From today’s Beyond Chron.

It’s depressing to think – after having just lost an expensive and exhausting campaign – that repealing Proposition 8 could mean going back to the ballot.  It is unfair and unjust that a slim majority of California voters took a fundamental right away from a minority, jeopardizing equal protection.  But the state Supreme Court heard oral arguments on the City Attorney’s lawsuit yesterday, and the signs were very discouraging.  Justice Joyce Kennard (who last year voted to grant marriage equality) was hostile to the case against Prop 8, and Chief Justice Ron George was skeptical.  Not that there isn’t any hope: perhaps the extreme arguments made by Prop 8 lawyer Kenneth Starr will inadvertently sway the Court into recognizing the measure’s dangerous effects.  But no one should expect the Court to repeal Prop 8.  Activists must get ready for a 2010 proposition campaign as the next available remedy, however deficient a political solution that would be.  We must learn from the colossal mistakes of the past campaign, and a new generation of activists will make it happen.

Unlike the federal Constitution – which can only be amended by a two-thirds vote of the U.S. Senate and a three-fourths vote by the state legislatures – California can change its constitution by a simple majority vote of the people.  The state distinguishes between an “amendment” and a “revision” (with the latter requiring a higher threshold), but there is very little case law to flesh out the details.  Generally speaking, an amendment tinkers around the edges of the constitution – while a revision has a more profound impact.  Prop 8 abolished a fundamental right for a protected minority group (i.e., gays and lesbians), when a core purpose of the Courts and the constitution is to protect minorities.  If that doesn’t have a profound impact, I don’t know what does – since no rights are sacred.

The legal grounds to overrule Prop 8 are sound, but that doesn’t mean the Court would do it.  Roe v. Wade didn’t just happen because an all-male Supreme Court woke up one day to discover that women have a constitutional right to choose.  A mass movement worked for years to make this inevitable.  A political movement is necessary to overturn Prop 8, giving judges the “space” to do the right thing.  Even then, the courts are an inherently conservative institution that shy away from controversy – and rely heavily on caution, tradition, legal and historical precedent.

Shannon Minter of the National Center for Lesbian Rights (NCLR) had barely started his oral argument yesterday morning, when Chief Justice Ron George interrupted.  “Are you saying the passage of Prop 8,” said George, “also took away – beyond the label of marriage – the core of the substantive rights of marriage?”  Minter gave an admirable response, but the question wasn’t a good sign.  George had written the marriage decision that argued the term ‘marriage’ was essential to enjoying its rights and dignity, but now he was parsing it out as just a word.  And he’s the “swing” vote on the Court’s 4-3 split.

Associate Justice Joyce Kennard – who had also supported the Court’s marriage decision – then piled on, maintaining an adversarial tone throughout the three-hour proceeding.  “What Prop 8 did was take away the label of marriage and its applicability to same-sex couples,” she said, “but it left intact our holding that sexual orientation is a suspect class.  Is it still your view the sky has fallen in and gays and lesbians are left with nothing?”

By far the most revealing exchange was when Deputy City Attorney Therese Stewart began to mention Kennard’s opinion last year.  Kennard cut her off, became extremely defensive and said: “in the Marriage cases, the Court was asked to do what it normally does – interpret a statute.  Here, we have a body of case law that talks about amendments and revisions.  We are talking about the power of the people – an inalienable right.”  The right of voters to change the Constitution was Kennard’s main concern throughout the arguments.  “How can the court willy nilly disregard the will of the people,” she asked.

Kennard also zeroed in on the precedent of an earlier case, where voters were allowed to restore the death penalty by passing a constitutional amendment – after courts had thrown it out as cruel and unusual punishment. “It would appear to me,” she stated, “that life is a fundamental right.”  But unlike equal protection or fundamental rights, the definition of cruel and unusual punishment is “public standards of decency” (i.e., will of the voters.)  As attorney Raymond Marshall said, “cruel and unusual punishment is unique because it’s an issue that can be decided by the people.”  He also added that voters did not single out a suspect class to receive the death penalty, and the matter still has judicial review.

