Stockton Record
September 8, 2010

By Michael Fitzgerald
Record columnist

Stockton’s selection as the site of new prison facilities is a done deal. But the feisty Stockton litigants who fought the prison czar have fired a parting shot to the U.S. Supreme Court.

The Greater Stockton Chamber of Commerce has filed an amicus curiae (friend of the court) brief in Schwarzenegger v. Plata, the governor’s appeal of a federal takeover of state prisons.

The brief says Stockton is real-world proof that bulldozing state and local laws sabotages “federalism,” the relative authority of federal and state government.

Nobody had time to consider such a lofty constitutional issue when court-appointed federal prison receiver J. Clark Kelso bore down on Stockton with orders to fix the prison hospital crisis.

Federal judges ruled California’s failure to provide good prison medical care violated inmates’ constitutional rights. But did the court violate Stockton’s constitutional rights?

It did, the chamber’s brief argues. “The receiver operated without sufficient and customary checks and balances,” chamber attorney Steve Herum argues.

Example: The federal judges authorized Kelso to apply to them for a waiver of any state law that got in his way.
Wow. So suddenly an unelected official – one wholly unaccountable to communities he severely impacted – could ignore legal and political restraints.

The receiver was given juggernaut powers traditionally parceled out among state and local government: laws and regulations “emphasizing openness, public participation and due process safeguards as a buttress against overzealous government officials.”

Kelso decided to dump two new prison hospital facilities in Stockton – a decision Stockton had no political means to fight.

That was unjust enough, given the number of prisons already located around the city. Kelso went further. With the social conscience of a Ming emperor, he decreed the severely cash-strapped city must absorb costs normally borne by the state.

Normally, the California Environmental Quality Act requires builders to pay to soften their projects’ bad impacts.
But Kelso declared (to cite one example) that Stockton must extend city sewer lines to the prison facilities at city expense – though 20 percent of Stocktonians are unemployed, leaders are slashing essential services, and the city has all 10 toes over the edge of insolvency.

Kelso also warned the chamber (later joined in its suit by Stockton and San Joaquin County) “he would refuse to negotiate with any entity filing a legal action challenging his decision.”

That’s pretty darned ironic. Kelso is a law professor. He teaches remedies, suing for justice.

Herum has fun with this in his brief. “The receiver, a full-time law professor, … can hardly claim his sensibilities are assaulted by thoughts of civil litigation.”

Suing Kelso was dicey for another reason. His ability to obtain waivers of laws had a “chilling effect on the chamber’s vigor in protecting the community.”

In other words, if the chamber was too successful, “the receiver could simply ask the judicial panel to take away the (law) and moot the litigation.”

The case can be viewed through a lens far wider than Stockton. Though Kelso was federally appointed, he had virtually unlimited access to state funds.

California was in the throes of a budget crisis, furloughing workers, unable to pay vendors. Yet Kelso sicced 13 lawyers on the chamber and hired former state Sen. Michael Machado to lobby the plaintiffs and the community at large.

Initially, he demanded $8billion from the state treasury to build a string of prison hospitals. In effect, a major budget priority of California, the world’s ninth largest economy, was being set by an unelected stranger unfettered by American democracy’s usual checks and balances.

To be fair to Kelso, he aggressively pursued his court-ordered instructions. Congress’ 1996 Prison Litigation Reform Act gives federal courts the power to take over state prisons.

Schwarzenegger’s attorneys are arguing before the U.S. Supreme Court that the law confers this power only in rare, extreme circumstances; that these did not apply in California; and that the federal judges were lax in invoking the law.
Even if Schwarzenegger prevails, the Stockton prison deal will not be undone (Schwarzenegger is suing over another aspect of receivership, early inmate release).

But the chamber continues to lead, offering Stockton as a real-world example of the unjust government that ensues when the courts void constitutional separation of powers.

“We felt it was our responsibility to continue this,” chamber CEO Douglass Wilhoit said.

“What it could mean in the future,” Herum said, “is it is less likely that federal courts will take over parts of state governments and run them from a federal court perspective.”