California’s Attorney General (AG), elected every four years, is the chief law officer in the state, charged with ensuring that the state laws are “uniformly and adequately enforced” as the state’s constitution stipulates. Under the leadership of the attorney general, the Department of Justice (DOJ) and its programs fulfill this responsibility, providing legal service on behalf of the people of California. The AG represents the people before state courts and serves as legal counsel to California officials, boards, departments and agencies, while the DOJ assists in all these endeavors.  The DOJ also coordinates statewide efforts in narcotic law enforcement and assists local police in crime investigations with information, telecommunication services, and data processing for law enforcement agencies.

The Office of the Attorney General was established in 1850, and has evolved to handle law enforcement in the state, mirroring the changes in the state itself. In 1850, California was a fairly wild place, populated by gold-seekers who drove away or abused the native population and set up systems of—at best—vigilante justice. In fact, the first few AGs in the state, up to the Jo Hamilton’s first term in 1867, used a “gun-slinging, punch-throwing” approach, according to the AG’s own website.

Over the years, the office has expanded to meet the law enforcement needs of the state, and to represent and protect the interests of California’s citizens. Early on, in the 1850s, the OAG responded to laws passed by the Legislature involving regulation of businesses by becoming involved in corporate oversight and tax matters.

In 1940, the department started a prescription monitoring program, the first in the nation, to control the distribution of drugs like morphine. The department, under the leadership of Robert Kenny (1943-1947), remodeled itself to more closely resemble the U.S. Department of Justice from a service standpoint. He moved the main office to Sacramento from San Francisco to be in closer proximity to state agencies and the Legislature. And he substituted civil service positions for political appointments to positions like deputy attorneys general and special agents.

In the 1950s, future governor Edmund G. “Pat” Brown, Sr., initiated statistical crime review and established the Citizens Advisory Commission on Crime Prevention. His successor, future state Supreme Court Justice Stanley Mosk, created new divisions in the AG’s office to handle anti-trust, constitutional rights, consumer fraud and investment fraud investigations. Mosk also sponsored, and later enforced, tough laws dealing with diploma mills.

In the 1970s, the OAG assumed responsibility for environmental protection to enforce the California Environmental Quality Act. In the early 1980s, future governor George Deukmejian introduced a computerized index of consumer complaints and launched a pilot program to test a computerized system to identify criminal suspects by comparing fingerprints. Under his direction, the AG’s office took an aggressive stance to help eradicate California marijuana fields, and uphold the “use-a-gun-go-to-prison” law.

During Attorney General John Van de Kamp’s tenure (1983-1991), the department created a Public Rights Division that emphasized consumer protection and enforcement of environmental, anti-trust and civil rights laws. The renamed Bureau of Medical fraud was reorganized and expanded, and a Correctional Law Section was created within the Criminal Law Division. The department modernized its scientific and technological resources, which included development of the Cal-ID Program.  

The department, under the direction of Attorney General Bill Lockyer at the turn of the century, ramped up its efforts in areas of environmental protection, anti-trust, consumer protection and civil rights, re-establishing the Civil Rights Enforcement Section.

History, Office of the Attorney General Website (OAG website)

The Attorney General of California is the state’s chief law enforcement official, representing the people in criminal and civil matters in court. The AG also serves as legal counsel to California’s state officers, agencies, boards, and commissions, with a few exceptions. In addition, the OAG’s Division of Law Enforcement assists other law enforcement agencies on the local, state, federal, and international levels. It coordinates narcotics law enforcement throughout the state, helps in criminal investigations, and provides forensic science service, telecommunications support, and identification and information services.

The OAG operates programs to protect the state’s citizens from illegal activities and fraud, and other programs that safeguard the public safety.

The OAG regulates charities and fundraisers. It also publishes crime statistics and the office’s legal opinions. It maintains a Civil Rights Section, a Victims’ Services Unit with links to Marsy’s Law, and a Missing Persons Unit. In addition, the OAG makes available information via the web about Domestic Violence, Consumer Protection—with fraud alerts and links to filing a complaint, Protecting Children and Seniors, with links to Megan’s Law sites, and elder abuse, open government and public records. A list of all the programs, tools, and databases in the state Department of Justice is on their website.

The Department of Justice has a number of major divisions and bureaus.

