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An enduring symbol of UC Berkeley, Sather Tower, known as the Campanile
a new lawsuit designed to interfere with embryonic stem cell research funding under Proposition 71
On April 21, 2006, opponents of embryonic stem research funding measure Proposition 71, passed with 60% of the votes cast for or against it on November 4, 2004,
lost a lawsuit designed to shut down funding for the California Institute for Regenerative Medicine (CIRM) authorized under the provisions of that ballot measure. They are now appealing that decision in California's First District Court of Appeal.
As reported by
California Politics Today on June 26, 2006, in an article entitled
"They're baaaaaaaaack--National Tax Limitation Foundation and California Family Bioethics Council file suit against California State Controller Steve Westly and University of California President Robert C. Dynes to block transfer of $6.7 million in Proposition 71 embryonic stem cell research funding, on grounds of conflict of interest," the parties who lost and are appealing that case have now filed a new lawsuit against California State Controller Steve Westly and University of California President Robert C. Dynes (in their official capacities) on the grounds that an unlawful conflict of interest exists because nine members of the Independent Citizens Oversight Committee (which governs the CIRM) who are also employees of the University of California voted on September 9, 2005, to approve $6.7 million in funding for embryonic stem cell research training grants at the University of California.
California State Controller Steve Westly, who recently lost the statewide California Democratic primary to California State Treasurer Phil Angelides, who will face off against incumbent Republican Governor Arnold Schwarzenegger in November, responded, through a spokesperson, to the charges brought against him (in his official capacity) in his new lawsuit in a June 27, 2006,
California Politics Today interview included in an article entitled
"Spokesperson for California State Controller Steve Westly denies any conflict-of-interest or illegality in Controller's transmission of $6.7 million to the University of California under terms of Proposition 71 following approval of these funds by stem cell board ICOC with nine UC-affiliated members."
the legal question at issue: do UC employees at one UC campus have a conflict of interest if they vote on grants going to a different campus?
Since doing that interview with Controller Westly's spokesperson,
California Politics Today has spoken with Nicole Pagano, spokesperson for the CIRM; C. Scott Tocher, Interim Legal Counsel for the CIRM; and, through an intermediary, with Leon Thal, M.D., Chair of the Department of Neurosciences at the University of California, San Diego, and a member of the ICOC, about the conflict of interest issue raised in the new lawsuit being brought against Controller Westly and UC President Dynes.
Dr. Thal said that he recused himself from voting on embryonic stem cell research training grants to the San Diego campus of the University of California, implying that he did not, and did not feel he needed to, recuse himself from voting on the award of such grants to other University of California campuses.
Both spokesperson Pagano and Interim Legal Counsel Tocher, in conversations with
California Politics Today, indicated that it was the position of the CIRM that ICOC members associated with the University of California did not have a conflict of interest when voting to award grants to branches of the University of California other than their own.
a conversation with University Counsel Eric Behrens detailing the University of California's position on the ICOC-UC conflict of interest issue
California Politics Today spoke yesterday afternoon with Eric Behrens, University Counsel in the Office of the General Counsel in the Office of the President of the University of California about this issue.
During that conversation, Mr. Behrens said that the core question of the new case, whether there was a conflict of interest when a UC employee from one campus voted to fund a stem cell research training grant at another UC campus, had already been addressed, and decided, by Alameda County Superior Court Judge Bonnie Lewman Sabraw in the judgment she wrote in the earlier anti-Proposition 71 case, which she decided in favor of the CIRM on
April 21, 2006.
Mr. Behrens, speaking on behalf of University of California President Robert C. Dynes, a named defendant, along with
California State Controller Steve Westly, in
the new lawsuit being brought by Life Legal Defense Foundation Executive Director Dana Cody on behalf of plaintiffs National Tax Limitation Foundation and California Family Bioethics Council, said:
"Basically, Judge Sabraw, in her statement of decision, has already ruled that it is not a conflict of interest under the statute for a member of one University of California campus to vote on a grant for different University of California campus."
In support of this position, Mr. Behrens referred to
Section 125292.10 (j) of the California Health and Safety Code, which says that "all University of California grantee institutions shall be considered as separate and individual grantee institutions."
This provision, which would seem to resolve the issue of conflict of interest for associates of one UC campus voting to grant money to applicants from a different campus of the University of California, was added to the California Health and Safety Code by the passage of Proposition 71, and its inclusion in that document by its authors and proponents, chiefly ICOC Chairman and bond lawyer Robert N. Klein, can be seen as a clever and prescient pre-emptive action precisely targeted to defeat any conflict of interest lawsuit such as the new one now being brought against the CIRM.
Mr. Behrens said that the anti-Proposition 71 plaintiffs in the case decided on April 21, 2006, had asked Judge Sabraw to rule on the legality of the September 9, 2005, ICOC vote to grant stem cell training funds to the University of California, but, since they had not amended their original case to include that request, "she didn't rule on the training grants because that issue was not before her, but she did rule that there wasn't a conflict of interest in members of one University of California campus voting on grants to other University of California campuses."
Furthermore, according to Mr. Behrens:
"In her ruling Judge Sabraw, who had testimonial and documentary evidence in front of her, said, in part (on page 15) 'there is no evidence that…the ICOC members were making decisions on behalf of their employers, rather than as individual committee members.'"
breaking news from UC spokesperson about an up-coming legal step from California's Attorney General
During his conversation with
California Politics Today University Counsel Behrens revealed that on Monday, July 10, 2006, California Attorney General Bill Lockyer would be filing a motion with Judge Sabraw in Alameda County Superior Court, where she heard and decided the earlier anti-Proposition 71 case, seeking a preliminary injunction "to preserve the status quo in the case and to prevent another action from going forward while the original case-in-chief is on appeal."
That motion, Mr. Behrens said, would be based on the legal principle of "exclusive concurrent jurisdiction," and would argue against the consideration of this new case in a different court than the one in which the earlier case, which also included claims regarding conflict of interest in the award of Proposition 71 funds, had already been heard and decided.
He also said that there would not be a hearing on this motion on Monday because all parties involved in this new case had already agreed to postpone consideration in Judge Sabraw's Alameda County Superior Court of the motion for a preliminary injunction until July 24, 2006.
an update on the appeal of the case-in-chief
In the matter of the pending appeal of Judge Sabraw's April 21, 2006, decision upholding the constitutionality of Proposition 71, Mr. Behrens indicated that while Attorney General Lockyer had filed a motion with the First District Court of Appeal asking for expedited consideration of plaintiffs' appeal of that case, he hadn't asked that the case be transferred for immediate consideration of the California Supreme Court, where that case had originally been filed and sent down to Superior Court for consideration.
why all this matters
The $3 billion in embryonic stem cell bonds authorized by Proposition 71 and the California Stem Cell Research and Cures Finance Committee cannot be sold until the legal cloud of uncertainty generated by lawsuits against the measure has been dissipated by a final court decision.
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