How Republican Judges Shape San Francisco (and Matier & Ross Miss the Point)

by Randy Shaw on September 7, 2004

When Republican Judge James Warren threw Prop M off the San Francisco ballot last week, he acted consistently with his Party’s values. Republican judges have voided a wide range of tenant protection laws in recent years, while doing legal cartwheels to uphold crime and tax measures that should have been invalidated. The Chronicle should have noted that Angelo Sangiacomo’s attorneys in the Prop M case help secure Republican judicial appointments, and that this is the second time in recent years that the firm got a Republican judge to throw out a pro-tenant initiative aimed at Sangiacomo.Instead of examining this record, Chronicle columnists Matier & Ross wrote a column Sunday promoting the mayor’s view that Judge Warren was “independent” and blaming Supervisor Chris Daly for the court’s ruling.

San Francisco Chronicle columnists Matier & Ross sounded gleeful this past Sunday at Judge James Warren’s legally unprecedented ruling throwing Prop M off the ballot. The Chronicle columnists used the ruling to recast a decision that disenfranchised nearly 20,000 signers to the Prop M petition into a battle between Mayor Newsom/Jack Davis and Supervisor Chris Daly.

The Chronicle columnists love to cover stories involving Jack Davis, and are always on the lookout for opportunities to portray Daly as a hothead (they describe Daly as being “in an even hotter boil” over the ruling). But in framing a ruling that potentially impacts thousands of tenants as a battle between Supervisor Daly and Mayor Newsom, the Chronicle missed a great chance to educate its readers about the Republican judges that control our city.

Major court rulings usually produce reaction stories from those impacted. But the Chronicle preferred to identify Chris Daly as the loser here, not the Trinity Plaza, Civic Center Hotel, or other low-income tenants who were depending on Prop M’s passage to save their homes.

During the past five years alone, the record of Republican judges striking down San Francisco measures directly targeted at reducing tenant displacement is striking:

Republican judges have fostered Ellis Act evictions by expanding the statute far beyond its original language and intent; legal commentators have described the Republican judiciary’s Ellis rulings as “legal witchcraft.”.

Republican judges have disallowed every San Francisco law designed to limit evictions for tenancies in common, despite case law upholding far more restrictive condo conversion laws.

Republican judges have thrown out anti-displacement ballot measures despite case law urging judicial deference to the electorate.

All of the above tenant-protection measures were opposed by the San Francisco Republican Party.

When the Ellis Act passed in 1986, lobbyists for the state landlord groups said the bill was much ado about nothing “because few owners want to sit with a vacant building.” But Republican judges vastly expanded the Act so that landlords could invoke Ellis, evict tenants, and then convert the building to condo-style ownership.

Republican judges looked at local anti-demolition and housing preservation laws and held that these were not “land-use laws” and were preempted by the Ellis Act. The Republican judges simply overturned the Legislature’s effort to prevent precisely the type of outrageous tenant displacement that the Ellis Act has caused.

Republican Court of Appeal Judge Barbara Jones recently struck down he city law restricting tenancies in common-best known as the “McGoldrick TIC Legislation– on the grounds of invasion of privacy.

This is not a joke. The same Republicans that love restrictions on privacy rights now turn to the doctrine to prevent cities from protecting tenants from eviction through condominium-style conversions.

The politics of this ruling is obvious.. Republican Judge Jones does not agree with restrictions on landlord rights, and simply invented a theory—invasion of privacy-to overturn such restrictions.

In November 2000, San Francisco voters approved by a 58% margin Prop H, which restricted rent increases due to capital improvement passthroughs.

Prop H was pushed to the ballot in response to proposed rent increases of over $500.00 per unit at large buildings in North Beach.The landlord seeking these massive, eviction-causing increases was Angelo Sangiacomo.

To ensure his scheme to displace tenants would succeed despite Prop H, the wealthy landlord retained the same Nielsen Merksamer firm that represented him in the Prop M case. The case was heard before San Francisco Superior Court judge James Robertson, a Republican.

From 1983-1998 when Republican Governors ran California, the Nielsen firm played an influential role in recommending candidates for judicial appointments. Since the process is confidential, there is no way to know what role the firm played in securing the appointments of Robertson, Jones or Warren.

But we do know that the only pro-tenant measure ever struck down by a San Francisco Democrat was from a now retired judge whose appointment to the Superior Court by a Republican Governor was linked to the fact that his wife worked for the Nielsen law firm.

James Robertson is an extremely anti-tenant judge. He spent several months holding hearings on Prop H, as he desperately sought some legal handle that would allow him to strike down the measure.

Unable to find such a handle, he turned to the strategy used by Republican judges to strike down laws restricting child labor and other Progressive era and New Deal legislation— Robertson concluded that Prop H violated “due process.”

Judge James Warren’s reasoning in the Prop M case was equally suspect.

There is no legal precedent for throwing out an initiative when the voters signing the petition have not been misled. Judge Warren acknowledged this, and also stated that there was a simple and obvious remedy for the petition’s error.

But Warren, like his Republican brethren who refused to let all the votes be counted in Florida, bypassed the “obvious” approach. He preferred to disenfranchise nearly 20,000 signatories and prevent San Francisco voters from deciding the city’s demolition policy in November 2004.

Unfortunately, the Prop M campaign could not instruct its attorneys to use their one peremptory challenge to prevent Judge Warren from hearing the case. The reason is that the case would then have been heard by one of three other judges, two of whom were Republicans who would have killed the measure without a thought. There was a better chance that Warren would follow the law.

The Prop M decision spotlights the secret truth about the nation’s most progressive major city: Republicans control our civil judicial system and work aggressively against tenant protection laws.

Democrat Gray Davis made some fine appointments to the San Francisco bench, but none of these judges serve in the critical Law and Motion or Appellate Departments in the civil courts (the composition of the latter is fluid, but I am unaware of a major decision in which a Davis appointee took part).

Many Democrats have run for judge in our city, but Kevin McCarthy is the only one that has served in the critical Law and Motion Department where the legality of city laws are decided.

Of course, there are Republican judges who let the law rather than their personal views dictate their rulings. But for every David Souter there are multiple Antonio Scalia’s.

Some Democratic judges also have strong biases against tenants.

For example, when Mayor Newsom’s father Bill sat on the Court of Appeal, he invalidated a provision in the city’s rent control law that awards tenants damages for wrongful evictions. Fortunately, Art Agnos was mayor at the time and he got a revised damage statute re- enacted; should a similar ruling come down while Bill’s son Gavin is mayor, tenants will have to go the ballot for redress.

The obvious question is: why does the city’s powerful Democratic establishment remain silent while Republican judges exert unfair influence over San Francisco residents?

Perhaps it is because judges, attorneys and the media collaborate on the myth of judicial independence. Victims of Republican judicial bias likely fear that speaking out will only subject them and/or their clients to worst mistreatment.

But attorneys practicing in the civil courts know the truth. And their conspiracy of silence has emboldened, rather than mitigated, the Republican judges willingness to deny democracy in San Francisco

The number of registered Republicans in San Francisco is reportedly shrinking. But who needs residents when conservatives can use their judicial power to veto democratic decisions shaping who will live in San Francisco in the future..

Randy Shaw is the editor of Beyond Chron and author of The Activist’s Handbook. Send feedback to rshaw@beyondchron.org



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