Board Courts Disaster Fighting Public

County supervisors have put themselves on a collision course with voters and face enormous political risk by challenging an initiative that their constituents put on the ballot and then decisively approved just two weeks ago, legal and political observers agree.

In a split vote, supervisors ordered attorneys Tuesday to file a lawsuit challenging Measure H, which passed with nearly two-thirds support on Nov. 7. The county will argue the measure is illegal because it usurps the board’s authority over how to spend $750 million over the next 25 years in proceeds from national tobacco settlement funds.

The move outraged supporters of Measure H, who argued that the board crossed the line from public servant to provocateur.

It also has sharp political consequences if voters who lined up behind Measure H feel they’ve been abandoned, political observers said. Voters, not to mention political foes, tend to remember such things.

“They’ve thumbed their noses at the voters of Orange County, and that’s an easy sell to the public,” UCI political science professor Mark Petracca said.

California has a long tradition of lawsuits being filed on the heels of elections asking the courts to overturn successful initiatives. In most cases, though, these challenges have been made by special interest groups on the losing side, not by the government entity representing those same voters.

Still, governments have sued in the wake of undesired ballot outcomes, said Dana Reed, a Los Angeles-based attorney specializing in government who is not involved in the Measure H issue.

In 1990, for example, the Legislature sued to overturn voter passage of term limits for the state Assembly and Senate, a measure ultimately upheld by the state Supreme Court. An unsuccessful court challenge to Prop. 13--the landmark 1978 property tax reform measure--was filed by a group of school districts, which technically are arms of state government.

As late as this month, Ventura County supervisors prepared to sue if voters there had passed a measure handing that county’s tobacco settlement money to private health-care providers. To the board’s relief, the measure failed.

Elected officials who attempt to thwart voter approvals through lawsuits do so at their own peril, Reed said. The closer the official is to the voter--city council members are closer than county or state officials--the greater the danger of voter backlash, he said.

“Especially when you have such resounding approval,” he said. “For any elected official that suggests spending money against it, that could be political suicide. That’s when recalls start.”

Political retribution against supervisors likely won’t hit until they face reelection, Petracca said. Those angry at the board could field their own candidates or support other challengers.

On Tuesday, state Atty. Gen. Bill Lockyer announced that he likely will intervene by opposing the county’s lawsuit and defending the will of the voters. In that case, public funds will be spent both to challenge the measure and defend it, Petracca said.

The Measure H lawsuit isn’t the first time county supervisors have found themselves taking on constituents. In March, the board--again on a split vote--agreed to join a lawsuit challenging Measure F, which was approved by 67% of the voters last March. Measure F would make it harder for the county to build a new airport at the former El Toro Marine base by requiring two-thirds voter approval before it can proceed with such plans.

In both cases, the county’s argument is the same: The measures are unconstitutional because they interfere with the authority of supervisors.

The legal maneuvers so far haven’t cost a lot of money. Through October, the county had spent about $45,000 for staff attorneys to file briefs against Measure F. About $9,000 has been spent for county attorney time on Measure H, including an unsuccessful preelection lawsuit filed by the county that attempted to have the measure removed from the ballot.

But the bills could add up quickly if the court challenge drags on, Petracca said. In the case of Measure H, a more immediate political backlash could erupt if voters perceive that health care spending is suffering while the money that voters earmarked for health programs is spent on lawyers, he said.

Supervisor Todd Spitzer, who with Supervisor Tom Wilson has opposed the lawsuits, said the only way to salvage something for the public is to keep the legal costs down. Accordingly, Spitzer and Wilson have made it clear neither would support hiring outside attorneys to handle the suits. The board needs a four-fifths majority to hire private lawyers.

That means the county would pay about $90 an hour for staff attorneys instead of about $300 an hour for private lawyers.

“I’m very pleased that the bills aren’t much larger,” Spitzer said.