Accepting the American Jewish Committee’s 2004 Judge Learned Hand Human Relations Award. Prepared Remarks for City Attorney Dennis Herrera to the American Jewish Committee, at St. Francis Hotel, Colonial Room 335 Powell Street, Union Square San Francisco, California (January 27, 2005)
Prepared Remarks For
City Attorney of San Francisco
Accepting the American Jewish Committee’s 2004 Judge Learned Hand Human Relations Award
St. Francis Hotel, Colonial Room
335 Powell Street, Union Square
San Francisco, California
Thank you for that kind introduction. I am profoundly grateful to be honored this evening with a prestigious award that symbolizes some of the loftiest ideals and greatest achievements of the legal profession.
I must admit that looking at the list of past recipients — which includes such distinguished jurists and giants of the legal community — it made me feel a little bit like Elizabeth Taylor’s last husband. It’s great to be included among all the heavy hitters…but I somehow get the feeling that I’LL be the one whose name stumps everyone at trivia. Of course, I’m ALSO a politician in a fieldwhere ego is an entry-level requirement. So before I declare myself WHOLLY unworthy…
Well…let me just say I’m honored to accept this award. Because more than what it says about any individual, I know it recognizes, too, an extraordinary team of the brightest, most progressive, hardest-working legal professionals you’ll find anywhere — in the San Francisco City Attorney’s Office. And I’m grateful every day for the opportunity San Francisco voters have given me to lead what’s been called “an unconventional public law office that’s earned a nationwide reputation for its aggressive legal tactics.”
SAN FRANCISCO’S LEGAL ACTIVISM
Before this event was postponed for the hotel lockout, I was giving some thought to my remarks, and thought I should go beyond discussing the KIND of affirmative litigation my office has pursued — to discuss the WHY of our legal activism.
In one sense, of course, it’s because this is San Francisco — perhaps the bluest dot in the disparate confederacy of blue states. Related to that, I think, is what I’ve often referred to as San Francisco’s “civic creed” — it’s history for exerting national leadership. Occasionally that manifests itself as the kind of “Only-in-San-Francisco” stories ridiculed by late night talk show hosts. But it just as often charts a course that is later emulated by other cities — and even states — on issues involving equal rights, open government and consumer protection.
• San Francisco pioneered domestic partnership legislation, and passed an equal benefits ordinance that served as a model for similar laws in Los Angeles, Minneapolis, Seattle and elsewhere. A 1999 survey by the Human Rights Campaign found that fully three-quarters ofthe employers nationwide that provide domestic partner benefits do so as a direct response to San Francisco’s ordinance.
• My office is regularly contacted by lawyers and activists for information about the San Francisco Sunshine Ordinance, widely considered among the toughest open government laws in the nation.
• Before any other state or municipality ever considered it, San Francisco took on the tobacco industry for public healthcare costs associated with their deadly product, netting a $12 billion settlement in the process to be divided between state and local governments.
That was only the first of numerous cases that has seen San Francisco emerge as a tenacious watchdog in the consumer marketplace.
Despite all the examples I could list, however, I think credit really belongs to New York Attorney General Eliot Spitzer for identifying the single, common catalyst that spawned an entire generation of aggressive legal activism by states and municipalities. Ironically enough, it’s Ronald Reagan. In 1983, Reagan used his State of the Union Address to foreshadow a sweeping proposal to devolve vast powers from the federal government back to states and localities. At the time, he described his New Federalism initiative as an effort “to restore to states and local governments their roles as dynamic laboratories of change in a creative society.”
At the time, of course, liberal critics regarded New Federalism as thin veiling for a full-scale federal retreat from progressive social policy — which, of course, it was. But in subsequent years, as successive Congresses grappled with budget deficits and as the federal bench grew increasingly conservative, Reagan’s efforts to return power to local governments indeed took hold, becoming what I consider to be his presidency’s most enduring legacy.
Ironically, a little more than two decades later, it’s President Reagan’s ideological heirs who are the most vociferous critics of the new generation of progressive public-sector legal activists that New Federalism made possible. Exemplified by such state attorneys general as Eliot Spitzer and our own Bill Lockyer, it was probably entirely predictable that the phenomenon would be mirrored at the local level— especially by an office like mine, and especially in a city like San Francisco.
This irony is not lost on Spitzer, who openly taunts classical federalists by describing his regulatory lordship over Wall Street as “the revenge of the New Federalism that the Republican Party’s conservative wing thrust upon the nation 20 years ago.” That observation may be ironic, but in operation it’s more than mere spite. Similarly, San Francisco’s aggressive efforts in recent years to protect consumers, police the marketplace and expand civil liberties would have been unthinkable just two decades ago. And for one very good reason: they would probably ALSO have been unnecessary.
In shifting public policy responsibilities away from the federal government, Congress and the courts have enabled significant accomplishments on issues previously considered ill-suited to state or local initiative. Indeed, the past year alone has witnessed dramatic policy innovations at the state level nationwide — ranging from insurance and mutual fund regulation to prescription drugs and environmental protection.
