Two days ago, in McMahan v. City and County of San Francisco, the First District Court of Appeal issued a ruling, in which it declared a portion of a 2002 popular initiative Proposition N (better known as now-Mayor Gavin Newsom's creation, Cash Not Care) invalid, but upheld the remainder of the initiative. If you are a San Francisco voter, your reaction should be somewhere between mild annoyance and rage (memo to postal workers: this last sentence is a joke:)).
Here are the facts (as stated in the opinion). In 2002, then-SF Supervisor Gavin Newsom proposed a change in the way San Francisco fulfills its state law obligation to provide support to its indigent population. Instead of simply handing out cash grants to homeless (ranging from $320 to $395 per month), the City would provide those same funds in the form of housing and meal assistance, thereby reducing cash handouts to as little as $59. The proposal also guaranteed that if the City is unable to deliver those housing and meal services, it would then provide the cash equivalent of those services. Finally, as an advertised direct benefit of the proposed change, the proposal contained a mandatory funding provision for the services provided to the homeless. The baseline mandatory funding level in the City budget was almost $14 million.
The idea sounded right to many voters, particularly those who, while being far from Bush supporters, were still tired of observing the homeless claiming some of the best parts in the City. I would dare to say that Mr. Newsom prevailed in the mayoral election over a very popular Green supervisor Matt Gonzales precisely because of the Care Not Cash initiative (which 60 % of voters approved in 11/02 elections). There was one small problem - when the City began to implement the initiative, it "suddenly" discovered that the mandatory funding provision is not enforceable because the initiative became only a city ordinance, which cannot override the mayor and the board of supervisor's budgetary powers contained in the City Charter. (See City and County of San Francisco v. Patterson (1988) 202 Cal.App.3d 95, 104-105.)
Two homeless persons in San Francisco sued to invalidate the ordinance in its entirety, but the appellate court upheld the trial court's ruling in favor of the City. While the court had little trouble acknowledging that the mandatory funding provision was unenforceable, it held that the rest of the initiative, namely the switch from Cash to Care was severable and enforceable. In reaching this conclusion, the court found that the two parts of the initiative were severable, both grammatically and functionally.
I have two questions. One - why didn't then-Supervisor Newsom and his team research the legality of the proposed funding mandate BEFORE putting the initiative up for a vote? Judging from the Court's opinion, the illegality of the mandatory funding part is pretty clear and not open to debate - the case the Court cited was decided in 1988. Since the proposal was coming directly from the City Government, it is difficult to believe no one bothered to check this issue before Proposition N was put together.
Two - the correctness of the Court's ruling on severability is open to debate. I have no doubt the two portions of Proposition N could be grammatically severed. I can even see a case for a mechanical argument that the two portions are functionally severable. But the functional severability cannot be determined without looking at the initiatve as a whole. Lookng at Proposition N as a whole, the Care Not Cash portion states that if the City is unable to provide the homeless with the housing and meal services, the homeless get a cash equivalent. But, without the mandatory funding, this "guarantee" seems like an empty promise. Or, in the words of the City Attorney, it becomes a suggestion or a policy directive to the future mayors.
Also, unlike the Court, I am not as convinced that the voters would have approved Proposition N if they knew the mandatory funding part was invalid. While the Care Not Cash idea was the focus of the ad campaign, even the Court acknowledges that the mandatory funding provision was "sold" as a direct benefit of the Care Not Cash proposal. A more prudent approach would have been to invalidate the entire Proposition.
Disclaimer: I do support Care Not Cash as a concept and I did vote for it in 2002. But I am more then irked by the collosal waste of limited public funds that could have been avoided if the Newsom team did some basic legal research before putting Proposition N before the voters.
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