Division of Administrative Support prepares the department’s budget, provides a wide range of technical support, manages the department’s facilities, consults on personnel matters and houses the Director’s Office.

Division of California Justice Information Services has seven organizational units providing intelligence, information and technology to law enforcement, regulatory agencies and the public.

Division of Civil Law has sections that defend state employees in tort lawsuits, handle condemnation actions, represent the three major state taxing agencies, give advice and represent the state’s seven elected constitutional officers, defend the state in major employment litigation, represent the state on horse racing and lottery issues, represent licensing entities in administrative and trial court proceedings, bring disciplinary actions in health quality cases, and represent the public agencies in health, education and welfare matters. 

Division of Criminal Law includes sections that handle post-conviction proceedings, Medi-Cal fraud, elder abuse, Native American affairs, civil rights actions involving state prisoners, and special crimes involving large-scale, investment and financial frauds.

Major sections within the Division of Law Enforcement include the Bureau of Narcotic Enforcement,  whose focus is major drug dealers, violent career criminals, drug manufacturers and prescription drug law violators, and the Bureau of Forensic Services,  the scientific arm of the Attorney General’s Office that assists the criminal justice system. It collects and analyzes evidence from crime scenes, and provides scientific forensic information to state and local law enforcement agencies, attorney and courts.

Major sections within the Division of Public Rights include the Corporate Fraud Section, which brings complex prosecutions in cases involving California’s energy crisis, securities and commodities fraud and the underground economy, among others. Its sections also include Natural Resources, Environment, Land Law, Antitrust, Consumer Law, Charitable Trusts, Civil Rights Enforcement, Indian Gaming Law, Tobacco Litigation and Enforcement and Corporate Fraud.    

Bureau of Firearms provides education and enforcement actions regarding the sale, manufacturing, ownership, training and transfer of firearms.

Bureau of Gambling Control conducts investigations of those applying to the state for gambling licenses and ongoing inspections of gambling operations. It reviews and approves rules of gaming in California cardrooms and registers non-profit organizations and suppliers of gaming equipment involved in charity fundraising.

Bureau of Investigation & Intelligence investigates “the worst of the worst,” including acts of terrorism, child exploitation, organized crime, and officer-involved shootings. It also provides witness/family protection.

Services and Information (OAG website)

About a third of DOJ funding comes from the state’s General Fund and the rest is from special funds. The money is spent on salaries and supporting the 96 statewide facilities, which include 11 forensic labs, 6 legal offices, 31 storage locations, 2 aircraft hangers, and 46 other locations.

Roughly half of its $732.2 million budget in 2011-12 was earmarked for legal services, a third was for law enforcement, a fifth was for California justice information services and the rest covered administrative costs.

2011-12 Budget (Ebudget)

3-Year Budget (pdf)

Proposition 8

The California ballot measure that banned same-sex marriage in 2008 has followed a long, tortuous path through the legal system, with the state attorney general’s office involved, but not involved, most every step of the way.

After the voters approved the ban, opponents sued in federal court to challenge its constitutionality. Proponents demanded that Attorney General Jerry Brown and Governor Arnold Schwarzenegger defend the new state law in the Federal District Court of the Northern District of California, but both thought the law unconstitutional and declined. The judge allowed proponents of the law to defend it and they were spectacularly inept in making their case.

When U.S. Chief District Judge Vaughn R. Walker overturned the ban in August 2010, the attorney general declined to appeal, which could have prevented the case from advancing. Proponents didn’t give up and asked the U.S. Ninth Circuit Court of Appeals to let them pursue it. But the court wondered if they had legal “standing” to participate and asked the California Supreme Court to determine if they qualified under state law.

The attorney general argued they didn’t but the high court unanimously said they did. Not allowing the Prop. 8 proponents to defend the law in court would amount to granting the governor and attorney general veto power over initiatives with which they disagreed, the court ruled.

“It has been nothing short of shameful to see Governor Jerry Brown, his predecessor Arnold Schwarzenegger and Attorney General Kamala Harris abdicate their constitutional responsibility to defend Proposition 8 in Court,” said Brian Brown, president of the National Organization for Marriage.

