By TORI RICHARDS

A mentally ill homeless man was beaten into a coma that proved fatal by six Fullerton police officers as he screamed, “Help, dad!”

Fresno police repeatedly punched a homeless man in the head while he was face down with his arms behind his back.

Three BART officers in Oakland detained an unruly passenger, who was then fatally shot in the back.

When the victims’ families, the media and civil rights groups tried to discover whether these officers committed any previous acts of excessive force — or even to obtain their names — a gulf of silence ensued. Welcome to five years after Copley Press v. The Superior Court of San Diego.

“Since Copley, we now have a secret police state in California,” said Jim Ewert, general counsel for the California Newspapers Publishers Association. “The public is unable to find out anything about how police investigate or discipline their staff. We are far and away the most secretive when it comes to allowing the public to see information about bad cops and whether an agency addresses malfeasance on the job. No other state has gone that far.”

The California Supreme Court decision, filed on Aug. 31, 2006, found that records and findings of alleged police misconduct maintained by commissions are secret. This was an avenue that the public had traditionally used to discover information about officer-involved shootings and beatings. Many police agencies have now gone one step further and refuse disclosure of all officer names in such cases.

This trend has led to frequent court challenges as the media and others seek to obtain even the most basic information on the incidents, something that was available and often released by police agencies themselves before Copley.

A subsequent lawsuit between the Los Angeles Times and the California Commission on Police Officer Standards and Training over withholding officer names went to the Supreme Court, which ruled that names are ordinarily not confidential.

“Police unions are fighting this because they claim Copley is saying you can never release names and that’s not what Copley says at all,” said attorney Kelli Sager, a specialist on disclosure law and the attorney on the Times case. “They are taking language out of context to manipulate it to say something the decision doesn’t say. In fact, the Supreme Court decision makes clear that Copley was limited to requests for information on disciplinary decisions.”

The 42-page opinion was authored by Justice Ming Chin, a Gov. Pete Wilson appointee, with just one justice dissenting. Then-Chief Justice Ron George, a staunch supporter of public access and author of numerous laws strengthening the public’s right to know, ironically sided with the majority.

George is now retired and was reached by telephone to ask him if he approved of the legacy that Copley wrought.

“I’m not that familiar with what is happening; I have not really kept up with how that is implemented or not,” he said.

When told that the media and others must frequently sue to obtain even the names of officers involved in use of force incidents, George said, “I’m sorry to hear that. It’s a shame to have to go through that.”

But to the police unions, secrecy is a good thing.

“The way our system is currently set up the police department is required to take any outside personnel complaint no matter how frivolous or patently false or outrageous and investigate it and adjudicate it. The vast majority of the time the allegations are found to be false,” said Paul Weber, president of the Los Angeles Police Protective League, which represents the LAPD.

“There are few professions with as much public oversight,” Weber continued. “If you get involved in something, initially a supervisor comes to the scene and he does an investigation. Then you have internal affairs, the DA, a [use of] force investigation, the watch commander, captain, chief, and then it goes to a civilian police commission who thoroughly reviews it.”

Outside the police department, the media, the ACLU, Copwatch, and the federal government also get involved to scrutinize every angle. Any officer found to be using excessive force will be disciplined, terminated if necessary, and perhaps charged with a crime, he said.

And if the public wants to know about these types of cases, the information will come out in court if the officer is charged, Weber said.

But the main thing is to protect officers’ privacy, which helps shield them from deranged people who may want to take revenge after learning about a use of force incident in the media, Weber said.

“The fact that we have to wait until someone is killed before we take a preventative measure is nuts,” Weber said. “Until we stack up the bodies, we need to wait?”

What Copley Says 

Copley started in 2003 when the San Diego Union-Tribune was denied access to a closed session of a police commission in which the fate of an unnamed deputy sheriff was going to be discussed. The deputy was appealing his termination for failing to arrest a domestic violence suspect despite probable cause, then falsifying a police log. Subsequent requests for information about the deputy’s identity and records relating to his termination were denied. Citing a set of statutes called the “Pitchess statutes,” the commission said the records fell within protections against the disclosure of officers’ disciplinary records, and thus were not subject to the disclosure requirements of the Public Records Act.

The Union-Tribune, owned by Copley Press, sued and a trial court sided with the commission. The case was appealed and the Court of Appeal reversed the decision, ruling that the commission was not the deputy’s employer and therefore its records were not “personnel records” within the meaning of the statutes. It also said their documents were not part of a personnel file. But the Supreme Court overturned the appellate court, ruling that the commission should be treated as if it were an employer and that records concerning disciplinary proceedings against an officer were protected from public disclosure.

“The right of access to public records under the CPRA (California Public Records Act) is not absolute,” Justice Chin wrote. “In enacting the CPRA, the Legislature, although recognizing this right, also expressly declared that it was ‘mindful of the right of individuals to privacy…. We cannot conclude the Legislature intended to enable third parties, by invoking the CPRA, so easily to circumvent the privacy protection granted under section 832.7’.”

That section, contained in the Penal Code, says agencies that employ police officers “may” choose to disseminate personal information that does not identify the individuals.

The court got around this loophole by stating that the “Commission is functioning as part of ‘the employing agency’ and that any file it maintains regarding a peace officer’s disciplinary appeal constitutes a file maintained . . . by [the officer’s] employing agency.”

Chin stated in the opinion that some police agencies do not employ outside commissions for disciplinary hearings, which would make those records automatically secret. So it would be a stretch to assume the Legislature meant that they could be disclosed indirectly by another agency.

“…We find no evidence the Legislature intended that one officer’s privacy rights would be less protected than another’s simply because his or her employer, for whatever reason, conducts administrative appeals using an entity like the Commission,” Chin wrote.

Then the Legislature was given an invitation. The opinion stated: “[I]t is for the Legislature to weigh the competing policy considerations” between confidential police matters vs. the public’s right to know.

Justice Kathryn Werdegar, the lone dissenter, accused the majority of misconstruing the statutes and incorrectly holding that every aspect of the deputy’s appeal should remain secret, right down to the name.

“[T]he majority overvalues the deputy’s interest in privacy, undervalues the public’s interest in disclosure, and ultimately fails to implement the Legislature’s careful balance of the competing concerns in this area,” she wrote. “What the majority has found is fool’s gold. No amount of judicial juggling or legal legerdemain can convert a county’s civil service commission into the agency that employs the county’s law enforcement officers.”

The Ensuing Battle

No sooner had Copley been filed than lawmakers decided to do something about it. Seizing upon the language about whether the Legislature meant to do something or not, Sen. Gloria Romero, D-Los Angeles, introduced a bill that was co-authored by five other senators and one assembly member.

It also had the support of a high profile cop: LAPD Chief William Bratton.

“I am in support of change…. I am very frustrated by [the current process],” Bratton was quoted as saying at the time, according to the ACLU Northern California website. “The public has no access to it. The media has no access to it. That’s crazy, absolutely crazy. We have nothing to hide in the Los Angeles Police Department.”

Another supporting group was the National Black Police Association.

SB 1019 sought to undo much of Copley while at the same time offering some concessions to police officer security concerns. Specifically, it said:

* Any government entity employing police officers or reviewing disciplinary actions may choose to follow practices enacted prior to Copley;

* Non-confidential information may be withheld only if the chief officer publicly establishes that there is a threat to officer safety or operational security that overrides the public interest; and

* Written notification to the information requestor must be within 30 days of the disposition.

“We shouldn’t have this private, hidden, secret police force in California, we want open government — good government,” said Romero, who left the Senate last year because of term limits and is now California director of Democrats for Education Reform. At the time of the bill, she was chairman of the Public Safety Committee and was able to move the bill out of the Senate and into the Assembly for a vote.

“I had done legislation on the Rampart scandal,” she said of the corruption at the LAPD’s Rampart Division in the late 1990s. “This wasn’t new; I had been working on falsification of evidence and discovery issues for years.”

And Romero would wait less than a year before she saw the infamous May 1, 2007 LAPD beating of demonstrators and the media at an immigration rally in MacArthur Park. The melee left veteran Fox News reporter Christina Gonzalez with lasting neck and back injuries. It was the first big test of Copley and the public lost: information on the officers involved would not be forthcoming.

Just two months after the beating, the bill sat in front of the Assembly’s Public Safety Committee, further narrowed in the Senate to include just Los Angeles and Oakland. This was because those two cities were under a federal consent decree to adopt police reforms due to excessive misconduct. Only one legislator voted to move it out of the committee and so it died there.

“The bill was an outright attack on police officers and it had some fundamental flaws and I wasn’t going to allow out of my committee,” former committee Chairman Jose Solorio, D-Anaheim, said. “I provided some suggestions of what I was willing to support and those changes were not made.”

Those changes included encompassing the entire state and not just two cities, and making it narrow enough to involve only substantiated police abuse cases.

“I believe there should be more public access for things that are substantiated instead of just random allegations that have no evidence of wrongdoing,” Solorio said.

Then-Assembly Speaker Fabian Nunez, D-Los Angeles, did nothing to help the bill, something that was derided by ACLU attorney Mark Schlosberg.

He wrote in the California Progress Report, “Shortly after the May Day melee, Speaker Nunez demanded accountability, saying, ‘To say we are outraged is an understatement. We want those responsible in the highest levels of the LAPD to pay consequences.’ Yet, when presented with the opportunity to promote accountability, he has failed to take action that would allow him and the public to learn whether in fact those responsible were held accountable.”

A standing-room-only crowd attended the committee session — police officers in and out of uniform, the media, civil rights groups and watchdog organizations. The majority of the audience was police officers, Solorio said.

“Imagine you are a legislator and sitting there seeing a roomful of cops of every stripe and they say you are anti-law enforcement,” Romero said. “You have to have a backbone, quite frankly, have to stand up and say, ‘This is about being American, this is the rights of the people who aren’t sitting in this room’.”

Romero said the legislators were worried about whether they would get “coffers of money” for reelection and concerned that the powerful police lobby would unseat them. Solorio disagreed, as did Weber of the Los Angeles Police Protective League, who attended the hearing.

“There was a line out the door, but it was from the ACLU Copwatch, and people from Berkeley,” he said. “After they ran through all those people, I think they allowed two or three police officers to say, ‘Hey, these are what our concerns are.’ There were a lot more people advocating for [the bill].”

As for targeting legislators supporting the bill, Weber said, “When is the last time an incumbent lost an election? It doesn’t happen.”

Terry Francke, then-president of the First Amendment Coalition, also attended the hearing.

“I didn’t hear any particular justification for not passing it. It was pretty clear that nothing that particularly advances transparency would clear that committee,” he said. “What was intimidating was the implied threat which had several days earlier been expressed by one of the leaders of the resistance, that if you vote for this you will not only lose any possibility of law enforcement support, you are going to have them acting against you at the next opportunity.”

A Complete Lockdown

Now, in a state where obtaining police records was difficult at best, it would be arduous for the public to learn the details surrounding use of force incidents. Even though many were played out on the Internet, YouTube and television, police agencies clamped down on information and the courts started to hear challenges.

“The impact of Copley is really clear. I think it has virtually closed off all the avenues for the public to learn about misconduct involving individual police officers,” said ACLU attorney Allen Hopper, who heads the police-practices division. “It’s a terrible impact.”

The San Francisco Police Commission, which had always conducted public meetings, complete with the dissemination of disciplinary records, stopped doing so. Los Angeles’ civil service board meetings were closed to the public, as were the state personnel board and the LAPD’s Board of Rights.

Late last year, the city of Pasadena was added to the growing list when three police review boards that were suspended because the city attorney believed there was a conflict between implementing Copley and complying with the Brown Act.

Newspapers which have sued to get the names of officers involved in use of force incidents have been largely successful.

“I find that remarkably ridiculous that if you or I kill someone, everyone is entitled to know it. But if an officer shoots and kills someone in the state of California, that is secret,” attorney Kelli Sager said.

Even Attorney General Jerry Brown joined the fray. In 2008, he authored an opinion in response to a query from the Riverside County district attorney on whether the police must disclose names of officers involved in a lethal force incident.

He wrote: “We conclude that the name of a peace officer involved in a critical incident is not categorically exempt from disclosure under either the [Public Records] Act or the peace officer confidentiality provisions of the Penal Code. Nevertheless, we cannot leave the subject without pointing out that there will inevitably be instances in which confidentiality will be required….”

However, there could be instances where confidentiality is required, such as officers working undercover with gangs, and the police agency must “demonstrate” that confidentiality is warranted, he said.

