State must give date of prison funds transfer SAN FRANCISCO Judge orders officials to say when funds will be transferred

Judge Thelton Henderson wants to know when the state can start paying for prison health care. Judge Thelton Henderson wants to know when the state can start paying for prison health care. Photo: Mike Kepka, The Chronicle Photo: Mike Kepka, The Chronicle Image 1 of / 1 Caption Close State must give date of prison funds transfer 1 / 1 Back to Gallery

The federal judge overseeing California's decrepit prison health system told reluctant state officials Wednesday to tell him how soon they can provide $250 million to start building new hospitals for inmates, the first installment of an $8 billion construction plan.

U.S. District Judge Thelton Henderson of San Francisco issued the order to Gov. Arnold Schwarzenegger and state Controller John Chiang, brushing aside their lawyers' argument that only the Legislature can commit state funds to prison construction. Henderson said legislators have already approved the $250 million, for unspecified "infrastructure" costs, as part of a prison expansion bill Schwarzenegger signed more than a year ago.

Henderson ordered state representatives to spell out at a hearing Oct. 27 "their specific plans to transfer $250 million of previously appropriated and unencumbered ... funds" to Clark Kelso, the court-appointed receiver who is managing the prison health system.

Kelso has asked the judge to hold Schwarzenegger and Chiang in contempt of court if they refuse to pay for new prison health facilities. Henderson said he issued Wednesday's order, at Kelso's suggestion, "as an intermediate step short of a contempt finding."

A contempt order could carry fines of as much as $2 million a day. Kelso has not asked Henderson to jail any state officials held in contempt.

Kelso said Wednesday's order was "a green light" on the road to full funding of his construction plan. He said he was reluctant to seek authority to draw money directly from the state treasury, in light of California's financial problems, and would prefer bond funding, which the Legislature has so far rejected.

Henderson took control of the $1.1 billion prison health system in 2006 as a result of a lawsuit filed on behalf of inmates. The judge said that inadequate medical care was killing at least one prisoner a week and that state officials had shown themselves incapable of complying with the constitutional ban on cruel and unusual punishment.

Kelso, a professor at McGeorge School of Law in Sacramento and a veteran troubleshooter for state agencies, has submitted a plan to build seven new health care centers for 10,000 ailing inmates, improve some existing facilities and construct a building for dental care. He has requested $250 million by the end of this year, a total of $3.5 billion in the first year and the remaining $4.5 billion spread over the next four years.

Construction would begin in February.

Schwarzenegger has asked the Legislature to approve bond funds for Kelso's proposal, but lawmakers have voted it down four times, with Republicans leading the opposition.

At a hearing Monday, state Deputy Attorney General Daniel Powell told Henderson that federal law prohibits judges from ordering prison construction without legislative approval. Powell also contended Kelso had failed to show that his plan - still largely under seal - complied with a federal law that allows judges to order only the minimum improvements needed to comply with prisoners' constitutional rights.

Henderson replied that state officials had taken part in the preparation of the plan and had not objected.

Powell said Wednesday that the attorney general's office would consult with Schwarzenegger and Chiang on how to respond to the judge's order. The lawyer said he was pleased that Henderson "recognized that contempt proceedings are inappropriate in this case."

Any such celebrations are premature, said attorney James Brosnahan of San Francisco, who represents Kelso.

"If they don't pay the money the court has ordered," he said, "we're going to ask that they be held in contempt."