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Saturday, November 15, 2008

Commentary: Prop 8 Protesters Take To The Streets

Here we are almost two weeks after the 2008 elections and we are still thinking about 2008 election results. Part of that is because the results are not finalized yet. We still do not know what happened in three Senate races, a few house races, some legislative races, heck we still have a state that is not completely clear yet. And yet probably the big news next to whether or not Barack Obama is going to name Senator Hillary Clinton as Secretary of State is Proposition 8.

The Vanguard wrote about Proposition 8 last weekend, and yet people were still posting to that thread as late as Thursday. Now I have some additional thoughts on the proposition.

The day after the proposition passed by a relatively narrow margin, the activists hit the streets to protest it. I found that very odd frankly. Even now, I have mixed feelings about protesting the passage of a proposition. Let me explain.

My first reaction was that the majority of the people who voted, voted in favor of the proposition. So what good would a minority protesting it do. It seemed like a futile gesture. I mean whatever you think of majority rule in this case, it certainly supersedes mob rule.

And those of you have been discussing Proposition 8 with me know I do not necessarily agree with majority rule in this case. I see the right to marry as a fundamental right. I do not think that it can be abrogated by the vote of the people any more than free speech can. Some obviously do not see marriage as that sort of right. They see this as simply changing the traditional definition of marriage. But that is a much trickier argument than people perhaps want to admit. At one point in our nation's history, the definition of marriage was the union of a white man to a white woman. Intermarriage until really the last forty years was outlawed in most states. Moreover, at one point blacks could not even marry other blacks. So it is not as though we have not changed the definition of marriage.

I am going to avoid the debate between a separate status for same-sex partners than the marriage status for two-sex partners other than to say if there is a reason you want the status separate, then it's probably the same reason same-sex partners want the same status.

Back to the protest test. My second reaction to the growing number of protesters is where were you before November 4? This frankly frustrates me to no end. If every person who is protesting spend the time they are taking to protest and instead prior to the election canvassed their neighborhoods, I wonder if we would not have had a different outcome.

People have and will spent a lot of time analyzing the results and I agree with some of the analyses. But, I think you also have to look at the ad campaign. For the most part the ad campaign the Yes on 8 side ran was not running simply against marriage. The two most effective string of ads were the emotional appeal using the imagine of San Francisco Mayor Gavin Newsom. And the misleading scare tactic suggesting that not passing Prop 8 means same-sex marriage is taught in school.

When they covered the protests and counter-protests in Roseville prior to the election, that was the argument that the pro-side used. That having legal gay marriage means it gets taught in school and children learn that its okay for a boy to marry another boy. There was a fear by some that if children learn about same-sex marriage, they will want to get married to a same-sex partner. This fear of homosexuality, actual homophobia was a powerful tool used.

I go to these lengths to suggest that had these protesters been canvassers and talked with people, these fears could have been allayed. At the margins the vote was about fear not about philosophic opposition to marriage.

I had the same reactions years ago when people protests Proposition 187 and 215. Do not protest, vote and work to get out the vote.

And yet, here comes the mixed emotions part. I like to see people hit the streets. A moment ago I called it mob rule, but really it is not mob rule. It is expressing the right to free speech--a vital and vibrant part of our democratic tradition. I am a believer that thousands of people hitting the streets is a good thing and can lead to change. But only if it is harnessed into a movement that can actually do something.

I have said many times that I believe the time and demographics are on the side of those who support gay rights. In general our society has moved in that direction. I believe by the time my generation is in their fifties, this will be a non-issue. I think a generation that has grown up with openly gay people in every facet of life necessarily is more supportive of the rights for gay people. Moreover, you can not fear monger them out of their support for gay marriage. No one who has grown up around gay people and understands it is going to believe that teaching about gay marriage in school is going to convince children to become gay. Nor for that matter will they necessarily fear their kids being gay.

Some people have suggested that this is a manifestation of youth that may change over time. I do not think this is a young issue, I think this is a comfort and familiarity issue. In a way, I think younger generations having been raised in a more explicit and sexually overt time have an advantage over their older counterparts, I think younger people are more comfortable with their own sexuality and that shows up in a number of ways from willingness and openness to talk frankly about sex, to other issues such as sexual orientation. Certainly there are downsides to openness and comfort about sexuality when it comes to issues of infidelity and promiscuity, but in terms of tolerance and acceptance, it is an advantage and one that is not likely to change over time.

