California Family Bioethics Council v. Cirm

• Decision Date: 26 February 2007
• Docket Number: No. A114282.,No. A114195.,A114195.,A114282.
• Citation: 147 Cal.App.4th 1319,55 Cal.Rptr.3d 272
• Parties: CALIFORNIA FAMILY BIOETHICS COUNCIL, Plaintiff and Appellant, v. CALIFORNIA INSTITUTE FOR RGENERATIVE MEDICINE et al., Defendants and Respondents. People's Advocate et al., Plaintiffs and Appellants, v. Independent Citizen's Oversight Committee et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

55 Cal.Rptr.3d 272

147 Cal.App.4th 1319

CALIFORNIA FAMILY BIOETHICS COUNCIL, Plaintiff and Appellant, v. CALIFORNIA INSTITUTE FOR RGENERATIVE MEDICINE et al., Defendants and Respondents.

People's Advocate et al., Plaintiffs and Appellants, v. Independent Citizen's Oversight Committee et al., Defendants and Respondents.

No. A114195.

No. A114282.

Court of Appeal, First District, Division 3.

February 26, 2007.

Llewellyn † Spann, David L. Llewellyn, Jr., Citrus Heights, for plaintiff and appellant California Family Bioethics Council.

Life Legal Defense Foundation, Dana Cody, Catherine W. Short, Robert M. Taylor, San Clemente, Terry L. Thompson, for plaintiffs and appellants People's Advocate, National Tax Limitation Foundation.

Bill Lockyer, Attorney General, Robert Anderson, Chief Deputy Attorney General, Tom Greene, James M. Humes, Chief Assistant Attorneys General, Leslie Lopez,

Tamar Pachter, Deputy Attorneys General, for defendants and respondents.

Munger, Tolles & Olson LLP, O'Malley M. Miller, Michael R. Doyen, Mark H. Epstein, Paul J. Watford, Los Angeles, for amicus curiae for California Institute of Technology, Keck Graduate Institute, The Board of Trustees of the Leland Stanford Junior University, University of Southern California, Burnham Institute for Medical Research, Children's Hospital Los Angeles, Oakland, Cedars-Sinai Medical Center, City of Hope, Salk Institute for Biological Studies, Alliance for Aging Research, Alliance for Stem Cell Research, ALS Association, Alzheimer's Association California Council, Cancer Research & Prevention Foundation, Christopher Reeve Foundation, Cystic Fibrosis Research, Inc., Elizabeth Glaser Pediatric AIDS Foundation, Juvenile Diabetes Research Foundation, The Leukemia & Lymphoma Society, Michael J. Fox Foundation for Parkinson's Research, National Brain Tumor Foundation, National Multiple Sclerosis Society, Parkinson's Action Network, San Francisco AIDS Foundation, Southern California Biomedical Council, Dr. Paul Berg, Nobel Laureate on behalf of defendant and respondent,

POLLAK, J.

Before us is an appeal from two consolidated actions challenging the validity of Proposition 71, the stem cell research initiative approved by a substantial majority of the voters at the General Election on November 2, 2004. Relying in significant part on the reasoning of California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792, 135 Cal. Rptr.2d 224 (CART),¹ the trial court rejected the diverse challenges that appellants have directed to Proposition 71 and to the method of its enactment. We agree with the conclusions reached in the comprehensive opinion of the trial court² and shall affirm its judgment.

Factual and Procedural History

A. Summary of Proposition 71

Although section 1 of the proposition states that the entire measure shall be known as the California Stem Cell Research and Cures Act,³ Proposition 71 in fact adds an amendment to the California Constitution, two separate acts to the Health and Safety Code, and expands the Government Code definition of "state service."

Section 4 of the proposition adds to the Constitution article XXXV, establishing the California Institute for Regenerative Medicine (CIRM or the institute). The purpose of the institute, according to the constitutional amendment, is "(a) To make grants and loans for stem cell research, for research facilities, and for other vital research opportunities to realize therapies, protocols, and/or medical procedures that will result in, as speedily as possible, the cure for, and/or substantial mitigation of, major diseases, injuries, and orphan diseases. [K] (b) To support all stages of the process of developing cures, from laboratory research through successful clinical trials. [And][1f] (c) To establish the appropriate regulatory standards and oversight bodies for research and facilities development." (Cal. Const., art. XXXV, § 2.)⁴

Article XXXV further establishes "a right to conduct stem cell research which includes research involving adult stem cells, cord blood stem cells, pluripotent stem cells, and/or progenitor cells." (Id., § 5.)⁵ No funds of the institute, however, may be used for "research involving human reproductive cloning." (Id., § 3.)⁶ The constitutional provision provides further, "Notwithstanding any other provision of this Constitution or any law, the institute, which is established in state government, may utilize state issued tax-exempt and taxable bonds to fund its operations, medical and scientific research, including therapy development through clinical trials, and facilities." (Id., § 6.)⁷ The final section of the constitutional provision provides that the institute and its employees are exempt from civil service. (Id., § 7.)

