms; new taxes on luxury and high-priced items, such as SUVs, second homes, yachts, and other extravagances; perhaps revive the push for a downtown business tax levied on large firms in the financial district; and a truly progressive income tax harnessing revenues from high-income folks.

People can argue over where the money should go. But it’s brutally clear we are in an age of deepening inequality, widening economic stress, and environmental limits. There’s no room for huge disparities — no room to continue allowing extra-wealthy individuals and corporations to consolidate their gains at the expense of the rest of us. We must renew the fight for public wealth — now. *

Journalist and author Christopher D. Cook is a former Guardian city editor, and a local activist. Contact him at www.christopherdcook.com. Eric Quezada is executive director of Dolores Street Community Services, and was recently a candidate for District 9 supervisor.

The coal question

November 25, 2008

> news@sfbg.com

GREEN CITY Over the past few years, a growing number of environmentalists have called for greatly curtailing the burning of coal, a practice that threatens the health of people and the planet. On Nov. 14-15, Rainforest Action Network (RAN) held protests in San Francisco and more than 50 other cities against Bank of America and Citibank, two of the largest financial backers of coal projects.

RAN cites data showing that coal is responsible for nearly 40 percent of US global warming emissions, and claims in a press release that Citibank has provided financial support to "45 companies that have proposed new coal power plants."

According to RAN, Bank of America is "involved with eight of the US’s top mountain top removal coal-mining operators, which collectively produce more than 250 million tons of coal each year."

Mountain top removal is a process in which explosives are used to gain access to underlying coal, devastating ecosystems and polluting watersheds to extract an energy source that emits far more climate-altering carbon than even other fossil fuels. RAN’s Joshua Kahn Russell cited Bank of America’s $175 million financing of Massey Energy, a coal producer that was sued in 2006 by the US Environmental Protection Agency for more than 4,500 violations of the Clean Water Act. Early this year, Massey agreed to a $20 million settlement rather than pay potential fines of $2.4 billion.

RAN has named Bank of America CEO Kenneth Lewis the "Fossil Fool of the Year" for his company’s role in coal. But on the bank’s Web site, Lewis disputes the characterization, citing the company’s promotion of hybrid vehicles and its other efforts to combat global warming, which won an award this year from the Natural Resources Defense Council.

"Our environment initiatives reflect our commitment to addressing climate change, conserving natural resources and building a sustainable economy — for today, and generations to come," Lewis says on the Web site. Similarly, Citibank officials tout what they say is a $50 billion initiative over the next 10 years to promote renewable energy sources.

As the US limps toward an energy policy that relies less on fossil fuels, coal is the big target for environmentalists. But getting off of it won’t be easy, considering it supplies about a quarter of the nation’s energy and helps fuel the faltering economy.

President-elect Barack Obama has made mixed statements about coal. In an election-season interview with the San Francisco Chronicle, he favored a cap-and-trade program that would limit the use of coal and charge new plants "a huge sum for all that greenhouse gas that’s being emitted."

Yet he has also repeatedly voiced support for a so-called clean coal technology known as carbon capturing and sequestration (CCS) that could theoretically prevent coal emissions from entering the atmosphere but that many environmentalists believe to be a myth.

Russell said CCS, which involves capturing carbon emissions from the air and placing them deep underground, is still theoretical and may not be as cost-efficient as switching to cleaner energies. If CCS is a viable alternative, the Intergovernmental Panel on Climate Change (IPCC) has said that coal plants with CCS could reduce carbon emissions by 80-90 percent.

RAN organizer Scott Parkin pointed out that even if clean-coal technology works, the "coal still has to come from somewhere," and the process of extracting it has inherent environmental problems. But coal advocates say we need to be realistic about meeting the nation’s energy needs.

Bank of America spokesperson Britney Sheehan told us, "As a nation, 50 percent of electricity comes from coal." Even in California, 32 percent of electricity is derived from coal, according to the California Independent System Operator. Sheehan said the bank is actively funding renewable energy initiatives to help make the transition to cleaner burning fuels and it is making strides to reduce greenhouse gas emissions.