And yes it is true that first time voters voted against this proposition by a two-to-one margin and so some of the differential between the outcome a few years ago and the outcome this year is an artifact of that difference. Nevertheless, the gap between 22 points and 4 points is not merely explained by increased voter participation. It is too large a gap. Rather, it points to an increased acceptance level that is likely to grow over time.

Still getting back to the original issue of street democracy, the verdict is not in yet on that. If they are simply blowing off steam and that steam dissipates, then taking to the streets is still a futile gesture. They are not going to change the outcome by going to the street. They are probably not going to change a lot of minds. And they are not going to influence a court ruling. However, if they can harness that energy to create a grassroots movement that will be the foot soldiers for a new initiative, then it is not futile to take to the streets.

Is that likely to happen? My experience is that few protests of these sorts last long enough to be effective. Anti-war protests in the Vietnam era were fueled by external events that enable them to sustain themselves. Civil rights protests perhaps are a closer parallel. Still the effectiveness of those protests were largely aided by the brutal response from authorities that will not occur now.

Organizers should get names, numbers, start Facebook groups, and start a movement. The closest example to that type of mobilizing effort might be something like which started out as a simple internet message and turned into an organization that had some staying power and varying levels of influence.

The but ultimately the success or failure will depend on the ability of leaders to organize and the willingness of protesters to partake in other activities such as canvassing.

Regardless, as I have said throughout this process, I believe this is simply a matter of time.

---David M. Greenwald reporting

Friday, November 14, 2008

Neighborhood Guidelines Trump Green on B-Street Project

Score one for the neighbors. The result happened over a week ago, and we are just discussing it now, but the principles put into place still apply.

First of all, let us commend Maria Ogrydziak for designing a fabulously innovative and green structure with flat tops on her roof to support green plants. It was an innovative proposal, one of the greenest ever. There was just one unfortunate part of the proposal, it just did not fit into an existing neighborhood. If this were a new neighborhood, a new development, a lot of the naysayers would have been cheering her on.

The problem is that the project just does not fit into into an existing neighborhood. It was rejected by both the Planning Commission and the Historical Resources Management Commission. Ms. Ogrydziak had one more option and that was appeal the Planning Commission's decision to the Davis City Council.

Late into the night the meeting went. The neighbors were dead set against this. Maynard Skinner presented a petition to the council signed by 42 other residents. He demonstrated to the council that other infill and densification projects work. He then went on to talk about Davis having its own "Jake the Plumber" and "Mike the Carpenter" (Mike Corbett). One project in particular that ought to be a model was a project on Russell Blvd. that put at least ten units onto a lot that used to have a single unit. But from the street, you would never know that it is a densification project because the project blends so well into the existing neighborhood and design guidelines.

Maynard Skinner pointed out that one of the guidelines is to preserve and protect the neighborhood character. This project is inconsistent with design guidelines, according to Mr. Skinner.

As many residents indicated, they are not opposed to any project there. It followed the guidelines and the neighbors have no problem. Indeed there was a project on B Street that was approved without opposition. This is different. And it is a simply an issue of location rather than the project.

As Councilmember Lamar Heystek put it:
"I think this is a terrific project, and I hope it gets replicated in the dozens. But we simply cannot have design guidelines that we don't ever anticipate applying."
But even with the project guidelines set as they were and even with the strong neighborhood objections--42 neighbors objecting to the project--this project still had a good chance of being approved.

For Mayor Pro Tem Don Saylor:
"The design guidelines are not rules. They really are in need of balance with other considerations."
However, none of the other councilmembers saw it that way and Mr. Saylor's motion died for lack of a second.

Here is where things got really interesting.

Councilmember Heystek moved that the council uphold the decision of the planning council to deny the project. Councilmember Sue Greenwald seconded the motion.

Now remember, Sue Greenwald could not vote on the original Third and B project because she lived within five hundred feet and was conflicted out. However, at that time, it was suggested she would be able to vote on some of the projects that came forth within the area that were outside of this limit. The city attorney ruled earlier in the day, that the project at 233 B Street was outside of the five hundred foot limit.

