May 2009 Archives

The timidity of their convictions

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When it takes 136 pages to write a legal opinion, it's a pretty good bet that there are a whole lot of gymnastics involved.

So it was with yesterday's California Supreme Court decision upholding Proposition 8. It is replete with headstands, cartwheels, back flips and somersaults. All are employed trying to explain away a remarkable about-face that a majority of the court has taken in the course of one year.

It was just last May that the court issued its landmark Marriage Cases decision in which it held that a ban on same-sex marriages violated the equal protection clause of the California Constitution. The decision hinged on the key issue of whether denying the word "marriage" to gay couples whose domestic partnerships granted them all the legal and contractual rights of a marriage relationship constituted discrimination.

The court, rather eloquently, decided that it did. Here's part of what its 2008 opinion said:

"Whether or not the name 'marriage,' in the abstract, is considered a core element of the state constitutional right to marry, one of the core elements of this fundamental right is the right of same-sex couples to have their official family relationship accorded the same dignity, respect, and stature as that accorded to all other officially recognized family relationships. The current statutes -- by drawing a distinction between the name assigned to the family relationship available to opposite-sex couples and the name assigned to the family relationship available to same-sex couples, and by reserving the historic and highly respected designation of marriage exclusively to opposite-sex couples while offering same-sex couples only the new and unfamiliar designation of domestic partnership pose a serious risk of denying the official family relationship of same-sex couples the equal dignity and respect that is a core element of the constitutional right to marry."

In other words, the court said that when it comes to marriage there can be no such thing as separate but equal treatment under the law.

Fast forward to May 2009. A majority of the court flip-flopped. It upheld Proposition 8 because it determined that denying the term "marriage" to same-sex unions really wasn't that big of a deal after all.

Here's part of what the court now says:

"The measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term 'marriage' for the union of opposite-sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws."

Reasonable people can disagree on this core question in the marriage equality debate.

But it is dumbfounding that four justices who had studied and examined the question at great length, then summoned the courage to rule that the use of the word "marriage" was fundamental to protecting the constitutional rights of gay couples, could come to the opposite conclusion just 12 months later.

Theirs was a political decision, pure and simple. That's why it took 136 pages to try to legally rationalize it.

The one justice who had the courage of his earlier conviction was Carlos Moreno. Here's part of what he wrote in his dissent:

"Even a narrow and limited exception to the promise of full equality strikes at the core of, and thus fundamentally alters, the guarantee of equal treatment that has pervaded the California Constitution since 1849. Promising equal treatment to some is fundamentally different from promising equal treatment to all. Promising treatment that is almost equal is fundamentally different from ensuring truly equal treatment. Granting a disfavored minority only some of the rights enjoyed by the majority is fundamentally different from recognizing, as a constitutional imperative, that they must be granted all of those rights. Granting same-sex couples all of the rights enjoyed by opposite-sex couples, except the right to call their 'officially recognized, and protected family relationship' a marriage, still denies them equal treatment."


Tuesday's big winner: Rob Reiner

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Hollywood producer and former "All in the Family" star Rob Reiner has been battling opposition from conservatives ever since he first proposed a special state-funded program to focus on the needs of infants and toddlers.

Reiner sponsored Proposition 10 back in 1998, a successful initiative that imposed a 50-cent per pack tax on cigarettes to fund 58 county commissions empowered to set up programs for young children. He did so after having studied brain research that he said opened his eyes to the importance of nurturing children in their earliest years when much of their brain development takes place.

Even after the ensuing First Five programs were well established, conservatives in the Legislature regularly advocated that the Legislature raid their funds as a way of raising revenue without new taxes.

Those foes of Proposition 10 got their way in budget negotiations earlier this year, and Proposition 1D was placed on the ballot to divert money away from Reiner's First Five commissions. Reiner contributed to the campaign to defeat the measure.

When Tuesday's votes were counted, not only did Proposition 1D fail by a nearly 2-to-1 margin, but the conservative heartland of Orange County rejected it by a bigger margin (3-to-1) than any county in the state.

Tony Strickland votes with trial lawyers

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Last fall the state association of trial lawyers, called the Consumer Attorneys of California, was the major contributor to an independent expenditure group that shelled out $550,000 to try to defeat Republican Tony Strickland in his campaign for state Senate. In addition, individual lawyers and legal firms around the state put in another $250,000 directly into the campaign of his Democratic opponent, Hannah-Beth Jackson.

