Once more unto the breach: The fate of Prop. C is now wholly in the lawyers’ hands

Mayor Breed’s gesture aiding Prop. C, the homeless measure she opposed, means less than you think. But, also, more.

The election is over. The winners have won, the losers have receded, and, as is the tradition, the losers’ backers will now make donations to the winners. This is how politicos who bet on the wrong horse get their phone calls answered and winning candidates chip away at their debts.

There are, however, some debts that can’t be repaid with mere money.

To wit, last week Mayor London Breed introduced an ordinance enabling City Attorney Dennis Herrera to sally forth and initiate a legal “validation action” regarding homeless measure Prop. C — a measure that could (eventually) pump some $300 million a year into the city’s homeless and housing budget by taxing San Francisco’s highest-grossing companies. (The city wasn’t sued the nanosecond Prop. C passed by anti-tax crusaders, as many in government predicted, so Herrera is moving ahead to get a judge’s validation).

The mayor had inveighed against Prop. C, bizarrely and disturbingly claiming this city could not be trusted to responsibly spend this money, insinuating that the the government — the government she leads — could not  be relied on to solve residents’ problems.

Attacking the competence of your own government is a bad look for a mayor. Especially when, as of last count, 61.33 percent of a record electorate disregard your wishes and vote for Prop. C. Nearly twice as many voters, in fact, went for Prop. C than for London Breed. And that’s a bad look, too.

So, the mayor’s ordinance to get Prop. C validated as quickly as possible was a gesture of good faith, and a means of beginning to pay down her self-inflicted political debt. What’s important here isn’t that such an ordinance was introduced — this is a somewhat pro forma thing, and any member of the Board of Supervisors could’ve signed on the dotted line if the mayor didn’t want to.

What’s important is that the mayor was proactive here, introducing it herself and giving her blessing to speed along implementation of a measure that she opposed but that won with a near-supermajority of the electorate. This is an olive branch offered to Prop. C’s backers and, of course, the voters.

But it’s also something more than that. Something a bit darker.

Sixty-one percent is a lot, but it ain’t 66.7 percent. And, despite a very well-run campaign and metric shitloads of cash from Marc Benioff and Salesforce, Prop. C — dogged by the attacks from  the mayor; Sen. Scott Wiener and Assemblyman David Chiu; the Chamber of Commerce and other vestiges of “Downtown;” and a number of wealthy tech executives and companies unwilling to foot a higher tax burden — could not reach the two-thirds plateau. This would have ensured a prompt influx of cash for homeless programs and housing and staved off a legal odyssey.

A legal odyssey the city may yet lose.

Breed has, openly, worried that voters may not grasp the realities of waiting months or years to clear legal hurdles before that Prop. C money rolls in — and then blame her for the city’s stagnating status quo. There were, again, twice as many Prop. C voters as London Breed voters, and Prop. C’s backers were touting the measure as the legislative equivalent of nectar of the gods. So this isn’t an entirely misplaced fear.

But Breed and others have graver concerns than waiting for all that money. And that would be not getting it at all. She and others in her camp worry that Prop. C is not legal — that, minus that two-thirds voter approval, a judge may yet strike it and other citizen-generated taxation measures down. Our City Attorney’s office is alone in interpreting a recent state Supreme Court ruling as paving the way for such measures to pass with a bare majority.

So Breed’s proactive step isn’t merely a symbolic gesture of goodwill or unity or what have you. It’s a message to the City Attorney: Let’s go see how smart you really are.

Insofar as you recall Shakespeare’s Henry V, you recall the battles and the fighting and the once more unto the breach, dear friends, once more and the we few — we happy few. You may not remember that all of this was spurred by an extremely technical and arcane — and specious — legal opinion that Harry had claim to France and invading and mayhem and getting your ass pinned down at Agincourt was the right and prudent thing to do.

The City Attorney’s memo enabling San Francisco’s charge unto this particular breach is equally well-endowed in the technical and arcane. It interprets a state Supreme Court ruling regarding the California Cannabis Coalition’s ultimately failed battle with a San Bernardino County municipality about marijuana dispensaries — because of course it does.

It’s amazing that the details of this case are, somehow, extremely relevant to whether San Francisco can reap hundreds of millions in tax money: There’s a question over whether a $75,000 fee placed on a San Bernardino dispensary constitutes a tax and, if so, whether a tax measure can be placed on the ballot during a special election rather than a general election and just how we should interpret Article XIII C of the state Constitution. Suffice to say, the two California Supreme Court justices who dissented in this ruling envisioned it leading to the same place as our City Attorney’s office — though they were far from pleased: “From here on out,” they wrote, “special taxes can be enacted by a simple majority of the electorate, as long as proponents can muster the necessary quantum of support to require consideration of the measure.”

From their dissenting lips to God’s ears, Prop. C backers must be thinking.

And as technical and arcane as our City Attorney’s memo is, it’d be presumptuous to label it as specious. That’s in part because it was generated by Scott Reiber, the chief tax attorney in a city with a yearly budget that’s 60 percent of NASA’s, and Buck Delventhal — something of a living legend in municipal lawyering, who has helmed the government team in this office since it was formed 40-odd years ago.

These are serious guys. This is serious money at stake here. We’re about to have some serious courtroom wrangling.   

Shakespeare was a good playwright. He dealt with the convoluted legal claims in the first five minutes and then let the principals fight it out. But San Francisco’s battle is not one that’s going to be won via an expeditionary force and superior longbow technology. The strength of this claim is going to have to hold up on its own, in court.  

This is going to be a complicated affair. And a slow one. In the meantime, expect Mayor Breed to keep toting that broom and talking about the need for cleaner streets. Expect her to potentially sit down with Prop. C’s crafters and backers when discussing how to allocate recent corporate donations to the city to combat homelessness — a smart, diplomatic move. And expect her, if need be, to cut funds from less favored city departments to better fund homeless-related services, using the measure she adamantly opposed as a talking point.

This is, after all, what the people said they wanted.