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Wednesday, August 25, 2010

Michela Alioto-Pier to Petition Supreme Court Tomorrow

Posted By on Wed, Aug 25, 2010 at 3:59 PM

click to enlarge Can she run or not? Depends on when you ask...
  • Can she run or not? Depends on when you ask...
Yesterday, we compared the ever-shifting legal status of whether Supervisor Michela Alioto-Pier can or cannot run again to the indecision of Brett Favre. After further review, it's not a terrible analogy --  but here's a key difference: Favre's dithering could be altered by one blitzing linebacker. Alioto-Pier, meanwhile, needs to be blitzed by the state Supreme Court.

That could happen as soon as tomorrow. Tom Pier -- her husband and attorney -- said they'll be filing their petition for expedited review and a stay of yesterday's unfavorable Court of Appeal ruling "first thing" on Thursday with the state's highest court. This was a move he'd originally hoped to complete by the end of today.

In any event, tomorrow's filings with the Supreme Court could lead to three potential outcomes:

  • The Supreme Court could reject Alioto-Pier's petition, thus ending her two-year quest to run again;

  • The high court could grant the review and call for an immediate hearing;

  • The hearing could be granted, and the Court of Appeal's ruling could come under an immediate stay -- the consequences of which even Pier is unsure of.

While City Attorney Dennis Herrera has repeatedly referenced Sept. 1 as the date when the city's ballot must be rushed to the printer, Pier feels it's "subject to court interpretation" whether this is a drop-dead deadline.

It also warrants mentioning that altering an existing ballot is rare -- but not unheard of. The city of San Francisco joined an ultimately unsuccessful effort to strike PG&E-backed Prop 16 from June's state ballot. That legal move failed -- but so did Prop. 16.

By the way, here's the Cliff's Notes version of what Alioto-Pier's ongoing legal battle is all about:

Ever since Herrera opined in 2008 that Alioto-Pier was ineligible to run again, the D-2 supe has hinted at legal action. That lawsuit came in June.

Here's the crux of it: Herrera applied the "rounding-up rule," which

states that anyone appointed to serve two or more years of a four-year

term has, in the eyes of the law, served a complete first term.

Alioto-Pier saw things differently. After being appointed by newly

elected Mayor Gavin Newsom to fill his seat, she served 10 months. Then

she was elected to a two-year term. And then, in 2006, she won her "first" four-year term.

That's how Judge Peter Busch saw things, too.

But, Tuesday, a three-judge appeals panel sharply disagreed. In a 23-page

ruling, the judges felt that Alioto-Pier's interpretation, "if

accepted, would create an exception to the term limits provision that

would swallow the rule, as it would give her the opportunity to serve

almost three full terms instead of the two terms contemplated" by the

city charter. "And it would ignore rounding up. This would be, in

statutory interpretation language, an absurd result, which courts must

try to avoid." The appeals court argues that the will of voters asked to

decide on term limits measures -- and, based on what they read in voter

pamphlets -- is ill-served by a legalistic argument that favors appointed

candidates over elected ones.

Incidentally, Pier estimates that representation by Jim Sutton's law firm has cost his wife's re-election campaign $30,000 through the Superior Court battle, another $10,000 to $15,000 for the Court of Appeal, and "I have no idea what the Supreme Court is going to cost us."

The next chapter for Alioto-Pier could be decided tomorrow. Favre, meanwhile, plays Saturday vs. Seattle.

Follow us on Twitter at @TheSnitchSF and @SFWeekly

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" is a staff writer and columnist for SF Weekly, which he has written for since 2007. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers... more


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