Civil Rights

SAN FRANCISCO - Attorney General Kamala D. Harris today asked the Ninth Circuit U.S. Court of Appeals to dismiss its order prohibiting same-sex marriages in California until an appeal of Proposition 8 is resolved.

“For 846 days, Proposition 8 has denied equality under the law to gay and lesbian couples,” Attorney General Harris said. “Each and every one of those days, same-sex couples have been denied their right to convene loved ones and friends to celebrate marriages sanctioned and protected by California law. Each one of those days, loved ones have been lost, moments have been missed, and justice has been denied.”

In a statement filed with the Ninth Circuit, Attorney General Harris asked the appeals court to lift its stay of Judge Vaughn Walker’s ruling declaring Proposition 8 -- which prohibits same-sex couples from marrying in California -- unconstitutional.

The appeal of Judge Walker’s ruling is pending before the Ninth Circuit U.S. Court of Appeals. The Ninth Circuit has also asked the California Supreme Court to rule whether the proponents of Proposition 8 have standing to defend the initiative in court.

Last year, Attorney General Edmund G. Brown Jr. also opposed the stay.

Attorney General Harris said it is unlikely that an appeal will succeed in overturning Judge Walker’s ruling that Proposition 8 is unconstitutional. The appeal’s likelihood of success has been substantially diminished, Attorney General Harris said, “both by the United States Attorney General’s conclusion that sexual orientation classifications are unconstitutional because they cannot survive rational basis scrutiny, and by this Court’s certification order to the California Supreme Court, which seriously questions the Court’s jurisdiction to decide the merits of the case.”

In addition, Attorney General Harris said, “there is no injury that the proponents of Proposition 8 will suffer if same-sex couples are permitted to enter into civil marriages in California.” But as long as the stay on same-sex marriages remains in effect, Attorney General Harris said, the due process and equal protection rights of same-sex couples will continue to be violated, perpetuating unconstitutional discrimination and making a stay of Judge Walker’s ruling legally inappropriate.

“The President and the United States Attorney General have determined that they will not continue to defend the Defense of Marriage Act (‘DOMA’),” Harris said, because sexual orientation classifications warrant heightened scrutiny and, under that demanding standard, the law is unconstitutional.”

The California Attorney General’s long-standing position, Harris told the Ninth Circuit, is that Proposition 8 “violates the equal protection clause of the Fourteenth Amendment of the United States Constitution.”

“I applaud the President and Attorney General’s decision today to uphold the Constitution and to decline to defend the federal ban on same-sex marriage,' California Attorney General Kamala D. Harris said. “It has long been my view that such a ban on same-sex marriage cannot be sustained under the Equal Protection Clause of the Fourteenth Amendment – a view of the law rooted in a proud line of American jurisprudence stretching back over 50 years.

“The fundamental oath one takes as the People’s counsel is to defend and uphold the Constitution of the United States. Attorney General Holder is doing so in his principled refusal to uphold a law that violates the Constitution’s basic guarantees of equality and fairness. I applaud his and the President’s courage in doing so and will continue our work to secure marriage equality for all Californians.”

Attorney General Edmund G. Brown Jr.'s statement on Judge Walker's ruling on Proposition 8 today:

In striking down Proposition 8, Judge Walker came to the same conclusion I did when I declined to defend it: Proposition 8 violates the equal protection guarantee of the Fourteenth Amendment of the United States Constitution by taking away the right of same-sex couples to marry, without a sufficient governmental interest.

SANTA ANA – In a “notable judgment” for victims of violent hate crimes, Attorney General Edmund G. Brown Jr. announced that his office has secured a novel civil award against two individuals who targeted a man based on his ethnicity, forced him out of his car and beat him until blood flowed from his ears.

“Victims of crimes inspired by hate deserve every remedy available under the law,” Brown said. “This notable judgment ensures that in California, justice doesn’t stop at the criminal courtroom door.”

The judgment, signed late last week, requires James Joseph Kelly III, 28, of California City and Justin Louis Mullins, 26, of Garden Grove each to pay $25,000 to Felipe Alvarado, 31, whom they brutally assaulted and verbally harassed.

The incident began about 2 a.m. on August 9, 2007 in Garden Grove. As Alvarado waited at a traffic light at the intersection of Magnolia Street and Trask Avenue, Mullins and Kelly pulled up and began verbally harassing him. Alvarado ignored the insults, but on the other side of the intersection, in the parking lot of his workplace, the two men jumped out of their vehicle, forced Alvarado out of his vehicle and dragged him to the pavement. Defenseless, Alvarado was punched, kneed and kicked until blood flowed from his ears.