Mayor Ruth Asmundson suggested a substitute where they would table the proposal by Ogrydziak and take another look at the design guidelines to make them more flexible. However, City Attorney Harriet Steiner determined that by law the council could not table this motion or the project would be tabled for an entire year.

This put the substitute motion by the Mayor off the table again after it had originally passed three to two.

The motion was evenly divided. And Stephen Souza held the swing position and he abstained. Because the Planning Commission already denied the project, the council’s tie vote meant the planning commission’s decision would stand and the project was killed for an entire year.

Mayor Pro Tem Don Saylor was not happy. He informed Councilmember Souza that due to his vote the project would be killed. The councilmember was well aware of the implications of his actions.

The councilmember said:
"I have a major conflict here trying to pit history against the environment."
Mr. Saylor responded:
"So you deny the project by not doing either."
Somehow, someway, the council made the right decision with regard to this project. Why put in design-guidelines if they are not to serve as exactly that--guidelines which must be adhered to. Mayor Pro Tem Saylor was willing to scrap those. But if we go back to the original debate over the Third and B project, we will remember that literally hours were spent haggling over exactly those guidelines. To summarily scrap them is disrespectful to the previous process. If those guidelines carry no merit, then why take time to lay them out in such a clear manner.

Second point that must be raised here again is neighborhood concern. 42 residents opposed this project. The neighborhood was heavily against this project. How do you go forward with a project in a neighborhood that the neighbors are against? About this time, the charge of NIMBYISM is thrown out. It's a red herring. The neighbors have the right to protect the character of their neighborhood. It is the height of arrogance to decide that one knows better than the neighbors what does or does not fit. Once the design guidelines are put in place, that acts as the reasonably agreed limitations of the project. What a lot of people in this community seem to fail to understand is that people sink their life's savings into their homes. Most people are not investors with multiple properties, they have one home and they have an obligation to protect that investment and that asset. Moreover they should have the right to not have a project placed into their community that sticks out like an eyesore.

The big lesson here that people ought to take away is that a great project in one location is a horrible project in another location. I want green and sustainable development in this community - I encourage this kind of innovation - but, it has to fit in with the current character and design guidelines. This project did not. It should be located in a new neighborhood and many of the same people opposing this project would have been leading the way. This was simply not the place to locate it. The council was narrowly divided but ultimately did the right thing.

---David M. Greenwald reporting

Is West Sacramento Water Unsafe to Drink?

During the Vanguard's interview with Rosalind Peterson from the Agriculture Defense Coalition on another topic, the Vanguard learned of a potential health risk for West Sacramento residents.

While the Vanguard in general covers Davis and Yolo County, this was concerning enough that we believe it should be reported.

The Agriculture Defense Coalition (ADC) obtained information regarding water quality in the City of West Sacramento from the California State Department of Health, Drinking Water Division.

They describe themselves as "stunned by the results of this inquiry." Indeed, West Sacramento's own "Consumer Confidence Report warns that immune-compromised persons "should seek advice about drinking water from their health care providers."

According to the report from the ADC:
"The City of West Sacramento receives its water from one of the most polluted sources in the State of California. The staggering number of positive readings for agriculture herbicides, pesticides, industrial waste products, uranium, PCBs, etc., is beyond comprehension. No water treatment plant can address the synergistic impacts of the combinations of these chemicals nor hope to remove all of them from your drinking water sources."
As concerning as this information may be, the other factor that may prove unsettling is that the 2008 report is not the most current information but rather represents the results of 2007 water tests. This means that the public becomes aware of contaminants in the drinking water almost one year after the testing results become known to the water district.

As the ADC says:
"This does not enable the public to protect themselves from any current or ongoing adverse water test results in real time. It means that any exposure to chemicals is not being reported to hospitals, doctors, the press or the public in real time so that they can protect themselves or their children."
The other concern is that while the city of West Sacramento does eventually report these results they do not specify how they handle contaminated water after detection nor is it known if the city has the means to release contaminated water before it ends up the in the consumer's tap.

All of this made the Vanguard wonder what Davis' drinking water looks like. We have obtained the test results for Davis over the last four or five years and will examine them to see there is anything of concern.

---David M. Greenwald reporting

Thursday, November 13, 2008

San Francisco Police Officer Sues Antioch Over Taser Incident

When we last checked in on our old friend and former Davis Police Chief Jim Hyde, his new department and city were facing a class action lawsuit over alleged racial profiling in Section 8 housing projects in Antioch.

