The Many Lives of Jerry Brown
California Lawyer

The Many Lives of Jerry Brown

Though he has more than his share of critics, no one can deny the AG's resilience.

October 2008


illustration by Ismael Roldan

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There have been so many stories written about me, there's nothing new left to say," Jerry Brown said recently. "You can try to find something original, but it's not possible. You can't do it."

The 70-year-old politician has a point: The forests that have been sacrificed to churn out all the newspaper articles, magazine features, and books covering his dozen campaigns and 40 years in politics by now probably represent a measurable contribution to the global warming Brown is battling as California's attorney general. No fewer than seven books had been written about him by the time he turned 40: One portrayed him on its cover as a knight in shining armor on a white horse. Another showed him peering out of a hole in brown paper wrapping, and yet another presented his silhouette as the two-faced mask of Janus. You'd think no politician would want to be depicted as two-faced, but that cover belonged to Thoughts, the slim volume that Brown himself authored. Janus, the ancient Roman god of gates, doors, and doorways, fits Brown's image of himself as both a keeper of tradition and an agent of change who is able to transcend the apparent contradiction. "Tell me what's the contradiction? I don't see any," he says. "My job is to be an agent, an actor in history, to create openings ... in a calcified political system. To make things happen. To me, that's being consistent."

Certainly, Brown remains California's most original--as well as its most vintage--political figure. His résumé includes two terms as governor (starting at age 36), three runs for the White House, one for the U.S. Senate, and two terms as mayor of Oakland before winning the office he now holds.

"He lives to run," says Republican consultant Kevin Spillane, who in the 2006 attorney general race ran the opposition research against Brown, to no avail. Brown won that election by 18 percentage points. "His history is very clear," Spillane adds. "He says what he has to say to get elected, then he loses interest and immediately takes aim at the next office."

Now, as Spillane and so many others predicted, the oldest first-term attorney general in California history is laying the groundwork for yet another possible campaign: It seems he wants to be governor. Again.

This despite Brown's protestations while running for AG that he wasn't interested in returning to the governorship--been there, done that, he told the Los Angeles Times. But by spring the fund-raising had already begun, and his "Brown for Attorney General" campaign committee had morphed into "Jerry Brown 2010." The favorite in early polling among the most likely contenders for governor (unless Sen. Dianne Feinstein is included), his success would hinge at least in part on his performance as attorney general.

To his critics, of course, the man who back in the 1970s was called "Governor Moonbeam" remains the ultimate flip-flopper: the death-penalty opponent who as AG appointed a prosecutor nicknamed "Dr. Death" to oversee the DOJ's criminal division; the defender of privacy rights who recently sanctioned one of the most intrusive DNA investigative policies in the nation; the critic of corporate political influence who now solicits corporate campaign contributions; the candidate for AG who criticized his predecessor's global-warming suit against automakers, only to embrace that case upon taking office.

But Brown denies that he's a creature of reinvention. "Reinvention," he gripes, "is just loose journalism talk for, 'He's back!' " It's the world that's changed, he says, not his core principles. As Brown points out, he has always championed environmental causes, always preached living within limits, and warned about the dangers of greenhouse gasses decades before that became fashionable. And though he's philosophically opposed to the death penalty, he explains that he does not allow that personal conviction to interfere with his sworn duties under the California Constitution. He calls the attorney general's office an $800 million-a-year, 1,100-attorney law firm "with a virtually unlimited charter"--which as AG he is using to pursue goals he says he has long espoused.

Many if not most of the California attorney general's duties are built into the job, with little room for variation. Those duties include defending state agencies and state laws in court, litigating criminal appeals, running the state crime lab, investigating consumer-fraud complaints, and responding to prisoner lawsuits. Continuity between officeholders, irrespective of their party or politics, is maintained through the civil service system, which ensures relatively little staff turnover after elections.

Nevertheless, enough discretion remains to allow each attorney general to leave a distinctive mark. For example, in the '70s Evelle Younger turned an obscure law, the California Environmental Quality Act, into a powerful regulatory weapon against polluters that touches every private and public development in the state; 30 years later, that law now plays a pivotal role in Brown's own program against the CO2 emissions that cause climate change. In the '80s John Van de Kamp modernized the state's forensic and consumer-protection programs, and in the '90s Dan Lungren helped lead the charge for the state's three-strikes sentencing law and the anti-child predator measure known as Megan's Law. Brown's immediate predecessor, current California Treasurer Bill Lockyer, who came to the AG's office after serving as Senate president pro tempore and majority leader, emphasized working with lawmakers and proposing legislation. This meant consolidating the AG's office in Sacramento, rather than leaving its functions scattered around the state.