Chief Justice George repeatedly focused on two points throughout the oral arguments, which don’t bode well for the result.  When Shannon Minter explained how rights cannot be taken away by mere amendments (because an amendment must be consistent with the Constitution’s general principles), George characterized that logic as a “one-way street.”  How can an amendment extend rights, he asked, but then not take them away?  He also repeatedly asked if the problem was with how California changes its constitution, and that maybe the amendment process could just be changed – a “political solution.”

As I stood in Civic Center Park to watch the proceedings on a satellite video, George’s skeptical queries – peppered with Kennard’s “questions” that were actually long-winded statements – gave me a sinking and depressing feeling that we were going to lose.

If there’s a glimmer of hope, it may be from the other side’s presentation.  Kenneth Starr (of Monica Lewinsky fame) gave the oral argument for upholding Prop 8, and blurted out a few legal points that – if drawn to their conclusion – would create an awful precedent.  By arguing that Prop 8 could not be overruled, he said: “the people are sovereign … even if unwise.  And they can tug at equality.”  In other words, no protections for minorities are sacred – as long as a majority of the voters choose to enshrine it in the constitution.

Can the Court reconcile the precedent of upholding Prop 8, with Ken Starr’s notion that we can “tug at equality”?  When asked if rolling back domestic partnerships for gay couples would also be a valid use of the initiative process, Starr said it would be an “acceptable amendment” – which may have disturbed some of the Justices.  It was clear from oral arguments the Court will not go along with Starr’s request to invalidate the 18,000 marriage licenses of same-sex couples who wed before the passage of Prop 8, but how can they recognize it as a valid amendment without incorporating Starr’s logic?

Don’t count on the Supreme Court to do the right thing – certainly not after today’s oral arguments.  If we’re going to win back marriage equality, it may have to be at the ballot box in 2010 – after an organized, grassroots effort collects signatures and then passes a constitutional amendment to repeal Prop 8.  Everyone agrees that “No on 8” ran an awful campaign, and a whole new crop of activists who felt alienated by its top-down structure are coming out of the woodwork to create a better future.  The trick is to keep that energy going.

What’s amazed me is how many groups organically sprouted out of Prop 8’s passage.  Join the Impact is still going on strong, and One Struggle, One Fight is planning a March to Sacramento at the end of the month.  The Courage Campaign is building the grassroots infrastructure we’ll need to run a successful statewide campaign, and a new group – And Marriage for All – is doing the critical outreach to communities of color.  And I’d be remiss not to acknowledge what Marriage Equality USA and Molly McKay has done for years, cultivating a network of grassroots chapter leaders through the state.

I won’t lie.  The prospect of having to wage another statewide electoral campaign for me is overwhelming, exhausting and depressing.  The lawyer in me still yearns for “justice in the courts,” with a majority of Justices concluding Prop 8 was not a proper amendment.  It would make those right-wing blowhards explode, because we’d have marriage equality in this state for good – and they could never take it away at the ballot box again with lies and distortions.  But I know that if we must go back to the voters, we’ll never walk alone.  A whole new army of allies have joined us, and this time we’re determined not to lose.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.

(full disclosure: I work for the Courage Campaign)

News broke Tuesday that the California Supreme Court will hear oral arguments on March 5, and will then make a decision within 90 days on the validity of Prop 8 and the 18,000 marriages that took place last year before the election.

When Ken Starr’s legal brief, on behalf of the Prop 8 Legal Defense Fund went public in December, the Courage Campaign immediately launched the “Don’t Divorce…” campaign, asking our members to send us pictures with a simple message for Starr and the Prop 8 Legal Defense Fund.

Those pictures, and the heartfelt messages on them, inspired Calitician and all around great guy Paul Delehanty (kid oakland) to send us a suggestion: Would Regina Spektor allow us to put your pictures to the words and music of her hit song “Fidelity”? So, we asked her and she very enthusiastically said yes.

