The stem cell initiative, sabotaged

RUSSELL KOROBKIN is a professor of law at UCLA and a senior fellow at the UCLA Center for Society and Genetics.

IN COURT proceedings, parties sometimes advance novel legal theories in a good-faith effort to change the law. Sometimes, however, they make frivolous arguments in an effort to obscure issues or just to create delay. The former strategy plays an important role in a healthy legal system; without it, the law would never evolve. The latter strategy is just abusive. The lawsuit challenging Proposition 71, the California Stem Cell Research and Cures Initiative, is an example of the latter.

In a trial that took place this week in Alameda County, a group of plaintiffs argued that the 2004 initiative, which permits the state to issue $3 billion of bonds to support stem cell research, violates the California Constitution. In support, anti-Proposition 71 lawyers are offering a series of legal arguments that have almost no chance of success.

Their primary claim is that the initiative does not provide for sufficient state oversight of the California Institute for Regenerative Medicine, the agency that will decide how to disperse the research money. Although the state Constitution requires that the state provide “exclusive management and control” of its agencies, the courts have explained that this does not preclude creative administrative structures. Most of the institute’s officers are appointed by elected state officials, and the state controller oversees its finances. According to prior rulings, including a 2003 challenge to Rob Reiner’s 1998 Proposition 10 (which created the First 5 California Children and Families Commission), these features place Proposition 71 clearly within the law.

Several other arguments raised in the case -- for example, that Proposition 71 illegally dealt with multiple subjects and that the description provided by supporters was misleading -- have been turned away by the courts many times in similar circumstances.


What is most troubling is not that the plaintiffs’ arguments lack legal heft but that they no doubt realize this, yet argue anyway. The three groups fighting Proposition 71 -- two pro-life associations and an anti-tax organization -- are not what you would describe as passionate about technical governance issues. But because they know the state cannot issue the bonds to fund research while litigation is pending, they are using weak legal justifications to delay the inevitable.

This stalling tactic not only slows progress in seeking cures for a wide variety of illnesses and injuries, it imperils California’s attempt to become the nation’s leader in stem cell research. Today, state support is significant because the Bush administration refuses to use federal dollars to fund most stem cell research. But this federal ban is likely to be lifted after the 2008 presidential election, regardless of which party prevails, because most of the likely candidates favor stem cell research. When full federal funding becomes available, state money will become much less important, which means California’s research establishment has less than three years to build a competitive advantage.

The Alameda County court should have dismissed the stem cell lawsuit months ago because it clearly lacks legal merit. Instead, the court decided to give the plaintiffs the opportunity to present trial testimony. This overly cautious decision did a disservice to the California voters who approved Proposition 71. Even when the judge rules against them, as is extremely likely, the plaintiffs will no doubt appeal to create additional delay. The Court of Appeals, and if necessary the state Supreme Court, should then dispose of the case expeditiously to halt this abuse of the legal system.