Harris released a statement defending her stance: “While the Department of Justice argued the Proposition 8 proponents do not have standing to pursue this appeal, the court has ruled otherwise. This ruling now shifts the litigation to the federal court of appeals. I firmly believe that Proposition 8 violates the equal protection and due process clauses of the U.S. Constitution and am confident that justice will prevail.”

The California Supreme Court decision punted the case back to the U.S. Court of Appeals, where a 2012 decision is expected to set up a final clash in the U.S. Supreme Court.

Prop. 8 Sponsors Are Legally Entitled to Defend Measure, Court Rules (by Maura Dolan, Los Angeles Times)

U.S. Appeals Court Seems Unlikely to Dismiss Ruling Against Prop. 8 (by Maura Dolan, Los Angeles Times)

Law, Unwrapped: Prop 8 Standing Is a Done Deal, What About the Merits? (by John Culhane, The New Civil Rights Movement)

Proposition 8 Appeals Case Winds Down (by James Dao, New York Times)

Attorney General Kamala D. Harris Issues Statement on Prop. 8 Ruling (OAG website)

Do Campaign Contributions Buy Influence?

Prime Healthcare Services, a hospital chain suspected of Medicare fraud, is under investigation by California’s AG, the Department of Public Health and federal agencies. One of the problems is higher than normal rates of septicemia—blood poisoning—among Medicare patients. That could indicate that the hospital engaged in “upcoding,” which means that there was no septicemia, and the false diagnosis and claim of treatment  qualified the hospital chain for premium reimbursement rates from Medicare.

The suspicions were brought to light by the Service Employees International Union (SEIU), which represents many of Prime’s employees, but these are not the only allegations against Prime.

Both Prime and the union have made large donations to candidates who ran for attorney general. In fact, the investigation started when Jerry Brown was AG and considering a run for governor. SEIU affiliates spent $4.6 million to help Brown win his campaign, while the CEO of the hospital chain donated the maximum allowed by an individual, $51,800.  The chain gave $32,900 to the state’s Democratic Central Committee (Brown is a Democrat), and a few years earlier, that CEO donated $100,000 to a school founded by Brown.

The CEO also donated much smaller amounts to Kamala Harris’ campaign, and to her opponent, to the outgoing governor’s political committee, and much larger amounts to the state Republican Party. The union contributed to Harris’ campaign to the tune of $25,800.

Does this buy influence? As AG, Brown denied Prime’s attempts to buy another hospital in the state. AG Harris denied another attempted purchase in 2011. Prime Healthcare accused the SEIU of running a smear campaign against the hospital chain, and railed that the AG was siding with the union against them. Prime and the hospital then continued negotiations, and may acquire the new hospital through a deal in bankruptcy court, circumventing the AG’s decision.

Hospital Chain, Union that Scrutinized It Are Both Political Donors (by Lance Williams and Christina Jewett, California Watch)

Attorney General Denies Sale to Controversial Hospital Chain (by Christina Jewett, California Watch)

AG Sues the Lawyers Who Sued the Banks Over Mortgage Fraud

The lawyers claim they are seeking justice on behalf of homeowners bilked by big banks. California Attorney General Kamala Harris says they are bottom-feeders, victimizing desperate homeowners who already feel they’ve been victimized by banks.

In August 2011,  the attorney general’s office announced it was suing “a ring” of lawyers for allegedly defrauding at least 2,500 homeowners out of millions of dollars by promising to sue banks to get them their loan balances or interest rates reduced, win monetary damages and gain clear and free title to their homes.

Three law firms, three other lawyers and 14 other defendants were accused of sending out 2 million misleading mailers in California and 17 other states recruiting clients.

“We broke up what we believe is a fraud ring that is national in scope,” Harris said. “They were engaged in what is called a mass joinder scam.” Homeowners were charged fees of up to $10,000 to make them plaintiffs in a lawsuit in which each plaintiff has their own set of facts to prove. Harris said the “scam” involved use of deceptive mass mailers that appeared to be official settlement notices or government documents. The homeowners were told they were potential plaintiffs in a national litigation settlement. No such settlement existed. Harris also alleged that the attorneys and other defendants illegally paid commissions to sales representatives based on how many clients they signed up. The practice, known as “running and capping,” is also illegal.

