Legislation

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.

Sacramento–Attorney General Edmund G. Brown today announced that a coalition of 18 states and cities have won reversal of controversial Bush-era pollution standards “justified by nothing more than junk science” and which threatened to undermine public health.

"This dangerous air pollution causes thousands of premature deaths each year. Yet the Bush Administration callously ignored the facts and put forward a standard justified by nothing more than junk science,” Attorney General Brown said. “Today, the DC Circuit Court cleared the way for the Obama Administration to right this wrong.”

Fine soot pollution (also known as fine particulate matter pollution or “PM 2.5”) comes from diesel vehicles, power plants and other sources, and is prevalent in urban areas. Because fine soot can lodge deep in the lungs, it can cause numerous harmful health effects, including premature death, chronic respiratory illness, decreased lung function, cardiovascular disease and asthma. Children, senior citizens, and people with existing lung and heart diseases are especially susceptible to harm from fine soot pollution.

That is why EPA’s scientists and scientific advisory committee recommended strict new standards for fine soot in 2005. However, the Bush Administration rejected their advice and chose a weaker, less protective standard. Today’s decision clears the path for the Obama Administration to issue new, stronger standards.

Today’s decision, issued by the federal Court of Appeals for the D.C. Circuit, agreed with the coalition that the Bush EPA had acted illegally in issuing weak air pollution standards for fine soot, acting against the advice of EPA professional staff and EPA’s own scientific advisory committee. The court found that the Bush EPA had also erred by not taking into account the special sensitivity to air pollution of children, elderly people and other vulnerable populations. The Court remanded the standards to the new Obama EPA to issue new, more protective air pollution standards for fine soot that will better protect public health.

The states, cities and other state agencies joining in the challenge that led to today’s victory are: California, Connecticut, Delaware, Illinois, Maine, New Hampshire, New Jersey, New Mexico, New York, Oregon, the Pennsylvania Department of Environmental Protection, Rhode Island, Vermont, the District of Columbia and the South Coast Air Quality Management District. The States of Arizona, Maryland and Massachusetts also joined as friends of the court.

'Today’s decision is a return to sanity by an agency whose fairness and balance had been sabotaged by the partisan extremism of the Bush Administration.

This is but a first step, but it signals that this EPA has a renewed commitment to sound science and to rule of law.

California has led the way on global warming, and the state should be allowed to continue in its leadership role in reducing automobile emissions and addressing global warming.”

SACRAMENTO – Attorney General Edmund G. Brown Jr. today called on the federal district court to terminate an “unaccountable prison receivership” and its extravagant $8 billion prison construction plan because both violate federal law.

“The court should terminate this unaccountable prison receivership and its $8 billion construction plan, restoring a dose of fiscal reality to the provision of inmate medical care in California,” Attorney General Brown said. “The federal receivership has turned into its own autonomous government operating outside the normal checks and balances of state and federal law,” Brown added.

The Receiver’s $8 billion plan calls for adding 7 new prison health care facilities containing 10,000 new beds for prisoners -- that’s 7 million square feet, or the size of 70 new Walmarts. The plan would also renovate space at each of the 33 existing state prisons.

A draft of the plan also includes yoga rooms, horticultural therapy, extensive landscaping to obscure prison fences, music and art therapy, regulation basketball courts, quiet rooms, an emphasis on natural light and high ceilings, and a so-called “treatment mall.” A subsequent draft contains most of the same features without the graphic detail.

The construction of new facilities, as well as the upgrading of existing facilities, is estimated to cost $8 billion. In addition, it will cost $1.7 billion to $2.3 billion per year to operate these facilities. The projected operations cost per inmate is $170,000 to $230,000 per year. This extravagant plan comes at a time when California is facing a fiscal catastrophe and funding for school children is being slashed.