Sometimes the public pressure for information is so great that law enforcement officials have resulted to leaking information to quell dissent, said Peter Scheer, executive director of the First Amendment Coalition.

“In the BART case, all of a sudden the names are in the press. No one ever released them officially, it suddenly just appeared,” Scheer said. “I’m quite sure it was leaked at the highest levels because it needed to get out. The people in the police department think it’s important to get out so it doesn’t seem like a whitewash or a cover-up.”

What Happens Next

Now that Romero is out of the Legislature, the future of another politician taking up this mantle seems bleak.

“The cop lobby is too strong, the legislators won’t vote against them,” attorney Jim Ewert said. “I just don’t see it happening given the current political climate.”

Terry Francke agreed.

“(Romero’s) experience was so terminal with that effort that a lot of people have assumed that if you can’t even bring something up for vote in that committee because hundreds of cops show up to protest it, then why even bother,” he said.

“They are afraid of the police lobby,” Francke continued. “In the 1990s, when the Rodney King beating occurred, I thought at last people are going to realize how bad it can get when police are excited and are not held to any disciplinary standards. I thought that would change but I guess not. I don’t know what it would take to get the public to urge lawmakers to at least provide transparency with the confirmed bad apples.”

Solorio confirmed that no one in Sacramento appears to be championing the cause. But he agreed that some sort of clarifying law would be ideal.

“I think Sen. Romero had a lot of courage and interest in the subject matter,” he said. “I haven’t met with the Legislature on this, but I don’t think there is a lot of interest in this issue.”

However, especially now in the era of the Fullerton beating, which caused outrage around the world, the time would be ripe to resurrect the secrecy platform either by ballot or in the Legislature.

“A new body should pick it up and move it,” Romero said. “This is something that denies Californians the right to know what their own government is doing. We in theory, principal and value don’t have a secret police. We talk about the KGB and the Holocaust. We believe in fairness and openness and these are public servants under the color of authority. We’ve never looked at this as an anti-police measure. We look at it as good government and pro-American values.”

By KATY GRIMES

Many in the state say that Gov. Jerry Brown has demonstrated a propensity for doing things his way, even if it means bucking his own party. But what Brown really has shown a gift for is expanding government.

Faced with 600 potential new laws sent to him in bill form by the state Legislature, Democratic Gov. Jerry Brown appears only to be prolonging the insecurity and uncertainty in California with his bill-signing pen.

A few good vetoes along the way have gotten more headlines than the impact of what he has signed into law.

As Brown unflappably shows his support for the state’s green agenda, he has also signed into law many nuisance bills — bills which add more restrictions on already weary businesses, and add to the long California regulatory checklist.

He signed a supposed regulatory reform bill, SB 617, to require every state agency proposing a regulation to also provide analysis of the impact of the regulation. But any said that it is just an opportunity for even more government expansion since state employees will be needed to do the analysis of the proposed regulations in each department.

Despite his early Executive Orders banning executive travel and cell phones in state ranks, if there is one common theme in Brown’s choice of bills to sign into law, it is that of growing government. (Look up bills signed into law: HERE, HERE, HERE, and HERE.)

More Enviro-Regulations

Currently, Brown has not vetoed anything that would interfere with the California Air Resources Board’s full implementation of AB 32, California’s Global Warming Solutions Act of 2006. And on the flip side, it appears that Brown has signed anything and everything to do with California’s clean, green, solar, wind and renewable energy agenda.

The $3.3 billion California Solar Initiative has fallen short on the incentive payments to commercial businesses. Brown signed SB 585, by State Sen. Christine Kehoe, D-San Diego, into law authorizing the California Public Utilities Commission to utilize accrued interest from CSI funds to meet the incentive payments for commercial installations. SB 585 then allows the CPUC to increase collections from electric ratepayers for any remaining shortfalls in funding. SB 585 will also to help school districts finance solar installations at schools by authorizing $200 million for the California Solar Initiative.

Brown has signed a bill authorizing state Air Resources Board-controlled air pollution control districts to collect the funds necessary to replace gas tanks on school buses 14 years or older, not to exceed $20,000 per bus.

Assemblywoman Bonnie Lownethal, D-Long Beach, authored AB 462, because “mobile source emissions are major contributors to the potential cancer risk from air pollution.” Even though most school districts are drastically cutting back on the use of school buses and instead relying on public transportation, AB 462 will be an expensive process.

Brown has signed AB 1150, by Assemblyman V. Manuel Perez, D-Coachella, which authorizes the CPUC to collect funds for the Self-Generation Incentive Program (SGIP) for the installation of 348 megawatts of clean, renewable energy. The SGIP program makes $83 million in rebates available each year and has already spent $619 million in rebates since 2001.

Sensible Bills Vetoed

He vetoed two Republican bills, SB 211 by Sen. Bill Emmerson, R-Riverside, and SB 724 by Sen. Bob Dutton, R-Inland Empire, addressing the overreaching arm of the California Air Resources Board. Emmerson’s SB 211 would have modified the restrictive tire inflation regulation in AB 32 to allow auto service providers to exclude old tires from the requirements. But Brown rejected the exclusion and said that proper tire inflation is so important to greenhouse gas reduction that it can save “75 million gallons of gas, and reduce greenhouse gas emissions by 700,000 metric tons annually.” His veto message can be found here.

Dutton’s bill, SB 724, merely attempted to establish a 30-day deadline by which the Air Resources Board must act on applications for the certification of on-and off-road vehicles. Dutton said that the CARB takes months to respond to vehicle owners. Brown rejected the bill, stating that the CARB shouldn’t be held to such a tight time constraint, because it could interfere with the agency’s information gathering. His veto message can be found here.

Brown has signed several budget-related bills, including SB 4 X1 and AB 30 X1, which appropriates $103 million in Special Funds to the Healthy Families Program.

Budget Bills

The other budget-related bills:

AB X1 16 will clarify elements of the shift in public safety responsibilities from the state to the counties.

Addressing the public safety realignment to the local counties, SBX1 17 continues the implementation of the 2011 Public Safety Realignment, which moved the responsibility for custody of certain low-level felons, parolees and juveniles from the state to the counties. The bill clarifies “low-level offenders” primarily by re-defining which felonies are subject to state imprisonment.

AB 32 X1 will change the provisions of the education budget trailer bill specifically to delay the implementation of the community college student fee increase of $10 per unit, from winter term to summer term of 2012, if revenue falls short and so-called “trigger cuts” are required.

Education Bills

So far, it seems that there is not a single education bill that Brown won’t sign. Brown signed into law SB 48, by state Sen. Mark Leno, D-San Francisco, to require public schools in the state to teach students about the contributions of lesbian, gay, bisexual and transgender Americas. The law has sparked a movement by parents to repeal it, StopSB48.com.

Brown also signed one-half of the California DREAM Act, AB 130, allowing access to privately funded financial aid for undocumented college students. The companion bill, AB 131, is on Brown’s desk awaiting his signature. Brown has already said that he will most likely support the bill to allow undocumented students access to state-funded tuition aid.

But many are critical of passage of the DREAM Act education bills when Brown has made drastic cuts to college programs, as well as to state programs benefiting many other groups. California’s 70 state parks are currently on the cutting table, and health programs for the elderly and disabled have already been cut.

Many of the other bills signed by Brown are nuisance bills, infringements on business and nuisance regulations. AB 214, by Assemblyman Mike Davis, D-Los Angeles, requires identification cards for employees of a professional photocopier to include a photograph of the employee.

AB 1128, by Assemblyman Warren Furutani, D-Long Beach, requires CalTrans to issue permits to overweight trucks, but only on a special section of the Pacific Coast Highway.

AB 1300, by Assemblyman Bob Blumenfield, D-Los Angeles, is a medical marijuana regulation bill which clarifies what local law enforcement are entitled to regulate, and what restrictions marijuana collectives are required to adhere to.  Brown vetoed SB 847, which would have created state-run medical marijuana regulation, preempting local control.

Amazon Tax

One of the biggest issues in the state officially and finally came to a compromise. But like all compromises, not everyone is happy. On Friday, Brown signed into law AB 155, by Assemblyman Charles Calderon, D-City of Industry, the Amazon compromise bill. It suspends for a year ABX1-28, the “Amazon tax” law passed in June, on sales by out-of-state companies with “affiliates” in California. CalWatchdog’s John Seiler explained, “These ‘affiliates’ can be large companies. But commonly they are small Mom and Pop operations that use the on-line sales machines of Amazon and other companies to sell goods.”

After the Amazon tax bill passed in June, Amazon fired its 10,000 affiliates in California. With passage of the compromise bill, Brown said it will create 10,000 new jobs. But Seiler said that it is the affiliates who will be hired back. And Amazon has said it now will build a distribution center here.

“This landmark legislation not only levels the playing field between online retailers and California’s brick-and-mortar businesses, it will also create tens of thousands of jobs and inject hundreds of millions of dollars back into critical services like education and public safety in future years,” Brown said. But the compromise will require that Amazon and other Internet retailers start collecting taxes next year.

But as Seiler said, “No one knows if the new bill, AB 155, will bring back most of the affiliates that closed up shop or left the state. It may already have done permanent damage to state companies and jobs.”

And that seems to be the real mood in California — particularly if most of the 600 bills are signed into law.

By JOHN SEILER

Key California legislators passing an anti-parent bill grabbed campaign financing from the gigantic Merck conglomerate, a CalWatchDog.com investigation revealed. The legislation is AB 499 by Assemblywoman Toni Atkins, D-San Diego. In the bill’s language, it “authorizes a minor, who is 12 years of age or older, to consent to medical care related to the prevention of a sexually transmitted disease.”

Current law allows such care only with a parent’s permission. AB 499 passed both houses of the Legislature and awaits a decision by Gov. Jerry Brown.

AB 499 commonly is called the “Gardasil Bill” because the major drug to be administered to 12-year-old girls — without their parents’ consent — is Gardasil, manufactured by Merck. According to Merck’s Gardasil Web site:

GARDASIL is the only human papillomavirus (HPV) vaccine that helps protect against 4 types of HPV. In girls and young women ages 9 to 26, GARDASIL helps protect against 2 types of HPV that cause about 75% of cervical cancer cases, and 2 more types that cause 90% of genital warts cases. In boys and young men ages 9 to 26, GARDASIL helps protect against 90% of genital warts cases.

GARDASIL also helps protect girls and young women ages 9 to 26 against 70% of vaginal cancer cases and up to 50% of vulvar cancer cases.

But the drug is not without risk. The Web site itself cautions:

The side effects include pain, swelling, itching, bruising, and redness at the injection site, headache, fever, nausea, dizziness, vomiting, and fainting. Fainting can happen after getting GARDASIL. Sometimes people who faint can fall and hurt themselves. For this reason, your health care professional may ask you to sit or lie down for 15 minutes after you get GARDASIL. Some people who faint might shake or become stiff. This may require evaluation or treatment by your health care professional.

So, your lovely little girl comes home from school, faints, shakes and becomes stiff. And you have no idea why.

Merck Contributions

I cross-matched the votes for AB 499 in the Legislature with Merck Corporate PAC Contributions in 2010 and came up with this list:

Senate:

Kevin De Leon, D-Los Angeles, $2,000
Ed Hernandez, D-West Covina, $2,500
Elaine Alquist, D-San Jose, $1,000
Noreen Evans, D-Santa Rosa, $1,500
Juan Vargas, D-Chula Vista, $3,500
Alex Padilla, D-San Fernando Valley, $300
Curren Price, D-Los Angeles, $1,700
Roderick D. Wright, D-Inglewood, $1,500
Lois Wolk, D-Vacaville, $2,000
Leland Yee, D-San Francisco, $1,500

Assembly:

Ben Hueso, D-Chula Vista, $1,000
Bob Blumenfield, D-Van Nuys, $1,500
V. Manuel Perez, D-Indio, $1,500
Richard Pan, D-East Sacramento, $1,000
Bill Monning, D-Santa Cruz, $1,500
Felipe Fuentes, D-Arleta, $1,500
Holly J. Mitchell, D-Culver City, $2,500
Speaker John A. Perez, D-Los Angeles, $1,500
Ricardo Lara, D-South Gate, $1,000
Mary Hayashi, D-Hayward, $1,500
Roger Dickinson, D-Sacramento, $1,000
Nancy Skinner, D-Oakland, $2,500
Jose Solorio, D-Santa Ana, $1,500
Steven Bradford, D-Inglewood, $1,500
Toni Atkins, D-San Diego, $1,000

Total that Merck donated to legislators voting yea on AB 499: $39,500

True, some Merck money went to those who voted against the bill. But an overwhelming amount went to those who backed it. For Merck, which stands to make tens of millions of dollars off the bill, it was an investment that paid off big time.