An anonymous writer at Where Is the Note?, a website that presents itself as a resource center for beleaguered homeowners seeking justice from banks, says the attorney general is way off base.

“We know Bank of America is popping champagne bottles after the California Attorney General Kamala Harris has decided to sue the attorneys who are suing the big banks,” the blogger wrote just days after Harris made her allegations. “She is attacking the marketing of the lawsuit, but not the legal merit.”

Real Estate attorney Philip Kramer, one of the accused, said that Harris had struck a deal with the banks to get them off the hook. “It looks to me like the banks are trying to skate out of their wrongdoing by agreeing to pay millions of dollars, not billions,” Kramer said. “In exchange, they get amnesty? For all their wrongdoing? That sounds terrifying to me. It sounds like officials want to sweep this under the rug so they don’t have to deal with it any more.”     

California Attorney General Sues Lawyers in Alleged Mortgage Scam (by Michael Martinez, CNN)

Lawyers Accused of Duping Desperate Homeowners (by Jacob Adelman, Associated Press)

California Attorney General Sues Attorneys for Suing the Big Banks (Where Is the Note?)

The Case Against Philip Kramer, Et Al (by Martin Andelman, Mandelman Matters)

Wachovia Bank and Bond Derivatives

A three-year, nationwide investigation by the California attorney general and AGs from 25 other states resulted in a $54.5 million settlement by Wachovia Bank (owned by Wells Fargo since 2008) for alleged anticompetitive and fraudulent conduct involving municipal bond derivatives.

The settlement, announced in December 2011, will net $4.5 million in restitution for California entities. The scheme ripped off state agencies, municipalities, school districts and not-for-profit groups that entered into contracts with Wachovia between 1998-2004. The fraudulent practices included bid-rigging and submission of fraudulent certifications of compliance to government agencies.

Multistate Working Group Reaches Settlement with Wachovia over Anticompetitive Municipal Bond Derivatives Conduct (OAG website)

AGs Reach Multimillion-Dollar Settlement in Municipal Bond Derivatives Bid-Rigging Case (by Kara Bloomgarden-Smoke, New York Daily News)

Attorney General Activism

California Citizens Against Lawsuit Abuse (CALA), a “grassroots” organization with funding from cigarette maker Phillip Morris and pharmaceutical giant Pfizer, wants to rein in the California attorney general’s “activism” and “abuse” that allegedly wastes taxpayer dollars through “dangerous” litigation.

The group charges that the attorney general hires private personal injury lawyers on a contingency fee basis to pursue lawsuits on behalf of the state. These lawyers act as “an unelected AG” with the weight of the state behind them to extract large payoffs from lawsuit awards. They call it “regulation through litigation” and say it’s a dangerous trend that allows attorneys general to further their political agendas without the normal checks and balances.

The upshot, the group says, is large political contributions to the campaigns of political officials like the attorney general, ensuring a steady stream of frivolous lawsuits against businesses. CALA singles out former attorney general, and now governor, Jerry Brown for his use of this practice to force adherence by cities and counties to environmental guidelines still under development.

The group recommends reforms advocated by the American Tort Reform Association (ATRA), a coalition of medical professional associations and industry groups, including chemical, tobacco and drug industries.

According to The Center for Media and Democracy, CALA and ATRA are creatures of corporate interests promoting tort reform that would be hostile to product liability lawsuits. Documents the center obtained showed that when Phillip Morris spent $16 million in 1995 promoting tort reform, $1 million went to the international public relations firm APCO & Associates (now APCO Worldwide). APCO’s job was to create “grassroots” CALAs in all 50 states. An APCO employee ran ATRA at the time, according to the center.    

The Committee for Justice for All says CALA aims to “dismantle the civil justice system” that holds its sponsors liable for putting unsafe products on the market.

Attorney General Activism (California Citizens Against Lawsuit Abuse)

Citizens Against Lawsuit Abuse (SourceWatch)

Setting the Course: Establishing Best Practices for Attorney General Use of Outside Counsel (Amercian Tort Reform Association)

The Truth About Citizens Against Lawsuit Abuse (The Committee for Justice for All)

Is the Department of Justice Ignoring the Dangers of Pepper Spray?

