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Herrera answers questions about same-sex marriages during a press conference at City Hall in San Francisco in March 2004. Responding to efforts by the state attorney general and a Christian public interest law firm to invalidate the 3,632 same-sex marriages that were sanctioned in San Francisco during the spring of 2004, Herrera filed briefs arguing that municipal authorities are “independently responsible” to uphold the Constitution.
Julie Woodford

By Budd Whitebook

I never say that though others do,” says Dennis J. Herrera judiciously.

What others say is that Herrera, JD ’88, is the second most powerful elected politician in San Francisco. He is the city attorney for both the city and county of San Francisco, one of only 10 elected city attorneys in California. Unlike a corporation counsel, the city attorney does not represent an individual, such as the mayor, but rather the interests of the city and county. And unlike a district attorney, the city attorney does not prosecute criminal cases.

San Francisco City Attorney Dennis J. Herrera, JD ’88

To read Herrera’s press, he is doing a first-rate job. His general popularity flows from a combination of professional accomplishments and personal modesty. A perfect example is the San Remo Hotel case. It was a procedural matter before the Supreme Court, which had to decide if a developer who had lost to San Francisco in state courts and the U.S. Court of Appeals for the Ninth Circuit over a payment in lieu of taxes could get another bite at the apple in the Supreme Court.

Rather than taking on the case himself, Herrera hired Seth Waxman, a solicitor general under President Bill Clinton. “You can’t get much better than Seth Waxman, and I thought that his arguing the case offered us the opportunity to uphold our position.

“I thought about arguing the case myself. I really thought about it. But the way I viewed it was if I’m going to prepare for Supreme Court argument I would have had to set aside a tremendous amount of time to prepare. I’m not going to go into something if I’m not going to dedicate the time and attention to it that will enable me to do the best job on behalf of my client. Knowing the demands on me with a 325-person office, the issues that come up every day, I just knew I wasn’t going to have time to prepare as an advocate should. I wasn’t going to go in and just seek the glory, but not do the preparation.”

Herrera’s willingness to forgo the glory is disarming; perhaps he is not being humble, but rather staying true to his calling. Though he worked in the private sector, he has always believed that public service is noble as well as rewarding and interesting. “What set that foundation for me was my experience at GW Law. Being in Washington gave me the opportunity and the exposure that otherwise I would not have had. For instance, in law school, I worked at the State Department for the first year and a half or so. Then, my master’s program in Latin American affairs gave me a foundation and appreciation of public life and public service which has stuck with me through the course of my entire career.”

That master’s program, by the way, is the reason Herrera took four years to finish his law degree. “I always entertain thoughts of finishing off the thesis so I can get the degree,” he says with a laugh.

The legal defense team for the City of San Francisco: from left to right, leaning on table, are Bobbie Wilson, Herrera, and Therese Stewart, as they listen to Judge James Warren during a hearing at the San Francisco Superior Court in February 2004. Herrera and San Francisco Mayor Gavin Newsom made headlines that year when Newsom issued marriage licenses to gay and lesbian couples, and Herrera challenged the constitutionality of three sections of the California Family Code, which exclude same-sex marriage.

Marcio Jose Sanchez/APWWP

He’s going to be much too busy for that. Herrera is suing the state of California over same-sex marriage. San Francisco Mayor Gavin Newsom made news in February of 2004 when he issued marriage licenses to gay and lesbian couples. The state courts have found that he did not have the authority to do so. But Newsom and Herrera decided to challenge the constitutionality of three sections of the California Family Code, which exclude same-sex marriage. These sections fail, Herrera says, as matters of equal protection and due process.

For Herrera, it’s a matter of institutional belief as well as personal belief.

“It is a legal position and it is a belief as to the state of the law. Now, my own personal viewpoint of what’s right and what’s not right is a separate issue. But I also believe it’s the right thing to do. At this point, it’s the morally right thing to do—to insure that we have marriage equality.”

The way Herrera expresses his opinion on same-sex marriage is cautious, but firm—in a word, lawyerly. Considering how politically safe his position is in San Francisco, he could have been much more fiery, even belligerent, on the topic. But that would be out of character for the soft-spoken man with every hair in place, tie knotted just so, and neat little San Francisco cufflinks. It would also be out of character for a man who describes himself as “a liberal pragmatist, left of center, but not way to the left.”

Nor would it be in character for a man who says this about GW Law: “I thought it was a very interesting experience—transforming in a lot of ways. Teaching you to think critically and logically is a wonderful thing.”

That last sentence may be an ideal self-definition and one that many might say fits him like a custom-made shoe. Herrera speaks in whole sentences, even paragraphs. He knows what he wants to say, even, or so it seems, before the question is asked. When he has finished speaking on a topic, he comes to a full stop, never trailing off, never a raggedy end, never “and so on.”

