Zeev's Turnips Patch-No Politics (ZEEV)

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Stem cell program wins key court ruling, poised to issue grants
Carl T. Hall, Chronicle Science Writer

Wednesday, November 30, 2005

California's embattled Proposition 71 stem cell program took a big step Tuesday toward overcoming lawsuits that have blocked its first grants from being issued.

Alameda County Superior Court Judge Bonnie Sabraw denied essentially every legal argument brought by the plaintiffs in litigation alleging that Prop. 71 violated the state Constitution because it would allow taxpayer-backed bond revenues to be distributed without direct legislative control.

The Prop. 71 program was created by state voters in November 2004 with authority to disperse $3 billion in grants during the next 10 years, mostly intended to advance controversial embryonic stem cell research. A state agency called the California Institute for Regenerative Medicine has been created and based in San Francisco.

Lawsuits challenging the institute's plans were filed by taxpayer groups and an anti-abortion bioethics organization, frustrating research advocates who say stem cells are key to creating a radical new kind of cell-based medicine that is potentially capable of curing such maladies as Parkinson's disease, diabetes and spinal cord injuries.

Now, the program's leadership hopes to move forward by January with a stopgap funding plan that might net $50 million in grant revenues, enough to pay for the first few scientist-training programs and small-scale research projects. Ultimately, the plan is to issue as much as $350 million a year in grants.

None of that can happen, however, until the legal clouds dissipate.

In a 24-page decision issued late Tuesday, Sabraw said the plaintiffs had failed to overcome a fundamental presumption that voter mandates must be honored unless they were shown to be "clearly, positively and unmistakably unconstitutional."

She denied five separate motions seeking summary judgment, any one of which might have been enough to put the closely watched California stem cell enterprise on ice for a very long time, if not out of business.

Arguments turned aside by the judge included claims that the initiative deals with more than one subject, allows financial conflicts of interest in awarding stem cell research grants and would "alter the basic governmental framework."

The judge did not throw out the lawsuits entirely. Instead, she set a hearing for Tuesday for lawyers to work out a plan for the next critical proceedings in court.

But because Sabraw turned back virtually all of the plaintiffs' arguments, it appears they will have to be extraordinarily creative if they hope to keep the lawsuits moving forward -- and the stem cell institute standing still.

Robert Klein, the chief backer of Prop. 71 during the campaign who now serves as chairman of the stem cell program's governing board, said he was confident given the "very high legal standard" the judge put on the other side.

He admitted that "a complete cessation of this litigation" would have been his preferred outcome, calling a summary judgment to dismiss the lawsuits outright "the home run we didn't get."

At the same time, he insisted that Tuesday's ruling qualified as "an inside-the-park triple."

"She denied everything the plaintiffs asked," Klein said. "I would go into any hearing with this on our side."

Dana Cody, executive director of the anti-abortion Life Legal Defense Foundation in Sacramento, one of the lawyers seeking to overturn Prop. 71, didn't return telephone calls late Tuesday. Other lawyers on the plaintiffs' side couldn't be reached for comment.

Earlier Tuesday, one of Cody's allies, Jennifer Lahl, national director of the Center for Bioethics and Culture Network in Oakland, said during an interview that the challenges to Prop. 71 would not stop even with a loss in Superior Court............