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Sunday, January 16, 2011

The state's new lieutenant governor has yet to be sworn in and clings to power in San Francisco

By: John Upton

Acting this week as San Franciscos mayor, Lt. Gov.-elect Gavin Newsom has influenced decisions about hisinterim successor as mayor, sworn in city commissioners and is preparing to appoint a district attorney.

But Newsoms political foes and some lawyers argue that he stopped being the citys mayor on Monday,

potentially setting the stage for courtroom battles over mayoral actions taken this week and casting doubts

over the legality of his pending appointment of a successor to former DA Kamala Harris, who was elected

state attorney general.

Newsom was scheduled to take office Monday in Sacramento. He delayed his oath of office, however, to

temporarily remain mayor so he could pressure San Franciscos Board of Supervisors to appoint an interim

mayor of his liking before four members of the 11-person board are replaced Saturday. California and San

Francisco laws bar Newsom from simultaneously holding the offices of mayor and lieutenant governor.

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The Board of Supervisors is expected to vote today on an interim mayor in extraordinary circumstances.

Newsoms argument that he is currently the citys mayor is supported by attorneys working for San Francisco

and by the state Senate Elections and Reapportionment Committee chief consultant Darren Chesin. But his

stance has placed the city in a legal leadership quandary unlike any in Californias modern history and pits

two fundamental provisions of the states constitution against each another.

Article 20 of the California constitution states that an elected official must take an oath of office before

entering upon the duties of office. That article is cited by Newsoms attorneys and supporters as evidence that

he is still mayor.

Article 5 of the constitution, however, says that the lieutenant governor assumes office on the first Monday

after Jan. 1 following an election. Opponents of Newsom's stance point to that article as evidence that he

stopped being mayor on Monday and instead became an elected state official, regardless of his failure to take

the oath.

Its unclear whether one of those rules would trump the other if a dispute arises because no court has been

asked to weigh in on such an unusual conundrum, despite high-profile instances of state elected officials

Newsom's Dual Role Raises Legal Quandary - The Bay Citizen http://www.baycitizen.org/politics/story/newsoms-dual-role-rais

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delaying their oaths.

Former Gov. Arnold Schwarzenegger and Secretary of State Debra Bowen delayed their initial swearing-in

ceremonies, but neither of those lawmakers held conflicting elected positions at the time that they delayed

their oaths.

Our opinion is that right now Gavin Newsom is legally mayor of the city, San Francisco outside counsel

James Williams said Tuesday during a Board of Supervisors hearing. We were unable to find a precedent

with regard to the constitutional elected offices of the state of California. Never to our knowledge has alieutenant governor done this.

Contitutional elected offices include governor, secretary of state, controller, treasurer and other high-profile

state elected positions.

Remcho, Johansen & Purcell LLC attorney Thomas Willis wrote a Dec. 2 memo that supports Newsom's

claim that he is mayor.

A regular citizen could not generally sue to oust Newsom from the office of mayor, according to UC Hastings

law professor David Levine. To prevent frivolous lawsuits aimed at challenging elected officials rights to

hold office, such procedures, called quo warranto proceedings, must be initiated by the state's attorney

general.

We havent been asked the question about Newsom so we havent looked into it, said Jim Finefrock,

spokesman for Attorney General Kamala Harris. Harris is a Newsom ally.

A citizen could, however, file a lawsuit in the future claiming that they were harmed by an action taken this

week by Newsom and that the action was null and void because he didn't legitimately hold the office of

mayor, according to Levine.

Some say that means somebody could potentially sue to oust a district attorney appointed today by Newsom.

If Newsom stopped being mayor on Monday, the citys charter indicates that Board of Supervisors presidentand likely mayoral candidate David Chiu has unwittingly spent the week as the citys executive leader.

While Newsoms actions in delaying his oath to serve as mayor appear to be unprecedented, it is normal for

politicians to try to give themselves a say in naming their successors, according to UC San Diego Associate

Professor of Political Science Thad Kousser.

I cant remember a statewide officeholder delaying their oath of office like this for strategic reasons in the

recent past, Kousser said in an e-mail. But strategically timing your retirement, filing papers for a new

office, or switching between levels of government in order to hand-pick your successor is as old a politics

itself.

The lieutenant governor position is currently being filled by Republican Abel Maldonado, who was defeated

in the race for the post in November by Newsom. Maldonado could therefore become governor if Gov. Jerry

Brown dies before Newsom assumes his post in Sacramento, Capitol Weekly reported.

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