Who Pays?

The bill’s fiscal analysis is unclear. “The bill says parents are not financially liable, so taxpayers will have to pay for it,” Paulo Sibaja, director of legislation at the Capitol Resource Institute, told me. “We’re still trying to calculate the cost. But the cost will be 50 percent from the state, 50 percent from the federal government.”

He said there be other consequences, such as “who will be legally liable for medical liability, the state or the parents? The bill undermines the parents, who are totally out of the decision affecting their child.”

Texas’ Experiment

A similar program was imposed by Texas Gov. Rick Perry in 2007, then repealed by the Texas Legislature later that year. Perry, currently the Republican front runner for the 2012 presidential race, still defends his decision. Before his action, he received a $6,000 campaign donation from Merck.

And Merck, according to Wikipedia, hired “former Perry Chief of Staff Mike Toomey to handle its Texas lobbying work” and Perry’s “current chief of staff’s mother-in-law, Texas Republican state Rep. Dianne White Delisi [as] state director for Women in Government”.^[106][109]

Reported USA Today in 2007:

Texas Gov. Rick Perry is so enthusiastic about Gardasil that a week ago, he ordered all girls in the state to be immunized before entering sixth grade, as of September 2008. (Parents can opt out for religious and other reasons.) Prompted in part by a vigorous lobbying campaign by Merck, which stands to earn billions of dollars if the vaccine is required, legislators in 23 other states and the District of Columbia have proposed mandating vaccination against HPV for girls as young as 11.

In California, the Gardasil injection — or other injection — is not mandatory. But neither is there a religious opt-out because parents just won’t know what’s happening to their precious child. Only government will.

Dead Girls

A year ago, the Washington Examiner reported:

Documents from the Food & Drug Administration obtained by Judicial Watch under the Freedom of Information Act indicate that Gardasil, a cervical cancer vaccine manufactured by Merck that FDA officials fast-tracked for approval in 2006, may not be not as safe as its industry and government backers assured the public it was.

FDA records show that 16 new deaths (including four suicides) and 3,589 “adverse reactions” tied to Gardasil were reported in the 16 months between May 2009 and September 2010. The adverse reactions included 213 cases of permanent disability. The FDA also received 25 reports of paralyzing Guillian Barre Syndrome in young girls and women who had received the vaccine.

Here’s a horror story in the Judicial Watch report:

One mother of a 13-year old girl who died 37 days after receiving the vaccination noted in a report: “I first declined getting her the vaccination but her doctor ensured me that it was safe…” After her daughter complained of a severe headache, no feeling in her foot and a tingling feeling in her leg, a doctor’s appointment was set for October 23, 2009. “My daughter never made it to Oct[ober] 23rd, which is also her birthday,” the mother noted. “She passed on Oct[ober] 17th, I found her cold unresponsive in her room at 7 am….”

Because there will be no parental notification in California, girls could start dropping dead and their grieving parents won’t even know why.

By RICHARD TRAINOR

When I met Richard Fine in the summer of 2001, he was riding high. Shortly after that he was rotting in jail.

A prominent attorney with a thriving practice in Beverly Hills, in the sunny days of 2001 Fine was a political insider with powerful connections to U.S. Senator Dianne Feinstein, Rep. Henry Waxman and political commentator Arianna Huffington.

Fine fought and won important cases, such as one in 1997 against the sale of the Long Beach Naval Air Station to the Chinese Overseas Shipping Company. He was most famous in California for taking on the governor and the Legislature in 1997 for paying state employees before a budget had been passed. In 2003, the California Supreme Court found in favor of Fine when they ruled that employees couldn’t be paid without a budget in effect. That action gained Fine considerable notice and public notoriety as news outlets poured in to cover the story. Both the Los Angeles Times and the Sacramento Bee ran extensive coverage on Richard Fine from 1997 until 2003.

In 1998, Fine took on a case involving property owners in Marina Del Rey. What grew out of this is either “the biggest case of judicial corruption in the history of the United States,” as Fine claims it is, and that he became a political prisoner as the result of it; or it was a personal vendetta being staged by Fine over spilled milk, as his detractors claim. The answer to that is still being debated.

Kenneth Ofgang of the Metropolitan News Enterprise reported at Fine’s disbarment hearing before the State Supreme Court on February 12, 2009, “The hearing judge [Richard Honn] said Fine ‘engaged in what amounts to an almost never-ending attack on anyone (including attorneys and judicial officers) who disagreed with him or otherwise got in his way’.” Fine, Honn said, “kept digging himself into deeper and deeper problems” and failed “to appreciate the harm he has imposed on so many people and on the court system.”

National Review’s Alex Alexiev saw the Fine case as political repression. When Fine’s appeal to overturn his disbarment and was denied by the Supreme Court, Alexiev wrote, “On April 23, 2010, the Supreme Court of the United States denied the petition for ‘stay of execution’ by attorney Richard I. Fine in the case of Richard Fine v. Leroy Baca, Sheriff of Los Angeles County (09-1250). In doing so, the highest court of the land has refused to rectify a clear-cut case of judicial corruption in the state of California.”

California Gulag

Alexiev saw the case as reminiscent of the Soviet gulag. As he wrote, “[T]he judicial machine moved to get rid of Fine once and for all by having the California State Bar disbar him for ‘moral turpitude,’ a course of action reminiscent of the Soviet Communist regime’s practice of declaring political dissidents criminally insane and locking them up in psychiatric wards.”

On February 26, 2009, Fine addressed a town hall meeting in downtown Los Angeles. Dressed in his trademark diplomat-formal blue suit and one of the colorful bow ties he favors, Fine begins an address to the crowded room, “We have three branches of government here in California: the executive branch, the legislature, and the judiciary. What’s happened in California is that the judiciary has gone bad.”

Fine hardly looks the part of a rabble-rousing revolutionary. He’s more like an academic don you picture from the novels of Saul Bellow or Vladimir Nabokov. Fine was educated at the University of Chicago, where he obtained a doctorate in law in 1964, the London School of Economics and Political Science for another Ph.D. in International Law and the Hague’s Academy of International Law. When we met was also the Honorary Counsel to Norway. He lost that position when he was incarcerated.

Two days after the town hall meeting, Fine held a rally on the steps of the Los Angeles County Courtroom and delivered essentially the same message. Three days after that, Fine was hauled away to jail where he sat in solitary confinement for a year-and-a-half before he was released without charges by the very judge who sent him there and had him disbarred from the practice he’d excelled in for 42 years.

Trust Buster

A former U.S. Justice Department attorney in Washington, D.C. under the legendary Robert Morganthau, Fine headed up the anti-trust division there from 1968-1972 and later went on to specialize in class action litigation when he opened a private practice in Los Angeles in 1974.

In 1998 Fine, took on the case that grew into his crusade to expose judicial corruption. To understand how that grew into such a contentious battle, it is necessary to go back in time to the case that prompted it.

After years of legal maneuvering on a class-action litigation, on June 14, 2007, Fine filed a petition for writ of mandate in the case of Marina Strand Colony II Homeowners Association vs. County of Los Angeles, LASC Case No. BS 109420, as the attorney for the Marina Strand Colony II Homeowners Association. The petition sought to overturn the Los Angeles County Board of Supervisors’ approval of an Environmental Impact Report (EIR) in favor of the redevelopment of an apartment complex in Marina del Rey.

Fine’s petition alleged that the EIR violated the California Environmental Quality Act (CEQA). Among the numerous other complaints was Fine’s allegation that Los Angeles County did not receive any positive financial benefit from the project, as required by CEQA. Los Angeles County was the Respondent in the case.

L.A. County won the case.

The judge who ruled in favor of the county was Superior Court Judge David Yaffe, who resigned from the bench in September 2010. Yaffe was also a Los Angeles County employee being paid $47,000 a year in addition to his $176,000 state salary as a Superior Court Judge. He couldn’t fairly judge the case, Fine reasoned, because he had a conflict of interest. The county was paying his salary, and Yaffe was ruling for the county.

Double Dipping

Fine said the judges were guilty of double-dipping by drawing the county salaries. In addition to their voter-approved salaries of $176,000 per year, the L.A. County judges, commissioners and supervisors were also receiving an additional $47,000 per year in salary, retirement and medical insurance. No, these were “benefits”, according to Los Angeles County and the California State Legislature.

No, they weren’t, countered Fine; they were bribes. “They were bribes being paid to judges to throw the case whenever a case came up involving Los Angeles County,” thundered Fine in a videotape from his jail cell with the Full Disclosure network. “Between 2005-2008, not one of the 827 cases involving LA County decided by a Los Angeles County Superior Judge ever went against the county. In 2008, there might have been two that they lost, but we’re not sure because of the way the cases were reported. Any way you look at it, it’s one hell of a track record: 827 to 2, or 829 to nothing.”

In 2008, Yaffe ordered Fine to reveal his assets and pay $46,000 to the county in order for Fine to receive his legal fees on the Marina Strand case. Fine refused and Yaffe threw him in jail.

The Fine-Yaffe tug-of-war might be dismissed as a nasty personality clash that grew into dysfunctional proportions if it didn’t involve such basic questions as due process, habeas corpus, and the passage of ex post facto laws by the state legislature.

In fact, it does: Fine was held for a year without charges, ergo the habeas corpus question. And Fine brought an action against L.A. County for the illegal payment of county employees deciding public cases, including the Board of Supervisors and L.A. County judges. At the time, such payments were prohibited under the state constitution.

Silent Mainstream News Media

During his incarceration, the Los Angeles Times and the Sacramento Bee were notably silent. Instead, Fine’s case was taken up by a woman named Leslie Dutton who posted a number of videos of Fine on Full Disclosure.

The L.A.County Sheriff, Lee Baca, was threatened with a lawsuit before Dutton was allowed access to Fine. Judicial Watch, the public interest law firm, filed the suit on her behalf in late 2009. As Judicial Watch’s Connie Ruffley talked to me about Ernie told me about the actions of Ernie “Stirling” Norris, “When Ernie, the lead attorney for Judicial Watch in California, was contacted by Sheriff Baca, he was asked, ‘What will it take to make this go away?’ Ernie said, ‘Let Leslie Dutton in to tape some interviews with Richard Fine’.”

The judges had their defenders, too. Shaun Martin, a professor of law at the University of San Diego, posted this comment on the California Appellate website on October 15, 2008 when Fine won an appeal against the judges for the dual salary question: “It’s bad enough that your investments are plummeting, your house is worth only a fraction of what you paid for it, and your retirement accounts are completely tanking. But, in the midst of all of this, the Court of Appeal publishes this opinion…. which reverses the trial court and threatens to take away a large amount of money from state court judges not only in Los Angeles, but across the state as well.”

Then Martin waxed prophetic. “Moreover, as a practical matter, at the end of the day, I think it very likely that state court judges don’t have much to worry about from this one, since there’s …a strong likelihood that, if nothing else, the Legislature will step in to clean this problem up and make sure that judges get their benefits.”

Retroactive Immunity

In the summer of 2009, the Legislature passed a bill giving the supervisors and judges retroactive immunity from judicial prosecution, civil liability and disciplinary action, ergo the ex post facto question for the dual salaries. When Senate President Pro Tem Darrell Steinberg, D-Sacramento, was asked about it, he said, “Yeah, we passed a bill restoring their benefits.”

Steve Ipsen, a deputy district attorney with Los Angeles County, seems deeply troubled by some of the precedents he sees in the Fine case. As he told Dutton in an on-camera interview, “When the employer [Los Angeles County] is paying the judge who is making the decision regarding the employer, any appearance of impropriety must be avoided. If even the perception of pressure is there to decide favorably for the county, it’s a very grave danger.”

Richard Fine is now working as an independent strategic consultant for a private firm in Los Angeles. He is keeping a low profile, at least for the time. He is planning his own strategy of getting his license to practice law restored. Whatever chance he might have of doing so and bringing an action against the judges who jailed him for exposing their dual salaries is unclear. Although the limelight around him may have dimmed considerably since the days when he regularly won his cases, the reflected light of Fine’s lonely battle burns bright.

By RICHARD TRAINOR

The California State Victims of Crime Program (VCP) is a neat little boutique agency designed to assist crime victims. It’s officially known as the Victims Compensation and Government Claims Board, or colloquially as the CalVCP.