One of the most interesting state innovations, I think, came last November, when California voters approved Proposition 71, the Stem Cell Research and Cures Initiative. Perhaps the most unapologetically opportunistic effort to exploit federal inaction, California voters filled the void left by President Bush’s decision to restrict federal funding to existing embryonic stem cells. The measure authorizes some $3 billion in state research funding over the next decade, and virtually assures California’s place as a global biotechnology powerhouse.
Of course, states aren’t alone as dynamic laboratories for policy innovation. Local governments exert a significant impact in their own right — perhaps especially here in San Francisco, with our long-held penchant for progressive leadership. In 2004 alone, my office has continued to fulfill the promise of our civic creed with aggressive efforts to protect taxpayers, consumers and civil liberties.
THE E-RATE CASE
Our public integrity investigation and lawsuit on behalf of the San Francisco school district blew the whistle on a nationwide scam to defraud the federal E-Rate program. That’s the program funded by the “Universal Service Fee” on your telephone bill that helps America’s poorest schools bridge the digital divide.
In July, I was asked to testify before Congress on my office’s E-Rate case. I said that as delighted as I was to see justice done in a way that benefits San Francisco’s own school kids, it was particularly gratifying to assist federal efforts to assure that no other school district in this country — not one more school kid in America — suffers for the kind of waste, fraud and abuse we stopped in San Francisco. As much as any case in my office, here’s an example of the federal government directly benefiting from the initiative undertaken by an aggressive local government. And the results of that case have so far been impressive:
• In May, a subsidiary of NEC pled guilty to bid rigging and wire fraud, and agreed to pay fines and restitution totaling $20.6 million.
• Earlier this month, another settlement with Inter-Tel Technologies netted a criminal fine and civil settlement of $8.71 million.
‘PARTIAL-BIRTH ABORTION’ CASE
Perhaps less surprising but no less significant has been our efforts on social issues, where we’ve directly sparred with the Federal Government to defend — and even advance — the cause of social progress.
We led San Francisco’s intervention as the nation’s only municipality seeking to strike down the Administration’s federal ban on socalled “partial birth abortions” — a political term, not a medical term — that intended nothing less than to have a chilling effect on reproductive rights in every hospital and clinic in America.
In asserting a civic interest on behalf of our Department of Public Health and San Francisco General Hospital as the public health-care provider of last resort for poor women, we succeeded in gaining a permanent injunction from enforcement of the Act in federal court. That case — and two others like it in New York and Nebraska — are working their way through the courts, and we’ll be continuing the fight every step of the way.
SAME-SEX MARRIAGE CASE
Of course, the initiative for which my office has earned perhaps the MOST attention during the past year is California’s same-sex marriage case, which is currently under submission in San Francisco Superior Court. I am proud to have filed the first government litigation in American history to challenge the constitutionality of state marriage laws that discriminate against gay and lesbian couples. It’s the first time a government entity has ever been on this side of the marriage issue.
But even more than the historic importance of our involvement, I think, is the enormous significance of having a major American city take a stand on what may be the defining civil rights struggle of our time. In doing so, we are asserting a broader societal interest in ending discrimination that diminishes all of us — gay or straight, male or female, married or single. As much as I would like to take full credit for all the extraordinary work on this case, I want to acknowledge the efforts of our pro bono cocounsel, whom we’ve relied on from the very beginning. And that’s the law firm of Howard Rice Nemerovski Canady Falk & Rabkin. I particularly want to thank Jerry Falk —because he’s right here — along with the other Howard Rice partners and associates who’ve lent their expertise, intelligence and passion.
Interestingly, it’s on the same-sex marriage issue — perhaps more than any other — on which some have demonstrated their most glaring hypocrisy as heirs to Reagan’s New Federalism. In advancing a constitutional amendment last year that would ban same-sex marriage nationwide, President Bush asserted a needless federal imperative over rights that have always been the purview of the states. Since its inauspicious start last year, we’ve been getting mixed-messages from some in Washington on whether they will pursue a federal marriage amendment again. Let’s hope that intellectual honesty prevails, and they resist the urge for big government intrusion.
Long before Ronald Reagan said it, the notion that state and local governments could serve as “dynamic laboratories of change” was advanced by Justice Louis Brandeis. In New State Ice Co. vs. Liebmann, Brandeis wrote:
“It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country…If we would guide by the light of reason, we must let our minds be bold.”
You know, it’s interesting that one common criticism of state and local policy innovations — whether it be same-sex marriage at the local level, or statewide funding for stem cell research — is that it breaks with long-held convention. That it’s untested. That we can’t know what consequences it may have. And, the truth is, the critics are right. But far from being a rationale for OPPOSING policy innovation, it seems to me that measured uncertainty makes the case for enabling those courageous, forward-thinking states and cities to pursue their path of progress. As Judge Learned Hand said, “Convention is like the shell to the chick, a protection till he is strong enough to break it through.”
Politics aside, we may be certain that tomorrow’s national progress will owe much to today’s novel social and economic experiments by state and local governments. America has much to gain if we let our minds be bold — if we don’t hinder those who are courageous and strong enough to break through. I want to express, again, my enormous gratitude to the American Jewish Committee for your OWN boldness in extending me — and my office — this great honor.
On behalf of the entire San Francisco City Attorney’s Office, I thank you.