So what happened this week when the first Consumer Attorney-sponsored bill of the year came up for a vote in the Senate? Strickland was one of just two Republican senators to break party lines and vote to support it.

It was an unusual move in a political environment in which elected officials have very long memories and are prone to hold grudges against political enemies.

What would the bill, SB 510, do? Well, think of those late-night TV commercials that feature people screaming out of apartment windows, "It's my money and I want it now!"

The ads are targeted at people who have been awarded structured settlements to compensate them for damages. Most of these people are former clients of consumer attorneys who won their settlements by viture of a lawsuit. A structured settlement means that the individuals are paid over time in periodic installments.

With the economy slumping, a cottage industry has sprung up that entices people to sell their rights to future settlement payments for a large upfront payment. Although the practice does provide the beneficiaries with instant cash, they generally receive pennies on the dollar of the total amount they would have been paid over time.

The transfer of rights to the structured settlement payments must be approved by a judge, and SB 510 would add a host of factors a judge must consider before approving such a deal. Those factors include such things as whether the beneficiary has ongoing medical needs that the structured payments were supposed to cover, whether the deal is in the best interests of the person's dependents and whether the purchaser is paying a market-rate price.

The bill is supported by consumer and seniors advocacy groups.

It seems like a fairly reasonable piece of consumer protection. It's worth noting that not only did Strickland apparently see it that way, but he also was able to resist the impulse to play gotcha politics by reflexively voting against anything sponsored by a campaign foe.

Presidential recall

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I stopped in to see former Ventura County lawmaker Jack O'Connell today. As always, the state school superintendent had a few stories to tell -- including one that reveals a lot about the political and policy skills of President Obama.

O'Connell had gone to Washington, D.C., in early March for a meeting of state school superintendents with U.S. Secretary of Education Arne Duncan. Before the meeting began, Obama dropped in for an unscheduled presidential visit. He briefly circulated through the room for introductions with each of the 40 or so state education leaders, made a few remarks and then answered a question about the education assistance included in the American Recovery and Reinvestment Act.

About a week later, Obama came to Costa Mesa for a town hall meeting, after which he had a short, private meeting with about 10 California elected officials, including O'Connell. When he came to O'Connell, Obama remarked, "I've met you before."

O'Connell responded that, yes, it was at the meeting of state superintendents in Washington. "That's right, when I stopped it at Arne's meeting," Obama responded. "How did I do in answering that question about ARRA?"

A stunned O'Connell responded: "You answered it just fine, Mr. President."

Blind voter rage

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If there was ever any question that the results of California's May 19 special election will be driven by raw emotion rather than rational voter behavior, yesterday's PPIC poll provides the final answer.

Most of the voter sentiment captured in the survey is unsurprising, given the sour economy, frustration over the state's chronic budget nightmares and anger over the recently enacted tax increases.

So it's easy to understand such findings as: 68 percent of Californians believe the state is headed in the wrong direction, 67 percent believe bad economic times are in store for the next 12 months, 47 percent are concerned that they or one of their family members will soon lose their job, and that majorities of Democrats, Republicans and independents disapprove of the performance of both Gov. Arnold Schwarzenegger and the Legislature.

In that sort of environment, it's probably an impossible task for state leaders to put before voters a complex set of ballot measures and say, "Trust us, this is what we need to fix the state budget problems."

Still, one of the poll's findings shows that some voters have allowed blind anger to overwhelm rational thought.

Consider Proposition 1D. It asks voters to authorize diverting tobacco tax money that is now set aside exclusively to fund early childhood development services, such as preschool and preventive healthcare. Under 1D, the money could be used instead to help fund general government services, such as operating schools, universities and prisons.

The tobacco tax was put into the books in 1998, the result of an initiative spearheaded by liberal Hollywood activist Rob Reiner. It carried the state by just 1 percent of the vote, and was defeated in nearly every Republican-leaning county in the state (Ventura County being an exception; it passed in Ventura County 50.8 percent to 49.2 percent).

For years in the Legislature, Republican lawmakers have complained that the revenues from Proposition 10 are being hoarded by independent county commissions, in some cases mismanaged, and in other cases being spent on frivilous programs of dubious merit. GOP legislators have said that, rather than even think of raising taxes, the state should try to get its hands on some of that Proposition 10 tobacco tax money.

As part of the February budget deal, Republican lawmakers got what they'd been asking for. Now all it will take to make it happen is an affirmative vote on Proposition 1D.