Formed in 1965, CalVCP is the oldest such crime victims program in the nation. It serves more than 50,000 crime victims per year and has an annual budget of more than $100 million. The program has a state-federal funding mix, getting 55 cents in federal money out of every dollar it spends.

So far, CalVCP has provided over $2 billion in compensation to crime victims. Its new Executive Director, Julie Nauman, crowed about it when the $2 billion milestone was reached:

This is a significant moment for CalVCP and calls attention to the thousands of victims whose lives were permanently altered by violence and had nowhere else to turn. Besides paying for the expenditures associated with crime, which often leaves families financially devastated, our program plays an important role in the healing process, allowing many victims to pick up the pieces and move on with their lives in some shape or form. [Note: the CalVCP link for this quote recently was taken down by CalVCP. It formerly was here.]

In some shape or form, though, sometimes not good ones.

The CalVCP program has routinely been the subject of remedial legislation, and has been investigated by the Little Hoover Commission and by the State Auditor General’s office in 2005. The program has sometimes taken three years to discharge an approved claim.

When a victim of a crime is treated for his or her injuries by a doctor, a hospital or an emergency technician, the victim is supposed to be provided with a handout on the Victims of Crime program and told how to apply for it. The application must be completed within a year and the total amount that a victim can be compensated is $55,000.

The program is supposed to provide free in-house advocates to aid the victim so he or she can avoid hiring an attorney to press their case. If a claim is approved, the victim is notified within 90 days and can then collect their checks.

But often, crime victims are left to twist in the wind on their own and provide their own legal, medical and rehabilitation services, at their own cost.

Administrative costs add up

Michael Siegel, a Loomis-based attorney, is often hired by crime victims when the approval of their claims is in danger. About CalVCP, Siegel said, “They’re worse than ever. They’ve cut back on service payment amounts for doctors and counselors, for lawyers and for the victims themselves.”

Siegel puts the CalVCP’s administrative costs figure at 40 percent. CalVCP media spokesman Jon M. Myers disputed that. Myers said, “That’s an exaggeration; it’s closer to 20 to 25 percent.”

Siegel disputed Myers’ figures, saying, “They’re passing along some of their overhead to other uses, but it’s still money that should go to the victims.”

One client of Siegel’s is a woman named Krista Clem-O’Sullivan. Her story is tragic. Her husband, John “Scully” O’Sullivan, was murdered in August 2009 on their ranch in El Dorado County. Reported the Oct. 11, 2010 Irish Central:

Ken Zimmerman is on trial in Amador Superior Court in northern California accused of the murder of Irish man John O’Sullivan.

In August of last year, fourteen months ago, John O’Sullivan was found dead in his tractor with shotgun wounds in his back. His neighbour Ken Zimmerman, with whom he had recently had an argument, was arrested and charged with homicide.

According to evidence heard at the trial, O’Sullivan had rammed through Zimmerman’s locked gate and assaulted him before the fatal shooting.

O’Sullivan’s wife, Krista Clem-O’Sullivan, has alleged intimidation of her and her family during the course of the trial.

According to the Oct. 28, 2010 Amador News, a jury “found Kenneth Zimmerman guilty of second-degree murder.”

Krista Clem-O’Sullivan remembered:

We had four young children. My husband was on his tractor when he was shot in the back by the neighbor’s caretaker. This man had been harassing us for years, and he had even assaulted Scully with his truck. No matter what we did, the DA would not press charges on the man.

Eventually, we filed a federal civil rights case, against both the DA and the guy who shot my husband. After the murder, the DA kept our tractor as “evidence.” I asked that they rent one for me. They would not. After my husband was buried, I sought reimbursement for the funeral expenses from Vic Comp. They denied my claim, stating that my husband may have somehow “participated” in the crime. They said that the police report stated that my husband had run over the murderer’s foot with the tractor and slapped him. But you can file an appeal, they said, and we’ll even pay for the attorney.

So I hired Mike Siegel. We went to trial, and it was proven that it was physically impossible for my husband to have done either of those things. So my appeal to CalVCP still hasn’t been heard. I asked why the delay? They’re still relying on the police report, I was told. I said, What about the DA, and the experts, and the jury verdict of second degree murder with enhancements for an intentional act with a gun, and the 40-year (minimum) to life sentence? I am still waiting.

Foreclosed

Krista and her kids have had a hard time. Since Scully’s death, the family has witnessed foreclosures on their homes, the ranch where they all lived together in El Dorado County and the “Lighthouse” in Shelter Cove where Krista and the kids moved after her husband was killed. She is currently staying with Scully’s family in Ireland, living in a trailer.

Siegel says that the program is now further refining their torture:

Recently VOC started requiring personal information from county social workers filing VOC claims for county dependents, or they will return the claim as “incomplete.” They’re asking for birthdates and/or Social Security Numbers of the Child Protective Service workers, saying they need that information to protect the privacy of the child claimant if a CPS worker calls VOC for information on the claim.

In the past 40 years, they haven’t required this. I believe this is just one more way VOC is attempting to stall these applications or make it so onerous that DCFS agencies will stop sending in claims. Of course, this would result in longer waiting lists for the few, underpaid therapists who agree to take Medi-Cal for these kids.”

The maximum amount an attorney can be paid by the Victims of Crime Program is 10 percent of the total victim’s claim (which averages in the $2,000 range), with a ceiling set at $500. That’s now about to fall to $300.

For the past eight years, I’ve followed the VCP’s antics objectively as the state spends considerable money by staffing the program and often ripping off the program itself by snatching their state funding at the end of the fiscal year and kicking it back into the cash-strapped California state General Fund.

I also know this subjectively. After a near-fatal criminal assault on me in 1997, the Victims Compensation Board forced me to spend $40,000 in legal fees, didn’t settle my case until three years after it had been approved and made me suffer another $40,000 in out-of-pocket losses that they refused to reimburse. And this after Executive Director John Gillis, of the Victims of Crime at the U.S. Justice Department, admitted in a letter to me that “the board mishandled your claim.”

Numerous victimized victims

It would be one thing if Siegel and this reporter were the lone critics of the program, woofing at CalVCP because attorneys’ fees were being reduced, or due to this reporter’s unfortunate set of circumstances under a different board at CalVCP. But we are not.

A number of crime victims interviewed by this reporter have cried foul regarding the program. So have former CalVCP staff members this reporter interviewed — in Sacramento, Sonoma and San Francisco counties. And if the program is as great as Bauman claims, then why have there been all the remedial legislation and Little Hoover hearings? As one Little Hoover commissioner involved in those hearings told this reporter, “That program is a scandal; all they seem to do is further victimize the victims.”

That Hoover Commission member’s criticism was echoed by former San Diego Superior Court Judge Larry Stirling at an Assembly Public Safety Committee hearing this reporter attended in the summer of 2003, when three clean-up bills related to the Victims of Crime Program were being heard.

“We had a lot of problems with that program in San Diego County,” said Stirling, also a former Assemblyman who retired from the court in 2003 and is now a counsel with the law firm of Hamilton & McInnis. “It was a crying shame the way some of these crime victims were treated.”

Quintin Mecke, the communications director for Assemblyman Tom Ammiano, who heads the Assembly Public Safety Committee, the legislative body in charge of CalVCP, said he intends to have his boss “look into the matter.” Mecke said he was unaware of anything controversial regarding the CalVCP’s ongoing record.

Executive Director Nauman, whose CalVCP salary pays her $116,606 annually, is attempting to right the ship at CalVCP. “We’re aware of the problems from the past,” said Myers, the CalVCP spokesman. “But Ms. Nauman is an aggressive advocate for victims’ rights and benefits and you’ll see more positive changes ahead at CalVCP.”

Perhaps this is so. Maybe the State Auditor’s report and all the remedial legislation and threats of litigation may have moved Nauman and CalVCP toward a program more responsive to the victims themselves. (Richard Fine, the renowned class-action attorney once considered bringing suit against CalVCP until he found himself in a major case involving judicial corruption in Los Angeles.) But it will be prudent to keep a watchful eye upon them.

Attempts to reach Gov. Jerry Brown for comments on the Victims of Crime Program proved fruitless.

A new piece of remedial legislation is now under way, with Siegel leading the charge. “But we haven’t been able to find a sponsor yet,” he said.

At the very least, a new law should seek to protect the victims’ funds from further looting by the Legislature. Both Myers and Siegel said they would support that.

By STAN BRIN

California’s Small Claims Courts are in trouble. Every year, fewer people take their cases before the local Judge Judy. But no one seems to know why this is happening, or even that the problem exists — or even if it is a problem at all.

In 20 years, annual Small Claims case loads have fallen by a third, from approximately 330,000 to 232,000 while the state’s population has increased by a fifth, from 29.7 million to 36.9 million

There is no evidence that fewer tree branches fall on neighbors’ cars now than 20 years ago, or that fewer tenants skip out on rent, or that landlords no longer fail to return security deposits.

And there is no evidence that Californians have become less litigious. In fact, the official 2010 report of the Judicial Council of California indicates that the number of so-called “limited cases” filed in Superior Courts have exploded over the same period, from under 500,000 to nearly 800,000. Limited cases are smaller civil suits, involving sums under $25,000, that are tried under rules that streamline both the trial and pre-trial preparation.

As in many social changes, it is possible that a number of factors contributed to the decline in the Small Claims caseload. But there is little, if any, research on the subject. Law journals rarely publish articles on Small Claims cases or procedural issues. Few lawyers want to read about them because there isn’t enough money involved — Small Claims cases can now have a maximum value of $7,500, but most involve far less.

It is possible that on the high end, many cases are siphoned off, to become limited cases. It is also possible that changes in public attitudes have reduced demand for Small Claims services. No one seems to know.

But one possible reason for the decline is that a single very good law — intended to foil violent stalkers — has had an unintended but damaging effect on the ability of plaintiffs to seek justice.

Why Small Claims Courts Matter

First of all, it should be understood that Small Claims Courts are a good thing. They resolve minor disputes that the traditional, and very expensive, legal system is not designed to handle.

According to Whittier Law School professor Radha Pathak, who specializes in civil litigation, “Small Claims Courts allow for recovery in cases where getting a lawyer is prohibitive.”

Just as important, they tell ordinary good people that the system is working for them on a very personal level, and ordinary bad people that they can’t get away with cheating others.

Let’s say that you lent a friend a thousand bucks, but he won’t pay you back. Or you bought an English antique that turned out to have been made last year in North Korea.

As Pathak says, it wouldn’t be practical to hire a lawyer in such cases. After a few consultations, legal bills would eat up everything you might recover, never mind the cost of a court appearance.

In Small Claims Court, lawyers aren’t allowed in the room. Filing fees are low. Procedures are informal, and rules of evidence are relaxed. Judges ask most of the questions.

All you, as the plaintiff, have to prove is that your neighbor broke the potted plant he borrowed, or that a carpenter didn’t do the work that he was paid to do, and what it would cost to set everything right. Unless the defendant confesses, receipts, pictures and estimates are usually necessary.

Like the fabled Judge Judy, Small Claims judges — usually “commissioners,” experienced lawyers hired to perform as judges — know what they’re doing and are quick to get to the bottom of cases. They’ve heard all of the excuses, and don’t suffer fools gladly. Unless the judge feels that the case touches an unusual point of law, judgment is very quick. Decisions are often rendered before the plaintiffs finish presenting their cases. And there’s no jury to be confused.

“But I have more evidence…” a surprised plaintiff once told a Small Claims judge.

“Don’t complain,” the judge told him. “You’ve already won. Sit down.”

Sadly, for many people, the Small Claims Court system doesn’t work well, and hasn’t worked for two decades. A major reason for the decline of Small Claims Courts, perhaps the single major reason, appears to be fallout from an infamous 1989 stalking murder.

The Rebecca Schaeffer Law

On July 18, 1989, a stalker went to the front door of my former neighbor on Sweetzer Ave. in West Hollywood, and shot her to death. My neighbor was a popular young television actress by the name of Rebecca Schaeffer, who was recently featured in the CBS comedy series “My Sister Sam,” starring Pam Dawber, of “Mork and Mindy” fame. I had moved from Sweetzer Ave. roughly 18 months before.

The killer, an unemployed drifter from Arizona by the name of Robert John Bardo, found Schaeffer’s address by looking her up at the Department of Motor Vehicles. (Bardo was subsequently prosecuted by Los Angeles Deputy District Attorney Marcia Clark, who later made something of a name for herself in the O.J. Simpson murder case.)