Yet many say such incrementalism belies the seriousness of the climate change threat. Dr. James Hansen, head of NASA’s Goddard Institute of Space Studies, was quoted by RAN as saying, "The science is clear: a moratorium on new coal-fired power plants, and phase-out of existing coal plants, is essential if we want to preserve creation, the life on our planet, for young people and future generations." 2

Editor’s Notes

November 25, 2008

› tredmond@sfbg.com

The Board of Supervisors passed the Eastern Neighborhoods Plan last week, in what seemed to be an awful rush. If it had been my call, I’d have left the transformative rezoning to the next board, which will have to deal with the impacts of it. But that wasn’t to be. The meeting was marked by Board President Aaron Peskin pushing a series of crucial amendments that Sup. Sean Elsbernd wanted to delay — and that Mayor Gavin Newsom may veto. That will force an override vote, and it will be close.

So one of the most important land use decisions in the history of San Francisco is going to be coming down during the holiday season, during the last few weeks that the outgoing board is in place, and possibly after Sup. Tom Ammiano — a solid progressive vote — has left for Sacramento.

This is not good.

The plan itself is a bit out of date — it was designed for a time when developers were champing at the bit to build market-rate housing in southeastern San Francisco. And while housing demand in this city is still strong, the market has dropped a bit, and the notion that fees on high-end condos will be paying for affordable housing and infrastructure is a lot more shaky these days.

I was never that thrilled with the rezoning anyway — it allows way too much expensive housing, nowhere near enough affordable housing, and the fees that developers will pay are utterly inadequate to fund the level of transportation, parks, schools, water and sewer pipes, and other facilities the area needs.

But at least the amendments add some sanity to the plan. One of Peskin’s proposals would mandate that developers who get a conditional use permit for their projects actually start building within three years — or lose their right to special zoning. That not only makes sense, it’s an anti-speculation measure — you can’t just buy up land, get special permission for additional height and density, and then sit on it until you can flip the property for more cash.

Of course, the Mayor’s Office is getting flooded with calls from developers who think this is just an outrage. The builders are also unhappy with another amendment, which requires the city to monitor the payment of building fees to make sure they’re coming in on time and going to the right places.

So if the mayor holds true to form, he’s going to veto those parts of the plan, and right now, progressives don’t have eight votes to override him. If that’s how it goes down, then the new board needs to take up the issue again in January. And while the new supes are at it, maybe they can try to raise the development fees.

The good news is that the lower the housing market goes, the more competitive nonprofit developers can be. And if the Obama administration comes through with some federal affordable housing money, the community-based organizations could be the ones driving the new wave of construction.

It sucks that Prop. B didn’t pass, because this is a rare opportunity for the public sector and the nonprofits to grab building sites. The supervisors can still allocate money for affordable housing in the next budget. And if there’s federal money to match it, Newsom, who refused to spend the last allocation, should be hammered by every part of the city if he screws up this sort of chance.

Fueling change

November 25, 2008

EDITORIAL As a lame duck Board of Supervisors winds down, and the economic crisis and bloody budget cuts absorb most of the political focus at City Hall, there’s a major environmental issue creeping toward a January deadline — and city officials need to present a united front.

At issue is the Mirant power plant in Potrero Hill, an aging fossil fuel dinosaur that has been belching pollution into the southeastern part of the city for years. It’s been hard to shut down — the California Independent System Operator (Cal-ISO), the regulatory agency that controls the electric grid, wants some sort of generating facility inside the city lines. Sup. Aaron Peskin, backed originally by Mayor Gavin Newsom, sought to replace the Mirant plant with city-owned combustion turbines — so-called peakers — that would run only when needed. But Pacific Gas and Electric Co., fearing city ownership of power production, fought that proposal, and some environmentalists, arguing that the city should build no new fossil fuel plants at all, also opposed the plan.

On May 5, seven PG&E lobbyists descended on the Mayor’s Office and gave Newsom his marching orders: drop the peakers proposal or we’ll spend whatever is necessary to kill it. Newsom suddenly decided he didn’t like the peakers after all, and started pushing a PG&E-backed alternative: the Mirant plant, which runs on diesel and natural gas, could be converted to run entirely on natural gas, thereby reducing emissions.