The Termination Motion
In a motion filed today in the U.S. District Court for the Northern District of California, the Attorney General urged the court to terminate the Receivership and his plan for the construction of prison healthcare facilities – because the Prison Litigation Reform Act prohibits judges from ordering the construction of state prison facilities and limits court-imposed remedies to the “least intrusive” possible.

In place of the $8 billion plan, the Attorney General called for returning the prison health care system to the State and the appointment of an interim Special Master to conduct hearings and make proposed findings of fact.

Background
California is under Federal court order to provide health care that is not “deliberately indifferent” to the health needs of prisoners. The State of California is committed to providing such care.

The State – under the receivership – has taken significant steps to improve inmate health care. California has increased health care staffing and filled almost 90 percent of open physician positions, improved emergency response, professional standards, contracting systems, and health care screenings.

In total, California has increased per inmate health care spending from $7,601 per year in 2005-2006 to $13,778 in 2007-2008. By comparison, spending per inmate in federal prisons will be $4,413 per inmate in 2008-2009. The average cost of health care coverage for a single person in California in 2008 was $4,906.

Nevertheless, the Receiver continues to insist on a massive program that would lead to the construction of facilities and amenities that go well-beyond standards required by the Constitution and federal law. The Prison Litigation Reform Act, signed into law in 1996, forbids judges from ordering construction of state prison facilities, and requires that any plan that a court orders be “narrowly drawn, extend “no further than necessary” to correct the violation of the Federal right, and be the “least intrusive means necessary.” (18 U.S.C. § 3626(a)(1)(A))

On August 25, 2008, the Receiver filed a motion to hold the Governor and other State officials in contempt for failing to turn over to the Receiver $8 billion for his construction plans, and the district court ordered the state to make a down-payment of $250 million by November 5.

Subsequently, Brown appealed that decision to the Ninth Circuit, which stayed the district court order. The Ninth Circuit will hear oral argument in the case on February 12, 2009.

Sacramento – Attorney General Edmund G. Brown today issued the following statement in response to President Obama’s direction to the EPA to reconsider California’s Clean Air Act waiver to enforce its landmark global warming legislation.

“Today’s dramatic announcement by President Obama marks the first time that an American President has taken decisive action to deal with global warming.

California welcomes President Obama’s commitment to make cars cleaner, more efficient, and less dependent on foreign oil.

What a difference from the dangerous paralysis of the Bush years.”

Last year, Attorney General Brown filed suit against the Bush Administration for denying California’s request for a Clean Air Act waiver to enforce the state's landmark greenhouse gas emissions standards. This was the first time that the EPA had denied a Clean Air Act waiver request from California.

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.

Sacramento -- Attorney General Edmund G. Brown Jr. today renewed his call for the California Supreme Court to invalidate Proposition 8 because it deprives people of the right to marry—an aspect of liberty that the Supreme Court has concluded is guaranteed by the California Constitution.

“The amendment process cannot be used by a bare majority to strip away the fundamental and inalienable rights of a protected minority without a compelling justification,” Attorney General Brown said. “Since there is no compelling justification, Proposition 8 must be stricken.”

Attorney General Brown today responded to the 63 “Friend of the Court” briefs that were filed last week with the California Supreme Court. Brown contends that the amendment process cannot be used to extinguish fundamental constitutional rights enshrined in article I, section 1 of the California Constitution without compelling justification. The court found in the In re Marriage Cases that no such compelling justification exists. Accordingly, Proposition 8 must be stricken.

Brown also takes on the arguments of supporters of Proposition 8 head on.

Brown argues that Proposition 8 supporters are wrong to suggest that the people’s right to amend the Constitution through the initiative process is unlimited and that the Court does not have the authority to invalidate Proposition 8. The Court, in fact, has exercised judicial review previously to invalidate a constitutional amendment that was deemed substantively improper.