Brown, who has argued that the state has too many laws already, undid much of that. In fact, he promptly shrank Lockyer's legislative unit and generally lets subordinates deal with Sacramento, while he spends most of his time in either Oakland or San Francisco.

Brown has left his own mark on the AG's office through other cutbacks as well: He consolidated two chief deputy positions into one, cut the number of special assistants from eight to two, merged the state Department of Justice's firearms division with the law enforcement division, and consolidated other divisions into the DOJ's administration division. His cuts to the office's executive staff, moreover, remind Brown watchers of his penurious days as governor, when he forsook the governor's mansion for an apartment in downtown Sacramento and drove a Plymouth from the state car pool rather than riding around in a limousine. (He now prefers a shiny black government car, driver included.) His lone press officer is a former Peace Corps volunteer whom Brown tapped from his AG campaign.

During that race, Brown touted the fact that for 13 years he'd lived in two lofts in downtown Oakland, where he said he got to know the local street toughs--as well as the local cops--while walking his dog, Dharma. He claimed that those experiences, coupled with his time as mayor, yielded insights that the larger, more abstract role of governor never did. Even today, he still talks about his time "on the streets," although since becoming attorney general he has moved to the tony Oakland hills along with his wife of three years, lawyer Anne Brown, and the dog.

As AG, Brown is as disorganized and notoriously tardy as ever, according to those who know and work with him, yet still brilliant at analyzing the issues that he cares about most. Capable of delivering a riveting speech to staff or the public without notes or prepared text, he is equally capable of remaining oblivious to vital administrative matters that don't interest him. But that's where his wife comes in. A former senior vice president and chief administrative officer at Gap in San Francisco, Anne Brown serves, by many accounts, as the AG's chief advisor and alter ego--albeit without salary or official title. The arrangement would be unusual for anyone but Jerry Brown, who has always had a trusted outsider watching his back.

From Brown's days as governor through most of his years as mayor of Oakland, that responsibility fell to a former French commando named Jacques Barzaghi. But after complaints of spousal abuse against Barzaghi, along with a messy investigation and the settlement of sexual-harassment charges, Barzaghi became a liability, and in 2004 Brown was forced to send him packing.

During the AG's race Brown's opponent, former Republican legislator Chuck Poochigian of Fresno, tried to capitalize on the Barzaghi connection. It didn't work. Now, Brown's prospective opponents are keeping a close watch on his wife in the hope of finding some viable line of attack. So far, though, most observers see her as an asset who provides a much-needed businessperson's perspective to her husband, who once called modern corporations "a disaster for democracy."

This is the anticorporate Jerry Brown who in 1992 built a presidential campaign from individual contributions of $100 or less (long before Barack Obama), and who vowed to "take back America from the confederacy of corruption, careerism, and campaign consulting." By the time Brown became a candidate for attorney general in 2006, however, he was more than happy to accept donations from the corporate world, including approximately $70,000 from Gap and its executives.

When Brown took over the AG's office in 2007, he said he had three major priorities: Strengthening the criminal division, bolstering the office's investigation and prosecution of labor violations in the underground economy, and using the leverage of his office to fight global warming.

Brown's campaign opponents had accused him of being soft on crime, largely because of his long-standing personal opposition to the death penalty. (On a radio show that he did in the '90s, Brown spoke of the "horrors of state killing," and how banning capital punishment would bring society to "a higher state of consciousness.") But upon becoming AG, Brown, without recanting his philosophical opposition to the death penalty, elevated Dane R. Gillette (a.k.a. "Dr. Death") to head up the attorney general's criminal division. Gillette had served as the office's capital case coordinator since 1992 and is one of the AG office's most ardent death penalty supporters; his appointment left the state's district attorneys "pretty pleased with Jerry," says the former president of the California County District Attorneys Association, John Poyner of Colusa County. Now, it's the defense bar and capital punishment opponents who are expressing concerns.

Brown pleased district attorneys on another critical criminal justice issue as well: so-called partial-match DNA searches. This controversial practice is based on the use of DNA information from potential close relatives to develop investigative leads and suspects in criminal cases when no clear genetic match can be found in a database of offenders. In 2007 Denver District Attorney Mitchell Morrissey brought the issue to a head when he requested for a second time the investigative files on a felon in the California database who did not match the DNA of a Colorado rapist but whose genetic profile was close enough to suggest that the Colorado suspect might be related. Brown's predecessor, Bill Lockyer, had refused Morrissey's request, citing the privacy rights of those in the database, as well as strict statutory limits on the release of DNA data. This position was consistent with earlier refusals to honor discovery requests from defense attorneys who sought partial-match DNA information as a means of exonerating their clients. (False matches between similar genetic profiles are far more common than once believed, according to William C. Thompson, chair of the Department of Criminology, Law and Society at UC Irvine and an expert on DNA evidence.)