In response to this senseless crime, Rep. Ed Royce, then a state senator, introduced pioneering legislation that prevented stalkers, and anyone else, from gaining access to DMV records. Gov. George Deukmejian signed the bill into law in 1990 and it became effective the following year. Soon, all other states adopted similar provisions.

As an unintended consequence, in California, at least, scoundrels and miscreants can hide in plain sight. If an unlicensed contractor provides a phony address on his invoice, you can’t ask the DMV where he actually lives. The records are sealed to everyone except the police while investigating crimes, lawyers, and private investigators.

This means that you can’t sue someone if you don’t know where he lives because you can’t serve him with a subpoena. And if you manage to subpoena him, but he subsequently moves, you can’t collect. Online phone directories can help, but their information is incomplete and not always up to date. Private investigators can easily find the information online, but they can charge more money for a few Internet clicks than many injured parties could expect to recover from a lawsuit.

The result is a system that is limited to people who know each other, and well-established brick-and-mortar businesses. In California, you can sue an ex-friend, or Fred’s Computer Store, but not the guy who sold you a broken laptop on Ebay or Craigslist.

This doesn’t happen everywhere in the United States. Congress adopted the Driver’s Privacy Protection Act in 1994, establishing a national standard for such laws. The federal statute, now codified in Section 123 of Title 18 of the United States Code, does not prohibit the use of DMV records in legal matters. According to the act, records may be released:

For use by any government agency, including any court or law enforcement agency, in carrying out its functions, or any private person or entity acting on behalf of a Federal, State, or local agency in carrying out its functions.

In this case, the federal law appears to be more flexible than California’s. Anyone “carrying out the functions” of a court of law would be able to make use of DMV records. This would include a marshal or deputy sheriff tasked to deliver a subpoena. Legal language matching the Driver’s Privacy Protection Act would allow marshals or deputies to serve subpoenas based on addresses already in their possession.

A Bad Experience

The problem of subpoena service in Small Claims Court came home to me a few years ago after my car broke down. I needed another one immediately, so I bought a used car through Craigslist. The seller brought over a Nissan, and we made a deal. But I soon discovered that the car was held together with chewing gum, leaked oil and needed more repairs than it was worth.

I filed a case with Small Claims, but the local sheriff’s department — some counties use deputies, others use marshals — wouldn’t deliver the subpoena. “The address is wrong,” the deputy said. “He’s moved.”

As it turned out, the deputies knew precisely where the deadbeat had moved, but wouldn’t deliver the subpoena to the new address because I didn’t know what it was.

“It’s the law,” a sheriff’s sergeant said, in a not very friendly way, and that was that.

I called Craigslist, but they have a non-disclosure policy as well. They would release the information if subpoenaed, but the local sheriff’s department wouldn’t drive north to San Francisco to deliver one.

Nevertheless, I found the business address of the cheat’s associate and had him served at work. I presented my evidence, my receipts and photos. The judge was smart, and brooked no nonsense from the defendant. He awarded me everything I asked for, including punitive damages.

So I had my day in Small Claims, not that it did any good. I couldn’t collect a dime because I ran up against the same black hole: The defendant closed his car repair shop, and the DMV wouldn’t release his home address, for precisely the same reason.

I was stuck with a worthless judgment and had wasted my time, the court’s time, and my court fees — all because my neighbor was murdered back in 1989. (Ironically, I managed to cost the villain more than he would have had to pay me for the car. I called the state agency that regulates car dealers. Since he was, in effect, operating a dealership without a license, they called him into the office and bluntly told him to stop selling cars or face prison. But even they wouldn’t tell me where he lived.)

How much does the decline in the use of Small Claims Courts reflect the problem of defendants hiding in plain sight? No one seems to know.

According to Philip Carrizosa, spokesman for the San Francisco-based Judicial Council of California, which oversees the court system, “We don’t collect any statistics showing the success or failure of collections from Small Claims.”

The only statistics that the courts keep on Small Claims cases are the total number that they adjudicate. No one at the Judicial Council seems to be aware that this number is on a steady, downward trajectory, much less why.

While it may be reasonable to conclude that those who run up against the system’s seeming inability to subpoena defendants are much less likely to use Small Claims’ services again, it is also true that no one seems to know how often this happens or if the problem is a factor in the decline in Small Claims.

Privacy vs. Accountability

Any reform of the Rebecca Schaeffer law must find a new balance between the right of privacy and the right of redress through the courts.

But those who engage in commerce already sacrifice a measure of privacy.

In California, owners of corporations are required to register with the state, and those operating a DBA (doing business as) must register with local authorities.

“A balancing of policies is required,” Pathak says. “The law was created to allow people privacy, but there is a public interest in giving people access to Small Claims Court.”

However, Pathak doesn’t believe that the Rebecca Schaeffer law should be modified. “I am not convinced that this law is having [this] bad effect, so I don’t think that it is yet necessary to reconsider the wisdom of that law,” she says.

Pathak suggests that a major reason for the decline in small claims may be seen in the increase of limited case filings. “In my opinion, it is very possible that some of the cases that would previously have gone to small claims are now ending up as limited filings, perhaps because the size of disputes has risen. There might be other explanations as well.”

She may be right. But a 2002 study for the Judicial Council, conducted by Policy Studies Inc., quoted a survey by the city of Fresno which found that 75 percent of Small Claims cases involved sums of $2,500 or less — amounts too small to be tried in Superior Court, even under limited case rules.

That survey may be obsolete. On the other hand, Pathak’s colleague Ken Agran believes that the problem may not be found in the law but in the policies of local marshals and sheriffs. “I haven’t read this law, but it seems reasonable this is within the scope of the exception [for lawyers], because in Small Claims court you’re acting as your own lawyer. And if you hire an official agency to actually deliver the paperwork, that would seem consistent as well.”

Agran suggests that “there are all kinds of reasons” why Small Claims caseloads might have declined, and that “it would be useful to find out through surveys.”

So far, it doesn’t appear that anyone has conducted such surveys, at least none that are both rigorous and widely circulated. Nor has anyone examined the operations of similar courts in other states to see if they are suffering a similar decline, and if not, why not.

Meanwhile, Small Claims cases dwindle, and plaintiffs are either forced into more expensive litigation with attorneys, or to abandon the pursuit of justice entirely.

And a 1989 law intended to frustrate violent stalkers is still enforced against Small Claims plaintiffs in the age of Craigslist.

By JOHN SEILER

Writing recently in the Sacramento Bee, two professors mangled the actual meaning of the U.S. Constitution. Alan Gibson of Cal State Chico and James Read of the College of St. Benedict and St. John’s University in Minnesota charged that while the newly elected Republicans in Congress have initiated new rounds of constitutional contests, “most Americans know very little about the constitution or its history.”

The matter is crucial, especially to California and other “free and independent states,” as the Declaration of Independence called them. Just to cite our ongoing state budget deficit problem of $25 billion, federal mandates control, among other things, spending on health, education and welfare. The mix of federal funding and controls and state and local spending also increases the size and cost of the state and local bureaucracies that manage the tax monies.

The professors write of four “myths” surrounding the Constitution. But before we get into those, it’s worth discussing just what a written constitution — whether for the United States, one of the 50 U.S. states, or foreign countries — is about. The reason a constitution is put in writing is that it’s supposed to be followed to the letter.

This is crucial, because otherwise a constitution might as well just say, “The government can do whatever it wants.”

It’s true that the future brings unexpected events that mandate changing the Constitution. The Constitution itself provides a means of modification, the amendment process detailed in Article 5. Since the Constitution was ratified, there have been 27 amendments, including the first 10, the Bill of Rights. There also have been dozens of unsuccessful attempts to amend the Constitution.

The amendment process is not too cumbersome for any real need to change.

Supposed Myth One

The professors’ Myth One:

The Constitution was created to rein in an out-of-control federal government that was taxing people too much.

They don’t provide a citation for this supposed myth. The common explanation for the Constitution’s creation is provide by them:

Reality: Under the Articles of Confederation, which the Constitution replaced, the federal government was too weak and lacked the power to compel the payment of taxes. The Constitution created a stronger federal government able to “lay and collect Taxes,” defend the country, pay its debts, regulate interstate and international commerce, and in general “secure the blessings of liberty” in ways the states acting individually could not.

They don’t mention the theories of others, such as historian Charles Beard, that some of the wealthy Founders wanted to consolidate their own power, and so created a stronger central government, which they controlled. The so-called Anti-Federalist Papers warned that the government being set up under the Constitution eventually would burst the limits of the Constitution itself and grow to size of the governments of the despotisms of Europe, something Americans of those revolutionary times wanted to avoid.

The Federalists, supporters of the Constitution, replied in their better-known Federalist Papers. Federalist No. 45, written by James Madison, was a key. He wrote:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

The essential phrase: “few and defined.” That’s the premise on which the federal government was sold to the states that ratified the Constitution. No amendment since has changed those words.

In Article I, Section 2 of the Constitution, indeed, we see that there are only 18 “few and defined” powers.

So, who was right, Federalists or Anti-Federalists? The Federalists were at the beginning, as the federal government remained fairly small for decades. What changed was the growth in government during the Civil War, and the vast new powers it brought the central government at the expense of the state governments. The Southern states even were defeated in battle and forcibly taken over during Reconstruction.

But even after the Civil War and Reconstruction, the federal government, although larger than before, still was relatively small, comprising only about 2 percent of the economy until after 1900.

After the Civil War, the presidents of that day promised that they would maintain the old compact, with the federal government being limited. For example, President Grover Cleveland solemnly  promised in his First Inaugural Address in 1885 (worth reading in full):

In the discharge of my official duty I shall endeavor to be guided by a just and unstrained construction of the Constitution, a careful observance of the distinction between the powers granted to the Federal Government and those reserved to the States or to the people, and by a cautious appreciation of those functions which by the Constitution and laws have been especially assigned to the executive branch of the Government.

And it wasn’t just a campaign promise. Cleveland was famous for vetoing hundreds of bills. Here was his veto message to the Texas Seed Bill, a form of welfare in his day being promoted by the Republican Congress:

I can find no warrant for such an appropriation in the Constitution, and I do not believe that the power and duty of the general government ought to be extended to the relief of individual suffering which is in no manner properly related to the public service or benefit. A prevalent tendency to disregard the limited mission of this power and duty should, I think, be steadfastly resisted, to the end that the lesson should be constantly enforced that, though the people support the government, the government should not support the people.

Can one imagine a president, Democratic or Republican, doing such a thing to day?

The two professors continue:

But at the same time the Constitution sought to define and limit this increased federal power and make it accountable to the people of the United States – above all through regularly scheduled elections. In the framers’ view, government could be energetic and limited at the same time.

Actually, as Grover the Good noted, it’s the Constitution itself that limits the government, or at least is supposed to.

So far, no amendments have been adopted to allow such things as welfare, Social Security, federal aid to local education, etc., not to mention Obamacare.

But the Anti-Federalists also turned out to be right, as can be seen by the gargantuan size of the U.S. government today. With Cleveland gone, the Democrats discarded their Jefferson-Cleveland heritage of small government and joined Republicans as advocates of incrementally increasing the power of the federal government. Yet things still didn’t get out of hand completely until the 1930s.

Supposed Myth Two

The professors write:

Myth Two: Strict adherence to the Constitution requires desiccated interpretations of congressional power.

Reality: The framers intended the powers of Congress to be fully adequate to the real challenges the country would face. Article 1, Section 8 entrusts Congress with a pretty generous list of enumerated powers, including “to regulate commerce with foreign nations, and among the several states.” Section 8 concludes by giving Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” This clause, which is the source of the Constitution’s “implied powers,” signals that Congress can pass laws on matters not directly named, as long as those laws have a “necessary and proper” relation to the specified purposes.

As we have seen, Article I, Section 2 actually sharply limits congressional powers. I guess, as ex-President Bill Clinton once put it in another legal context, “It depends on what the meaning of the words ‘is’ is.”

The Constitution rapidly started breaking down during President Franklin Roosevelt’s New Deal of the 1930s, which was influenced by the fascist regimes then being  imposed in Europe. FDR said in 1933, as the New Deal was being imposed:

There seems to be no question that [Mussolini] is really interested in what we are doing and I am much interested and deeply impressed by what he has accomplished and by his evidenced honest purpose of restoring Italy.

FDR also said that year:

I don’t mind telling you in confidence that I am keeping in fairly close touch with that admirable Italian gentleman.