Now the Antioch Police Department is back in the news, in one of those not-so-good ways as a San Francisco police inspector has filed a federal civil rights lawsuit against the city of Antioch claiming that an Antioch police officer tased her during a confrontation in her home where she was attempting to evict a tenant.

According to SFPD Inspector Marvetia Lynn Richardson, a 41 year-old African-American who has served the SFPD for 14 years, "Antioch officers broke down her door last year, stunned her with a Taser and then took her to jail when she demanded to write "Tasered" on a citation for resisting arrest."

Apparently this incident is an outgrowth of efforts by Antioch police officers to enter homes without warrants to "harass and drive African American tenants out of federally subsidized housing."

According to an article in the San Francisco Chronicle, the suit filed in US District Court in San Francisco names among others the City of Antioch, Police Chief James Hyde, a police sargent, and three officers.

The city of course, denies any wrongdoing claiming that officers acted properly in investigating reports of violence against residents at the home.
"Richardson refused to sign a citation for resisting arrest and tried to write "Tasered" on it. An officer ripped the citation out of her hand and she was taken to jail, the suit said.

Judge Charles Treat of Contra Costa County Superior Court dismissed the resisting-arrest charge in June, saying the police entry into Richardson's house was illegal."
Dan Noyes from KGO in San Francisco, also is covering this story. Some may recall the stories he did on the Buzayan case in Davis.

Noyes has a seven-minute report that aired on Monday night.

You can watch the video of the news broadcast and read the transcript of the report.

There are a number of angles to this story. One of the things that Dan Noyes points out in his "iteam" blog is that the police report does not seem to match the audio of what happened during the incident.
"Antioch Police Officer Santiago Martinez was one of four officers who responded to the scene; he’s also the one who tased Richardson. There are some serious discrepancies in the report Martinez filed, compared to what’s on the audio recording."
"One defense lawyer writes the audio recording provides “a most disturbing account of officer fabricating and bolstering the facts of the incident to rise to a level of leading the witness, putting words into her mouth, and persuasion in effectuating the statements of the victims.”
This entire report seems uncannily familiar. At one point, Noyes reports that Chief Hyde refused to speak with him about this issue. One might recall when Noyes had an interview in Davis set up with Chief Hyde on the Buzayan case, he abruptly ended the interview and then according to emails had some rather choice words to say about Dan Noyes.

Still recent reports out of Antioch indicate that the City Council is pleased with Jim Hyde, they are pleased and credit him that crime is down, but the entire situation and escalation seems eerily familiar to the pattern that occurred in Davis. If anything it is escalated above anything that we saw in Davis. One thing that is clear, there are a number of staunch defenders of the chief in Antioch as there was in Davis and public opinion on him seems highly polarized.

---David M. Greenwald reporting

Wednesday, November 12, 2008

City Manager's Memo Warns That City Projects Revenue Shortfall

Davis has always been more insulated to economic downturns than surrounding communities and to some extent that remains true. However, according to an internal memo from City Manager Bill Emlen that is starting to change. Given declines in property values and reduced levels of consumer spending (both of which make up the majority of the City's revenue's), the city is projecting to end the current 2008/09 fiscal year in a $1.5 million deficit.

Moreover, they are concerned longer term, about the severity of the stock market decline and its impact on CalPERS contribution rates.

Moreover the city manager warns that while the immediate concern is impact on the City's General Fund, economic conditions suggest that other city funds could be impacted.

The city manager calls for establishing at least five cost-controls measures for the remainder of this fiscal year.

While these are obviously needed steps, there are several points that really need to be made.

First, while the city remained on paper in the black prior to this economic downturn, the city was actually absorbing a deficit in terms of the the services that it was providing. As such, revenue shortfalls were absorbed into unmet needs--things that the city really should have been spending money on like road repairs and infrastructure upgrades, that they could not afford. Obviously the situation has worsened since the last evaluation, but it seems that the city could have been doing some of these things all along.

For example, the city manager asks for all departments to "closely monitor overtime use." Overtime has been an issue for some time, why would they not have been closely monitoring overtime in the past?

Along the same lines, if the city was unable to meet some critical needs, why not place more limits on non-essential travel and training prior to this? The same can be said for discretionary spending.