The emissions numbers are pretty complicated. If the city ran the natural-gas-fired peakers for only a limited amount of time, they would emit less pollution than the Mirant plant. Obviously neither option is pollution-free; neither is sustainable; and neither is perfect.

Still, the worst of all possible alternatives would be allowing Mirant to continue to operate a private plant. At least the peakers would be city-owned and city-run. The city would have some control over how often they were fired up and could shut them down when more renewable technology becomes available. The Mirant plant — even after a retrofit — would continue burning fossil fuels; the private company would continue to profit; and the city would have no control at all.

Besides, it’s not clear that the plant even can be retrofitted for natural gas. The project that Newsom, PG&E, and Mirant are proposing has never been done before. Mirant may not be able to get the financing; the technology may not exist.

Which means that it’s entirely possible nothing will change. If all goes the way PG&E wants, the city will abandons the peakers, the dirty Mirant plant will continue to run without a retrofit, and the people of southeast San Francisco will continue to suffer.

But there’s a problem facing Mirant, and it could potentially change the whole picture. The plant sucks 200 million gallons of water out of the bay every day for cooling — and its Regional Water Quality Control Board permit expires at the end of this year. The board has said it’s not inclined to renew the permit, since the plant can’t meet modern water-quality standards. So as of January, Mirant could be forced to shut the plant anyway — unless the company, and Cal-ISO, find a way to force the water board to back down.

That’s where the city comes in. The mayor, the supervisors, and City Attorney Dennis Herrera should publicly inform both the water board and Cal- ISO that San Francisco does not want the permit renewed for the current Mirant plant. Even if Newsom thinks the facility can be upgraded, it’s hard to argue that the existing plant is anything but a disaster. And unless and until there’s a credible, peer-reviewed retrofit plan, Newsom has no business siding with Mirant and PG&E.

The water board could force the issue. If the Mirant plant has to close, the city either needs to come back with a peaker plan that environmentalists can accept or find a way to meet Cal-ISO’s mandates without new fossil fuel generation. That sounds like an excellent outcome to us. *

Clean energy

November 25, 2008

EDITORIAL Pacific Gas and Electric Co., its political hacks, and to a great extent, the San Francisco Chronicle all seem to take the same line on the defeat of Proposition H: It’s done. The people have spoken. Public power has been on the ballot 11 times, and it’s never passed.

And — as is always the case with a losing campaign — supporters of the Clean Energy Act are discussing what went wrong, looking at how the measure was written, the details, the language, the scope to see if there was something that could have been done differently.

But that ignores the central reality of the campaign for Prop. H: PG&E spent nearly $10.3 million to kill it. And it’s very, very hard to fight that kind of money.

The truth is, there was nothing wrong with the language or scope of Prop. H. If it had passed, it would have given the city the tools to create a sustainable energy portfolio that would be the envy of the nation. In fact, there is little doubt that the Clean Energy Act was well ahead in the polls when it was first placed on the ballot.

But as we’ve seen with so many races over time (and as we saw with Proposition 8 this fall) when a ballot measure it becomes a citywide or statewide race, big money has a serious impact. And we’ve never seen this kind of money in a San Francisco initiative campaign. In the end, PG&E spent about $53 per vote. That’s an outrageous sum, dwarfing any political spending that’s ever happened in San Francisco

Yet despite the barrage, the Clean Energy Act got tremendous grassroots and political support. Clean Energy has a strong constituency in San Francisco, including from the Sierra Club, and the power of this campaign won’t go away. Despite the efforts of downtown and PG&E, progressives still control the Board of Supervisors. Three of the city’s four representatives in Sacramento — Senator-elect Mark Leno, Assembly Member Fiona Ma and Assembly Member-elect Tom Ammiano — supported the legislation and will continue to back efforts to replace PG&E’s dirty power with locally- owned renewable energy. PG&E has money but it’s running out of friends in this town — and its illegal monopoly is the very definition of unsustainable.