During the assault, the men insulted Alvarado with ethnic slurs. The beating left him with permanent back pain and hearing loss.

Today’s civil judgment follows criminal convictions in October 2008. Kelly was sentenced to nine months in jail on one count of misdemeanor assault. Mullins was sentenced to three years in state prison for misdemeanor assault, driving under the influence and violating probation.

The civil case marks the first time the Attorney General has filed a case to benefit victims of violent crimes under the Ralph Civil Rights Act, which enables victims of many types of hate crimes to pursue civil penalties in addition to criminal charges. Given the circumstances and brutality of the crimes, Brown decided to pursue a civil case after the defendants were released from confinement.

Victims who believe their rights have been violated under the Ralph Act or any of California’s other civil rights laws, can file a complaint with Brown’s Civil Rights Enforcement Section at http://ag.ca.gov/contact/complaint_form.php?cmplt=PL.

Copies of Brown’s complaint and last week’s judgment, entered in Orange County Superior Court, are attached.

Saying that “disrupting a private funeral with vicious personal attacks goes too far,” California Attorney General Edmund G. Brown Jr. has signed a friend-of-the-court brief filed today in a Supreme Court case that will test whether families grieving at a funeral have a right to be free of hate-filled attacks from fanatical protesters.

Brown is one of 48 state attorneys general who gave their support to Albert Snyder in his lawsuit against Fred W. Phelps, Sr. and the Westboro Baptist Church in Topeka, Kansas.

Near the 2006 Maryland funeral of Snyder’s son, Marine Lance Cpl. Matthew Snyder, the vehemently anti-gay Phelps and his parishioners demonstrated and waved signs that said “Thank God for Dead Soldiers” and some that employed even more offensive language. Matthew Snyder, 20, was killed in a Humvee accident a month after he arrived in Iraq.

“Free speech is a cherished American right,” Brown said, “but disrupting a private funeral with vicious personal attacks on the grieving family goes too far.”

Phelps believes that U.S. military deaths represent God’s judgment on the country’s tolerance of homosexuality. He and his church members have staged their hate-filled protests at some 200 military funerals across the country.

Albert Snyder filed a civil suit against Phelps for invading his family’s privacy and intentionally inflicting emotional distress on them. A U.S. district court awarded Snyder $10 million, but a federal appeals court overturned that verdict and ordered Snyder to pay Phelps’ legal costs.

Forty states have enacted “funeral picketing” or “funeral protest” laws regulating the time, place and conduct of demonstrations near funeral services.

The amicus brief, submitted by Kansas Attorney General Steve Six, argues that such laws are necessary to protect the traditional “sanctity and privacy” of funerals and to prevent mourning families of veterans from being “attacked viciously and personally.” The picketing, the brief says, “amounts to emotional terrorism” directed at a “captive audience.”

Freedom of speech does not permit hate groups to espouse hate-filled vitriol at a private funeral service for the purpose of intentionally inflicting emotional distress on mourners.

“All we wanted,” Albert Snyder told a reporter, “was a private funeral for my son. They turned it into a three-ring circus.”

The Supreme Court is expected to hear his case in October. A copy of the brief is attached.

SAN DIEGO – California Attorney General Edmund G. Brown Jr. today released a report, including newly obtained videotapes, that shows some members of the community organizing group ACORN engaged in “highly inappropriate behavior,” but committed no violation of criminal laws.

Brown’s report also uncovered “likely violations” of state law, including dumping 500 pages of confidential records into a dumpster, failure to file a 2007 tax return, and four instances of possible voter registration fraud by ACORN in San Diego in connection with the 2008 election, as well as other irregularities in the group’s California operations. These irregularities have been referred to the appropriate authorities.

“A few ACORN members exhibited terrible judgment and highly inappropriate behavior in videotapes obtained in the investigation,” Brown said. “But they didn’t commit prosecutable crimes in California.”

Last September, Gov. Schwarzenegger asked Brown to investigate the activities of ACORN in California. His request was triggered by tapes made by undercover videographer James O’Keefe III that purported to show ACORN employees providing advice on how to conduct a prostitution ring and commit other serious crimes.

But new, unedited videotapes discovered through Brown’s investigation, as well as other evidence, shed clearer light on interactions between O’Keefe and the now-defunct ACORN.