Regina Spektor’s song, in concert with the pictures, shines a beautiful light on the 18,000 couples that Ken Starr wants to forcibly divorce.

Watch “Fidelity” and then tell the Supreme Court not to divorce 18,000 California couples. Tell the Court to invalidate Prop 8, reject Ken Starr’s case, and let loving, committed couples marry.

Sign the letter to the Supreme Court here.

From today’s Beyond Chron.

When SF City Attorney Dennis Herrera sued last week to overrule Proposition 8, I didn’t expect him to prevail – as much as I appreciated him trying.  As wrong as it sounds, the initiative process allows a bare majority of California voters to change our state constitution – and with other states having passed similar marriage amendments, I couldn’t see how the courts would repeal it.  But after having read Herrera’s well-written brief and done some legal research, I am now more optimistic that justice will prevail.  Prop 8 was not your typical “amendment” that merely tinkers with the California Constitution.  It was a drastic revision that deprives a “suspect class” (gays and lesbians) of a fundamental right under equal protection.  And a simple majority vote of the people is not enough to take that right away – especially when the purpose of equal protection is to shield minorities.  While other courts have upheld marriage amendments in other states, they have different Constitutions – and court rulings have changed considerably in a short period of time.  And unlike many states, California has explicitly found sexual orientation to be a “suspect class.”  If the Court overrules Prop 8, it will be a powerful affirmation for justice – capping what has been a powerful year of “change.”

It’s been hard for me to be happy about last week’s Election results – despite Barack Obama’s landslide victory, a more progressive Congress and a good night locally for San Francisco progressives.  People are angry and depressed about the passage of Proposition 8 – because unlike other states where gay couples had no marriage rights, here the right has just been stripped away.  And if there was one state where we felt we could defeat such an amendment at the ballot box, it would be California.

It doesn’t seem right that a bare majority of voters can change the Constitution by taking away peoples’ rights.  The purpose behind California’s initiative process was to allow voters to pass laws when the state legislature wouldn’t act – giving the “power of the people” a sovereign role.  But even a Constitutional amendment just requires a majority vote – with the only “protection” being a higher signature threshold than an initiative statute.  However, as Mayor Gavin Newsom said after Prop 8 passed, “protections in the Constitution have always been there to respect the rights of the minority versus popular opinion.”

Amending the federal Constitution is far more difficult than the California Constitution – as we don’t have a federal initiative process, and you need a two-thirds vote of the U.S. Senate and three-fourths of state legislatures to ratify it.  The Federal Marriage Amendment that George Bush championed in 2004 was never about amending the Constitution – because the right-wing couldn’t realistically get a supermajority to make it happen.  It was just a political ploy to get Bush re-elected.  Karl Rove knew a majority of the country doesn’t support gay marriage, making it the perfect “wedge” issue to accomplish a short-term goal.

Likewise, Massachusetts has a higher threshold for changing its Constitution.  You can’t just gather signatures and then let the people decide – the state legislature has to formally vote to put it on the ballot.  After the Massachusetts Court ruled for marriage equality in 2004, the right wing tried to launch a Constitutional amendment.  But the Democratic state legislature refused to put it on the ballot – and as more and more gay couples got married (and people saw that the sky didn’t fall), public opinion evolved to support it.

But Dennis Herrera’s lawsuit on behalf of the City and County of San Francisco – which Santa Clara and Los Angeles Counties have now joined – highlights a critical distinction in California’s Constitution that gives me hope.  Even if voters pass a Constitutional Amendment, the courts can still decide if it was merely an “amendment” – or a substantive “revision.”  And if it was a “revision,” voter approval by a simple majority is not enough – it also requires an okay by the state legislature (which probably wouldn’t happen), or a constitutional convention.  Why the distinction?  Because mere “amendments” tinker around the edges; “revisions” are far more fundamental changes.

And the Courts have thrown out such changes to the Constitution as “revisions” under the right circumstances.