Initially, Brown's office also refused Morrissey's request. But a few months later the Denver DA and several California prosecutors attended a DNA conference, sponsored by the Los Angeles District Attorney's office, where they denounced Brown's position to the press in what one observer described as an "ambush." Brown promptly announced a change in policy: Now, subject to DOJ approval, out-of-state law enforcement can use crime-scene DNA to search for possible family members in California's DNA database--just what Morrissey had wanted. Although Brown insists that the subjects' privacy will be safeguarded, the change makes California's DNA policy for pursuing investigative leads through familial searches one of the most aggressive in the nation. At the same time, Brown still refuses to extend the same level of access to defendants and their attorneys.

"I'm just dumbfounded that they're doing this," says Jennifer Friedman, forensic sciences coordinator and assistant capital case coordinator for the Los Angeles Public Defender's office. Based on Brown's new policy, she is preparing a filing that seeks access to partial-match information from the database for defendants.

The controversy promises to intensify in January when California's DNA database--already the fourth largest in the world, behind the FBI, Great Britain, and China-expands exponentially to include genetic profiles not just of convicted felons but also of anyone arrested for a felony.

Aside from criminal matters, Brown points with pride to several high-profile undercover investigations and lawsuits that he says are part of a crackdown on labor abuses. Targets have included Pacifi-Staff of Anaheim for allegedly training construction company executives statewide in schemes to avoid providing workers' compensation insurance; the Brinas Corp. of Los Angeles, a drywall firm, for extensive minimum-wage and overtime violations; and several major janitorial-service firms for a gamut of labor violations that allegedly cheated workers out of millions of dollars in wages and overtime pay. The emphasis, Brown says, has been on helping workers who are powerless to act against law-breaking employers. But in the broader area of consumer protection, except for a suit filed against Countrywide Financial Corp. for allegedly deceptive loan practices, Brown has kept a much lower profile than his predecessor.

"Jerry has decided to target a few big issues in a big way," observes Steve Coony, Bill Lockyer's former chief deputy attorney general for administration and policy, who moved with Lockyer to the state treasurer's office, where he is now chief deputy treasurer. "Every attorney general has his own approach," Coony adds. "He has a few things he wants to do to death."

Last but not least among Brown's priorities is the fight against global warming: "It is the most important environmental issue facing the state and the world," he said shortly after taking office, "and that's why it's something that has to be dealt with creatively and very aggressively." In the AG's office no fewer than 15 attorneys are working on climate change, led by Cliff Rechtschaffen, a law professor from Golden Gate University. Also leading the charge is Ken Alex, the office's veteran environmental litigator.

For more than three decades, Brown has championed the environment in one way or another. He was among the first politicians on the national scene to embrace a mix of conservation and alternative energy sources for what he described in 1976 as a necessary "era of limits." During his mayoral tenure, Oakland was named one of the nation's top ten "green cities" by the National Geographic Society, with multiple green-building and solar initiatives, plus a redevelopment plan, clustered around public transit, that brought 10,000 new residents to the blighted downtown area. Brown dubbed his project "elegant density," and now, as AG, he has seized the California Environmental Quality Act (CEQA) to promote this approach to development statewide. When legislators passed CEQA in the '70s, nobody was thinking about climate change. But because the law was written so broadly, it provides Brown with a powerful club to force every municipality in the state to tackle global warming in one form or another--through traffic planning, road construction, housing, and industry regulation. Even the type of appliances that are installed in new housing complexes can be affected by strict CEQA enforcement.

Brown's office mounted this offensive by first commenting on various projects, then following up with letters to local agencies. When San Bernardino County didn't respond, he took it to court for failing to include greenhouse-gas analysis and mitigation in its new general plan. In August 2007 the county settled, which in turn encouraged other counties to become much more cooperative about incorporating climate-change concerns into their development plans. For example, some jurisdictions decided to forsake "leapfrog" developments in distant locations in favor of building next to existing developments, while others have opted to incorporate more mass transit, solar energy, and conservation techniques into new projects.

