It's been 10 years since the dreaded 7.1 quake shook the city by the bay, and it's been making headlines across town. With the look back at the earth-rattling day come new predictions about when the "Big One" will hit. The votes are in and experts say that in the next 30 years, there is a 70 percent chance that a 7.3 or larger quake will strike the Bay Area. And my new home on Treasure Island is predicted to experience only "violent" (as opposed to "very violent") seismic activity.

I hope to live on more stable ground at some point in the next few years, but, in the next 30 years, if Capitol Action Weekly doesn't arrive in your In Box one Monday morning, you can assume that the Big One has hit and I've sunk into the Bay.

But before that happens, I think I'll invest in a boat.

-Gabe

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So the question is, should the governor appeal the court's decision to the state Supreme Court? He has until Nov. 10 to decide.

The fee was enacted in 1990 during the waning days of the administration of former Republican Gov. George Deukjmejian, who signed the measure as a way of getting cash during the early days of a severe recession. The money was pumped into the General Fund -- it had nothing to do with smog programs -- and distributed according to the priorities set by the governor and the Legislature. The fee has brought in about $550 million since it went into effect in September 1990.

But even before it was approved, the fee was controversial. At least two formal legal opinions in the Capitol questioned the constitutionality of the fee -- concerns that were born out years later -- and the fairness of charging drivers new to the state such a hefty amount has always raised eyebrows among the public.

On Oct. 4, the state 3rd District Court of Appeals in San Francisco upheld a lower court's decision that the fee interfered with interstate commerce and, therefore, was unconstitutional.

Last year, the fee brought in about $98 million, although most of this money, following a new legislative decision, went into a fund intended to help low-income drivers pay for the costs of smog-related repairs.

The money is collected by the Department of Motor Vehicles, which is run by an appointee of the governor. If the governor decides not to appeal the appellate court's ruling, the DMV will cease collecting the funds.

But the money is administered by the state Board of Equalization, a four-district panel that is elected by voters. Each elected member is a constitutional officer. The board also has a fifth voting member, the state controller, who is popularly elected statewide.

Gov. Gray Davis has no authority over this board, which is little known to the public but which is immensely powerful in the halls of government. The board decides tax appeals, sets the tax levels for utility properties and determines sales tax collections, among many other duties.

The board, along with the DMV, is one of the defendants named in the original suit opposing the fee. And that means the board -- not just Davis -- must decide whether to appeal the appellate court's decision.

The legal questions that now arise are interesting indeed. Suppose Davis decides to appeal and the board decides against it? Suppose Davis decides not to appeal, and the board decides the opposite? If the two defendants split on the fee, will it still be collected? Should the governor or any other elected official, including those on the Board of Equalization, support a fee that two courts already have decided goes against the constitution? If the rationale for the feed was that it was needed to fight a recession, should the fee be continued now that the economy is strong, even booming? Can the argument now be made that the fee is good because it helps low-income motorists?

The Board of Equalization is scheduled to consider this issue at a closed-door meeting Oct. 26 in Culver City.

But Davis cannot -- or will not -- answer these questions now because he is in Europe until the end of the month on what is charitably described as a "trade mission." But he will have to decide something, sometime.

What will he do?

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