So the model for cracking the strictures of the decentralized Constitution was not Washington, Jefferson, Adams and Madision, but Il Duce and his centralized regime.

The two professors write:

Together the “commerce clause” and the doctrine of implied powers have been the constitutional source of many programs – accepted by Democrats and Republicans alike – that the federal government uses to regulate trade and the economy and enhance the welfare of all Americans. They are also the constitutional source of recent Democratic programs in health care, cap and trade, and economic regulation.

Note that they did not refer to the powers enumerated in Article I, Section 2 of the Constitution to justify such increases in the power of the federal government, but the “commerce clause” and the “doctrine of implied powers.” The “doctrine” isn’t in the Constitution, but was made up by Alexander Hamilton to justify the First Bank of the United States — as was pointed out at the time by Thomas Jefferson, James Madison and Attorney General Edmund Randolph.

This “doctrine” has caused immense mischief, especially since FDR’s day. Any expedient can be found to justify a an “implied powers” expansion of the federal government. It essentially overrides every limit in the Constitution. This is how we ended up with a U.S. government with an incredible $4 trillion budget, $1.5 trillion federal deficit and $15 trillion debt.

Commerce Clause

As to the “commerce clause,” it originally meant — obviously — only the regulation of commerce between states. This made the whole of the United States a gigantic free-trade zone, a major reason for the country’s prosperity. An avocado grower in California can chip his food to the other 49 states without worrying about which tariff must be paid in which state, because there are no internal tariffs.

Unfortunately, FDR didn’t like the Constitution’s limitation on his interference with economic production (which, by the way, only prolonged the Great Depression). In 1935, the Supreme Court, correctly interpreting the U.S. Constitution, overturned the National Industrial Recovery Act and the Federal Farm Bankruptcy Act, two Mussolini-inspired centralizations.

Enraged, FDR branded the upholding of the Constitution a “horse and buggy definition of interstate commerce.” In 1937, FDR tried to pack the Supreme Court with pliable justices. He failed, but after he was elected to an unprecedented third term in 1940, new justices he appointed — and the immense powers he assumed in World War II — made the Court see matters his way.

This was a time, after all, then FDR (and California Attorney General, later Governor, Earl Warren) were putting loyal Japanese-Americans in concentration camps, an act upheld by the U.S. Supreme Courtin the 1944 decision, Korematsu vs. United States. And FDR launched the Great Sedition Trial against his critics. (Fortunately, in that case, lower-level courts protected the critics’ right to free speech.)

Unfortunately, in the 1942 case, Wickard vs. Filburn, the U.S. Supreme Court absurdly ruled that the “commerce clause” extended to absolutely any economic activity in the country, not just to commerce between states. As Wikipedia summarized it:

A farmer, Roscoe Filburn, was growing wheat to feed his chickens. The U.S. government had imposed limits on wheat production based on acreage owned by a farmer, in order to drive up wheat prices during the Great Depression, and Filburn was growing more than the limits permitted. Filburn was ordered to destroy his crops and pay a fine, even though he was producing the excess wheat for his own use and had no intention of selling it.

The Wickard ruling was an unprecedented and unconstitutional expansion of federal power worthy of FDR’s model, Mussolini. (By 1942, FDR was at war with Musso, as he was called, but didn’t abjure Musso-style centralization.)

It’s also absurd, of course, to burn perfectly good crops. But the main thing is that the commerce clause since then has been used to excuse almost any federal expansion.

It’s now almost 70 years since the Wickard case, and now the Feds minutely control every aspect of our lives: from the size of our toilets and shower heads, to the content of our children’s public-school books. Before FDR and Wickard, people would go through their whole lives seeing no federal officials except the local postal clerk. Today, the Feds are as pervasive as the old Soviet bureaucracy was in Russia.

Supposed Myth Three

The professors write: “Myth Three: The Constitution used to be followed strictly, but recently has been interpreted broadly.

Reality: Debates about how broadly or narrowly to read the Constitution in general and the “necessary and proper” clause in particular date to the earliest years of the republic.

They bring up the 1791 chartering of the First Bank of the United States, which I discussed above. They note that Hamilton and Jefferson debated the matter, with President Washington siding with Hamilton.

It’s an old debate. When I visited Monticello in 1983, the tour guide noted that Jefferson had placed busts of himself and Hamilton on opposites sides of the entrance on the first floor “so they would be eternally opposed.”

But the debate doesn’t end there. As historian Thomas DiLorenzo describes in his recent book, “Hamilton’s Curse: How Jefferson’s Arch Enemy Betrayed the American Revolution–and What It Means for Americans Today,” Hamilton’s obsession with centralism, especially a central bank, has plagued the country ever since.

Click this link for a Google search listing DiLorenzo’s articles and YouTubes on Hamilton. And this article by DiLorenzo is a good summary of his book; in the article, he writes:

The current economic crisis is the inevitable consequence of what I call Hamilton’s Curse in my new book of that name. It is the legacy of Alexander Hamilton and his political, economic, and constitutional philosophy. As George Will once wrote, Americans are fond of quoting Jefferson, but we live in Hamilton’s country.

The great debate between Hamilton and Jefferson over the purpose of government, which animates American politics to this day, was very much about economic policy. Hamilton was a compulsive statist who wanted to bring the corrupt British mercantilist system — the very system the American Revolution was fought to escape from — to America. He fought fiercely for his program of corporate welfare, protectionist tariffs, public debt, pervasive taxation, and a central bank run by politicians and their appointees out of the nation’s capital.

Jefferson and his followers opposed him every step of the way because they understood that Hamilton’s agenda was totally destructive of liberty. And unlike Hamilton, they took Adam Smith’s warnings against economic interventionism seriously.

Moreover, since the über-central bank, the Federal Reserve, was created in 1913, the country’s currency has run through several inflation periods, including the current one, that has eroded the value of the dollar from $22 in 1913 to about $1,355 today. A Hamiltonian central bank is at the center of our economic malaise. For proof, see Ron Paul’s book, “End the Fed.”

How much better off we all would have been to simply follow the Constitution’s stipulation that Congress has the power only to “To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures” — meaning, establish that a certain weight of gold is equal to a certain amount of dollars. It’s significant that the “Coin Clause,” as I call it, is next to the Standard of Weights and Measures Clause. The Coin Clause meant the currency — the dollar — was meant to be a yardstick of a certain measure of gold (or silver) everywhere in the country, much as a yard or mile everywhere were given the same length. Thus, uniform measures of dollars, yards and miles would facilitate commerce throughout the land.

The professors note, for the 1791 banking controversy, “Later, as president, Jefferson took actions that contradicted his narrow view of constitutional power.” That seems to mean that Jefferson changed his mind on the national bank. He didn’t. True, he did violate the Constitution with the way he went about the Louisiana Purchase. But all that means is that he violated his own principles — something not unknown in the annals of history even among great men.

However, by and large Jefferson downsized government, as we would say, from the expansion of the federalist years under Washington, Adams and Hamilton.

Supposed Myth Four

The professors write:

Myth Four: Only one party supports programs readily tied to the Constitution.

Reality: A commitment to consistent constitutional principles is shaky on all sides of the political spectrum – including those most aggressive in their claims to own the document.

Well, they’re certainly right about that one. Republicans, despite their supposed reverence for the Constitution, and reading it at the start of business in the House of Representatives this year, compete with Democrats in seeing which party can most violate the old document.

To cite just one example, the so-called USA “PATRIOT” Act of 2001, enacted in the panic after 9/11, was proposed by the Republican Bush Administration. But it was made up of dusted-off proposals from the Democratic Clinton Administration that had been rejected by the Republican-controlled Congress in the 1990s. However, in 2001 the Republican-controlled House and the Democratic-controlled Senate both eagerly approved this severe violation of American liberties as guaranteed by the Bill of Rights.

The “PATRIOT” Act (more the enactment of traitors) has been continued by the Democratic-run Congress of the past four years and Democratic President Obama.

And both parties have given us the Transportation Security Administration’s perverted groping and molestation of innocent airline passengers, even children and grandmothers.

American Revolution 2.0?

It’s obvious that the original Constitution, as written and established by the Framers and Founders, hardly exists any more. The reason is provided by the two professors: the ease with which they excuse almost any increase in government power these past 222 years since the Constitution became operative. Generations of historians, Supreme Court justices, lawyers, editorial writers and others time after time, have excused massive violations of the Constitution, and increases in government power, to promote the expediency of the day.

This is easy to see by considering the following: What would Washington, Jefferson, Madison, Adams and even Hamilton say about the following:

* The TSA molestation of airline passengers.

* The federal government’s regulation of toilets and shower heads.

* President Clinton’s incineration of 70 Americans, including 20 children, at Waco in 1993. The excuse given by Janet Reno, the attorney general, was that she suspected “child abuse.”

* A federal debt of $15 trillion. As Jefferson said, “We must not let our rulers load us with perpetual debt. We must make our election between economy and liberty or profusion and servitude.”

* The U.S. military engaged in two unending wars, with troops stationed in more than 130 countries around the world. The Constitution clearly stipulates that war cannot be started by the president, but only by a “declaration of war” by the Congress. The last such declaration was World War II, which ended 65 years ago. Now the wars and the empire are bankrupting us.

Washington warned in his Farewell Address: “The great rule of conduct for us, in regard to foreign nations, is, in extending our commercial relations, to have with them as little political connexion as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith. Here let us stop….It is our true policy to steer clear of permanent alliances with any portion of the foreign world.”

The problem now is that, if we actually followed the Constitution, we would have to eliminate about 95 percent of what the federal government currently does, including ending the wars and empire, repealing Social Security (now bankrupt, too), Medicare, Medicaid, the Department of Human Services, the Heimat (excuse me, Homeland) Security Department, the Department of Education, and so on down the line.

As mentioned, in 1935 President Roosevelt branded the Constitution’s constrictions on his expansion of federal powers a “horse and buggy definition of interstate commerce.” But that was 76 years ago. We no longer live in the industrial age, of large, labor-intensive industries that could be harnessed by large governments for machine-drive wars.

Instead, we live in the Internet Age, in which the economy and control are widely distributed and dispersed. This has been seen dramatically in the Facebook-driven revolutions in Tunisia and Egypt.

Ironically, it is the decentralized U.S. Constitution that is appropriate for the Internet Age, not the centralized interpretation of the Constitution imposed especially harshly since FDR’s long-past Mechanical Age. The days of FDR and Mussolini are as remote to us as the “horse and buggy” days were to him.

Because America is essentially bankrupt, government is going to have to be down-sized no matter what.

What’s needed is a new revolution — a peaceful one this time, because the Feds have The Bomb. We need American Revolution 2.0. The Tea Parties, although tepid, are a beginning.

Let’s get started chopping government back down to size, decentralizing everything along the federal model of the actual words of the Constitution. And if we need to cut the size of government down yet further, if government remains too big for the Internet Age, there’s always the Articles of Confederation.

FEB. 7, 2011

John Seiler is a reporter and analyst for CalWatchDog.com. His email: writejohnseiler@gmail.com.

By JOHN SEILER

The U.S. House of Representatives, now controlled by Republicans,  voted to repeal the Patient Protection and Affordable Care Act of 2010, commonly called Obamacare. The U.S Senate, still controlled by Democrats, will not follow suit. And President Obama would veto any attempt to pull the plug on what he considers a major achievement of his administration.

Which for now throws the controversy and implementation of Obamacare back to the states. The number of states challenging the constitutionality of Obamacare has risen to 27.

Meanwhile, California, after the wipeout of even moderate Republicans in the November election, is leading the way toward the implementation of Obamacare. Reported Politico:

California’s Health and Human Services secretary, Diana Dooley, had dinner last week with Joel Ario, the Obama administration’s lead on health exchanges, and discussed the state’s progress on implementing the new law.

Ario complimented Dooley, telling her that the Obama administration saw California as a “pace car” on health reform. Dooley offered a slightly different perspective.

“I told him we don’t want to be a pace car state,” Dooley told POLITICO in an interview after just one week in office. “We want to be the lead car.”

Dooley’s confidence is a good indication of California’s attitude toward health reform these days. First out of the gate on setting up a health benefits exchange, the Golden State is eager to blaze a trail after its numerous state attempts at health reform have failed.

The enthusiasm is a little overblown. The California actions “are not going to affect Obamacare very much at all,” John R. Graham told me; he’s director of health care studies at the Pacific Research Institute, CalWatchDog.com’s parent institute, and author of The U.S. Index of Health Ownership. “It’s just approving a board.” He distinguished between two major parts of Obamacare:

1) Health insurance exchanges, in which those not insured could obtain health insurance. The bureaucracy of that is what California is setting up. “There will be some operating costs that the state will bear,” Graham said, but almost all of the costs — expected to be $500 billion nationally between 2014 and 2019 — will be borne by the federal government.