There’s now an organized constituency for clean energy and public power, seasoned by this campaign and ready to continue the battle. That’s what needs to happen. There are numerous fronts: the city needs to be moving forward quickly with community choice aggregation, which offers the potential for cheaper, cleaner power. (The downside to CCA is that it doesn’t allow the city to make money; PG&E would still own the transmission lines, and thus make all the profits in the system.) Potentially, however, a CCA agency could begin moving toward creating local generation facilities and eventually toward building a local transmission system. A CCA also could directly access the city’s own Hetch Hetchy power and begin delivering it to local customers (once San Francisco can get out of the contracts requiring it to send too much of that power out of town).

The supervisors need a strong Local Agency Formation Commission to keep monitoring and pushing this, and the new board president needs to be sure LAFCO members are committed to and energized about renewable energy and public power.

Several supervisors — Sean Elsbernd, for example — told us they saw no reason for Prop. H to be on the ballot since so much of what it called for could be done by the board. Fine: Sup. Ross Mirkarimi, one of the authors of Prop. H, should immediately introduce legislation to do everything in Prop. H that doesn’t require a city charter change. Let’s see if Elsbernd and the mayor are really just PG&E call-up votes or if they’re willing to support an energy options feasibility study and strong renewable-energy mandates for the city.

And there are still legal options that the board should look at. City Attorney Dennis Herrera never wanted to go to court to enforce the Raker Act, the federal law requiring San Francisco to operate a public power system, but that’s an area the board can push. David Campos, the apparent supervisor-elect in District 9, is a lawyer who has worked in the city attorney’s office and sued PG&E, so this is an area where he can show leadership.

The bottom line is that this battle isn’t over.

There were other disappointments on what was generally a progressive ballot. Proposition V — the phony measure calling on the school board to reinstate JROTC — passed, narrowly. It was mostly a wedge issue to hurt progressive candidates for supervisor, and has been a horribly divisive issue in the schools. The school board, which cut off JROTC last year, is now pushing for an excellent public service alternative and doesn’t need to go back and reexamine the issue. JROTC is a terrible idea for San Francisco, and the newly elected board members shouldn’t even bring this up again.

Of course we were deeply unhappy about the passage of Prop. 8. The repeal of same-sex marriage was such a blow to San Francisco that it dampened a lot of the enthusiasm over the Obama victory. But that one’s not over, either; it has just begun. Statistics show that voters under 30 overwhelmingly support same-sex marriage — and if the campaign is run differently, and the message is positive, it’s likely that Prop. 8 can be overturned. Marriage equality advocates should think seriously about preparing now for a major campaign in November 2010 to restore equal rights for same-sex couples in California.

Tyranny of the majority

November 25, 2008

› steve@sfbg.com

When the California Supreme Court agreed last week to decide the legality of Proposition 8 — which a slim majority of Californians passed Nov. 4, taking from same-sex couples the marriage rights that the court had established in May — the debate shifted to a concept far older than that of gay rights.

Essentially, it will decide whether this is a case of the "tyranny of the majority," a phrase Alexis de Tocqueville coined in his classic 1835 book Democracy in America, drawing on a concept from the ancient Greeks that was the philosophical underpinning of the US Bill of Rights and the central paradigm of constitutional democracy.

The founding principle is that basic rights — such as the freedoms of speech, religion, and association — are not subject to majority approval and can’t be taken away by a simple popular vote. So the question now before the judges is whether the right to marry, which the court ruled had been unconstitutionally withheld from same-sex couples, is among those core rights.

"The whole notion of equal protection is to protect minority interests from the periodic discriminatory impulse of the majority," Robert Rubin, legal director for the Bay Area chapter of the Lawyers Committee for Civil Rights, told the Guardian. "And [upholding Prop. 8] would turn that on its head."

‘CONSTITUTIONAL CRISIS’

Even before the votes were counted election night, the San Francisco City Attorney’s Office and its counterparts in Santa Clara County and the city of Los Angeles were developing their challenge to the legality of Prop. 8, which they filed Nov. 5.

Both Prop. 8 proponents and the California Attorney General’s Office agreed that the high court should immediately take the case rather than let it rattle around the lower courts for months or years. "Review by this Court is necessary to ensure uniformity of decision, finality and certainty for the citizens of California," Attorney General Jerry Brown wrote to the court.

