By now, you may have heard that much of San Francisco’s political leadership is moving on up in about a month or so.  But just how San Francisco moves on from Gavin Newsom and Kamala Harris  (note: I worked on her campaign, but I have no inside details on this) is still up in the air.  The Wall Street Journal has something of a primer on the issues. It’s a decent enough start, portraying the various scenarios.  For a more entertaining take, watch the Necessary Conversation video on your right. But as somebody who is pretty involved in local politics, these are the decision points, as it were, that I see:

1) When will Gavin Newsom switch gigs?

Officially, Abel Maldonado’s term ends on January 3, like all other statewide officers. And that is the date that Gavin Newsom is supposed to be sworn in as LG.  However, he is trying to push back that date a few days in order to get his replacement selected by the new Board of Supervisors that is sworn in on Jan 7.

Of course, if he is able to push back his inauguration date, the other thing that would bring him is the ability to appoint the interim DA.  He’s hinted that he would respect the opinion of Kamala Harris on that pick, but would, if he makes that call, be the one with the final decision on DA.

At this point it isn’t totally clear whether he will push the date back, but, legally it looks like he might be able to do it.  That has to give it a pretty good chance of happening, I’d say it’s a 60% shot now.

2) Does anybody have 6 votes?

That is the big question, and right now, it seems that there are only a few people that could legitimately claim to have those votes. And one of them, Asm. Tom Ammiano, has said that he doesn’t want the job.  Sup. Chris Daly seems intent on twisting Ammiano’s arm into taking the gig.  State Sen. Mark Leno would probably have the votes as well, but as he was just appointed Senate Budget Chair, I’m not sure that he would want the gig either.  Sen. Leland Yee really, really wants the job, but doesn’t have the 6 votes.  City Attorney Dennis Herrera and Assessor Phil Ting are also running for mayor, but don’t appear to have the 6 votes necessary

Now, if nobody is able to get to 6 votes, the Board President automatically becomes acting mayor. Right now that is Sup. David Chiu.  Chiu is also the favorite to retain that position on the new board, and would thus get the mayor’s new gig.  Now, that wouldn’t make him “interim” mayor, but just acting. The big difference is that the acting mayor can be replaced by the board, whereas the interim mayor cannot. Chiu is also rumored to be considering a full run at the Mayor’s office if he is named to be interim Mayor.  And, running as something of an incumbent, he would at least be in a much stronger position than he is for that right now.

Oh, and just to make things more complicated, there have also been rumors that Chiu is interested in the DA position as well.

3) A care taker?

If the progressive bloc can’t get something together to choose an interim mayor, Sheriff Mike Henessey and SFPUC General Manager Ed Harrington are rumored “caretaker” Mayors.  The election is just 11 months away, so a caretaker mayor would allow the voters to actually choose the next Mayor.

There are really too many variables to consider, but hopefully this flood of information will somewhat valuable as we watch to see the dominoes fall in San Francisco.

Cross-posted to the Courage Campaign's Prop 8 Trial Tracker.

As I do this sort of flash analysis, I want to start with a big, broad, general point here. Namely, while you can see possible avenues and ideas that may filter into a decision, focusing on “winners” is a sucker's bet. Perhaps, if you take all the questioning as a whole, you end up with some tougher grilling of the opponents, but judges like to play devil's advocate. Sometimes you can get a read, and sometimes you can't.  Also, I haven't really had the time to fully analyze each aspect of these arguments, so forgive me if I misread, or am just plain wrong, in places.

So let's take a look at the meat of the issues, and see what we learned today over the flip

Imperial County

The attorney for Imperial County, and Isabel Vargas, the deputy clerk of the county, took a real beating in the courtroom. Robert Tyler, of the Advocates for Faith and Freedom, a right wing anti-equality non-profit, came to the podium in front of a skeptical panel.

