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Budgeting By Judicial Fiat
by Jon Coupal 7/9/08

Most high school students, at least in the old days, learned in civics class that there are three branches of government each of which has a discernable and distinct function. That is not to say that the lines of demarcation are always clear. There remains constant tension among these branches at both the federal and state levels and their respective powers ebb and flow with political changes and other events.

In addition to the Separation of Powers doctrine, there are profound issues of federalism that constantly arise with respect to the powers of the individual states relative to our national government. Here, too, the respective powers change; sometimes incrementally and sometimes dramatically, such as the shift in power resulting from the Civil War.

These often academic issues are now having a real world impact on California's budget crisis. The $64,000 question ($7 billion, actually) is whether a federal judge has the power to raid a state treasury.

Jon Coupal

Jon Coupal is an attorney and president of the Howard Jarvis Taxpayers Association -- California's largest taxpayer organization with offices in Los Angeles and Sacramento. [go to website] [go to Coupal index]

U.S. District Judge Thelton Henderson is taking a sledge hammer to both fundamental precepts of federalism as well as usurping the California Legislature's power to appropriate taxpayer dollars. Judge Henderson, one of the nation's most liberal jurists, is presiding over a case where it is alleged that the medical treatment California provides to prison inmates is inadequate to the point of constituting cruel and unusual punishment.

The level of medical treatment California must provide to inmates is itself a frustrating topic to taxpayers. Often, hardworking citizens are justifiably incensed when a 65 year old drug addict with a life term for murder gets a million-dollar treatment for an organ transplant. But that's another column. For now, the alarm is based on clear designs that the federal judiciary has on the California state treasury.

To enforce his orders, Henderson has appointed Clark Kelso as the federal receiver to oversee the program. Kelso has asked Judge Henderson for authorization to inspect state financial records, preparatory to seizing $400 million, a down payment on the $7 billion he plans to spend upgrading prison medical facilities.

"I am going to be prepared to get access to those funds," Kelso told an interviewer.

Kelso, a widely respected professor at the University of the Pacific McGeorge School of Law, has established a reputation as a valuable utility player for California government. His service includes taking over the office of insurance commissioner and restoring its credibility after Chuck Quackenbush was driven from office amid charges of corruption, and acting as California Chief Information Officer, where he turned around the state's troubled information technology program.

With all his savvy, one would think Kelso would have great reservations about using the judicial branch of government to seize public dollars from taxpayers. Ironically, just as we celebrated our independence from the tyrannical rule of a king on July 4, if Henderson sides with Kelso, we may be about to see an outbreak of unprecedented judicial tyranny.

Certainly most citizens along with constitutional scholars would recognize the role the judiciary has of protecting the rights of all citizens, even those who have been convicted of a crime. No one is suggesting that just because a felon has been sentenced to prison, their incarceration should mimic Devil's Island conditions.

A five year term for embezzlement should not end up as a death sentence due to lack of medical care. To allow this to happen, there can be little doubt, would qualify as "cruel and unusual punishment."

However, while it may be appropriate for the judiciary to mandate certain base standards of treatment, to dictate the exact amount that must be spent to meet the objective, blitzkriegs across the line into the purview of the legislative and executive branches of government.

California, a high-tax state, faces a nearly $20 billion budget deficit. There simply is not enough money to satisfy all the obligations the state has taken on. To mandate an additional $7 billion expenditure on an arbitrary decision of a judge and his appointed receiver stains the boundaries of common sense and constitutional law.

Judge Henderson should set reasonable standards for prisoner health care and use his powers to sanction officials who do not comply. Officials should be allowed to find the most economical ways to achieve the same goal -- if a hospital bed can be purchased for $1,500, the judge or his agent have no business requiring the state to buy one for $3,000.

If Henderson accedes to Kelso's request, there may be dire consequences for state taxpayers. This could set a dangerous precedent of allowing the judiciary to spend public money by decree, and if it were to be confirmed by higher courts, would prove true the old saying that there can be a big difference between what is right and what is legal. Judicial tyranny is never right. CRO

copyright 2008 Howard Jarvis Taxpayers association




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