Brown's lawsuit against San Bernardino County pushed the entire state into a new way of thinking, says Rechtschaffen. And to keep the ball rolling, the attorney general's office has sponsored a series of workshops statewide to help counties develop in eco-friendly ways.

"Local land-use planning has been fundamentally changed," Brown enthuses. "It's very huge. ... Of course, it's going to take time. These plans stretch 30 years into the future, but we have to think long-term, which the political process does not encourage. The political arteries have hardened. But I think long-term."

The CEQA cases, however, are only a prelude to the office's defense and enforcement of the Global Warming Solutions Act of 2006, the epic climate-change law--yet to be fully enacted--that Gov. Arnold Schwarzenegger championed. Brown has praised both the law and the governor for leading the nation in the battle against global warming, especially in the absence of federal leadership, and the governor has returned the compliment by dubbing Brown his "eco warrior."

Some of their work on the global warming front is national in scope. For example, Brown and Schwarzenegger joined forces with twelve other state and local governments, as well as private organizations, to sue the Environmental Protection Agency for its refusal to regulate greenhouse-gas emissions under the Clean Air Act, a case won last year in the U.S. Supreme Court. In Massachusetts v. Environmental Protection Agency (549 U.S. 1438 (2007)), the high court agreed that greenhouse gases were pollutants and that the EPA was required to regulate them just as it would any other emission. So far, though, the Bush administration has failed to implement this decision.

The attorney general has also appealed to the Ninth Circuit an adverse ruling in a public-nuisance suit against six major carmakers. Brown has been criticized for pursuing the case--which represents a novel use of the public-nuisance principle--because he indicated during his campaign for attorney general that he disapproved of the action. (He told the editorial board of The San Diego Union-Tribune that the case was overreaching, but the newspaper has since accused Brown of simply telling its editorial board what it wanted to hear. Brown, the paper editorialized, is on an environmental "rampage.")

More recently, Brown and Schwarzenegger have joined forces, along with 15 other states, to sue the EPA for failing to grant a waiver to California so the state could enact tougher fuel-efficiency standards for automobiles than the federal government imposes. Federal law gives the EPA little discretion to deny the waiver. But in this case the EPA's own staff reported that there were no valid grounds for denial. "We will win this one," Brown predicts.

Some conservative critics insist that he is taking California in the wrong direction by using the courts to set state and national policy on global warming. In Sacramento the Pacific Legal Foundation, which generally opposes environmental regulation, takes a particularly dim view of Brown's public-nuisance challenge to the carmakers.

"He is pushing the envelope of legal theory in a way that is extremely dangerous," says Timothy Sandefur, a senior staff attorney at the foundation. "What he is arguing is that we can take perfectly legal activities-making and selling cars, performed in a perfectly legal way-and transform them into public nuisances in order to collect hundreds of millions of dollars in damages. ... I'm just waiting for the next suit against 'Big Caffeine.' "

Even Republican consultants as partisan as Kevin Spillane concede that if Brown does run for governor in 2010, it's his election to lose--unless Feinstein decides to trade her comfortable seat in the Senate to tackle the far dicier duties of leading a financially strapped state government. (If that were to happen, the conventional wisdom is that Brown would aim for a second term as AG.) Without Feinstein in the mix, Brown polls well ahead of such likely Democratic opponents as Lt. Gov. John Garamendi, San Francisco Mayor Gavin Newsom, and Los Angeles Mayor Antonio Villaraigosa, as well as potential Republican candidates Tom Campbell, a former congressman, and Steve Poizner, the state's insurance commissioner.

But the gubernatorial election is years away. And Brown's record for avoiding devastating gaffes is hardly perfect. Take his 1992 run for the White House. Brown was capitalizing on an unsettled field in the race for the Democratic nomination until, days before the New York primary, he committed a fatal error: He told voters that he'd consider for a running mate the Rev. Jesse Jackson, who eight years before, during his own presidential campaign, had referred to New York City as "Hymietown."

Brown's run for AG, on the other hand, was nearly flawless. He won the 2006 election with the greatest margin of victory of any opposed candidate for statewide office. And as one measure of how times have changed, Brown now actually goes out of his way to remind people of his old "Governor Moonbeam" nickname, coined by Chicago Tribune columnist Mike Royko.

"I worked hard for that 'Moonbeam,' " he declared in March at the state Democratic Convention, where he was greeted like a rock star. "I don't do too much these days except sue people," he added. "But someday maybe I'll get around to doing a little more than that. And maybe you'll help."

Edward Humes is a Pulitzer Prizewinning journalist and author of nine nonfiction books.


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