First, the court had an issue with the fact that the actual clerk of Imperial County was not a party to the attempt to intervene. Rather, Mr. Tyler represented Ms. Vargas, who only really has authority to act as an agent of her elected boss, Dolores Provencio. Erwin Chemerinksy, the Dean of UC-Irvine's new law school, had this to say about the oral arguments:

If Imperial County can intervene and defend Prop. 8, then there would be no need for supporters of Prop. 8 to have standing to do so. But both Judge Hawkins and Judge Smith seem very skeptical of the authority of the deputy clerk to seek to intervene on behalf of Imperial County. Both stressed that the clerk is not seeking to intervene and a deputy clerk lacks the authority to do this. Judge Smith also has raised the issue of whether the clerk is a state officer or a local officer. If the clerk is a state officer, then the clerk would not have the authority to represent the state — only the governor and the attorney general can do so. The clear sense so far is that all three judges are very skeptical of allowing Imperial County to intervene. (LA Times)

Of course, the question of Imperial County really only becomes important if the Court decides that the proponents do not have standing. But the Imperial County claim looks like something of a long shot at this point, or at least not something you would want to be pinning your hopes on.

Standing of the Proponents

This is where some unexpected wrinkles came up in the oral arguments. Namely the possibility of the “certification” of a question to the Supreme Court of California. But let's back up a step.

In the questioning of David Boies, Judge Smith (the lone Republican appointee on the panel), asked him whether the failure to defend Prop 8 was a “nullification” of the efforts of the proponents and the choice of the voters in a way that was akin to a “veto” by the elected state leaders. Of course, a veto of an initiative is not allowed under the Constitution. So,.conflict? (Here's where I'm hearing an ominous duh-duh-duh in my head.)

Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the “Pacific Justice Institute” exactly that question. PJI was first denied by the the 3^rd District, and later by the California Supreme Court.

There is a process for appelate courts to ask state courts a question about state law, called certification. Basically, they “certify” a question, and the state supreme court can answer it. It would delay the process substantially, and given the quick dismissal of the PJI attempt to get Brown to appeal, doesn't really seem either necessary or worthwhile. Essentially, the state supreme court has spoken on this issue by failing to force the appeal.

However, if the panel really felt strongly on this subject, they could go to the State Supreme Court. We would probably here about that fairly soon. But, really, don't expect that.

Returning to the main issue, the ball game was essentially played on the field of Arizonans for Official English, with various cases modifying it. The court was essentially trying to figure out if there a) had ever been a case where a proponent was deemed to have standing and b) if this should be that first case.

Charles Cooper, the attorney for ProtectMarriage.com, eventually relented that there was not such a case. However, he then went on to say that the Strauss decision, where the state Supreme Court upheld Prop 8 was an example of just that in the state court. There, Brown and Schwarzenegger once again refused to defend, but the proponents had standing as defined by the California Supreme Court.

Now, Article III standing isn't the same thing as California standing, there is different jurisprudence on that. However, the admission that there was no case makes the proponents request a question of novel law. Now, that's not to say that they can't win on this question, but it does underscore the big question mark on this issue.

The Substance

After all the process of the first hour (plus 15 minutes), it was on to the meat and potatoes of the due process and equal protection claims. One interesting initial point was that both sides seemingly dropped the question of intermediate or strict scrutiny. Ted Olson briefly mentioned that he think that it could apply, but the substance of his remarks all stuck to the question of whether there was a “rational basis” for Prop 8.

I think there were a couple of specific points that attracted most of the attention, the Romer case, and this question of the “word”.

The “Word”

Judge Smith focused a couple times on whether the State of California was in a worse position for having passed Prop 8 because it has given all of the same rights and privileges under the auspices of the domestic partnership statute. In other words, if we are only fighting over a word, and no substantive differences at the state level, aren't we essentially creating a subclass? And roughly transcribed, here's what Cooper said:

Cooper: The word is the institution. If you redefine the word, you change the institution.

I actually think this was a big moment of the oral argument. It said that yes, the anti-equality forces were there only to “put down” gays and lesbians, or as San Francisco Deputy City Attorney Therese Stewart said (again, this is my rough notes here)

If the word is the institution, then the argument is just that gays and lesbians would “Stain” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause. Taking these components together, it infers animus.

