For political expediency, the state is trying to weasel out of continued cooperation with a court-appointed receiver's effort to bring prison health care up to constitutional standards
That's the message attorneys for receiver J. Clark Kelso delivered Thursday to a federal appellate court in a 66-page answer to the state's attempt to head off sanctions if it doesn't come up with a $250 million down payment on Kelso's multibillion-dollar construction program.
Corrections officials "attempt to rewrite history … claiming that they opposed the receivership from the outset and that their consent to the receiver's plans has been conditioned on the approval of the … Legislature," Kelso's lead attorney, James Brosnahan, wrote in a brief filed with the 9th U.S. Circuit Court of Appeals. "These claims are palpably false."
Brosnahan insists Gov. Arnold Schwarzenegger and his staff repeatedly agreed with the receiver's plan to build as many as seven long-term health care facilities for chronically sick, aged, injured and mentally ill inmates. The abrupt change in the administration's attitude surfaced last summer during a budget standoff, Broshahan claims.
"This politically driven game of 'flip flop' … constitutes a serious affront to the authority of … four district courts," Brosnahan states in a reference to pending class-action lawsuits over health and dental care and accommodations for disabled prisoners. "Progress toward constitutional compliance, hard-won in these cases, should not be so easily sacrificed at the altar of political expediency."
Lisa Page, the governor's spokeswoman, said Thursday that courts do not have the authority to order prison construction without the state's consent, "and the state cannot consent to the receiver's massive $8 billion" plan.
"The receiver hasn't shown evidence that we need the facilities he wants," she said.
U.S. District Judge Thelton E. Henderson of San Francisco, who presides over the health care case and appointed Kelso, declared in an Oct. 27 order that if Schwarzenegger and Controller John Chiang do not transfer $250 million to Kelso, they risk being held in contempt.
Those funds have been appropriated by the Legislature for prison infrastructure.
But 11 days after Henderson's ruling, the appeals court granted an emergency stay and asked for expedited briefs from both sides on whether the judge exceeded his authority.
In the state's opening brief, Attorney General Jerry Brown argues the federal Prison Litigation Reform Act of 1996 and the U.S. Constitution's guarantee of state sovereignty forbid Henderson's action.
But Brosnahan wrote that those arguments are not only "without substantive merit," but are procedurally barred as well because they "were raised for the first time … after years of litigation."
Call The Bee's Denny Walsh, (916) 321-1189.
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