Brown had previously ruled that the roughly 18,000 marriages performed since May were legal and that Prop. 8 is not retroactive, something proponents of the measure dispute and which the Supreme Court also has agreed to decide in this case. But two of the three "issues to be briefed and argued," as the high court ruled Nov. 19, were more fundamental: "1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution? (see Cal. Const., art. XVIII, 1-4) 2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?"

Narrowly framed, the first question asks whether the process of banning same-sex marriage in the constitution should have gone through the more cumbersome revision process, which involves winning a two-thirds vote in the California Legislature before submitting the measure to voters. And the second concerns whether the legislative branch of government (in this case, through a direct vote of the people) can legally override this decision by the judicial branch.

But more broadly framed, both questions go to the same basic issue: can a simple majority of voters take away rights from a protected minority group, one the judicial branch has already ruled is entitled to the same marriage rights as heterosexual couples? The implications of that answer are so profound that City Attorney Dennis Herrera, in a City Hall press conference after the court announced its decision, cast the matter as no less than a "constitutional crisis."

"The cases before the Supreme Court today are no simple rematch. To be candid, the principles implicated here are of far greater consequence than marriage alone," Herrera said. "In short, this case has gone beyond the simple issue of marriage equality. And no matter what your view of same-sex marriage is, it’s important to understand that the passage of Proposition 8 has pushed California to the brink of a constitutional crisis."

He then explained why.

"This measure sought to do something that no other constitutional amendment has ever done here in the state of California, and that is to strip a fundamental right from a protected class of citizens and in doing so, it did not merely undo a narrowly disfavored Supreme Court ruling. Its legal effect is nowhere [near that] simple or elegant. Rather, it upended a separation of powers doctrine deeply rooted in our system of governance. It trounced upon the independence of the state’s judicial branch and it eviscerated the most fundamental principle of our state’s constitution. And if allowed to stand, Proposition 8 so devastates the principle of equal protection that it would endanger fundamental rights of any potential electoral minority, even for protected classes based on gender, race, or religion. And it would mean a bare majority of voters could enshrine any manner of discrimination against any unpopular group, and our state constitution would be powerless to disallow it," Herrera said.

That’s why he said 12 cities and counties have joined this suit — including Los Angeles and Alameda counties, which were not part of the original same-sex marriage case — along with supporting roles being played by the NAACP, the Mexican-American Legal Defense Fund, the Asia Pacific American Legal Center, and California Council of Churches.

There is some irony to the Council of Churches’ involvement given that religious groups, particularly the Catholics and Mormons, provided the backbone of financial and volunteer support for the Yes on 8 campaign. Yet the council argues that Prop. 8 is an attack on religious freedom.

"It is kind of ironic, and I don’t they they’re paying attention to the big picture, to be honest with you," Eric Isaacson, attorney for the Council of Churches, told the Guardian. "But history tells us that religious groups are often the victims of such persecution."

He cited laws that have taken rights from Jews in many countries and instances of majorities in the United States going after Jehovah’s Witnesses and the Mormons, a group driven from state to state by discriminatory mobs until they finally settled in Utah to enjoy religious freedom.

Beyond the historical and precedent-setting nature of the case, the council’s executive director Rick Schlosser told the Guardian that Prop. 8 discriminates against Episcopal, Unitarian, and other churches that believe all people have the right to marry.

"We work on a lot of religious freedom issues and there’s a huge number of churches that support the right of people to marry," Schlosser said. "There are a lot of churches that think it’s their religious duty to perform same-sex marriages."

CONFLICTING TRADITIONS

Frank Schubert, who managed the Yes on 8 campaign, scoffs at attempts to frame this debate around larger constitutional issues: "This is simply about marriage and what the definition of marriage will be."

He called the chances of overturning the measure "minuscule," and said, "the constitution belongs to the people." Rather than an initiative upsetting constitutional traditions, Schubert blamed the Supreme Court for reinterpreting marriage: "It’s the first time in California that rights that did not exist were granted on a narrow court decision and the people corrected that."

Yet the traditional gender structure of marriage is now in conflict with traditions of equal protection and separation of powers, something same-sex marriage advocates say needs to be the subject of a concerted public education campaign.