In June 1990, California voters passed Proposition 115 (the Crime Victims Justice Reform Act) – a conservative “law-and-order” measure that said certain criminal defendants would not have more rights than provided by the U.S. Constitution.  Prop 115 had passed as an amendment, but the state Supreme Court called it a “revision.”  Why?  Because, in Raven v. Deukmeijan (1990), they said Prop 115 had “such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.”  Prop 115 adversely affected a defendant’s right to due process, equal protection, assistance of counsel, and the standards for “cruel and unusual punishment” – which effectively made it a “revision.”

Likewise, Prop 8 is a drastic “revision” (if not moreso) because it violates equal protection for a minority group.

Last May, the California Supreme Court found that depriving same-sex couples the right to marry violated equal protection – and that LGBT people are a “suspect class.”  A “suspect class” is a group that has suffered discrimination and needs protection.  The central purpose behind equal protection is to protect unpopular minorities from a political majority who could take away their rights.  You can’t simply change the Constitution by majority vote to take away the right of gay people to marry – because that right comes from the equal protection clause.  As Herrera wrote in his brief, “without a judiciary that has the final word on equal protection, there simply is no such thing as equal protection.”

Of course, not all Constitutional amendments are “revisions.”  California’s term limits law, for example, significantly altered how long members of the legislature can stay in office – but it did not violate the foundational nature of our Constitution.  Even a Proposition that said the death penalty was not “cruel and unusual punishment” (which, like in this case, overruled a Supreme Court decision) was deemed acceptable – because one of the standards for determining what is “cruel and unusual” punishment is public opinion.  On the other hand, what do you do when the people pass an amendment that violates the fundamental rights of a minority?

What if in the aftermath of September 11th, California voted to change its Constitution to require all Muslims to travel with passes?  What if California – afraid that undocumented workers were “invading” the state – voted to expel Latino kids from school, or deny them medical treatment?  That would violate equal protection, but would it be constitutional just because proponents gathered the minimum number of signatures necessary so that it was a “constitutional amendment” (rather than a statute)?  It isn’t hard to see that, without some safeguards in place, our state’s equal protection clause can become Swiss cheese.

Granted, I was at first skeptical that Prop 8 could be found unconstitutional – because after all, a lot of other states have passed similar marriage amendments through the initiative process.  Hasn’t this been tried before, and weren’t those amendments upheld?

Yes, but the facts are distinguishable.  Alaska’s voter-approved amendment, for example, was upheld – but Alaska can’t just change its constitution by collecting signatures and having a bare majority of voters approve it.  Like Massachusetts, you need two-thirds of the legislature to put it on the ballot – which makes Alaska’s “amendments” the functional equivalent of a “revision” in California.  So it has some minimal safeguards for initiatives that California does not have.  Moreover, Alaska’s Constitution does not recognize LGBT people to be a “suspect class” – so the violation under equal protection was harder to prove.

In Oregon, however, the state Supreme Court upheld its marriage amendment – and even rejected the notion that it was a fundamental “revision” to their state’s Constitution.  But that ruling, Martinez v. Kulongoski (2008), was flawed – and our state Supreme Court would be wise not to follow it.  In Martinez, the Oregon Court almost exclusively relied on a decision from 1994 that found an anti-gay measure to be an “amendment” rather than a “revision.”  If you read the case, it actually gave the subject short shrift.

But a lot has changed in the field of gay rights since 1994 – as far as court rulings are concerned – that should influence the Prop 8 ruling.  In Romer v. Evans (1996), the U.S. Supreme Court threw out a Colorado proposition that repealed anti-discrimination laws protecting gays and lesbians – because they said hate is not a “rational basis” for violating equal protection.  In Lawrence v. Texas (2003), the U.S. Supreme Court overturned Texas’ sodomy ban – because the right to privacy extends to consensual sex (it also said you can’t make it illegal for gay people while making it legal for straights.)  The Martinez court ignored both cases.