California law enforcement agencies have been allowed to use pepper spray since October 1992, and civilians have been able to buy it in the state since 1994. The use has always been controversial. In November 2011, a video of police spraying seated, non-violent protesters at the University of California, Davis campus went viral, igniting outrage and a new look at whether pepper spray is a tool that California’s law enforcement needs.

The California Legislature is holding hearings to determine whether excessive force was used. Attorney General Kamala Harris was “deeply disturbed” by the video, according to an OAG spokeswoman, but her office will leave it to local agencies to investigate the incident. However, those local agencies have asked the OAG to conduct an investigation.

California Lawmakers to Hold Hearing on Excessive Force by Police at UC Campus (by Tami Abdollah, KPCC)

Yes, Pepper Spray is Dangerous and the Attorney General should Stop Its Use

“Cal-EPA scientists have warned the California Department of Justice and Attorney General Dan Lungren of their reservations about pepper spray and concerns about its possible role in causing fatalities for more than two years, but no action has been taken in response,” wrote the ACLU in a 1995 report. “In fact, the Department of Justice permitted civilian use of pepper spray despite many of these fears by scientists.”

That report found many fatalities linked to pepper-spray—about one out of every 600 uses of pepper spray by law enforcement. In the 18 months between January 1993 and June 1995, that amounted to 26 deaths.

Pepper spray is actually a chemical compound called Oleoresin Capsicum, derived from cayenne pepper and manufactured by Defense Technology Corporation, which admitted in an unpublished proposal that “little or nothing is known about the health risk or toxicity of pepper spray.”

A 1993 study by the U.S. Army said the compound “is capable of producing mutagenic and carcinogenic effects, sensitization, cardiovascular and pulmonary toxicity, neurotoxicity, as well as possible human fatalities.” It presents a serious risk to people with asthma, and is “unlikely to work on people who are high on drugs and in psychiatric crisis.”

In the wake of the November 2011 spraying of students at UC Davis, the acting director of the Office of Health Hazard Assessment, part of the state’s EPA, acknowledged that “We never completed a risk assessment.”

The UC Davis incident shows that “pepper spray has become a weapon of choice even for the University of California police,” according to activist and former state legislator Tom Hayden. He points out that in 1992, a three-year trial of the substance began and “provided that studies confirmed a lack of significant health impacts. . . . When I left the California state Legislature in 2001, the studies still had not been completed.” In summary: “Fifteen years after they were required, the health hazards assessments never were completed.”

Why the Pepper Spray Spree Should End (by Tom Hayden, The Nation)

Pepper Spray Update: More Fatalities, More Questions (ACLU) (pdf)

No, Pepper Spray Is a Legitimate, Non-Lethal Tool for Law Enforcement

“Pepper spray is considered a more humanitarian way of dealing with lawbreakers,” wrote Cliff Kincaid for Accuracy in Media. Speaking of the UC Davis incident, Kincaid wrote that “the campus police had been ordered by Chancellor Linda Katehi to remove the protesters using pepper spray, determined to be the best way to do so without causing long-lasting physical injuries. . . . The police could have used batons, like they did during an earlier confrontation at UC Berkeley, but that was ruled out by the UC Davis campus police chief. The video shows the police holding and shaking the pepper spray canisters during a time period of several minutes. They gave the protesters more than enough time to disperse.”

“Though society empowers and expects its officers to use force, the public’s tolerance for such force varies,” Kim Minugh of the Sacramento Bee wrote.

Minugh quotes the UC Davis Police Department policy: “While it is the ultimate objective of every law enforcement encounter to minimize injury to everyone involved, nothing in this policy requires an officer to actually sustain physical injury before applying reasonable force.”

The article compares the policies on use of pepper spray in different police departments, but no mention is made of pepper spray’s health risks. However, Minugh groups pepper spray with other tools that can cause harm: “In addition to their handguns, most agencies require officers to carry at least one ‘less-than-lethal’ device, so-called because they are not designed to be deadly but can be under certain circumstances. Pepper spray, batons, and Tasers fall into this category.”

The War on Police (by Cliff Kincaid, Accuracy in Media)

Many Other Agencies’ Policies at Odds with UCD’s Use of Pepper Spray (by Kim Minugh, Sacramento Bee)

Edmund G. Brown, Jr., 2007-2011. The son of a former governor and a former governor himself, “Jerry” Brown ran successfully to win the governorship again, starting in 2011.