Why wouldn't you want all new contracts to be approved by the City Manager in advance of commitment under normal circumstance?

What I want to know is how much money they would expect to save through these cost-cutting mechanisms. My guess is this is probably more symbolic than anything else, on the other hand, my concern is why not implement this sooner.

Again two reasons to really questions this. First, the unmet needs problems of previous budgets. Second, it is not like this current budget crisis should have caught the city unaware.

After all, the city was prepared at one point to take a $3 million hit through the state budget. However, what finally materialized was a $760,000 hit to the redevelopment agency rather than the general fund.

What is also interesting is the timing of this memo which came out on Monday. On Thursday, the city council will have a special closed session meeting negotiating the city's new contract with department heads and the assistant city manager. This group received an 18% increase in salary in their previous contract with various colas built in over the course of the three year period. Thus someone making $100,000 a year to start the contract would be making $118,000 at the end of the contract.

Will this announcement about the budget troubles along with previous concerns about the out-of-control growth in city salaries lead to a more prudent contract from the city council?

That is going to be a key question because right now we are cutting back on unmet needs even before this critical economic downturn. Will the city continue to increase the pay to already well-off city employees or will they put our resources into maintaining the parks, repairing our roads, and continuing to provide transportation for various citizens?

In the meantime, the state budget picture if anything looks even more bleak than a few months ago. The city needs to prepare to take a huge hit, however, the real question is what they have been doing up until now to prepare? To me this memo suggests that the first steps are only just now being taken.

The memo closes on the standard note basically saying our situation may not be good, but we are in better shape than others.
"One final note worth considering is that while we are facing budget difficulties, our situation is not nearly as severe as those being experienced in many jurisdictions throughout the state. Through proactive actions now, I believe we can further soften the budgetary impacts of the economic downturn on our city."
This would have been a great memo perhaps six months, now it seems to be a little too late as the first canary appears to be at the very least in critical condition.

---David M. Greenwald reporting

Tuesday, November 11, 2008


Congratulations for your important and impressive victory in Measure W. The people of Davis, as they did last spring with their donations to the Davis Schools Foundation, have affirmed their support for education. It is a resounding victory that carries with it a good deal of responsibility.

The people have entrusted to you the education of their children. You do not need me to tell you how big a responsibility that entails.

During the course of the campaign, I had the chance to speak with many, many people in the community about the schools. I would like to share some of my thoughts with you in a moment.

But first I would like to say I worked so hard to get the facts out for this measure because I believe in education. As I have said so many times on the blog, I sat up in the audience all too many nights last spring until all too late into the evening. I talked with parents and students and shared their anxieties and concerns. I supported Measure W first and foremost for them, never again did I want students to worry about the possibility of their schools closing and their teachers fired.

I have heard concerns about fiscal mismanagement, transparency, and accountability from many quarters in the community—including from people that it might surprise you to learn shared this concern. However, I believe that I have thoroughly reviewed and observed district practices. I believe that the district has gone to great lengths to be both transparent and accountable. I look forward to working in the future toward both of those goals.

Now however I offer some critiques and hopefully constructive criticism.

First, this has to be the last parcel tax until Measures Q and W expire in three years. The community was willing to back this one, but they were getting a bit leery. I support education strongly, the state budget is going to be a huge challenge, I can only hope that given a year at least where the district is assured that they will have the necessary funding, that the district finds ways to keep afloat in tough economic times. The taxpayers of Davis face all sorts of potentially new taxes, fees for service, and water rate increases in the coming years. I worry about their ability to make ends meet in these tough economic times. As such, I will state plainly right now, I will not support another parcel tax before these two parcel taxes expire. Furthermore, I urge the district to find a way to renew only Measure Q when the time comes, that means find a way to account for the $120 per year that Measure W provides even if the state does not.

Second, there needs to be community outreach on Valley Oak. There is still a lot of bitterness out there. I understand that Measure Q and Measure W passed despite the closure of Valley Oak and at times it passed with the support of many of those same parents, but there are two groups that you need to focus on. First, those parents and community members who fought so hard for to keep Valley Oak open. And second those in the community that really believed it was a special and unique school and who believe that there were racial elements that came into play.