Finally, California’s marriage ruling on May 15th was not just remarkable for granting marriage rights to same-sex couples.  The most important part of the decision was that gays and lesbians were deemed a “suspect” class – and discrimination based on sexual orientation must pass strict scrutiny.  Even if voters later passed Prop 8 to eliminate the right to marry, the other parts of the decision stand – meaning that to discriminate against gays violates equal protection of the highest order.  The Supreme Court must overrule Prop 8 – asserting that a simple vote of the people just can’t do it.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006. He is an attorney licensed to practice law in California.

Cross-posted with Beyond Chron:

Yesterday’s decision by the California Supreme Court was historic because it set a huge precedent.  Not because the Court found the ban on same-sex marriage similar to earlier bans on interracial marriage, nor because it said domestic partnerships are inherently unequal.  What really mattered is that the Court ruled sexual orientation a “suspect class,” which means that all laws that discriminate on that basis must now pass strict scrutiny – a crucial step forward in the rights of LGBT people.

But same-sex couples in California still lack the federal benefits of marriage that straight people take for granted – like Social Security and immigration – because the Defense of Marriage Act (DOMA) precludes them from doing so.  Marriage equality supporters must defeat a constitutional amendment in November that would repeal the Court’s ruling, but they also need a President Obama.  If DOMA gets repealed in 2009, gay couples in California will finally be equal in the eyes of the law.

After the Supreme Court heard oral arguments in March on whether the state’s marriage law is unconstitutional, most legal observers predicted that the Court would uphold the ban on same-sex marriage.  If California’s Domestic Partnership Law offers many of the same legal rights as marriage, how are same-sex couples harmed by not getting married?

The Court answered this question by ruling that the term “marriage” is a necessary part of that constitutional right.  By framing the right to marry within the right to have a family, families of same-sex couples must be accorded the same “dignity, respect and stature” as other families enjoy. Offering the “historic and highly respected designation of marriage” only to straight couples – while giving gay couples “the new and unfamiliar designation of domestic partnerships” presents a “serious risk” of denying them such stature.

It’s what gay marriage supporters have argued for years, and is similar to the “separate is unequal” argument made by the Massachusetts Supreme Court in 2004.  But while that was a victory for California, it wasn’t the best part of yesterday’s ruling.

California’s law defining marriage as being between “a man and a woman” discriminates against gay couples – but to strike it down a court would have to rule that it violates equal protection.  If a law discriminates against a “suspect class” – like race, gender, religion or national origin – it must pass “strict scrutiny.”  In other words, the law is presumed to violate equal protection – unless the state can prove that it serves a compelling public interest, and is narrowly tailored through the least restrictive means toward that end.

But the courts have not recognized sexual orientation as a suspect class – so laws that discriminate against gays and lesbians have been upheld on “rational basis” grounds.  That means a law does not violate equal protection as long as the court can find some intelligible argument for why it makes sense.  New York, for example, upheld its ban on gay marriage through the “rational basis” test – its high court said the state had a greater interest in marrying straight people because they might accidentally have kids.

For decades, LGBT advocates have gone to Court and argued that laws discriminating against them are “gender discrimination.”  Hawaii’s landmark decision in the mid-1990’s on gay marriage was argued on this basis, and S.F. Superior Court judge Richard Kramer originally ruled in the present case in favor of marriage equality on the basis that it was sex discrimination.  The reason for taking this route was strategic: the courts have long considered “gender” to be a suspect class – but not “sexual orientation.”

Yesterday’s decision was historic because it ruled “sexual orientation” a suspect class.  I predicted this might happen when I read the Appellate Court decision in October 2006, where the lower court actually laid out what are the “necessary” elements of a suspect class: (a) the group has historically been oppressed, (b) the trait does not relate to a person’s value to society, and (c) the trait is immutable – i.e., cannot be changed.

Back then, the Appellate Court agreed that sexual orientation fit the first two categories – but said that they lacked evidence to conclude the third point.  At the time, I urged gay marriage advocates in Beyond Chron to give the Supreme Court ample factual evidence that sexual orientation is an “immutable trait” – and that if successful, the Court would have no choice but to strike the ban on same-sex marriage.