Videotapes secretly recorded last summer and severely edited by O’Keefe seemed to show ACORN employees encouraging a “pimp” (O’Keefe) and his “prostitute,” actually a Florida college student named Hannah Giles, in conversations involving prostitution by underage girls, human trafficking and cheating on taxes. Those videos created a media sensation.

Evidence obtained by Brown tells a somewhat different story, however, as reflected in three videotapes made at ACORN locations in California. One ACORN worker in San Diego called the cops. Another ACORN worker in San Bernardino caught on to the scheme and played along with it, claiming among other things that she had murdered her abusive husband. Her two former husbands are alive and well, the Attorney General’s report noted. At the beginning and end of the Internet videos, O’Keefe was dressed as a 1970s Superfly pimp, but in his actual taped sessions with ACORN workers, he was dressed in a shirt and tie, presented himself as a law student, and said he planned to use the prostitution proceeds to run for Congress. He never claimed he was a pimp.

“The evidence illustrates,” Brown said, “that things are not always as partisan zealots portray them through highly selective editing of reality. Sometimes a fuller truth is found on the cutting room floor.”

The original storm of publicity created by O’Keefe’s videotapes was instrumental in ACORN’s subsequent denunciation in Congress, a sudden tourniquet on its funding, and the organization’s eventual collapse.

In New Orleans, O’Keefe faces a maximum sentence of six months in prison and a fine of $5,000 on reduced federal charges related to misrepresentation in gaining access to the Louisiana office telephones of U.S. Senator Mary Landrieu.

Brown’s report found numerous faults with ACORN’s activities in California, including:

• Failure to “recruit, train and monitor its employees to ensure compliance” with state law.

• Likely violation of state civil laws designed to protect personal information when employees of the San Diego office disposed of 20,000 pages of records in a dumpster. These violations could result in private litigation if any of the victims were injured by disclosure.

• Four instances of “possible voter registration fraud in San Diego in connection with the 2008 election.”

• Failure to file a 2007 state tax return, an omission the Franchise Tax Board is pursuing.

• Sloppiness in its handling of charitable assets, although no misuse of those assets was found. The California Attorney General will monitor investigations into ACORN’s overall finances by the IRS and Louisiana Attorney General.

ACORN announced that it is closing its operations nationwide today. While a successor to ACORN in California called ACCE emphasizes that it is no longer part of ACORN, the Attorney General’s report notes that ACCE is “run by the same people, raising concerns about its ability to cure the defects in the organization.” The report notes that the Attorney General will closely scrutinize ACCE’s operations.

The full Attorney General’s report is attached. The unedited O’Keefe videotapes from California are available on the Attorney General’s website at http://ag.ca.gov/newsalerts/multimedia/index.php. Tapes from other states are available on request.

San Francisco -- Attorney General Edmund G. Brown Jr. today renewed his call for the California Supreme Court to invalidate Proposition 8, in advance of Thursday's oral arguments.

His comments can be found at: http://www.huffingtonpost.com/jerry-brown/proposition-8-should-be-s_b_17...

The text of Attorney General Brown's post follows:

Proposition 8 Should Be Struck Down

The California Supreme Court finds itself center stage this Thursday when it will hear oral arguments on whether it should uphold Proposition 8's ban on same-sex marriage.

The case touches the heart of our democracy and poses a profound question: can a bare majority of voters strip away an inalienable right through the initiative process? If so, what possible meaning does the word inalienable have?

The state faced a dilemma like this before. In 1964, 65 percent of California voters approved Proposition 14, which would have legalized racial discrimination in the selling or renting of housing. Both the California and U.S. Supreme Courts struck down this proposition, concluding that it amounted to an unconstitutional denial of rights.

As California's Attorney General, I believe the Court should strike down Proposition 8 for remarkably similar reasons -- because it unconstitutionally discriminates against same-sex couples and deprives them of the fundamental right to marry.

Some vigorously disagree. That's the position of Ken Starr and those who argue that a simple majority can eliminate the right to marry. But such a claim completely ignores California's history and the nature of our constitution.

Fundamental rights in California are recognized and protected by our constitution, which declares in Article I, Section 1 that 'all people are by nature free and independent and have inalienable rights' and 'among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.'

These fundamental premises of a free people were declared when the constitution was first adopted. The initiative process came much later in 1911, when the immediate concern was to give the people power over the railroads, which were seen as having a stranglehold over the legislature. In creating this initiative process, there was no discussion or any evidence of intent to permit a simple majority of voters to take away the pre-existing rights deemed inalienable by Article I.