I spoke with so many this year and many of them told me this fall that they were torn. They had always supported education, always voted for whatever measures were on the ballot to support education, but they were angry about Valley Oak. Those people in the end voted for W as they voted for Q, but do not let this fact mask a very serious animosity that has developed out there. A number of very prominent people did not endorse Measure W because of Valley Oak and they only in the last week and through great effort of many decided to hold their nose and vote for it.

I will never forget right before the election going on a police ride along of all things, and as we drove past Korematsu, the police officer told me that he had mixed feeling about that school. He described to me how he had worked at Valley Oak in his capacity as a police officer as he had several other schools over his lengthy career. But he said Valley Oak was different. They made him feel like he was part of the school itself. He did not feel like a visitor there. At one point, there was a troubled student without male role models in his life and they asked just to talk to him about ten minutes at recess.

To me this story reinforces to me that yes you can duplicate programs but a school is more than a sum of its programs. That is not to take away from the great things that this district does at every school. But I, like so many others believe that Valley Oak was special and unique that the district did this community and that neighborhood a great disservice by closing the school. The district and the board have not made amends for that or acknowledged that to the citizens of the community. And yet, the devoted parents and community leaders there remained loyal to this district and supported Measure W even as their hearts were breaking over the loss of their school. Talk to them, and you will see, the hurt feelings and raw emotions still. You will also see the love for schools and the commitment to education.

Third, again along the same lines, during the course of the budget struggle, there was another struggle that lost attention. In 2007, there was a serious push for stronger work toward closing the achievement gap. There were period but persistent concerns about race relations on the high school campus and elsewhere in the district. There was the controversy about the STAR testing. There were concerns raised by longtime and prominent members of the community that issues that were addressed in a 1990 report laid on the shelf for years, un-acted upon. These issues came back up in 2007. They have disappeared during the struggle for the budget. These are serious issues and they need to have renewed focus. The problem is no less real in 2008 going into 2009. The fact that the district will have fewer resources to deal with this problem means that we must be that much more aggressive at addressing it.

Fourth, there are serious issues of mistrust regarding Emerson Junior High. These are not merely manifested on the blog, but also in emails on several email lists developed to mobilize people to fight to keep Emerson open. Interestingly, not one email went out on that list urging people to vote Yes on W prior to the vote. There are people in this part of Davis that really believe that Emerson’s closure is fait accompli. I do not believe that is the case at all. From every conversation I have had with the district or board members, while they cannot promise that Measure W’s passage means Emerson stays open, I believe it would be logistically infeasible to close it.

However, I would suggest that there needs to be more communication between the school board, the district, and West Davis about the exact concerns about Emerson and the real prospects for it closing. Level with the public in advance if there is reason for concern and reassure them if there is not. Communication and trust are the keys. I understand that in the rush of the spring budget crisis, these discussions could not happen, but they can happen now and they need to.

Finally, Bruce Colby a couple of weeks ago suggested a Vanguard sponsored Q & A session. I hope to work with Mr. Colby and Dr. Hammond to facilitate something along those lines. We can think about how to structure it.

I am pleased with the transparency and accountability of this district, but I do believe that the district can do even better. Opening lines of communication are important. The new district website is better, but it could be better still.

In this day and age of instant communications, there is no excuse to have a communications gap with the community. I would look as a district toward finding ways to enact better communication tools. The Davis Enterprise is only read by less than one-third of the households in the city. The Vanguard is one alternative means to communicate more directly to the public, but not the only way.

The district has come a long way in the last four years in terms of public trust and accountability, but there is much that still needs to be done.

---David M. Greenwald

Monday, November 10, 2008

The Campaign for Senior Housing at Covell Village Continues

Given the election last week and slew of issues surrounding the election that came up, the Vanguard is just now getting around to what turned out to be a very interesting and important meeting on Wednesday night.

Three years ago this month, a proposed development at Covell Village was defeated by a massive grassroots effort. The overwhelming defeat of Measure X by nearly a 60-40 margin has not slowed efforts to develop the property that is bordered by Pole Line and Covell Blvd.

Instead, the would-be developers of the property have changed tactics and changed the form of the would-be development. Now they are looking at a senior development.

Slowly and methodically, they are building toward a community consensus on the need for senior housing. They have done this by meeting with key stakeholders in the community and also senior groups, selling the case that the community of Davis is in need of more senior housing and that their property offers the ideal location for that development.