So what does the poll show? It shows that a majority (54 percent) of Democrats, who have long supported the idea of government-run preschool and other early-childhood interventions, are willing to vote yes and suspend much of the financing for these programs so that the state can use the money instead to pay for more traditional government services.

And what about Republicans, who never much liked Prop. 10 in the first place? A majority (56 percent) say they intend to vote no on Proposition 1D.

The state Republican Party, is its blind rage over the budget deal and tax increases, voted to oppose all the ballot measures. But individual conservatives such as Sen. Tony Strickland and his predecessor Tom McClintock have taken a more discriminating approach. While they oppose Proposition 1A, which is the source of conservative Republicans' ire over the ballot measures, they support 1D.

At this point, it appears a majority of Republican voters are going to go with the blind-rage approach.

A hometown advantage

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Ventura County Democrats sent me a notice today of their upcoming "Spring Fling," at which they promise the opportunity to meet California's "next attorney general."

Invited to the May 31 event in Oxnard are a half-dozen Democrats who have expressed interest in that job. But as even-handed as the county party attempts to be, it will be very interesting to see whether any of the bunch other than hometown Assemblyman Pedro Nava attends.

Give credit to Kamala Harris, for instance, if she comes down from San Francisco, or Assemblyman Ted Lieu if he comes up from Torrance.

On Obama's radar

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During the recent state Democratic Party convention, I had the chance to sit down and talk politics with former Controller and gubernatorial candidate Steve Westly.
As the co-chair of President Obama's California campaign last fall, one of the president's earliest supporters in the Democratic primary and a leading campaign fundraiser, Westly is probably as close to Obama's political team as any California politician.

So I found it noteworthy when Westly asserted that the Obama camp has an intense interest in California's 2010 gubernatorial campaign. The reason? With the national Republican Party in disarray and lacking any potential 2012 presidential candidates who would appear at this time to be formidable challengers, there is a concern that the 2010 campaign in California could produce one.

The two leading Republican contenders for governor, Steve Poizner and Meg Whitman, each have two qualities that could make them dangerous wild cards in the 2012 presidential calculus. Each is pro-choice, and each is a billionaire -- not necessarily in order of importance. And anyone who is elected governor of California instantly becomes a potential contender in the presidential politics of either party. If the GOP had a Californian on the ticket who could carry his or her home state, the Democrats' path to an Electoral College victory would become very tricky indeed.

Either Poizner or Whitman seems more threatening to the White House just now than, say, Louisiana Gov. Bobby Jindal or former Massachusetts Gov. Mitt Romney.

Westly indicated that the 2010 Democratic nominee in California can expect active support from the White House political team.

One other intriguing observation from Westly: He believes the odds of U.S. Sen. Dianne Feinstein running for governor are much higher than conventional wisdom indicates. Westly put the odds at 1 in 4.

Foy to speak to Castro lookalikes?

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Ventura County Supervisor Peter Foy of Simi Valley, who has been busy traveling the state rallying opposition to the May 19 special election ballot measures, is scheduled today to be a speaker at an "anti-socialism rally" in Pasadena.

The rally is sponsored by a group called the Pasadena Patriots. In its press announcement of the event, the group assails the ballot measures. "Pasadena Patriots want to draw attention to the real cost of this path to socialism, both in dollars and in liberty. The Pasadena Patriots encourages citizens to join the Pasadena May Day rally and fight for capitalism, a free-market, lower taxes, lower regulations, less government and freedom of the individual."

How serious are these guys? The group invites spectators to come to the event "dressed like your favorite communist dictator."

Speaking to Foy last week, I got a sense that his on-the-road speech against the ballot measures has become very polished and practiced. One of his standard lines is how, "In my county" there is a policy that whenever a program is funded by special one-time funding, it and the employees associated with are automatically terminated after the funding source dries up.

When he said that in an interview, I pointed out that he was speaking to his hometown newspaper, so it was probably all right to go ahead and say the name of the county he is referring to. Foy didn't miss a beat. He backed up, started the sentence, "In Ventura County," and then repeated the rest of the line word-for-word the way he said it the first time.

95 percent accurate
Over the last 25 presidential elections, Ventura County voters have backed the winner 24 times, or over 95 percent of the time. It is one of only a handful of counties in the nation that has been such a predictable bellwether.
about Timm Herdt
Timm Herdt
The Ventura County Star's Sacramento Bureau Chief Timm Herdt on state issues and politics from Sacramento to Ventura County. He can be contacted at therdt@vcstar.com
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