In 2008, the California Supreme Court was faced with the question of how the values enshrined in Article I apply to same sex marriages. It concluded that the concept of 'liberty' includes the right to form the enduring relationship called marriage and that no compelling interest justified denying this right to same sex couples. Just like the right to be free from discrimination in housing, citizens have the right to be free from discrimination in state-granted marriage licenses.

With this Supreme Court decision, same sex marriage has the protection of Article 1 and, like other inalienable rights, cannot be taken away by a popular vote -- whether it be 52% (as was the case in Proposition 8) or 65% (as it was for Proposition 14).

I believe, therefore, the Court must conclude as I have that Proposition 8 is unconstitutional and should be stricken.

FOR IMMEDIATE RELEASE
Thursday, January 22, 2009
Contact: Christine Gasparac: (916) 324-5500

San Francisco – Attorney General Edmund G. Brown Jr. today filed a brief in federal court opposing a preliminary injunction that would conceal the identities of contributors to the Yes on Proposition 8 campaign.

“Political democracy demands open debate, including prompt disclosure of the identities of campaign donors,” Attorney General Brown said. “Backers of Proposition 8 should not be allowed to carve out a special privilege of anonymity for themselves alone.”

The opposition brief, filed today with the U.S. District Court for the Eastern District of California, contends that Proposition 8 supporters do not meet the criteria for the limited exemption to valid campaign disclosure laws, an exemption developed by the Supreme Court to protect the ability of historically persecuted minority parties to engage in political speech. This limited exemption has applied to groups like the Socialist Workers Party in Ohio and the NAACP in Alabama in 1958, which both demonstrated that disclosure would result in significant harm and threaten the viability of their organizations.

By contrast, the supporters of Proposition 8 are a well-financed association of individuals who raised nearly $30 million in support of a ballot measure that received 52.3 percent of the vote. There is no risk that disclosure of donors will harm their ability to organize or otherwise pursue their political views.

Additionally, there is no justification to shield donors from post-election reporting requirements. Rather, these requirements help to prevent kickbacks, laundering, and other improper uses of campaign funds.

Any instances of violence or harassment against donors are deeply regrettable, but California’s civil and criminal justice systems are the appropriate venues to seek relief from potentially illegal conduct.

The bottom line is that the State’s campaign finance disclosure laws result in more speech, not less, and the public’s interest is better served in this case by requiring disclosure from those supporters of Proposition 8 who donated $100 or more.

FOR IMMEDIATE RELEASE
January 22, 2009
Contact: Christine Gasparac (916) 324-5500

Attorney General Brown Sues Bakersfield Contractor for Violating Rights of Workers

BAKERSFIELD – California Attorney General Edmund G. Brown Jr. today filed a lawsuit to recover $4.13 million in lost wages, benefits and penalties from a drywall contractor who “cruelly and illegally” violated the rights of its workers by prohibiting them from taking rest breaks, denying overtime pay and forcing them to work without safety equipment.

“This company failed to provide safe working conditions for its workers and then cheated them out of overtime pay and benefits,” Attorney General Brown said. “Employees were cruelly and illegally forced to work long hours without state-required breaks or compensation.”

The lawsuit, filed in Kern County Superior Court against Bakersfield-based Charles Evleth Construction, alleges that because the firm did not pay its workers a fair wage or pay state taxes, Evleth had an unfair advantage over its competitors and could underbid them for jobs.

The lawsuit alleges that Charles Evleth Construction, Inc.:

• Failed to provide its employees with overtime pay, instead paying them a daily flat rate.
• Prevented its employees from taking breaks.
• Withheld wages from employees and used the savings for incentive pay for supervisors.
• Failed to provide its employees with work tools, forcing them to provide their own.
• Failed to properly provide workers’ compensation coverage for their employees.
• Denied its employees a correct, itemized written statement of their wages.
• Paid its employees with cash, avoiding state and federal taxes, state unemployment insurance and the state disability fund payments.
• Failed to provide its employees with required safety equipment.

Attorney General Brown seeks $3.13 million in restitution for workers and $1 million in civil penalties for violations of California law requiring employers to provide overtime pay, breaks, workers’ compensation and other benefits for employees. The lawsuit also seeks a permanent injunction against future violations.

The Underground Economy Unit of the Attorney General’s Office conducted the investigation. The Unit interviewed many of Evleth’s employees and found nearly 1,200 violations of California law.

Today’s action follows lawsuits filed last fall against trucking companies in Los Angeles and is part of the Attorney General’s ongoing crackdown on businesses that evade taxes and fail to provide employees with state-required benefits.

The lawsuit is attached.