If we only passed Prop 8 to show that same-sex couples aren't as good, or as worthy as other couples, then isn't the equal protection argument plain to see? It reveals the naked schoolyard taunting aspect of Prop 8. Nah-nanny-boo boo, you aren't as good as me. And frankly, nanny-boo-boo isn't a valid use of state authority.

Roemer

Romer v Evans struck down Colorado's Amendment 2, which barred local governments from recognizing gays and lesbians as a protected class, as the City of Denver had done earlier in the decade. In the decision, Justice Kennedy said that the law denied LGBT Coloradans the protection of the law in an impermissible way. It was so broad as to “confound” judicial review and that Amendement 2 was raised of animus. Or as Kennedy put it:

[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected…

Cooper argued that the legislation at issue in Romer was so broad that it couldn't be constitutional, whereas this was just one issue, the word “marriage.” Judge Hawkins pressed Cooper, saying that the removal of rights, especially this right, put it back in the Romer territory. This issue of the removal of rights looks likely to come up in the decision, if the court does reach past the question of standing.  The question just seems to large, and too conflicting with prior law, to not be a major part of the decision.  And generally, that's a good thing for equality.

Who wins?

So, can we predict a winner from the argument today? Well, I go back to my initial statement, it is hard to tell from an oral argument alone. If you really pushed me, I would say that the plaintiffs would be the favorite at this point. The duel questions of standing and whether the court could really find a rational basis hang in the air. And I'm not sure that Cooper satisfactorily answered either.

While the eyes of the nation are on San Francisco and the 9th Circuit’s Prop 8 hearing, there is some other news around the state.  Keeping the preview theme up, the new legislature gets sworn in today in Sacramento.  We’ll have 10 new Senators and 28 new Assembly members.

Meanwhile, Governor Schwarzenegger will call a special session on the budget, just to see if he can try to do something while Sacramento waits for Gov. Brown. But, there might be some trust issues:

California lawmakers are in no mood to tackle the state’s latest deficit before Gov. Arnold Schwarzenegger leaves office next month, even as the governor prepares to declare a fiscal emergency and call a special session of the Legislature on Monday.

The ruling Democrats distrust the Republican governor, who has used his veto pen to make deep cuts in programs they prize, and they don’t want to hand him a new opportunity to exercise that power. Moreover, state law allows them 45 days to pass any deficit-cutting legislation in the special session – and by then, Schwarzenegger will be gone and Democrat Jerry Brown will be governor. (LA Times)

After the courts have affirmed Schwarzenegger’s blue pencil line item veto actions, I’m just not sure why you would deal with him.  If the issue is to make cuts alone, better to make the cuts with Gov. Brown. At least you know the score with Jerry.

As Asm. Beall said, Arnold is Expendable.

The Prop 8 is scheduled for oral argument today at 10AM, and it will be televised live for the world to see.  You will be able to catch it on C-SPAN live here and/or get it archived here in case you miss the live coverage).  It will also be covered live on several local tv channels, including KRON 4 in San Francisco. (AFER has full broadcast information here.)

I’ll be covering the comments live here and at the Courage Campaign’s Prop 8 Trial Tracker.  You know the basic facts here, so I won’t drill down too much.  However, it is worth noting now that the hearing will be broken down into two parts, standing and Constitutionality:

In the first hour, a three-judge panel will consider if the group that put Proposition 8 on the ballot two years ago is eligible to appeal the lower court decision since its members are not responsible for enforcing the state’s marriage laws.

Outgoing Governor Arnold Schwarzenegger and Attorney General Jerry Brown refused to challenge the ruling.

