OVERRULING DEMOCRACY

Once again, the Republican activist judges in San Francisco have thrown out a measure aimed at protecting tenants from unjust evictions.

This time, it was Judge James Warren who tossed out a law passed by the San Francisco Board of Supervisors to expand and increase relocation expenses for tenants evicted under the Ellis Act. The Ellis Act is a state law that allows landlords to evict tenants in order to remove the units from the rental market. The San Francisco legislation provided that all tenants evicted under the Ellis Act would get $4,500 in relocation benefits each, up to a total of $13,500 per household, and provided an additional $3,000 to senior and disabled tenants. Previously, low-income tenants received $4,500 to split among all the tenants in the household and senior or disabled tenants received an additional $3,000. Tenants who did not qualify as low-income received nothing.

In 2004, amendments to the state Ellis Act provided that relocation compensation could be paid to all tenants, not just low income households and senior or disabled tenants. Based on those amendments, San Francisco County changed it's local ordinance to allow households to be compensated up to $13,500, and provided an additional $3,000 to senior or disabled tenants. These changes were clearly reasonable and brought compensation levels in line with the impact of relocation- no longer would tenants be evicted from their homes without cause and without compensation. The San Francisco legislation had broad support, even from notoriously anti-tenant politicians and political boards like the San Francisco Rent Board and Mayor Gavin Newsom. The San Francisco Supervisors approved the legislation by a vote of 8-3 in January of 2005.

Just four short months later, Judge Warren threw out the San Francisco legislation, ruling that the original Ellis Act did not mean to provide expanded relocation benefits to tenants. He acknowledged that the state legislature's amendments to the did, in fact, allow San Francisco to expand relocation benefits but noted that although the “letter of the law would allow these new relocation benefits,” he was basing his ruling on the “spirit of the law.” San Francisco tenants and tenants advocates were surprised, but not shocked; San Francisco Judges have routinely thrown out every pro-tenant measure passed by the Board of Supervisors or the voters since 1998.

This was the second tenant measure thrown out by Judge Warren in the last year. Last August, he stunned tenants by ordering a measure banning the demolition of any rent controlled housing of 20 or more units off the November ballot on the basis of a minor technicality. Incredibly, his logic in that case was the absolute reverse of his ruling on the Ellis relocation benefits. In throwing the anti-demolition measure off the ballot he said “the spirit of the law would let this measure stay on the ballot; unfortunately, I must follow the letter of the law.”

Since 1998, a number of laws protecting tenants have been thrown out by judges, including:

- Legislation passed by the San Francisco Board of Supervisors to identify so-called “Tenancies In Common” (TICs) as condominium conversions and regulate them as such. In a TIC, a building is owned by many people, each owning a specified percent. In San Francisco, property owners wishing to convert indiviidual units to condos must enter the condo lottery, and many people wait years to get their property approved. Currently, TIC owners can circumvent condo conversion laws by making their ownership of an individual unit not technically a condominium. In this case, the Appeals Court upheld a Superior Court decision, but based their decision on dubious logic, finally ruling that regulating TICs as condos violated the TIC owners right to privacy.

- Legislation passed by the voters to eliminate most “capital improvement” rent increases, in which landlords are able to pass the costs of building improvements on to tenants.

- Legislation requiring landlords who were evicting tenants to move in to the property, known as owner move-in or OMI evictions, to offer other vacant rental units owned by the landlord to the tenant at the same rent the tenant had been paying.

- Legislation requiring that landlords obtain a Conditional Use Permit in order to convert residential rental units to residential ownership units such as TIC's.

- Legislation prohibiting landlords from threatening tenants with eviction or forcing tenants to sign waivers of all their rights, which was sponsored by San Francisco District Attorney Kamala Harris. A judge also threw out a provision banning landlords from getting tenants to sign agreements not to cooperate with law enforcement agencies investigating wrongful evictions.

While conservatives claim that the “activist judiciary” is liberal, the reality is that conservative judges are far more likely to interpret the law in a way that advances their ideologies- and there are far more of them, especially in California. Nearly all of the state’s judges have been appointed by conservative, Republican Governors: Reagan, Deukmajian, Wilson and Schwarzenegger. Democratic Governor Gray Davis’s appointments were few in comparison, and his appointments were not particularly progressive.

Tenants have had a particularly hard time advocating for their rights in this environment. Even the best of judges come into court with an inherent bias against tenants. Most of the members of the judiciary are property owners and a significant number are landlords themselves.

For renters in San Francisco, the judiciary has encouraged and fostered the gentrification of many of what where formerly San Francisco's most vibrant and diverse communities. The displacement of the city’s low and moderate income residents who can no longer afford to live here is turning San Francisco into a city of the rich.

Ted Gullicksen is the Office Manager of the San Francisco Tenants Union, a citywide tenant advocacy group, and has been a tenant organizer in San Francisco for over 15 years.