"There is a major civics education to be undertaken," Rubin said, recalling how he was also criticized publicly in 1994 for his role in winning a restraining order against Proposition 187, which sought to withhold government services from undocumented immigrants. "Yet the notion that protecting minority interests is not subject to popular will is not that hard to understand."

Maybe, but some constitutional law scholars say the formulation is not quite that simple. "The notion that a majority can’t take away a minority group’s rights, that just isn’t true," said UC Berkeley’s Boalt School of Law professor Jesse Choper. He takes a less philosophical view of the case, noting that California law explicitly allows the constitution to be amended, essentially however the people see fit, a process far easier than the one to change the federal constitution.

Choper said the specific question before the court is whether voters can remove same-sex marriage rights from the constitution. "And the answer is yes, if they do it properly," he said. That determination will come down to whether the judges believe this change is a mere amendment, or a more serious revision. Choper said the case law on that question isn’t well-established, but his reading of it is that plaintiffs face a real challenge in arguing that a simple change to the constitution — albeit a weighty one — requires the revision process. "It’s uphill," he said. "They’ll have to cut a new cloth."

But Herrera and his fellow plaintiffs don’t agree. While he characterized the coming legal battle as difficult and complicated, he expressed confidence in their ability to show that Prop. 8 changes core constitutional principles.

"That’s why I think this is a revision rather than amendment, because it would so radically change the balance of power and responsibility between our branches of government," Herrera said.

Santa Clara County Attorney Ann Ravel, who joined Herrera’s press conference, agreed, stepping up the podium to say, "Let me just add something to that. If this is not a case of revision, it’s hard to imagine any case that the court might find there to have been a revision, and there have been some."

While Choper may not agree with the plaintiffs on how the court will decide the equal protection questions, he does agree that the outcome could have serious implications for minority rights and the ability of voters to target disfavored groups. "If they can do it to this minority, they can do it to other minorities," Choper said.

Rubin said the religious groups pushing Prop. 8 are being short-sighted: "What they may like today when they have 51 percent of the vote, tomorrow they may be on the 49 percent side and may not like that basic rights come down to majority rule."

And that’s why the issue gets elevated to the larger question of whether this is a case of tyranny of the majority, something that could become an issue for the federal courts, which is likely to see cases challenging whether lax California standards on precedent-setting initiatives might run afoul of bedrock principles in the US Constitution.

"Yes of course you could challenge it in the federal court," Choper said. "If Prop. 8 stands, someone will bring a case about whether discrimination against gay marriages violates the equal protection clause of the federal constitution."

Herrera said he doesn’t want to go there yet, but he left that door open in response to a question from the Guardian: "Are there potential federal issues down the road that could be raised or discussed? It’s no secret that’s potentially there, but at this point, I don’t think that’s something that we’re going to focus on."

THE LONG VIEW

While the judges and lawyers in this case may focus on narrow legal concepts and definitions, Herrera is seeking to present the case in a far grander context.

"Equal protection under the law is what separates constitutional democracy from mob rule tyranny and it is a principle that reaches back eight centuries to the Magna Carta and it has guided the founding of our nation and our state," he said. "So I understand that on same-sex marriage, the emotions on both sides run high, but it’s important to understand the legal stakes are even higher. The cases before the high court today are no longer about marriage rights alone. They are about the foundations of our constitution. And as citizens we share the blessing of a common jurisprudence, and I refuse to accept that it is beyond us to find common ground in its enduring and deeply American principles: equality under the law, separation of powers, and an independent judiciary."

Ravel reinforced Herrera’s perspective, telling reporters, "The Supreme Court is going to decide, as Dennis said, a question that goes to the very foundation of our democracy and that will also impact every city and county in the state. The court has held, previously, that all couples have to be treated equally when it comes to the important institution of marriage. A majority of voters can’t undercut the court’s role in protecting minorities in our society."

Essentially, this is no longer a case about same-sex marriage.

"The merits of the case are different than they were back in May. The fact of the matter is the California Supreme Court found there was a fundamental right to marry and that LGBT couples are entitled to that right. The issue here is should Prop. 8 be struck down because it was an improper amendment versus a revision," Herrera said. "So I think everybody is focused on the right issues." *

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