U.S. District Senior Judge Thelton Henderson, clearly irritated with state leaders’ refusal to provide $8 billion to overhaul the prison medical care system, appeared poised on Monday to grant a federal receiver sweeping power to tap California’s treasury.
At a hearing in San Francisco, Henderson chided attorneys representing Gov. Arnold Schwarzenegger and controller John Chiang for not cooperating with receiver J. Clark Kelso and his politically unpopular plans to build seven facilities statewide for chronically ill inmates.
“The political thicket has no place in this federal hearing,” said Henderson, who has held that deplorable medical conditions in California’s prison system are unconstitutional.
Kelso has hired Morrison & Foerster’s James Brosnahan to pursue contempt findings against Schwarzenegger and Chiang for failing to provide funding for early rounds of construction design. Outside the federal courthouse Monday, Brosnahan said that while the receiver’s office may eventually seek hefty daily fines against the two state officers, he and Kelso will be satisfied — for now — if Henderson orders the state to provide $250 million to fund the receiver’s work for the rest of the year.
“If the governor of California is going to be held in contempt we have to move cautiously,” Brosnahan said.
Four times the Legislature has rejected appropriations for the receiver’s construction plans, largely because Republicans have protested spending more on prison health care — particularly on the order of a “liberal” federal judge.
Schwarzenegger and Chiang contend that they can’t give Kelso any money without lawmakers’ approval. And on Monday, lawyers for the two constitutional officers argued that Henderson hasn’t made the specific legal findings necessary to grant Kelso broad spending authority.
“The receiver has presented very little evidence that his $8 billion plan goes no further than necessary,” said Deputy Attorney General Daniel Powell. “We would need an order that makes that finding … .”
“I can do that for you by lunch time if that’s what you need,” Henderson snapped back.
In an unusual soliloquy at the start of Monday’s hearing, Henderson told the many lawyers in attendance that, but for the languishing, 7-year-old class action that led him to appoint a prisons receiver in 2006, he probably would have retired by now. He criticized the state’s “not so clear” arguments against funding the receiver’s plans and rejected complaints that California, already swimming in red ink and struggling to find money in the credit market, can’t afford major improvements.
“That is not how our constitutional system works,” Henderson said.
Attorney General Jerry Brown, whose office has represented Schwarzenegger and Chiang, has accused Kelso of trying to shield the specifics of his $8 billion construction plans from public scrutiny. Kelso has said that the 900-page draft is currently under seal by the judge in a different case; the receiver in turn has accused Brown of using the issue as a red herring to divert attention from the state’s failure to pay up.
Brown attended Monday’s hearing only briefly. Oral arguments were left instead to Powell.
Henderson showed little patience with Powell’s arguments, insisting repeatedly that state officials have never complained to him about Kelso’s construction plans or questioned the broad powers that he had granted the receiver to improve prison medical care. When Powell argued again that Kelso was overstepping his authority, Henderson interrupted with voice raised: “The receiver was appointed to run the system because I found the state was incapable of doing so.”
“The judge saw through a lot of the smoke and the dust in the state’s briefing,” Kelso said.
In a pointed comment directed toward state attorneys, Henderson said he would issue a written ruling on Brosnahan and Kelso’s request for an immediate $250 million check.
“Normally I would” give the order verbally, “but I’m going to write it down very carefully so there’s no ambiguity about what I’m saying,” Henderson said.