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Gavin Newsom

Acting this week as San Francisco’s mayor, Lt. Gov.-elect Gavin Newsom has influenced decisions about his interim successor as mayor, sworn in city commissioners and is preparing to appoint a  district attorney.

But Newsom’s political foes and some lawyers argue that he stopped being the city’s mayor on Monday, potentially setting the stage for courtroom battles over mayoral actions taken this week and casting doubts over the legality of his pending appointment of a successor to former DA Kamala Harris, who was elected state attorney general.

Newsom was scheduled to take office Monday in Sacramento. He delayed his oath of office, however, to temporarily remain mayor so he could pressure San Francisco’s Board of Supervisors to appoint an interim mayor of his liking before four members of the 11-person board are replaced Saturday. California and San Francisco laws bar Newsom from simultaneously holding the offices of mayor and lieutenant governor.

The Board of Supervisors is expected to vote today on an interim mayor in extraordinary circumstances.

Newsom’s argument that he is currently the city’s mayor is supported by attorneys working for San Francisco and by the state Senate Elections and Reapportionment Committee chief consultant Darren Chesin. But his stance has placed the city in a legal leadership quandary unlike any in California’s modern history and pits two fundamental provisions of the state’s constitution against each another.

Article 20 of the California constitution states that an elected official must take an oath of office before entering upon the duties of office. That article is cited by Newsom’s attorneys and supporters as evidence that he is still mayor.

Article 5 of the constitution, however, says that the lieutenant governor assumes office on the first Monday after Jan. 1 following an election. Opponents of Newsom's stance point to that article as evidence that he stopped being mayor on Monday and instead became an elected state official, regardless of his failure to take the oath.

It’s unclear whether one of those rules would trump the other if a dispute arises because no court has been asked to weigh in on such an unusual conundrum, despite high-profile instances of state elected officials delaying their oaths.

Former Gov. Arnold Schwarzenegger and Secretary of State Debra Bowen delayed their initial swearing-in ceremonies, but neither of those lawmakers held conflicting elected positions at the time that they delayed their oaths.

“Our opinion is that right now Gavin Newsom is legally mayor of the city,” San Francisco outside counsel James Williams said Tuesday during a Board of Supervisors hearing. “We were unable to find a precedent with regard to the constitutional elected offices of the state of California. Never to our knowledge has a lieutenant governor done this.”

Contitutional elected offices include governor, secretary of state, controller, treasurer and other high-profile state elected positions.

Remcho, Johansen & Purcell LLC attorney Thomas Willis wrote a Dec. 2 memo that supports Newsom's claim that he is mayor.

A regular citizen could not generally sue to oust Newsom from the office of mayor, according to UC Hastings law professor David Levine. To prevent frivolous lawsuits aimed at challenging elected officials’ rights to hold office, such procedures, called quo warranto proceedings, must be initiated by the state's attorney general.

“We haven’t been asked the question about Newsom so we haven’t looked into it,” said Jim Finefrock, spokesman for Attorney General Kamala Harris. Harris is a Newsom ally.

A citizen could, however, file a lawsuit in the future claiming that they were harmed by an action taken this week by Newsom and that the action was null and void because he didn't legitimately hold the office of mayor, according to Levine.

Some say that means somebody could potentially sue to oust a district attorney appointed today by Newsom.

If Newsom stopped being mayor on Monday, the city’s charter indicates that Board of Supervisors president and likely mayoral candidate David Chiu has unwittingly spent the week as the city’s executive leader.

While Newsom’s actions in delaying his oath to serve as mayor appear to be unprecedented, it is normal for politicians to try to give themselves a say in naming their successors, according to UC San Diego Associate Professor of Political Science Thad Kousser.

“I can’t remember a statewide officeholder delaying their oath of office like this for strategic reasons in the recent past,” Kousser said in an e-mail. “But strategically timing your retirement, filing papers for a new office, or switching between levels of government in order to hand-pick your successor is as old a politics itself.”

The lieutenant governor position is currently being filled by Republican Abel Maldonado, who was defeated in the race for the post in November by Newsom. Maldonado could therefore become governor if Gov. Jerry Brown dies before Newsom assumes his post in Sacramento, Capitol Weekly reported.