This is not meant to make him sound bloodless or mechanical. There is a great deal of laughter during the interview, and there is nothing pale or stiff about him. Imagine a man who can be both precise and loose at the same moment and you will have the essence of Dennis Herrera. And he is quite capable of astonishing those around him. Here’s one example.

Herrera was first elected city attorney in 2001, then ran for re-election in 2005. He was unopposed, but he still decided to campaign.

“I thought it was important. I was proud to be unopposed. I took that as a measure that people are satisfied with the job we’re doing, and we had support from people across the political
spectrum in San Francisco—left, right, center, labor, business—and that is very unusual in San Francisco. I take a great deal of pride in that, more for the office than for myself, because it shows we’ve done what the people expect us to do. As part of that, I think it’s the height of arrogance, even if you’re unopposed, to sit there and just expect that people should vote for you. I view it as important to go out and earn people’s votes. That’s how I viewed it—to talk about the reasons we were unopposed, to talk about the good work we’ve done.”

So Herrera took the public’s pulse and got 99 percent of the vote. He also got something he was hoping to get: an earful about what people were not happy about. He learned that there were not enough code enforcement inspectors, making routine inspections annoyingly slow, if not stately. He doubled the size of the code enforcement team. He learned that his office needed to be more relevant to neighborhoods, so his office is expanding into public safety. And in the face of a rising homicide rate, he has started a gang injunction program.

These are just some of the ambitious undertakings Herrera has assumed since his campaign. He clearly believes that his office can do more than it traditionally has done, and knows that—while overseeing what amounts to a good-sized law firm—he also has the capacity to manage more work. He shrugs that off. There is work that needs to be done and there are programs and enterprises that the public wants: it’s his job to serve public need.

Making his office more energetically involved in the daily issues of the city’s residents (and, naturally, more visible in the San Francisco media) is a matter of business, not personal ambition. Herrera has not yet decided if he will run for reelection in 2009, and it seems pointless to ask if he wants to be the most powerful elected office-holder in San Francisco. He doesn’t really talk politics. That perhaps is the one slightly jolting characteristic of Herrera, though if there is a jolt, it comes a day or two afterwards: he is so affably focused on questions of law and equity that you would not notice the obvious—a politician who doesn’t swallow politics with his coffee first thing every morning. Like the dog that did not bark in the night in the Sherlock Holmes story, the thing you might reasonably expect to be there is missing and not noticed immediately.

While politics is not his starting point, his stance on same-sex marriage is certainly political. His points of departure would be equity and constitutional guarantees and protections. That is to say, he is a lawyer at heart who happens to be left of center in a left-leaning city and who is dealing with an issue that has become political almost everywhere else in essentially apolitical terms.

This is perhaps unconventional, a characteristic for which Herrera has been praised. The Los Angeles Times referred to Herrera’s office as “an unconventional public law office that has earned a nationwide reputation for its aggressive legal tactics.” It is obvious, however, that he saves his aggressiveness for his cases. His approachable nature is perhaps why some friends he made while at GW Law are still close to him nearly 20 years later.

He had not seen the Foggy Bottom campus for about five years when he visited in April. He was taken with the transformation of both Washington and the University. “I feel like I’m in China, with all the construction cranes,” he says. “It’s absolutely stunning. And the hospital is on the other side of the street.” The GW Law complex, which he remembered as cramped and cluttered, now struck him as inviting and open.

Those who knew him during his GW Law days might not be surprised by the details of his life now. Herrera and his wife, Anne, have a son, Declan, nearly five years old. But there is something unusual about where the family lives: the name of the Potrero Hill neighborhood is Dogpatch—as in L’il Abner. This needs an explanation, and he offers it.

According to rumor, he says, there used to be an area nearby called Butchertown where many of San Francisco’s slaughterhouses and meat packing plants were. The story goes that dogs would come to Butchertown, steal meat, and take it to a quieter place to eat it. Thus, Dogpatch. While this may sound like hearsay, “That is my story and I’m sticking to it.”

There is obviously nothing to be gained arguing about the admissibility of evidence with a man who takes on the state of California, manages 325 lawyers and others not known for their docility, and runs unopposed for reelection. The Dogpatch story stands as recited.

Author’s note: The three combined cases challenging the constitutionality of California’s prohibition of same-sex marriage will go to court about the time GW Law School Magazine goes to press. Because this is the first government litigation making such a challenge, the case will be important nationally and might well be appealed no matter the initial outcome. It will be worth watching, and betting on Dennis Herrera might keep your money safe.