Today in Sacramento, Jerry Brown, Kamala Harris and all other new statewide elected officials will take their oath of office – except Gavin Newsom. The Mayor has opted to postpone his Inauguration for Lieutenant Governor to January 10th (although the state Constitution calls for his term to start January 3rd), because he doesn’t want Chris Daly to be one of 11 Supervisors who will pick his replacement. Newsom can do this, according to advice from counsel in a legal memo leaked to the SF Chronicle – but never released to the public. I have attempted to research this issue, and it’s a tough call either way – case law that favors Newsom focuses more on appointed judges, rather than elected constitutional officers. Practically speaking, no one can “force” Newsom to take office today – but it calls into question what happens: if the Supervisors meet tomorrow and pick an Interim Mayor, can he or she take office? And if the lame-duck Newsom appoints a District Attorney to replace Kamala Harris, will that appointment hold?

Newsom had hinted for months he would post-pone his Inauguration to avoid the lame-duck Board from appointing his successor, even though the Board’s ideological balance will remain unchanged. And increasingly, it appears to be more a personality grudge match with Chris Daly. But the real question vexing observers has been, can he do this legally?

On December 14th, the SF Chronicle reported that the answer was “yes” – according to a legal memo from the firm of Remcho, Johanns & Purcell, who has advised many Democratic politicians. And it appears Newsom is using it as justification.

Strangely, the City Attorney’s Office didn’t receive the memo – neither did the Santa Clara County Counsel (who has been advising the Board of Supervisors on the Interim Mayor selection, after Dennis Herrera recused himself.) The Clerk of the Board of Supervisors didn’t get it either, and no journalist that I know of has demanded to see a copy of the memo. So all that we know about it is what was in the Chronicle.

As the Chronicle reported, the memo cited (a) a 1991 appellate court ruling that found an elected judge’s term did not commence before he took the oath of office, and (b) a 2003 attorney general's finding that a senator's time of service, for purposes of term limits, began with taking an oath. In other words, when Newsom “takes the oath” would determine when he becomes Lieutenant Governor – and thus when he resigns as Mayor.

The 2003 Attorney General’s opinion must have been about Don Perata – who wanted to run for a third term in 2004. Perata had first been elected to the State Senate in a special election, and there were questions about whether his first two years would count towards the “two-term” rule in California’s term-limits law. In what some criticized as a politically motivated opinion, Attorney General Bill Lockyer said that Perata could run again – because he took the oath of office less than halfway through the four-year term.

Of course, Perata allegedly delayed his swearing-in because he skipped the State Capitol orientation – which years later, would allow him to run for an extra term. But at least in Perata’s case, California Government Code Section 9024 explicitly gives legislators who won a special election the flexibility to take the oath “at any time during the term for which they were elected.” For Newsom, the January 5th date is in the state Constitution.

As for the 1991 case about the judge whose office started with when he took the oath? In People v. Larry C, 286 Cal.Rptr. 57 (1991), a Southern California judge was elected to a local school board, took the oath of office, and only then realized he would have to resign from the bench. He promptly ditched the school board, and then presided over a case – and the question was if he was still a “judge.” The appellate court found he had resigned by taking the oath, but for purposes of the case was still a “de facto” judge.

A better case for Newsom is Ensher & Barsoom v. Ensher, 238 Cal.App.2d 250 (1966.) In that case, Governor Pat Brown appointed Judge Winslow Christian to head the Health & Welfare Agency – who postponed his swearing-in to wrap up some unfinished business, including preside over a few cases. Again, the question was whether he was still a “judge” during that time. The appellate court said his appointment only took effect upon his taking the oath of office, so it was okay – even if his delay had been intentional.

Of course, there’s a big difference here. Judge Christian delayed his swearing-in to an appointed statutory position in the Brown Administration – where these kinds of delays are to be generally expected. Gavin Newsom was elected by the people of California to a constitutional office, with a specific start date of January 3rd written in the Constitution.

In fact, cases that deal directly with the question of when an elected state officer’s term “starts” bode less well for Newsom. Granted, there aren’t that many – but the very old Mattison v. Nye, 9 Cal.App. 148 (1908) is instructive. In the 1906 election, the voters of California elected a new Governor and re-elected the State Controller. A few weeks after the election, the Controller died – and the lame duck Governor used his right to appoint a replacement for the “unexpired term” (which was to expire in January 1907.)

Then, in January 1907, on the lame-duck Governor’s last day in office, he re-appointed his friend (Nye) to a second term as Controller – because the dead Controller’s term had now fully “expired,” and he was still Governor for the next 24 hours. The next day, after the new Governor took the oath of office, he wanted to appoint his guy (Mattison.) But it was too late, due to the great importance the court put on what date the term shall begin.

Granted, none of this means that Newsom cannot delay his swearing-in – and I doubt that state politicians would put too many roadblocks for him to start serving as Lieutenant Governor on January 10th. The bigger question is, how would this effect things at the local level – when there is legal ambiguity as to whether Gavin Newsom is still Mayor?

Will the Board of Supervisors appoint an Interim Mayor tomorrow, who then cannot take office for another week? I don’t expect that to become an issue practically, because how do we know anyone has six votes on the old Board to get the job? But if Newsom makes an appointment for District Attorney to replace Kamala Harris, could it be argued he or she was not legally appointed? By delaying his swearing in, we could have a legal mess.