2) An expansion of Medicaid, health care for those who can’t afford insurance, which in California is called Medi-Cal. It would put about 32 million more Americans on Medicaid.

At least that’s the plan.

Early costs

Michael Tanner told me that Obamacare’s mandates “already have added 9 to 12 percent to the costs of insurance policies” in America, including California; he’s a senior fellow with the Cato Institute and coauthor of Healthy Competition: What’s Holding Back Health Care and How to Free It. So the mandates are another drag on the national and state economies as the country tries to pull itself up from the Great Recession.

The added costs to insurance policies also are retarding job growth because new hires for most jobs get medical insurance. In December 2010, the U.S. unemployment rate rose to 9.8 percent. The California rate rose to 12.5 percent in December, second only to Nevada’s 14.5 percent; California’s rate was above 12 percent all year.

However, Tanner had the same take as Graham on the new state bureaucracy. Tanner said that California’s “going it alone” in implementing Obamacare “probably won’t reduce competitiveness” with other states that aren’t so enthusiastic about the program because the California actions are  “paper shuffling.” In objecting to Obamacare, he said, “the other states are sending a message, which California is not.” The messages aren’t policy; at least not yet.

In the meanwhile, three years is a lot of time. In 2012, Republicans could end up winning back the Senate and the White House, while keeping the House, giving them the power to repeal Obamacare outright, or at least to modify it greatly. But Democrats might retain control in the Senate even though they must defend a larger number of seats than Republicans and Obama himself might be re-elected.

Long-term costs

Both Graham and Tanner pointed to a new Cato Institute study out this month, “Estimating ObamaCare’s Effect on State Medicaid Expenditure Growth: A Study of Five Most Populous U.S. States,” by Jagadeesh Gokhale, a senior fellow at the institute. Before Obamacare is instituted, he found:

The results suggest that Medicaid costs would increase considerably even on a pre-ObamaCare basis in California, Florida, and Texas — states with rising populations across many Medicaid eligibility and enrollment groups by age and gender.

However, for after Obamacare’s implementation, he found a difference among these states concerning “old eligibles,” people already eligible for Medicaid:

On a post-ObamaCare basis, the projected cost increase is small for California — just 4.5 percentage points in cumulative costs during 2014-23 compared to the pre-ObamaCare ten-year total cost projection. That’s because enrollment rates among “old-eligibles” are already high in California on a pre-ObamaCare basis, implying little scope for additional enrollment increases from the introduction of ObamaCare.

Put another way, California’s Medicaid system — Medi-Cal — already is so generous that the Obamacare mandates won’t increase costs much. The expected increase in “old eligibles” in 2020 from Obamacare is just 1.9 percent in California, compared to 21.2 percent in Illinois and 16.8 percent in New York. For 2030, the increase in “old eligibles” is expected to be 2.7 percent in California, 23.3 percent in Illinois and 23.5 percent in New York.

Worse for those two Rust Belt states, the U.S. Census projects low population growth, meaning the base for supporting the new Medicaid recipients will not increase. By contrast, California’s continued population growth of about 10 percent a decade — currently the national average — will help it manage the new costs.

Budget factors

California, of course, has the worst state budget deficit in the country, at $25 billion. Until the 2014 full implementation of Obamacare, as we’ve seen, the budget won’t be much affected. But given that Gov. Jerry Brown has asked for a five-year tax increase to cover future budget problems, it’s worth looking ahead. How will the state’s budget be affected by Obamacare?

The Cato study projects that, by 2030, general revenue Medicaid costs will increase 4.5 percent in California.  But compare that to our Sun Belt competitors, where costs will rise 23.1 percent in Florida and 20.9 percent in Texas. And it’s even worse for the Rust Belt states: New York’s general revenue costs will rise 35.6 percent and Illinois’, 36.9.

According to the Cato study, “This result arises because the potential under Obamacare for additional enrollments – relative to enrollments projected by excluding Obamacare — are exhausted by the mid-2020s for California, Florida, and Texas.”

California also has a relatively young population and higher birth rate. Young folks, obviously, are healthier on average than others, and so require less care. Part of the controversy over Obamacare is that it forces everyone into getting health insurance, even young people who currently skip insurance, figuring they’re unlikely to get sick. When the young are forced into the system, they effectively will be forced to pay for the care of those older than them.

Projections and paperwork

It’s worth remembering that past government projections for medical costs have not been very accurate. The original Medicare program, after being set up in 1965, saw federal expenditures double every four years between 1965 and 1980.

According to this summary, in 1965 the House Ways and Means Committee estimated that, by 1990, Medicare would cost only $9 billion. The real cost in 1990: $67 billion, or 7.4 times as much. Moreover:

In 1987, Congress projected that Medicaid – the joint federal-state health care program for the poor – would make special relief payments to hospitals of less than $1 billion in 1992. Actual cost: $17 billion.

Then there’s the paperwork. “The bill itself is 2,409 pages, to which 153 pages were added to iron out kinks in the Senate bill,” writes Sally Pipes in The Truth About Obamacare; she is PRI’s president and CEO, and Taube Fellow in Health Care Studies. “These 2,562 pages are almost exactly double the length of Vintage Classics’ 1,296-page edition of War and Peace. At least Tolstoy offered his readers a plot.”

Graham added that, in less than a year since passage, federal bureaucracies implementing Obamacare “already have added more than 6,000 pages” of new regulations. “It just gets worse and worse.”

So, nobody really knows how much Obamacare really will cost businesses and citizens in direct costs, or the costs of meeting the demands of the paperwork of a large, sclerotic bureaucracy. If the history of federal welfare programs is any guide, the costs will be multiples of any current estimates.

Business uncertainty

The real problem with Obamacare in California is that it multiplies uncertainty businesses. Already, businesses don’t know what their tax levels will be. Gov. Brown is seeking to put a five-year tax increase on a special June election. Nobody knows how voters will respond — if the tax increase even makes it to a vote of the people. President Obama just signed a two-year extension of the Bush tax cuts. But what will tax rates be after that?

And nobody knows to what extent AB32 actually will be implemented by the California Air Resources Board, in particular its new cap-and-trade program.

Although Apple, Google, Facebook and other surging California high-tech companies hardly will be affected by such certainty, the little guys — the small businesses that create most jobs — will be most affected by the multiplying business uncertainties.

John Seiler is a reporter and analyst for CalWatchDog.com. His email: writejohnseiler@gmail.com.

JAN. 10, 2010

By JOHN SEILER

“Personnel is policy” is a saying I heard often when I was a journalist in Washington, D.C. in the 1980s during the Reagan administration. The meaning was that, in large, complex modern organizations such as a corporation, state governments or the federal government, a leader can’t do everything himself. He must delegate. And those whom he picks to delegate mostly decide policy.

“Personnel choices shape policy choices because a governor must delegate,” Jack Pitney told me; he’s Roy P. Crocker Professor of American Politics at Claremont McKenna College, and author of American Government and Politics: Deliberation, Democracy and Citizenship. “Brown is smart and experienced but cannot make every decision in every agency.”

Seen in that light, Gov. Jerry Brown’s major appointments so far show him sticking with the status-quo in the state on environmental, labor and other policies. The boldly innovative Gov. Brown of his first governorship, in the 1970s and early 1980s, seems to have stayed home.

This can be seen most clearly in his appointment of Bill Honig to the state Board of Education, which oversees public schooling in California, an area also covering about 40 percent of the budget in a time of $28 billion state budget deficits.

Honig withdrew his name today. But his appointment still is a major indication of the direction of the Brown administration. Honig is a convicted felon, although the charges later were reduced to misdemeanors. Honig was convicted “for using state Department of Education funds to finance a project his wife had created to urge parents to get involved in the education of their children” — while serving as the state’s elected superintendent of public instruction.

Brown defended his pick, saying, “He has the knowledge and skill to be quite valuable, and it would be a shame to waste that. You can’t create an omelet without breaking the eggs.” That last sentence, tellingly, often was used by Stalin to justify his atrocities in the Soviet Union, as Brown surely knows.

Honig was one of the state’s worst superintendents of public instruction. “Aside from his conviction on conflict-of-interest charges, the biggest thing is that, in the last 20 years since he was superintendent of public instruction, many changes and reforms have been implemented,” Lance Izumi told me; he’s Koret Senior Fellow in Education Studies at the Pacific Research Institute, CalWatchDog.com’s parent institute.

“Couldn’t Jerry Brown have found somebody who isn’t an old establishment Democrat who’s been convicted of crimes? Was that the best he could do? Honig was an initial proponent of the ‘whole language’ movement, although he came to see that method didn’t work and became a critic of it. The point is that originally he was open to it, something that was more of a fad than a proven method.”

According to this education Web site:

Whole Language basically teaches kids to look at words as “pictures,” while phonics teaches them to break words into their parts – the alphabetic letters, and the sounds those letters represent.

Whole Language treats English text like Chinese text. In the Chinese language, each word is “read” as a pattern – as a whole. Phonics, on the other hand, treats each word as the sum of its individual parts, and those individual parts are noted and decoded.

Whole Language relies on the “gestalt.” That’s an educational psychology term which relates to the notion that a child can scan text and guess at words while still gleaning meaning adequately.

“Whole language” makes sense for Chinese characters, which originated as little pictures. But English uses a phonetic alphabet based on purely symbolic letters. Since its invention millennia ago, phonetic-based scripts have been taught through phonics: attaching sounds to letters, or groups of letters. Even the Chinese teach English using phonics.

Izumi concluded, “Honig isn’t part of the reform movement in education in such things as teacher tenure and school choice, things many even in Democratic circles are talking about.”

For example, Education Week reported:

African-American policymakers under the age of 50 are no longer opposing school choice simply because they’re following the lead of their allies on other issues—mainly teacher unions, said Groff, 45, who is black.

“This is a generation that doesn’t look at race first, but policy first,” said Groff, 45, a Democrat. “It’s not looking at party first, but the best idea first.”

Newark Mayor Cory Booker, the event’s main speaker, said charter schools in his New Jersey city are successful, but they don’t have enough seats to fill demand.

Many Newark families “break the law, literally,” said Booker, a Democrat. “They are faking addresses and sneaking [their children] into schools” in neighboring towns. School officials there investigate students and kick out those who live in Newark, charging their families tuition for the time they were enrolled.

“This is not the America I dream of,” Booker said.

And in Michigan, reported NPR:

House Democrats are debating proposed reforms to teacher tenure laws at the state Capitol. Party leaders are trying to convince reluctant rank-and-file Democratic lawmakers to support measures that would make it easier to fire teachers in underperforming classrooms. Teachers unions are opposed to the bills.

Izumi wondered why, instead of retread Honig, Brown didn’t appoint an innovator like Michelle Rhee. The Sacramento Bee described her approach to excellence in education:

She is nothing if not controversial.

During three and a half years as the chancellor of Washington, D.C., public schools, Michelle Rhee closed two dozen campuses, fired hundreds of teachers and allowed TV cameras to follow her as she battled teachers unions and canned principals.

On Tuesday, she brought that brash style to Sacramento, where in a wide-ranging conversation with The Bee’s editorial board she addressed school governance, teacher training and the general state of student preparation.

On governance: If California allowed mayors to take control of schools, Sacramento “would be in a much better place.”

On teacher training: Teacher-training schools are filled with the “lowest performing students” – better students choose other careers.

On student preparation: “We have become a little too obsessed about making kids feel good about themselves. … We have lost the competitive spirit.”

Rhee recently resigned her post because Washington, D.C.’s new mayor had campaigned against her as a sop to his major backers, the teachers’ unions, which didn’t want her reforms to continue. Rhee is engaged to marry Sacramento Mayor Kevin Johnson.

She has set up a new education reform group, StudentsFirst.org. It’s already partnering with Gov. Rick Scott to reform Florida’s schools. Why not California?

Rhee blogged on January 7, 2011:

I announced with Governor Rick Scott that we will help his new administration push a bold package of education reforms. Florida has made significant progress turning around schools in the last decade with strong laws requiring, for example, that every school receive a letter grade. Governor Scott shares our belief that not only do schools need report cards, but so do teachers, so that great teachers can be supported, recognized, and retained with professional salaries and protected from lay-offs. Our goal is that every student has a highly effective teacher.

