The Recorder - April 5, 2005
AT THE HIGH COURT, THE ROOKIES KNOW TO TURN TO THE PRO
By Pam Smith

Seth Waxman has been before the U.S. Supreme Court 45 times. San Francisco hasn't.

Which helps explain why the city hired Waxman, a solicitor general in the Clinton administration, to argue for it last week in the takings challenge to its hotel conversion law.

For his trouble, Waxman and his firm stand to collect up to $150,000.

Waxman, now a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, D.C., "is simply the best Supreme Court oral advocate," said Andrew Schwartz, the former deputy city attorney who's been defending the litigation since its inception in 1993. "And he has the trust and respect of the U.S. Supreme Court."

Schwartz' firm, meanwhile, has a contract worth up to $120,000 for work on the briefs. In January, the 22-year office veteran left his job heading the city's environmental and land-use litigation to become of counsel at San Francisco's Shute, Mihaly & Weinberger.

Waxman is charging a discounted rate of $570 an hour, while Schwartz is charging $250, according to the city attorney's office. The firms' contracts are contingent upon the Board of Supervisors appropriating the money.

The San Remo Hotel's owners sued in state and federal court in 1993, challenging a law that requires hotel owners to pay fees if they want to convert hotel rooms from residential to tourist use. The city narrowly won the state litigation at the California Supreme Court.

Late last year, the U.S. Supreme Court agreed to consider whether, in light of the state outcome, the hotel owners can still pursue their federal takings claims. The Ninth Circuit U.S. Court of Appeals has told them they can't.

Though the city attorney hadn't worked with Waxman before San Remo Hotel v. San Francisco, 04-340, Schwartz said he was familiar with the appellate specialist's work in two recent cases at the high court.

Schwartz wrote an amicus curiae brief for Lingle v. Chevron USA, 04-163, a takings challenge to a Hawaii law where Waxman is the state's counsel of record. And last year, Shute, Mihaly's government client pulled Waxman in to argue before the U.S. Supreme Court in Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246.

Despite those examples, Waxman says he doesn't specialize in takings law or government clients. "I try very hard to be a generalist, just as the justices are."