Earlier this year, we got a window into their tactics when an email sent to various prospective supporters was leaked to the Vanguard. The email contained instructions on how to raise the profile of Covell Village at the Housing Element Steering Committee's (HESC) workshop. They laid out in that email, very specific instructions for both demonstrating the need for senior housing as a priority as well as showing support for expanding city boundaries. However, the leak of that email to the Vanguard and the general public, thwarted efforts at that point to change the HESC's assessment of the feasibility and need for housing at Covell Village.

What is clear however is that while opponents of Covell Village sleep, the developers remain hard at work. We flash forward to Wednesday night, where a well organized group of seniors came forward to speak at city council during a discussion of the HESC's report and the next steps that the council would take with that report.

From this meeting, the group was clearly well-coached. They laid out the need for senior housing. This was done with two key points that were made. Seniors generally do not need large homes which are too bid for them to care for and inefficient in terms of energy usage--heating, electricity, and cooling. Second, that seniors wish to remain in the community but sometimes cannot due to lack of senior housing options in the community. They made these points and yet there was never one mention of Covell Village--the obvious focal point of this strategy.

At a certain and critical level, the seniors are correct on these two issues. Allowing seniors to downsize would free up larger housing for new home owners. And many Davis residents would like to stay in Davis, and the community ought to accommodate them.

However, from my experience not as a senior but talking to many seniors, the questions that need to asked and discussed are not whether we need more housing options for our seniors, but how best to provide them.

Here is where consensus breaks down. One idea is the senior-based community that would provide housing for seniors in a close-knit and segregated community. However, many seniors do not want to live in a seniors-only community. They enjoy a more mixed community where families with children and even students also live.

Second, it is the fear of many if we build a large senior-development that we would end up accommodating large numbers of people from across the region. There is nothing wrong with doing that, but if our goal is to provide for our current housing needs for local demand, building a large development may not serve that need very well. Even a somewhat smaller Eleanor Roosevelt Circle ended up serving more people from outside the city than from inside the city.

Third, the question is what type of housing would work best for seniors. Some have suggested instead of facility like an Eleanor Roosevelt Circle, a series of smaller condominiums and townhouses may be the best fit. An added advantage there might be that we could build a small amount over time which would serve the senior population.

The big issue here is that we are again facing the prospect of developer driven development. It is clear that the Covell Village partners are driving the discussion here and in so doing, we are not getting perhaps a clear picture of what seniors in this community actually want.

Thus my first suggestion would be to find out what seniors actually want. How many people are looking to downsize from their current homes? How many people would like to live in a Senior-only community? How many people would be willing to trade for a smaller existing home with another resident?

This type of inquiry should occur not at the behest of a developer, but rather with leadership from groups like the Senior Citizen's Commission. Let us determine what the internal housing demand really is for seniors, what seniors really want, the numbers that we are really talking about, and the time frame that we are really looking at.

My fear is that if we were to say build a senior housing facility in the next five years, it would get filled up largely with people from outside of the area. I am not against people from outside of the area moving in, but there is a problem with that happening if our purpose is to first provide for our local senior housing needs.

To put it in concrete terms, Janice Bridge, the former school board member and proponent of Measure X, got up on Wednesday evening to suggest that she will be looking for senior housing in the next 10 to 15 years. Let us say we build Covell in the next five years. It fills up with people from outside the community since she is not quite ready to move in there. Where is she going to live?

These are some of the reasons that the community needs to figure out its housing needs independently of a developer driven campaign to create the impression that senior housing in this form is a critical need. Again, I am not suggesting that we do not need senior housing, what I am suggesting is that we need to find out what the real need is and we need to figure that out from a more independent source.

In the meantime, opponents of Covell Village better be aware that as they sleep at night, the Covell Partners are hard at work fostering strong community consensus behind their latest project. They have learned from past mistakes and are slowly and methodically bringing stakeholders into line. By the time Measure Y gets on the ballot, it might be too late to change things.

---David M. Greenwald reporting

Sunday, November 09, 2008

The Legal Challenge to Proposition 8

My first inclination to a legal challenge of constitutional amendment is skepticism. But the more I look into both the court ruling by the California Supreme Court and the issue of the changing the California's Constitution the more I recognize that the opponents of Proposition 8 not only have a strong case, they are very likely to win.

