O.C. Board Suing to Test the Legality of Measure H

Orange County supervisors voted Tuesday to go to court to fight a ballot measure approved overwhelmingly by voters just two weeks ago, marking the second time this year the board has challenged the public will.

Supervisors on a 3-2 vote expressed doubt of the constitutionality of Measure H, which was approved Nov. 7 by nearly 65% of the voters and directs county officials to spend most of the estimated $750 million Orange County will receive in tobacco funds over the next quarter-century on health care.

“I’m flabbergasted,” said Dr. J. Brennan Cassidy, past president of the Orange County Medical Assn. “I expected at least one of the three supervisors to come to their senses and follow the will of their constituents, but I guess that’s why there’s a lot of pessimism about government these days.”

The county is already locked in a legal battle over Measure F, the anti-airport initiative that was approved last March with 67% of the vote. A ruling in that case, which could have profound implications for the county’s plan to build an airport at El Toro, is expected later this year.

For health care leaders, Tuesday’s decision was the second setback within 24 hours. On Monday, supervisors voted to consider spending much of this year’s allotment of tobacco money on debt reduction instead of health care. That stunned health care advocates since supervisors earlier agreed to split this year’s windfall--$28 million--between health care and debt pay-down.

But if Monday’s move drew outrage from Measure H supporters, Tuesday’s developments drew battle lines. Health care leaders said they have asked state Atty. Gen. Bill Lockyer to intervene on behalf of Orange County voters and defend the initiative.

Board Chairman Chuck Smith, who led the push to go to court, said he was unafraid of the political consequences of the board’s action. “I feel that I owe the people of Orange County the fiduciary responsibility in handling the taxpayer’s money and not to take the most politically expedient route,” he said.

Supervisor Todd Spitzer, who voted against the legal challenge, saw it differently.

“Look,” he said, “this is becoming the rule, not the exception, where the voters are telling the board in no uncertain terms: ‘You’re out of touch.’ They get hundreds of thousands of signatures to qualify this initiative and then the board decides to take it to court.”

The board majority said they doubted the measure was constitutional and, with Supervisors Spitzer and Tom Wilson in opposition, voted to file suit, go to court and test its legality. After two hours of debate behind closed doors, Supervisors Jim Silva and Cynthia P. Coad joined Smith in supporting the legal strategy.

Supervisors have long favored spending much of the tobacco windfall on the county’s remaining $950-million bankruptcy debt and and paying for jail improvements. The county remains under a 1978 court order to solve overcrowding in County Jail.

At stake is a considerable sum of money. While this year’s $28-million slice of tobacco funds is not impacted by the measure, which does not take force until July, it is estimated that the county will collect as much as $38 million a year over the next quarter-century.

Before the Nov. 7 election, Smith and colleagues had expressed concern that Measure H and a competing initiative, Measure G, were unconstitutional because if either passed, they would tie the board’s hands for years and even decades to come on how tobacco allocations are spent. Measure G, which would have channeled nearly half of the tobacco dollars to the bankruptcy debt, was defeated.

Tuesday’s decision was reached after County Counsel Laurence M. Watson told supervisors behind closed doors that he believed Measure H was flawed.

“He felt very strongly that both Measures G and H were unconstitutional,” Smith said. “And the constitutionality needs to be checked.”

A county legal face-off with the attorney general’s office would raise political eyebrows throughout the state. Lockyer’s interest in Orange County was whetted several weeks ago by health care leaders and state Sen. Joe Dunn (D-Santa Ana), a fellow Democrat.

A spokesman for the attorney general’s office said Lockyer--anticipating the board’s decision--had “given a lot of thought” to intervening on behalf of county voters.

“I can tell you that the attorney general is of the belief that this office will get involved one way or another to represent the voters of Orange County who passed Measure H,” said Nathan Barankin, Lockyer’s spokesman in Sacramento.

Lockyer, one of the state’s top-ranking Democrats, has considerable legal resources at his command, said Dunn, who approached Lockyer when supervisors first hinted they might challenge Measure H.

Dunn said he was “disappointed” a majority of the board would chose to ignore 65% of the voters.”

“That percentage is higher than when voters embraced Prop. 13 back in 1978,” Dunn said. “It’s strange . . . and it’s disappointing to see elected officials act in seeming disregard to go against the will of the people.”

For Watson, the county’s attorney, the prospect of tangling in court with the attorney general left him untroubled. “The law is the law,” he said.

Watson said he intends to file the lawsuit next week in Superior Court.