SAN FRANCISCO — A federal judge seemed ready to order Gov. Arnold Schwarzenegger and Controller John Chiang to cough up $250 million in the next few weeks for prison health care construction.

But Senior U.S. District Judge Thelton Henderson isn't quite ready to hold the governor and controller in contempt of court, a move that could put California on the hook for millions of dollars in fines per day until state officials do the judge's bidding.

Henderson said the $8 billion price tag that his appointed receiver, J. Clark Kelso, has placed on construction required to bring the state's long-addled prison health care system up to constitutional snuff is "the best approximation that anyone can make at this time," and his orders have been clear that the state must pick up this tab.

"Politics, whether based on partisanship or the desire to remain in or be elected to office, will have no place these proceedings," he warned — perhaps a dig at Attorney General Jerry Brown. Brown's Justice Department defends Schwarzenegger and Chiang in the case.

Kelso's plan calls for building seven facilities with 10,000 beds for chronically sick or mentally ill inmates by mid-2013, as well as improving existing facilities at the state's 33 prisons. Despite Schwarzenegger's support, the plan was repeatedly rejected this year by Legislative Republicans.

"Sacramento politics overtook us," Kelso told Henderson on Monday, and attempts to work with Schwarzenegger and Chiang to bypass the Legislature also proved fruitless. Only then did he file his motion asking Henderson to hold the officials in contempt of court, he said.


Fewer inmates are dying needlessly due to inadequate care, he said, but "I remain ultimately convinced we cannot establish sustainable improvements"... unless we complete the improvement and expansion construction program." And the state "has offered absolutely nothing substantive to suggest these facilities are not necessary," he said.

Deputy Attorney Gen. Daniel Powell argued Monday that Kelso has offered no substantive evidence to prove his $8 billion plan is the least intrusive, most narrowly tailored remedy to prison health care's constitutional problems — a test required under the federal Prison Litigation Reform Act. And the money should come from lease-revenue bonds, he said, not a raid on the state's already deficit-plagued general fund.

But Henderson had little patience for Powell's arguments, and indicated he'll issue a ruling within a few days ordering the state to come back before him Oct. 20 to explain when and how — not whether — it'll cough up $250 million already available for prison health care construction under AB900, a $7.8 billion prison-expansion bill Schwarzenegger signed into law in May 2007.

Prominent San Francisco trial attorney James Brosnahan, whom Kelso retained to handle this pay-up-or-be-held-in-contempt proceeding, told reporters Monday that he and Kelso "don't want to find the governor and the controller in contempt. "... It will be a terrible day if it has to be done," but they're dead serious about pursuing it if necessary. Once they have that initial $250 million in hand to get Kelso's operations through the end of 2008, they'll go after the rest of the $3.5 billion they want in this fiscal year for the first three new facilities, Brosnahan said; Kelso added it will be hard to start construction in February as planned unless that money is firmly committed by then.

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