He also argues Proposition 8 does not invalidate the same-sex marriages entered into between June 16 and November 4, 2008, as some Proposition 8 supporters contend. To invalidate those marriages, Brown argues, would violate the due process rights of those same-sex couples who entered into marriage based on the Court’s ruling in In re: Marriage Cases.

Sacramento – Attorney General Edmund G. Brown Jr. today urged a federal appeals court to block the court-appointed Receiver from “commandeering $8 billion” from the shrinking California Treasury for extravagant prison construction.

“Federal law does not allow the Receiver to commandeer the finances of the state to spend $8 billion for unaccountable and extravagant prison construction,” Attorney General Brown said. “The court should rein in the Receiver, who is now spending more than $2 billion per year on inmate health care. This is almost $14,000 per inmate and nearly double what it was just three years ago.”

In a reply brief filed today with the United States Court of Appeals for the Ninth Circuit, Attorney General Brown describes the fundamental legal errors that the court-appointed Receiver has made in attempting to force the state to fund his prison construction program against its will.

Brown argues that the Prison Litigation Reform Act, signed into law in 1996, bars federal judges from ordering the construction of new prisons and that any relief must involve the least intrusive means necessary.

A just-released draft of the Receiver’s plan, however, demonstrates the unbridled scope of the Receiver’s plan.

The plan calls for the construction of 7 new prisons with 10,000 new beds -- the size of 70 Walmarts. It envisions yoga rooms, regulation basketball courts with electronic bingo boards, music and art therapy, horticultural therapy, and landscaping which shields fences from inmates’ view. While some details have been deleted in a subsequent draft, the fundamental structure and many of the extravagant amenities remain.

Brown argues that to force such an $8 billion plan on California against its will—particularly at a time when the state must make huge budget cuts to programs including health care, infrastructure, and schools—violates federal law and the state’s sovereign immunity under the 11th Amendment to the Constitution.

The appellate court, therefore, should reverse the District Court’s order of a $250 million down-payment toward the $8 billion plan.

The State of California has acknowledged the need to provide health care that meets Constitutional standards, and has taken a series of steps to improve prison health care. This includes increasing the numbers of qualified medical staff at prisons and improving the process by which inmates are assessed and how they are treated.

Under the Receivership, healthcare spending has increased from $7,601 per inmate in 2005-2006 to $13,778 per inmate in 2007-2008. That’s far more than the average citizen in California pays for healthcare coverage.

Background
In August of this year, the court-appointed Receiver filed a motion seeking to compel Governor Arnold Schwarzenegger and Controller John Chiang to allocate $8 billion from the California Treasury over the next 5 years, including $3 billion in this fiscal year, for prison healthcare facility construction. Attorney General Brown has argued that the federal court does not have the authority to mandate state prison construction, nor has the Receiver justified the massive sums called for in his plan.

FOR IMMEDIATE RELEASE
January 16, 2009
Contact: Christine Gasparac (916) 324-5500

Brown Joined by Eight States in Seeking to Thwart
Bush Administration Effort to Gut the Endangered Species Act

SAN FRANCISCO – California Attorney General Edmund G. Brown Jr.’s effort to overturn an eleventh hour move by the Bush Administration to gut provisions in the Endangered Species Act received a major boost today when eight states – Connecticut, Delaware, Maryland, Massachusetts, New Jersey, New York, Oregon, and Rhode Island – signed on to his lawsuit.

“There is broad and deep opposition to the Bush Administration’s effort to gut the Endangered Species Act,” Attorney General Brown said. “It is my hope that the new Obama Administration will take a fresh look at these rules and restore the independent scientific review of projects affecting endangered species, which has been a hallmark of the ESA for 35 years.”

The new regulations, initially proposed by the Departments of the Interior and Commerce in August 2008, largely eliminate a requirement in the Endangered Species Act that mandates scientific review of federal agency decisions that might affect endangered and threatened species and their habitats.

