[Hpn] SFGate: CA Sen. John Burton vows to fight panhandling measure

chance martin streetsheet@sf-homeless-coalition.org
Fri, 05 Sep 2003 10:09:07 -0700

Burton vows to fight panhandling measure
If passed by S.F. voters, he'll go to court to block it

Rachel Gordon, Chronicle Staff Writer
Friday, September 5, 2003
©2003 San Francisco Chronicle | Feedback

URL: http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/09/05/BA295507.DTL

Armed with an opinion from the Legislature's legal analyst, state Sen. John
Burton said Thursday that he would go to court to block San Francisco
supervisor and mayoral candidate Gavin Newsom's anti-panhandling ballot
measure if it is enacted by voters.

The opinion by the legislative counsel of California -- which was requested
by Burton -- stated that parts of the measure could be found to violate both
federal and state free-speech rights because of the vagueness of some of its

But backers of Proposition M said they were confident it would withstand
court scrutiny, and even the legislative counsel, which helps state
lawmakers craft legislation, concluded that portions most likely would
survive a legal challenge.

Burton, the liberal Senate leader who represents San Francisco, was a
onetime political mentor of Newsom's, an investor in his PlumpJack wine and
food businesses and an old family friend. Lately, however, he has been
leading the charge against two of Newsom's high-profile efforts that are
closely linked to his run for mayor: the Care Not Cash welfare reform
measure on last fall's ballot, which was approved by voters but is now stuck
in legal limbo, and the proposed panhandling restrictions on the Nov. 4

"What bothers me is that politicians and political consultants are going
after the poor for political gain," Burton said. "I just find it offensive.
Last I checked, it's not a crime to be poor."

In an e-mail response issued by his mayoral campaign, Newsom criticized
Burton as being an obstacle to needed change.

"This is not an attack on the poor," Newsom said. "The current system has
failed everyone -- both the people who panhandle and those who are
panhandled. This is an attack on a problem that is diminishing the quality
of life of every San Franciscan at every income level.

"I am disappointed that Sen. Burton would choose to defend the status quo."

Burton requested that the state legislative counsel analyze whether the
proposed panhandling law, Prop. M, would be constitutional. The written
response: "While most of its prohibitions would be constitutional, several
others would either be unconstitutional or raise substantial constitutional
issues or problems of interpretation."

Chief legislative counsel Diane Boyer-Vine, who signed the opinion,
suggested that if voters approved the plan, the court could toss out
unconstitutional provisions while still uphold other sections.

Sponsored by Newsom but put on the ballot by a signature drive, Prop. M
would prohibit "aggressive" panhandling -- defined as touching, following or
threatening people -- throughout the city, and ban all forms of begging near
ATMs, parking lots, check-cashing businesses, median strips and highway
ramps, and on BART and Muni.

The proposal also calls for diverting offenders from the criminal justice
system into a screening and assessment program to identify those who could
use substance abuse treatment and mental health care. It does not, however,
designate funding to provide those services.

Some of the biggest names and organizations in the city's business community
are backing Prop. M on the grounds that the proliferation of panhandling in
San Francisco sours the city's commercial districts.

Advocates for the poor, including those involved with the Coalition on
Homelessness and Religious Witness with the Homeless, say Prop. M targets
the most vulnerable without adequately addressing the root causes of poverty
and despair that leads people to seek money from strangers.

San Francisco already has anti-begging laws on the books -- voters adopted
prohibitions against aggressive panhandling in 1992 and a ban on begging
around ATMs two years later -- but court decisions have made enforcement
difficult. Newsom says his proposal clarifies existing law and is modeled
after statutes in other cities, including Berkeley, Los Angeles and Palo
Alto, that have been tested in the courts -- though in some cases rejiggered
to meet constitutional standards.

H. Johannes Galley, general counsel for the Center for the Community
Interest, a New York City-based organization that helps cities draft and
defend quality-of-life laws, said federal courts already had upheld laws
similar to the one being contemplated in San Francisco. After reviewing
Newsom's proposal, he said, "By and large, I think this is a law that would
sustain attacks in court."

It is tailored in such a way as to show a compelling state interest to
restrict begging, which would be a key test in court, he said.

Among the concerns Boyer-Vine, the legislative counsel, cited is the
provision of Prop. M that would prohibit solicitation in a private parking
lot or garage "because it would apply without regard to whether the
solicitation is consented to by the owner or possessor of property."

The proposed prohibition on people following someone with the intent to ask
for money or other things of value "would also be deemed constitutionally
vague," she said. 

A provision that would bar solicitations on BART and Muni, she said, could
be construed literally to prohibit the collection of fares, but that the
court would most likely find a way to "avoid this unintended result."

However, she said, taken as a whole, Prop. M is not the kind of blanket ban
on begging that could result in the entire measure's being invalidated by
the courts. 

"After considering the entire proposal, we conclude that, if enacted, it
would leave open ample alternative channels for the protected aspects of
panhandlers' communication, as required," she wrote in an opinion that
Burton provided to The Chronicle. "Finally, we conclude that the invalid
portions of the proposal . . . are severable, and the balance of the
proposal would be enforceable."

E-mail Rachel Gordon at rgordon@sfchronicle.com.

©2003 San Francisco Chronicle

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