In the second hour, the panel will hear arguments on the constitutionality of Proposition 8. (AP)

Expect most of the fireworks to come out of that second hour, but in terms of how the case goes down, the first hour might be the more telling.  There is a strong argument that the proponents of Prop 8 have no standing to appeal the case.  Brown and Schwarzenegger chose not to appeal, and that certainly isn’t going to change under Harris and Brown.  But a decision may very well be made on the question of standing, skirting the constitutionality question entirely.  While this would mean that we here in California will have marriage equality, it does not help create the national rule that many have been looking for in this case.

Note that standing would not have been a significantly different question if Cooley had won at this point, as he couldn’t have interceded for another month.  While the appeal deadline has obviously come and gone, the question about whether he could have appealed beyond the 9th Circuit will remain open.  However, I suppose a Cooley victory is a mere hypothetical at this point.  

In the end this case is about one basic, core value: separate is never equal.  Yet the government under Prop. 8 violates Americans’ constitutional rights by creating separate classes of people with different laws for each.  The state sanctioned discrimination leads directly to a hostile environment for children and the possibility of hate crimes.

In short, discrimination shouldn’t be allowed to stand in California’s constitution. My live blogs over the flip…

11:00.

Cooper: Reinhardt nailed distingushing Karchner and Arizonans.  Nobody in Arizonans found any law that showed proponents could appeal.  Cooper brings a State Court Supreme Court, the Strauss case.  The proponents were allowed to intervene in Strauss.  You should ask California Supreme Court case before you allow the district court to stand.  10 min recess for 2nd hour.

10:50

Boies: CA Supreme Court gave a one sentence denial as to forcing the AG to appeal, there was no rationale provided.

No clerks are technically bound by the injunction, save Alameda or LA. However, the remainder of the state, the power to execute the laws go to AG and Governor. The deputy clerks will be required to act by the AG and Governor. Clerks are ministerial, as defined by Lockyer case. They are required to act as the Governor and/or AG tells them. Thus, the deputy clerk of Imperial County should not be allowed.

Nullification Question: Does AG and Governor not defending nullify the people’s decision in the form of Prop 8? Boies says no, because they have seen the district court’s decision and are not bound under California law to seek further decision. The Supreme Court could have required AG action, but did not do so.

Scope of the injunction:

Boies: If the court concluded that the district court exceeded subject matter jurisdiction, but Boies is not aware of any precedent to edit the injunction. He is relying on AG to affect the injunction. The injunction goes to those who are controlled by the defendants, in this case the AG.

10:30 Robert Tyler: Attorney for Imperial County, actual client is a deputy clerk.  Their client is Ms. Vargas, a deputy clerk.  Judge Hawkins is grilling him on whether Imperial County even has the right client.

Judge Smith: “All political functions remain vested in an officer.” Imperial County doesn’t have authority to act without the clerk. Here, the clerk has not given power to the deputy clerk. Deputy is a mere agent, and cannot act without the clerk.

The judges are looking at whether the deputy clerk is bound as a state officer. But the bigger issue seems to be that the Imperial County intervention doesn’t actually have the clerk here.

“When you are asked a question, and you don’t know the answer, say so.” Highlight of the day.

10:14:

Cooper: Looking at two standing issues. First, the big issue of whether the 9th Circuit, the standing issues that we’ve been talking about for a while now.  However, Cooper is interested in looking at the district court jurisdiction as well.

On the 9th Circuit: Cooper is looking at a New Jersey case that was decided before Arizonans for Official English.  The big question here is whether proponents of a measure have standing, and Cooper is asked as much.  His response is rather stunning:  “I don’t have a case to show Article 3 standing for proponents.”

Now, in Arizonans, Justice Ginsburg says that proponents do not have Article III standing, that is to say whether they have standing under the judiciary article of the Constitution.  Cooper is trying to avoid that comparison, by pointing to the prior New Jersey case (Karcher).  In Karcher, the Legislative officers were given standing.  As noted, Karcher was before Arizonans, so it must be read in context of Arizonans.

Cooper is pointing to the Strauss case in state court, where the proponents successfully defended Prop 8 in state court.  The California Supreme Court allowed proponents to defend Prop 8, but blocked other anti-equality groups from intervening, showing that proponents have special standing.