But the Supreme Court ruled that it didn’t matter if sexual orientation is “immutable” – because that’s not a necessary element of a suspect class.  “A person’s religion,” said the Court, “is a suspect class for equal protection purposes – and one’s religion is a matter over which an individual can control.”  The Court added that one can cease to be an alien (which is also considered a “suspect class”) by applying for U.S. citizenship.

Treating sexual orientation as a “suspect class” is a breakthrough for gays and lesbians in achieving their rights that will go beyond yesterday’s marriage decision.  In the future, any state law in California that discriminates on the basis of sexual orientation must pass “strict scrutiny” – just like laws that discriminate on race, gender, religion or alienage.

San Franciscans were in a festive mood yesterday – after having waited 4 years for this outcome – but the practical legal effect on gay couples is rather minimal.  That’s because California Domestic Partnerships already gave same-sex couples most of the legal rights of marriage.  Moreover, California’s Supreme Court could only require that the state let gay people marry – without extending any marriage rights under federal law.

And the Defense of Marriage Act (DOMA), which President Bill Clinton signed in 1996, explicitly says that same-sex couples cannot enjoy any federal rights – such as Social Security benefits, immigration laws that allow you to sponsor a foreign spouse, and the right to file a joint federal tax return.  Even Massachusetts, where gay couples have had the right to marry since 2004, does not have complete marriage equality for this reason.

But a President Barack Obama – along with bigger Democratic majorities in both houses of Congress – could change this after the November elections.  Obama has pledged to fully repeal DOMA, whereas Republican John McCain would not.  There will certainly be a fight in Congress, so marriage equality advocates must focus on the various House and Senate races in November – to ensure that a Democratic Congress will make it possible.

Meanwhile, the extreme right in California will put a constitutional amendment on the November ballot to prohibit marriage equality.  Because yesterday’s Court ruling was based on the California Constitution – not the U.S. Constitution – passage by the voters would effectively repeal the Supreme Court’s decision.  Therefore, much is at stake this November – and marriage equality supporters must mobilize now to defeat the initiative.

Yesterday’s court ruling was historic – and has created an exciting new precedent for gays and lesbians in California.  But we now run the risk of losing in November at the ballot box – and we still need to repeal DOMA at the federal level to get full marriage equality.  Defeating the initiative and repealing DOMA are both doable goals.

EDITOR’S NOTE: Paul Hogarth was a law school intern at Equality California during the summer of 2005, and got his J.D. from Golden Gate University in 2006.  He is an attorney licensed to practice law in California.

An amazing thing happened this week.  The Supreme Court, by a 7-2 margin, ruled that federal judges have the leeway to reduce sentences for possession of crack cocaine relative to powder.  The disparity in sentencing, which has significant racial overtones, has long been unconscionably unfair.  And get this: the US Sentencing Commission unanimously decided to make the guidelines retroactive which could result in thousands of convicts who were unfairly sentenced to be released.

See, there’s a national sentencing commission that reviews information and makes recommendations based on logic and common sense, taking the hot-button issue of sentencing out of the political sphere.  Yet here in California, we have been stymied at any effort to create such a sentencing commission, and all sentencing legislation moves in the direction of being more punitive rather than less.  This is how our jails have become clogged with so many nonviolent offenders, who in the overcrowded environment without proper treatment and rehabilitation often return to jail more violent than when they got there in the first place.  The executive branch of this state knows this, yet they refuse to reveal their documents and communications that would confirm it.  

States have the ability to break free from the “tough on crime” box and actually change the tilt in favor of jailing more and more citizens for longer and longer periods.  Heck, in New Jersey this week they voted to ban the death penalty.  But the only way to see any early prison releases in California is when the state miscalculates their sentences.

more…

Up to 33,000 prisoners in California may be entitled to release earlier than scheduled because the state has miscalculated their sentences, corrections officials said Wednesday.