With Honig now not taking a seat on the board, Brown’s pick of a replacement will be telling: a non-felonious clone of Honig? Or Rhee or someone like her?

Bye-bye “postpartisanship”

Other major Brown appointments show a similar lack of originality in dealing with the state’s immense problems. Whereas Republican ex-Gov. Arnold Schwarzenegger used a “postpartisan” approach to appointments, appointing many Democrats, so far Brown  almost exclusively has picked partisan Democrats for posts.

“It does not seem that the governor is being post-partisan,” Pitney said.

Brown’s bureaucratic makeover continued on the Board of Education, where Honig will be joined by others in league with the teachers’ unions that strongly backed Brown’s gubernatorial campaign. Reported the L.A. Times:

In one of Gov. Jerry Brown‘s first official acts this week, he sacked the majority of the state Board of Education, replacing several vocal proponents of charter schools, parent empowerment and teacher accountability.

A broad range of educators, policy makers and others say the move was widely believed to be the handiwork of the California Teachers Assn., which heavily supported Brown in his gubernatorial campaign. The union’s support will be vital if he, as expected, places measures on the June ballot to temporarily raise taxes to ease the state’s budget deficit. It also appears to delay a key vote about parents’ power to reshape failing schools — an effort opposed by the union — leading to strong criticism of the governor from fellow Democrats.

Other appointees

In other areas of his administration, here are some of Brown’s top appointees:

* Nancy McFadden as executive secretary for legislation, appointments and policy. She advised Vice President Al Gore and recalled Gov. Gray Davis. Most recently, she “comes from Pacific Gas and Electric Co., where she was a senior vice president and the brains behind the PG&E-sponsored Prop. 16.” On the June 2010 ballot, according to Ballotopedia, it “would have henceforward taken a two-thirds vote of the electorate before a public agency could enter the retail power business.” PG&E spent $46 million in the losing effort.

PG&E also opposed Proposition 23 on the November 2010 ballot. It would have suspended AB32, the global-warming law that PG&E has supported. AB32 sets up a “carbon trading” system for companies. According to a Bloomberg report a month after the election:

PG&E Corp., Edison International and Sempra Energy would get carbon-dioxide permits worth hundreds of millions of dollars under California’s cap-and-trade program, according to a plan being considered by state officials.

The owners of California’s utilities would be given the permits for free to help offset higher electricity rates for consumers, according to a staff proposal of the state’s Air Resources Board. The 11-member board is meeting today in Sacramento to vote on a cap-and-trade program that cuts California’s pollution levels by 15 percent from 2012 to 2020….

Carbon allowances worth $83 billion will be issued over the nine-year span of the program, and secondary trading of the permits by companies may boost the total value of the California carbon market to $559 billion, according to Bloomberg New Energy Finance estimates.

Small businesses directly affected by AB32 won’t get such benefits, or have such clout in Gov. Brown’s office.

* John Laird as secretary for natural resources. In 2006, The Orange County Register sent me to San Francisco to represent it at a conference on the state budget. I was on a panel that included Laird and two other politicians. Laird then was an Assemblyman from Santa Cruz. I was the only one who pointed out that the state was just spending too much, something that couldn’t last. Laird and the others defended the wild spending, and even said more taxes were OK. That was the last year before the roof fell in on California’s mid-2000s bubble economy.

Also in 2006, Laird co-authored AB32, which he will be responsible for implementing as secretary for natural resources. According to the Santa Cruz Sentinel, his appointment by Brown was:

[A] widely expected announcement that is evoking joy in environmental circles and striking fear in many Republicans….

“Any notion that Jerry Brown plans to pursue a moderate and centrist course on these issues has just flown out the window,” said Ron Nehring, chairman of the California Republican Party. “He’s reaching to the far left of the far left to fill his administration.”

Critics worry that environmental policies of the incoming administration could stifle business and economic recovery, violate individual property rights and run up public spending.

“Now is not the time for more intrusive government,” Nehring said.

Given that Nehring’s party nominated Meg Whitman, also a backer of AB32, it’s hard to see how there would have been much difference in this area had she not lost to Brown. But he’s right that those with businesses and jobs should be concerned about the Brown-Laird policies.

* Mary Nichols reappointed to head the powerful California Air Resources Board, which now is strongly implementing AB32. She actually was app0inted to the post by Brown back in 1978. And she was re-appointed to it by Schwarzenegger in 2007. Her longevity in the post makes her California’s environmental czarina.

Her major new function will be to implement California’s controversial new cap-and-trade rules stemming from AB32. Even liberal groups are criticizing her implementation so far. The Greenlining Institute wrote:

As the regulations now stand, their ultimate result could be a massive giveaway to the state’s biggest polluters. Instead of reducing greenhouse gas emissions, the proposed rules could result in billions of dollars in windfall profits to polluting industries at the expense of California’s most vulnerable communities.

A successful cap-and-trade program relies on a strategic allocation of allowances. In that context, it is hard to grasp the strategic value of CARB’s decision to give away the overwhelming majority of carbon allowances for free to big polluters.

By giving away 90 percent of the allowances for free in the first year with no guarantee of any decline in the amount of freebies over the following years, the rules provide only very weak incentives for polluters to reduce emissions.  Worse, polluters can gain windfall profits by passing the cost of emissions reduction onto consumers, even though they are receiving the allowances for free.

* Ronald Yank as personnel director. If  any Brown pick epitomizes “personnel is policy,” it’s the person who directs personnel. Yank is a labor lawyer who has represented the powerful prison guards’ union, the California Correctional Peace Officers Association.

Combined with his stacking the school board with members favorable to the teachers’ unions — the California Teachers Association is even more powerful than the CCPOA — Yank’s appointment shows Brown is signaling how cozy he will be with the unions that backed him.

Is Jerry maneuvering?

“Keep your friends close, but your enemies closer,” said the Godfather, Don Corleone, in “The Godfather, Part II.” In Gov. Brown, Part II, his friends might also be his enemies. All the special interests whose personnel he has appointed to his administration are going to resist his proposed large budget cuts. But how hard can they object if their own people are right there next to him?

“Brown is appointing the kind of people he knows,” Pitney said. “He may also be trying to build political capital to cushion the hit he will take as a result of budget cuts.”

Brown may be telling his allies, effectively: I’m doing the best I can on the budget. On everything else — environmental rules, labor law, etc. — you can get your own way. And you’ll be helping me raise taxes. But I need you on the budget cuts.

How businesses respond will be the key factor. The jobs market remains tough nationally. Global competition is increasing. So is competition with other states. “The appointments will not exactly rebuild the state’s reputation for being business friendly,” Pitney warned.

In 2010, at least 193 businesses fled California, calculated Business Relocation Coach Joseph Vranich, almost four times the 51 that left in 2009. If that accelerating negative trend continues in 2011, even Gov. Brown’s status-quo personnel choices might not save him from entering Gray Davis Recall territory.

John Seiler is a reporter and analyst with CalWatchDog.com. His email: writejohnseiler@gmail.com.

JAN. 7, 2011

By ANTHONY PIGNATARO

State Assembly Minority Leader Connie Conway has a real discipline problem. Not with her family, or her staff, but with her Republican caucus, and the ruthless arithmetic that governs it.

Of the 80 members of the California Assembly, just 30 are Republicans. That means Assembly Speaker John A. Perez, D-Los Angeles, only needs a couple Republicans to abandon the GOP’s “No New Taxes” mantra to secure the two-thirds majority needed to raise fees or taxes. “Republicans will go up on tax increases,” one Assembly staffer told me dejectedly. “Two or three votes are all they need.”

During a recent interview in her office, I asked Conway, R-Visalia, how she intended to deal with this situation. For Republican tax-fighters, her answer – while full of tough talk – might not be entirely reassuring.

“I’m not going to threaten or demand,” she said, two smart phones resting on the desk in front of her. “There are wolves at every corner. There’s bait everywhere, and we can’t let those things distract us. I believe in communication with the members. I’m urging them to stay in contact with their constituents. But after talking with members of our caucus, no one will vote for taxes today. No means no – n-o spells no.”

The operative word in all that is, of course, “today.” A lot can happen between now and whenever Perez (and Gov. Jerry Brown and Senate President Pro Tem Darrell Steinberg) work out the tax extension ballot measure they’re reportedly planning.

Still, Conway has some factors in her favor. Most notably, the fact that Conway alone stepped up to take over as minority leader.

“Nobody else wanted it,” Assemblyman Chris Norby, R-Fullerton, said. “I wish her well. I’m not sure if it’s a tribute to her strength or courage.”

That Conway is taking over under difficult circumstances is an understatement. The Legislature as a whole currently holds a 9 percent approval rating with the public. Indeed, Conway that said that while getting her car’s oil changed recently, the mechanic asked her, “Are you Connie Conway?”

“Is that a good thing?” Conway said she cautiously replied.

For California Republicans, times have especially been tough. During the November election, when it seemed every state was experiencing Republican gains, in California the Democrats swept every major office and even reduced the GOP Assembly caucus. The axe soon fell on then Minority Leader Martin Garrick, R-Solana Beach.

“We lost a seat under Martin,” said Norby. “At least we should have broken even. It wasn’t his fault – you can’t fire the whole team, but I guess you have to fire the coach.”

For her part, Conway is a bit more modest, admitting only that she was the only one who openly said she wished to be leader. “Everybody here has a desire to serve,” she said. “We’re all in a leadership position already.”

Conway, first elected to the Assembly in 2008, is a former Tulare County supervisor, president of the California State Association of Counties (CSAC) as well as swimming, water polo and girl’s gymnastics coach. Though she’s had the minority leader’s job since early November, her office walls still have a lot of blank space. One big item she called attention to but has yet to hang is a reproduction of the famous “Keep Calm and Carry On” poster commissioned by the British Ministry of Information in 1939 to help improve morale.

Terms limits in the California Legislature mean that even rookie members can quickly find themselves in jobs with some responsibility (indeed, current Assembly Speaker Perez got the top job halfway through his first term). Even still, a few of her choices for her leadership team did perk up a few eyebrows. For instance, Kristin Olsen, R-Modesto, and Brian Jones, R-Santee, were named whip and deputy floor manager, respectively, before ever being sworn in as Assembly members.

“You try to look at the potential in people,” said Conway. “Sometimes you try to develop it.”

Conway’s top people, for whatever reason, didn’t really want to comment for this story. Caucus Chairman Brian Nestande, R-Palm Desert – Conway’s top lieutenant – chose not to comment at all. As for Assistant Floor Leader Curt Hagman, R-Chino Hills, a spokesperson would only say that “Assemblyman Hagman was part of Garrick’s leadership team and is part of Conway’s. It is his pleasure to be in the service of the caucus regardless of who is leader.”

Conway told me she wanted a mix of rookies and veterans in her team – a more than reasonable assertion – as well as a smattering of beliefs. “It’s okay to have diverse opinions,” she said, “though not on raising taxes.”

One factor that seems not to have been part of her leadership criteria was campaign donations by members to the California Republican Party (CRP) during the 2010 election. Of the leadership team, only Hagman gave substantially – about $33,000 – to the CRP in 2010. In fact, Assembly members Bill Berryhill, R-Ceres, Cameron Smyth, R-Santa Clarita, and Nestande himself gave less than $1,000 each to the CRP. This is especially ironic given the fact that CRP candidates largely got clobbered in 2010 and that Conway was exceedingly generous both to the party (donating $30,000) and to other Assembly candidates during the campaign.

“Some had donated in the past,” Conway said. “I think most of them are up to speed at this point.”

Conway’s response brings up a larger, more important issue – that of her ultimate goal as Republican leader in the Assembly, which is actually quite modest. “Keeping my caucus together and standing tall for the people we represent,” she said.

Conway may be famous for being approachable and optimistic, but she’s also quite a realist. Indeed, she acknowledged that she will probably never rise higher in the Assembly than “minority” leader.

“We’re never going to equal our friends across the aisle,” she said, referring to the Democrats and their command of union cash and grass roots support.

Conway points to ballot measure results like the passage of Prop 26, which imposed a two-thirds vote requirement on the Legislature before raising fees, and say that the electorate shares Republican fears of tax hikes, but she also seems resigned to Democrats holding sway over the Capitol. “It’s unrealistic to say my goal in two years is to be in the majority,” she said. “I want to get closer, but realistically, I don’t know what kind of sea change that would take. Though the problems we’re having are doing a darn fine job of changing people’s minds.”

PHOTO: Courtesy Assembly member Connie Conway’s office.