Reporting from the Sanctuary Counter-Counter-Revolution!


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Plaintiffs and their supporters, overlooked by HB City Attorney Gates and 4th Circuit Judge Goethals.

We’ve got up to three months to wait and see what the three-judge panel of California’s 4th Circuit Court of Appeals thought about yesterday’s Sanctuary State vs Charter Cities arguments, but the most iconic moment to me was the panegyric to Huntington Beach on which that town’s showboating elected City Attorney Michael E. Gates chose to use his last minute of time.

Gates in HB parade

A rightwing, FOX-News celebrity now for (so far) successfully arguing that charter cities like HB don’t have to follow the state sanctuary law, Mike rhapsodized on how big and special Surf City is – so big and special that NO state should ever be able to tell them how to run their law enforcement affairs:  Huntington Beach has TWENTY-SIX SQUARE MILES!  They have NINE AND A HALF MILES OF COAST!  They are the FOURTH BIGGEST CITY in the OC, dammit!  And they are the ONLY police force in the OC with a HELICOPTER!

I guess Mike doesn’t get inland much, but Judge John Goethals (a celebrity himself for his slapdowns of former DA Tony Rackauckas over the snitch scandal and more) was quick to point out that HB is NOT the only Orange County city with a police helicopter (not that that has anything to do with whether they should follow state law.)  It was an embarrassing gaffe, and Mike Gates turned red, but it was also emblematic of the lameness of his arguments in general, on how HB and other cities are too special and unique to have to follow state law.  We’ll look at those momentarily…

Revolution, Counter-Revolution, Counter-Counter-Revolution!

California’s SB 54, which its authors liked calling the “California Values Act” but the rest of us call the Sanctuary State Law, could be called a Revolution against an overreaching, inhumane federal government’s immigration policy, under you-know-whom.  But the impetus for this revolution was not just the state’s love of immigrants, but concern for the efficacy of our law enforcement, which many studies have shown is severely compromised when local LE agencies have to double as immigration enforcers.

Opposition to SB 54 led many municipalities, driven pretty obviously by anti-immigrant sentiment of their populations and politicians, to invent ways to justify defying the state law, and allowing their police to co-operate with ICE.  This could be called the Sanctuary Counter-Revolution, and Huntington Beach led the way, as a Charter City claiming to have authorities in that area that the state cannot interfere with.  Last year Judge James Crandall (who we believe to be an outlier) ruled in favor of HB’s expansive claims of Charterpower – and this could be a slippery slope given all the Charter Cities eager to follow suit.

This month, in what we call the Counter-Counter-Revolution, the ACLU of SoCal along with the National Day Laborers’ Organizing Network, Los Alamitos Communities United, and HB’s plucky barrio Oak View Comunidad, launched their own appeal against HB and Crandall’s 2018 ruling.  Yesterday both appeals against Crandall’s decision were heard:  California’s, and the ACLU et al.

California’s arguments

Eisenberg

California went first, in the case Huntington Beach vs Javier Becerra (Cal’s Attorney General.)  The state was represented by Deputy AG Joshua Eisenberg (right, NOT “Jonathan” as the Register has it.)

The bulk of the arguments from both Eisenberg and Gates were excruciatingly semantic and grounded in diffferent interpretations of Subsections A and B of Article 11 of the State Constitution which grants special powers to Charter Cities, and may or may not be subject to a “four-part test” which determines if and when the state can overrule Charter City policies.  It became obvious that there was no handy precedent for a case like this, much as both sides tried to find them.

Another angels-on-the-head-of-a-pin conundrum was over whether SB 54 was “substantive” or “procedural.”   Gates insisted it forced “substantive” changes onto cities, while Eisenberg insisted they were only “procedural.”  I was relieved to hear another Judge, Raymond Icola, admit that the distinction between those two categories is extremely vague and subjective – yeah, that’s how it seems!  (The only thing everyone could agree is “substantive” that the state has sometimes tried to force onto cities is actual dollar amounts of public employee compensation, which had nothing to do with this case.)

Both Eisenberg and Gates took hyperbole out for a spin:  If Crandall’s ruling is allowed to stand, there is nothing that Charter Cities can’t get away with in the future.  No, your honors, if Crandall’s ruling is overturned, that means we are re-writing the state constitution and it means nothing to be a Charter City!

But Eisenberg made some really good points – what Huntington Beach law enforcement does affects a lot more than just HB residents who may or may not be undocumented – just look at how many folks of all races pass through that beloved beach town.  The state certainly has a legitimate interest in protecting them.

Eisenberg also referenced a recent study of California’s immigrant community, where immigrants were asked how the TRUST they feel with law enforcement would be affected if Sanctuary became PATCHWORK – if it was hard to say WHICH agencies were co-operating with ICE and which were not?  The study definitively confirmed that trust would be dashed, and SB 54’s benefits would virtually vanish. 

In response to Gates’ portrait of Sanctuary as some enforced radical anarchy, Eisenberg pointed out the list of LITERALLY HUNDREDS of felonies and “wobblers” that allow a police force to turn a convict over to ICE.  And as a coup-de-grâce Eisenberg reminded the honorable judges that SB 54 was upheld by the 9th Circuit in April.  And then it was time for the actual affected parties to make THEIR case.

ACLU, Oak View, et al. Join the State’s Appeal

Apparently – who knew? – this was all somewhat unorthodox, for interested parties to launch their own appeal, while a larger party (the state) is already conducting basically the same appeal.  And naturally Gates began by questioning the STANDING of these four organizations.  Are they really aggrieved, are they really suffering “substantial pecuniary damage?”  Even Judge Sicola was puzzled: These plaintiffs are ALL US CITIZENS, so how can they be affected by this law?

Well, duh, your Honor – just because these plaintiffs are citizens doesn’t mean that they don’t have family members and many friends and neighbors who, in today’s terror of deportation, have been avoiding hospitals and health care, missing work and school, and been reluctant to report crime and domestic violence in their neighborhoods.  (And in a circular way, the fact that no non-citizens felt comfortable signing on to the suit kinda illustrates the problem.)

Still, the panel wanted to know – why do YOU ALL need to launch your own appeal, when the state is pretty much making most of your arguments for you already?  Good question, responded our way-cool counsel Samir Deger-Sen of Latham & Watkins.  With all respect to the Attorney General, we cannot just rest securely assuming the state will continue to represent our interests as long as might be necessary.  And we are likely to think of other effective arguments that the state may not.  (I’m paraphrasing.)

Judge Goethals interjected helpfully, “I believe what you’re saying is, you want to be able to control your own destiny.”

Yes.  We liked the sound of that.

So Long Story Short

This sort of Court of Appeals doesn’t weigh in right away.  They are going to present their opinions in writing some time in the next 90 days – i.e. by late January but hopefully sooner.  (What law applies in places like HB until then?  I’m not sure, but I don’t think there’s been a stay.)

Meanwhile, in the hour or so before the hearing, several of Mike Gates’ supporters showed up outside the courthouse, with arguments disarming in their simplicity and directness:

Utilizing bullhorns, they opined that we were “BOZOS” and encouraged us to “GO HOME” – presumably to some sort of Bozo Refuge. 

Taken under advisement.

SB-54

Posted by Victor Valladares on Wednesday, October 23, 2019

 


About Vern Nelson

Greatest pianist/composer in Orange County, and official troubador of both Anaheim and Huntington Beach (the two ends of the Santa Ana Aquifer.) Performs regularly both solo, and with his savage-jazz quintet The Vern Nelson Problem. Reach at vernpnelson@gmail.com, or 714-235-VERN.