Bill Lockyer, 1999-2007. Lockyer served 25 years in the state Legislature, followed by eight as AG. He expanded enforcement of environmental protection laws, improved services to crime victims, and fought for more consumer protection, including the establishment of a Civil Rights Enforcement Section in the OAG. In 2007 and again in 2011, he was sworn in as the state’s treasurer.

Daniel Lungren, 1991-1999. Even before becoming AG, Lungren had championed the state’s Three Strikes laws and the death penalty. During his two terms in office, the state began executions after a 25-year hiatus. Lungren implemented Megan’s Law, which posts photos and known locations of convicted child molesters.

John Van de Kamp, 1983-1991. Van de Kamp’s list of accomplishments includes modernizing the DOJ’s technological resources.

George Deukmejian, 1979-1983. Deukmejian brought a computerized finger printing system to the state, along with other innovations, and successfully argued the “use-a-gun-go-to-prison” law before the state Supreme Court. He became governor after one term as AG.

Evelle Younger, 1971-1979

Thomas Lynch, 1964-1971

Stanley Mosk, 1959-1964. A progressive who authored legislation to make criminals pay for the training of peace officers, Mosk later became California’s longest-serving state supreme court justice.

Edmund G. Brown, Sr., 1951-1959. “Pat” Brown, father of Jerry, later became the state’s governor and a presidential candidate.

Frederick Howser, 1847-1951

Robert W. Kenny, 1943-1947. Early in his career, Kenny worked as a newspaper reporter, including stints between 1921-1927 at the Los Angeles Times, the Los Angeles Evening Herald, the Los Angeles Examiner and the Chicago Tribune in Paris. As attorney general, he moved the OAG from San Francisco to Sacramento, was an early advocate of civil rights and ended the legal existence of the Ku Klux Klan in the state.

Earl Warren, 1939-1943. Earl Warren, the first AG born in California, wrote a bill increasing the salary of his predecessor before running for the office himself. As AG, he organized the state into regions and ended offshore gambling. During World War II, he pushed for the relocation to detention centers of American citizens of Japanese descent. Warren was elected governor of California three times before being appointed Chief Justice of the U.S. Supreme Court by President Eisenhower. There, he handed down landmark legislation that resulted in the Miranda Law and the right to counsel by those accused of crimes, an end to school prayer, and—in Brown v. the Topeka Board of Education—an end to racial segregation in schools.

Ulysses S. Webb,  1902-1939. The longest-serving AG in the state’s history, Webb was elected and then appointed to a total of nine terms. He is remembered for fighting against fraudulent land transfers, clarifying laws, and proving the state’s title to tidal and submerged lands.

Tirey Ford, 1899-1902

William Fitzgerald,  1895-1899

William H. H. Hart,  1891-1895

George A. Johnson, 1887-1891

Edward C. Marshall, 1883-1887. Marshall was a grand-nephew of John Marshall, first Chief Justice of the U.S.

Augustus Hart, 1880-1883

Jo Hamilton, 1875-1880

John Lord Love, 1871-1875

Jo Hamilton, 1867-1871

John McCullough, 1863-1867

Frank Pixley, 1862-1863. The colorful Pixley, a former miner, left California for the Civil War, posing as a state senator so that he could ride with General Grant at the Battle of Cold Harbor.

Thomas H. Williams, 1858-1862. During Williams’ term, the OAG became involved in corporate oversight and tax matters, regulating businesses in California

William T. Wallace, 1856-1858

William M. Stewart, 1854 (temporary)

John R. McConnell, 1854-1856

S. Clinton Hastings, 1852-1854. During Hastings’ term, 150 state prisoners were held on leased ships in San Francisco Bay while title to the land at San Quentin was settled. Hastings later became the first chief justice of the state’s Supreme Court.

James A. McDougall, 1850-1851

Edward Kewen, 1849-1850. The state’s first AG had been in California only a month before being elected. He was 24 years old, and resigned after one year because the salary was too low. He was later imprisoned on Alcatraz for advocating secession during the Civil War, but went on to serve in both houses of the legislature.

History, Office of the Attorney General Website (OAG website)

Kenny, Robert Walker, 1901 (The Social Networks and Archival Context Project)