To implement the goals of the constitutional provision, Proposition 71 adds to the Health and Safety Code⁸ the California Stem Cell Research and Cures Act (§ 125290.10 et seq., hereafter the Cures Act or the Act) and the California Stem Cell Research and Cures Bond Act of 2004 (§ 125291.10 et seq., hereafter the Bond Act).⁹

To govern the institute, the Cures Act creates an Independent Citizen's Oversight Committee (ICOC), which is "vested with full power, authority, and jurisdiction over the institute." (§ 125290.15.) The ICOC consists of 29 members, 20 of whom are appointed by the Governor, the Lieutenant Governor, the Treasurer, or the Controller. Five are appointed by the chancellors of the five University of California campuses with medical schools. The Speaker of the Assembly and the President Pro Tempore of the Senate each appoints one member and the final two, a chairperson and vice-chairperson, are elected by the other ICOC members from persons nominated by the four constitutional officers. (§ 125290.20, subd. (a).) There are stringent qualifications for appointment designed to ensure that all members possess appropriate experience and expertise and that persons knowledgeable in the various disease groups that may benefit from the research are represented. In general, the members must be executive officers of California academic or research institutions with an established ability to conduct stem cell research, executive officers of a qualified life science commercial entity, or representatives of disease advocacy groups.¹⁰ Members are appointed for terms of either six or eight years, and may serve no more than two terms. (Id., subd. (c)(1).)

The ICOC is responsible for "overseeting] the operations of the institute." (§ 125290.40, subd. (a).) The statute provides a long list of the ICOC's functions, which include developing annual and longterm strategic research and financial plans for the institute, making final decisions on research standards and grant awards in California, ensuring the completion of an annual financial audit of the institute's operations, issuing public reports on the activities of the institute, establishing policies regarding intellectual property rights arising from research funded by the institute, establishing rules and guidelines for the operation of the ICOC and its working groups, selecting members of the working groups, adopting, amending, and rescinding rules and regulations to carry out the purposes and provisions of the Cures Act and the Bond Act and to govern the procedures of the ICOC, requesting the issuance of bonds from the California Stem Cell Research and Cures Finance Committee and loans from the Pooled Money Investment Board (id., subds. (b)-(g), (i)-(n)), and "performing] all other acts necessary or appropriate in the exercise of its power, authority, and jurisdiction over the institute" (id., subd. (h)).

The Cures Act also provides for the creation of three scientific and medical working groups to advise the ICOC regarding research funding, accountability standards and facilities. Members of the working groups are appointed by a majority vote of a quorum of the ICOC. (§ 125290.50, subds.(a), (b).) Different qualifications are specified for membership in each of the working groups to ensure the appropriate expertise in each group. (§§ 125290.55, 125290.60, 125290.65.)¹¹ The Cures Act also creates a "Citizen's Financial Accountability Oversight Committee" to review the annual financial audit, the State Controller's report and the financial practices of the institute. This committee is chaired by the State Controller and includes public members who "shall have medical backgrounds and knowledge of relevant financial matters" and who are appointed by the State Controller, State Treasurer, President Pro Tempore of the Senate, Speaker of the Assembly and chairperson of the ICOC. (§ 125290.30, subd. (c).)

Members of the ICOC and of the working groups are subject to conflict-of-interest rules, but the generally applicable Government Code provisions are qualified by standards set out in the Cures Act or authorized to be adopted by the ICOC for non-ICOC working group members. (§§ 125290.30. subd. (g), 125290.50, subd. (e); see also pp. 306-07, post.) Meetings of the ICOC must be held in compliance with the Bagley-Keene Open Meeting Act (Gov.Code, § 11120 et seq.) and the award of all grants, loans and contracts, and the adoption of all standards must occur in public meetings. (§ 125290.30, subd. (d).) The California Public Records Act (Gov. Code, § 6250 et seq.) is, with certain exceptions, applicable to all records of the institute (§ 125290.30, subd. (e)). Except for grants and loans approved by the ICOC, all institute contracts must be entered in accordance with the competitive bidding requirements applicable to the University of California. (Pub. Contract Code, § 10500 et seq.) The rules and regulations that the ICOC adopts (other than interim regulations that were authorized for no more than 270 days) must be adopted in accordance with the Administrative Procedure Act (Gov.Code, § 11371 et seq.). (§ 125290.40, subd. (j).)

The Cures Act requires the ICOC to adopt...