For nearly two years, the overburdened state prison agency has failed to recalculate the sentences of those inmates despite a series of court rulings, including one by the California Supreme Court. The judges said the state applied the wrong formula when crediting certain inmates for good behavior behind bars.

Some inmates released in recent months almost certainly stayed longer in prison than they should have, said corrections officials, employees and advocates for prisoners. Some currently in prison most likely should be free, they said. But many whose sentences are too long are not scheduled to be released for months or years.

The inmates in question — 19% of the state prison population — are serving consecutive sentences for violent and nonviolent offenses. The sentencing errors range from a few days to several years.

Corrections officials say they have been unable to calculate the sentences properly because of staffing shortages and outdated computer systems that force analysts to do the complex work by hand.

This directly results from the overcrowding crisis.  An overburdened corrections industry cannot keep up with the processing given the meager resources they have.  This ends up costing the state more – approximately $26 million annually – than what it would cost to put the proper resources in place, particularly if you factor in the possibility of lawsuits from inmates, as we are now seeing in other respects.

Fixing miscalculations is a step.  But until you have the courage and fortitude to address the root causes and meet the same responsibilities that even the federal government has decided to meet, nothing will change.

P.S. There are pending mandatory minimum sentencing bills in the federal government, which would fix the crack/powder sentencing disparity even further.  It won’t surprise you at all that the version of the bill that Dianne Feinstein supports is completely insufficient to deal with the problem.

I saw Bill Maher on Friday in an interview with former Mexican President Vicente Fox, lamenting that Bill Clinton and Arnold Schwarzenegger wouldn’t be able to face off as Presidential candidates due to Constitutional violations.  “Isn’t that sad,” he said.  For all his conceits as a free thinker, Maher represents a kind of baseline Hollywood groupthink when it comes to Arnold, reading the headlines and the magazine covers but never bothering to uncover the whole story.  That story can be easily divined from this weekend’s veto massacre.  In addition to stopping the California DREAM Act, he vetoed needed legislation for the state’s migrant farm workers, allowing them to organize through a “card check” system.  He even disabled a bill that would have added a sunset clause to the card check system, making it ever harder for them to organize and support themselves and their families.  Here’s another bill that went down the drain:

On Saturday, another bill was vetoed, AB 377, by Assemblymember Juan Arambula (D-Fresno). It would have required an employer who is a farm labor contractor to disclose in the itemized statement furnished to employees up to five names and addresses of the legal entities that secured the employer’s services.

According to the sponsor of the bill, the California Rural Legal Assistance Foundation more than 40,000 California farms grow fruits and vegetables on almost four million acres in this state, so it is not surprising that a 2006 survey of Central Valley farm workers found that 70% could not identify the name of the farm they were working on.

The same survey found that 56% had not been paid the minimum wage when working on a piece rate; 31% had not been paid all the overtime they were owed; and that 42% had unexplained deductions made from their pay. Between 60% and 80% of harvest work is done by labor contractors. Without being able to readily identify the farm who hired the contractor, enforcement actions against the contractor are unlikely to either make the worker whole for wages owed or to have any deterrent effect at all against a grower who shares legal responsibility for the contractor’s labor law violations.

So while Governor Schwarzenegger told the hundreds of farm workers who were at the Capitol in September that he was supportive of their goals, in the end, he vetoed these bills and sided with agribusiness.

Indeed, this is part of a persistent pattern by the Governor to make life harder for working families while protecting the corporate interests that helped get him elected.  Far from a governor of the people, he is simply a corporatist who has the backs of the elite.  Because we don’t have a functioning political press, this contempt for the average Californian will probably not make it too far off the blogs and insider political circles.  But they have real-world consequences that people will only discover when they are put in the situation that legislation could have covered, and they aren’t likely to connect the dots.  A sampling of the pro-worker legislation that was vetoed:

• SB 549 (Corbett)-this bill would have protected the job of a worker taking time off to attend to the funeral of a family member.