The genesis for this belief is that court's ruling itself which is far stronger than a typical court ruling. They are argued two things. First that same-sex couples had a fundamental right to marry and second that the underlying law violated the state's equal protection clause.

Here is the first part of the ruling:
"We conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process."
Now, what has happened is that the voters by a majority have supposedly altered the constitution to deal with that issue.

But one of the questions is whether the voters can do that by majority vote. For instance, forget the federal constitution and federal courts for a moment, could the voters of California pass a constitutional amendment to outlaw freedom of speech in California? Or could they pass a constitutional amendment to outlaw miscegenation? Many legal experts believe they could not do that. And because of the how the California Supreme Court ruled in May, they would have to essentially do that for the majority on the Supreme Court set the bar that high by ruling the right to marry "substantive legal rights."

McFadden v. Jordan (1948) 32 Cal.2d 330, 333 ruled:
“The initiative power reserved by the people by amendment to the Constitution in 1911 (art. IV, s 1) applies only to the proposing and the adopting or rejecting of ‘laws and amendments to the Constitution’ and does not purport to extend to a constitutional revision.”
From several articles I have read, there is a substantial amount of case law on the issue of a revision not being able to be placed on the ballot by the signature process. Some of that case law is pretty recent. For instance, the California Supreme Court ruled in 1990, that voters can propose amendments to the Constitution that will be placed on the ballot if the requisite number of signatures are obtained, but they may not propose constitutional revisions. A constitutional revision requires a two-thirds vote of the Legislature to reach the ballot. That did not occur.

That leaves open the interpretation as to whether this is in fact a constitutional revision.

A 1990 court ruling suggests that it might be: “the revision provision is based on the principle that ‘comprehensive changes’ to the Constitution require more formality, discussion and deliberation than is available through the initiative process."

Given the scope of the courts ruling, to this layman, it would appear that any change to the same-sex marriage law would in fact constitute such a revision to the constitution.

And let us think about that for a second. From the state's perspective, do you believe that the voters by the signature and initiative process could overturn constitutional protections for free speech or outlawing anti-miscegenation laws? That seems doubtful. Now you may not agree with the Supreme Court ruling, but right now that is the law of the land and their interpretation of the right to gay marriage clearly rises to that level. Given the strength of that ruling it seems difficult to imagine that the same court would allow this constitutional amendment to stand.

However, just in case, the challengers will be arguing even if Proposition 8 deals with the marriage portion of the Supreme Court's ruling, it does not address the equal protection portion of the Supreme Court's ruling. The challenge would assert that the state constitution is now in conflict with itself--part saying that same-sex marriage is illegal and the other part says that same banning sex marriage is in violation of the equal protection clause.

The interesting question for now will be, will the courts stay the implementation of the amendment while the legal process plays out and what happens to the people already married.

The backers of Proposition 8 believe that the law would invalidate the marriages performed between June 16 and Election Day. Attorney General Jerry Brown disagrees.

The San Francisco Chronicle reports:
"And Attorney General Jerry Brown, who represents the state in court, said he would defend the legality of the thousands of same-sex marriages conducted in the 5 1/2 months leading up to election day - even though sponsors of Prop. 8 say the measure was intended to invalidate those marriages. That controversy is also likely to end up before California's high court and could reach the U.S. Supreme Court.

"It is my belief that the courts will hold that these same-sex marriages entered into are valid," Brown said in a statement. He said he would defend Prop. 8 against legal challenges, but would also defend "the marriages contracted during the time that same-sex marriage was the law in California."
Roughly 18,000 same-sex couples were married in California between June 16 and November 4, 2008. It will be interesting to see how this plays out, unfortunately for those individuals, a very harrowing time, no doubt.

I want to reiterate what I said a few days ago. Backers of proposition 8 point to the fact that they have now won twice, votes before the voters, as though that were somehow to stand up for all times. They of course will not acknowledge that the first time it came before the voters, the ban passed by large margins and this time it was a nail biter. I would wager to guess the next time this comes before the voters, it probably will not pass. Time is not on the side of the opponents of Proposition 8. They were able to win this largely through peripheral issues and mobilizing a diverse coalition of opponents. However, the impact of the narrow victory suggests the trajectory of public opinion on this issue. It is only a matter of time before the voters as a majority support the right of marriage equality.

---David M. Greenwald reporting