an Francisco Deputy City Attorney Andrew Schwartz was stopped short Thursday during oral arguments before the California Supreme Court when Justice Janice Rogers Brown uttered the word "ransom."
Brown was talking about a hefty fee the city of San Francisco charges residential hotel owners wanting to convert their property for use by tourists, and she made it quite clear she was troubled by the concept.
"You are taking the property owner's right to use his property as he wants and you are saying he is able to continue that use only if he pays you ransom," Brown said. That, she continued, would be like her taking Schwartz's car and refusing to return it unless he met her demands.
"In many jurisdictions," Brown said sharply, "that would be theft."
Although Brown's comments were the most negative Schwartz encountered Thursday, later statements by Justice Marvin Baxter about the proper standard of review raised the possibility the court might send the case back to the trial court.
In another case argued Thursday, the majority sounded ready to declare unconstitutional a 1986 law that prohibits convicted criminals from profiting off their crimes through books, movies and other media.
In San Remo Hotel v. City and County of San Francisco, S091757, the hotel's owners challenge the constitutionality of the city's Hotel Conversion Ordinance, which requires residential hotel owners to pay a fee if they want to change their property's historic use to cater to tourists. The purpose of the 1981 ordinance is to ensure the retention of affordable housing in San Francisco by using the fee charged hotel owners to replace the housing stock lost by conversion.
The owners of the San Remo paid $567,000 under protest to convert their North Beach hotel. Two years ago, the First District Court of Appeal took their side and, in a ruling written by Justice Lawrence Stevens, first invoked the word "ransom" in regard to the fee.
In his ruling, Stevens held that San Francisco had to meet the tough heightened scrutiny standard in showing that its ordinance didn't constitute an illegal taking of property because the law was a "particularized governmental exaction" that applied only to residential hotels rather than the general population.
Schwartz argued that the ordinance was a land-use regulation that applies equally across the board to a class of properties and that heightened scrutiny, under prior California case law, doesn't apply in such instances. He contended that the city should be held to the easier standard of having a rational basis for its ordinance and at worst should be held to the less-onerous standard of deferential scrutiny.
At that point, however, Justice Baxter threw Schwartz a curve ball. "What if," he asked, "the court doesn't agree with either of you about the standard of review?"
"In that case, I assume the court would remand under the standard the court would choose," Schwartz said.
Chief Justice Ronald George, who had said nothing to that point, piped up immediately, saying he assumed the city would rather have the matter -- which has been raging for more than a decade -- decided by the Supreme Court, "rather than being sent back for another round."
Schwartz agreed, but Baxter challenged him again.
"What's the rush?" he asked. "The city already has the San Remo's money on deposit."
After the argument, San Francisco lawyers Andrew Zacks and Paul Utrecht took credit for Baxter's suggestion about a standard of review. They were also heartened by Justice Brown's strongly stated comments.
"We believe Justice Brown understands these issues," Zacks said. "Her past opinions," Utrecht added, "have been very protective of the Fifth Amendment."
Brown was steamed that the San Francisco ordinance -- "a very convoluted statutory scheme to say the least" -- defined the 95-year-old, 62-room San Remo Hotel as a residential facility. The fact that the city defined it based on the number of rooms rented to tourists and residents during a 32-day survey period in 1979 didn't sit well with her, either.
"What this was was a hotel," she said. "It remained a hotel, and it's still a hotel."
The city contends that the hotel management itself declared the San Remo residential at the time of the 1979 survey and didn't challenge that fact until years later.
The other case argued Thursday, Keenan v. Superior Court, S080284, stems from a bid by Frank Sinatra Jr. to block kidnapper Barry Keenan from selling his story about the 1963 caper.
In the earlier argument in Keenan the justices indicated that they felt California's Civil Code Section 2225, is as overbroad as the New York "Son of Sam" law that the U.S. Supreme Court struck down in Simon & Schuster Inc. v. Members of the New York State Crime Board, 502 U.S. 105.
"At first blush," Justice Joyce Kennard said, "the law before us seems to have very compelling similarities."
Richard Specter, the Irvine lawyer representing Sinatra, countered by saying he believes the Simon & Schuster ruling upheld victims' rights laws in general, while striking down the New York law in particular. "Simon & Schuster," the Corbett & Steelman partner said, "was a clear message that victims' rights statutes are constitutional."
"Yes," Kennard said. "But is this [California law] narrowly tailored? I think that's the hurdle you have to overcome."
Of particular concern to the justices was a provision of the statute that exempts convicted criminals whose books or films contain only a "passing reference" to their crimes.
Addressing Stephen Rohde, the Los Angeles lawyer who represents Keenan, Chief Justice George asked how much of a book's content might fall under the "passing mention" standard. Could, for example, throwing in a few pages about early childhood help a book pass muster?
"Who knows what 'passing mention' means?" the Rohde & Victoroff partner said, suggesting offhand that a book might be OK if only 10 percent or less of its pages were devoted to a crime.
"Are you suggesting," George asked, "one would have to go through and count words or pages?"
Specter, Sinatra's lawyer, argued that an outright reenactment, depiction or portrayal of the crime would constitute more than a passing mention.
"How much of a description is a 'passing mention,' " Kennard pressed.
"If it lets me tell you what I did for four days while holding someone at gunpoint, then it counts," Specter said.
"What if it's one chapter out of 20," George asked.
"If it's a depiction of the crime," Specter said, "then it is" more than a passing mention.
Before ending his argument, Specter issued a warning to the justices.
"If this law is found unconstitutional," he said, "I tell you it is a death knell for victims' rights statutes."