• SB 727 (Kuehl)-this bill provided that employees covered by family temporary disability insurance (FTDI) could take the leave to care for a grandparent, siblings, grandchildren and parent-in-law.

• AB 537 (Swanson)-this bill expanded the definition of family under the California Family Rights Act (CFRA) to allow eligible workers to take job-protected leave to care for a seriously ill adult child, sibling, grandchild, or parent in law.

• AB 435 (Brownley)-this bill would have addressed harsh limitation periods on bringing certain wage discrimination claims. These claims are frequently brought by working women who have been underpaid relative to their male counterparts, and many of these women are struggling to raise kids in single parent situations.

• AB 1636 (Mendoza)-this bill would have expedited a job retraining voucher to disabled workers unable to return to their former jobs; workers such as these are struggling to adapt to replace the income needed for the family to survive.

• SB 936 (Perata)-this bill would have increased the benefits paid to permanently disabled workers over a 3 year period. Since 2004 these workers have seen their benefits slashed by 50% or more according to studies by University of California researchers. At the same time, insurer profits have exceeded all benefits paid to or on behalf of disabled workers; it’s a concept that is clearly not family-friendly. The families and kids of disabled workers suffer as they struggle to keep pace with the financial devastation of injuries.

AB 435 is the state version of the Lily Ledbetter Pay Act, attempting to remedy a horrible Supreme Court decision from earlier in the year.  So Arnold is putting himself squarely in the position of Antonin Scalia, Clarence Thomas, John Roberts and Smuel Alito.  This is our post-partisan “leader.”

Furthermore, he vetoed meaningful health care reform in AB 8, and put forth flawed legislation of his own that has no chance of coming out of the legislature, partially financed by the stupid, shortsighted practice of leasing the lottery to private interests.

I’d like to say that there’s an “on the other hand,” a couple bills Arnold allowed through that provide aid or comfort to the working class.  But on these issues, he comes down squarely on the side of his corporate buddies.  It feels like spitting into the wind to keep noting this.  Maybe someday Bill Maher won’t have a big-time TV show, he’ll be working for his own retirement, and he’ll realize that he’s been screwed by this Administration.  But I wouldn’t bet on it.

In a decision handed down today, the California Supreme Court ruled that public employee salary information should be public information. The case pitted all sorts of interests against each other.

Flip it…

Basically, law enforcement officials argued that they didn’t want their data public for safety reasons. On that limited exception, when reasonably necessary for public and private safety, the data remains secret. Otherwise, it’s all public.  Interests as diverse as the ACLU and the Howard Jarvis Tax Payers Assoc. filed briefs supporting the release of information along side the Contra Costa County Times and all of the state’s daily newspapers.  On the other side were powerful public employees unions, specifically law enforcement unions like the California Correctional Peace Officers Association (CCPOA).  The CoCo Times has a expectedly-biased report:

The decision is a defeat for the public employee unions that had appealed a 2004 decision of an Alameda County Superior Court judge who ordered the records released.

“Despite the wrong-headed and persistent opposition of public employee unions, the court has reaffirmed a basic tenet of American democracy. that public business must be conducted in public,” said John Armstrong president and publisher of the Times.

The Times attorney Karl Olson said the decision upholds the long-held premise that salary information is public and it overrules a 2003 appellate court decision that governments have cited to blocking access to salary data.

Now, I’m generally for transparency in government. It’s important. Generally. However, the competing privacy rights and the interest of some officers in safety must be balanced against that. It is surely difficult to draw a bright line and say, boom, this is the category of public employees that should be released.  So, the Sup. Ct. is hoping that erring on the side of disclosure is the way to go. I suppose that’s cool, as long as you don’t work for the city, huh?

That being said, the public has a tremendous interest in this information. It reveals how well the city is managing its finances, it reveals the power structure of the government, particularly unelected officials.  This is all important data for those who regularly watch government (like, um, us). In my mind this data should be in the public domain.

I know there are some people who might see it the other way, so I welcome your comments…