The changes allow the Fish and Wildlife Service to permit mining, logging, and other commercial activities to take place on federal land and other areas subject to federal regulatory control without review or comment from federal wildlife biologists on the environmental effects of such activities on endangered and threatened species and their habitat.

The new regulations are the most significant changes to the Endangered Species Act and its implementing regulations in over 20 years. Now that these regulations have been adopted, many decisions on whether to permit commercial activity on federal land or issue federal permits or licenses will be made at the sole discretion of federal agency project proponents, without input from biological experts at the federal wildlife agencies. Federal project agencies generally lack adequate biological expertise and have incentives to conclude that their projects will not have adverse affects on endangered and threatened species and their habitat.

The changes also eliminate the requirement to consider the effects of greenhouse gas emissions on species and ecosystems from proposed federal projects. Federal agencies now no longer need to consider the possible adverse impacts on species like the polar bear from commercial projects that require federal approval or funding such as highway construction and coal-fired power plants.

The lawsuit, which was filed last December in the U.S. District Court for the Northern District of California, alleges that the Bush Administration:

• Violated the Endangered Species Act by adopting regulations that are inconsistent with that statute;
• Violated the National Environmental Policy Act by failing to consider the environmental ramifications of the proposed new regulations; and
• Violated the Administrative Procedures Act by not adequately considering public comments submitted by the Attorney General and numerous other organizations and concerned citizens.

The Attorney General’s lawsuit follows three similar lawsuits challenging the regulations filed earlier by environmental groups.

Attorney General Brown’s amended complaint challenging the regulations and comments on the proposed regulations are attached.

FOR IMMEDIATE RELEASE
December 29, 2008
Contact: Christine Gasparac (916) 324-5500

Attorney General Brown Sues to Overturn Bush Administration Rules Undermining Endangered Species Act

SAN FRANCISCO– California Attorney General Edmund G. Brown Jr. has filed suit in federal court to block an “audacious attempt” by the Bush Administration to gut provisions in the Endangered Species Act mandating scientific review of federal agency decisions that may threaten endangered species and their habitat.

“The Bush Administration is seeking to gut the Endangered Species Act on its way out the door,” Attorney General Brown said. “This is an audacious attempt to circumvent a time-tested statute that for 35 years has required scientific review of proposed federal agency decisions that affect wildlife.”

The new regulations, initially proposed by the Departments of the Interior and Commerce in August 2008 and made final on December 16, largely eliminate a requirement in the Endangered Species Act that mandates scientific review of federal agency decisions that might affect endangered and threatened species and their habitats.

The changes allow federal agencies to undertake or permit mining, logging, and other commercial activities on federal land and other areas without obtaining review or comment from federal wildlife biologists on the environmental effects of such activities.

The new regulations are the most significant changes to the Endangered Species Act and its implementing regulations in 20 years. Now that these regulations have been adopted, many decisions on whether to permit commercial activities on protected land will be made at the discretion of federal agency project proponents. These agencies generally lack adequate biological expertise and have incentives to conclude that their projects will not have adverse affects on endangered and threatened species and their habitat.

The changes also eliminate the requirement to consider the effects of greenhouse gas emissions on species and ecosystems from proposed federal projects. Federal agencies now no longer need to consider the possible adverse impacts on species like the polar bear from commercial projects that require federal approval or funding such as highway construction and coal-fired power plants.

The lawsuit, which was filed yesterday in the U.S. District Court for the Northern District of California, alleges that the Bush Administration:

• Violated the Endangered Species Act by adopting regulations that are inconsistent with that statute;
• Violated the National Environmental Policy Act by failing to consider the environmental ramifications of the proposed new regulations; and
• Violated the Administrative Procedures Act by not adequately considering public comments submitted by the Attorney General and numerous other organizations and concerned citizens.

The Attorney General’s lawsuit follows three similar lawsuits challenging the regulations filed earlier by environmental groups.

Attorney General Brown’s complaint challenging the regulations and comments on the proposed regulations are attached.