O.C. Tobacco Initiative Is Upheld--For Now

An Orange County court commissioner Wednesday tentatively upheld Measure H, a voter-approved initiative mandating that tobacco settlement funds be spent on health care rather than debt reduction and jail beds.

A majority of the county Board of Supervisors opposed the ballot measure and sued to overturn it.

Commissioner Jane D. Myers said the initiative does not violate or interfere with the supervisors’ authority under the state’s Budget Act, as the county alleged in its suit against a private physician who led the Measure H campaign.

“Measure H does not interfere with the Board of Supervisors’ essential governmental function of management of fiscal affairs and is not invalid,” Myers said.

After hearing additional arguments, however, Myers said she will take the case under advisement and decide later.

Health care leaders, including Dr. J. Brennan Cassidy, immediate past president of the Orange County Medical Assn. and the only defendant, greeted the decision with mixed emotions.

“I think we would all like to see this be final,” Cassidy said, “but we’re happy that the tentative ruling is in our favor.”

The ballot measure, approved by 65% of the voters in November, mandates that most of $750 million in tobacco settlement funds the county will receive over the next 25 years be spent on health care, not on bankruptcy debt and jail beds as the board majority wanted.

Supervisors Chuck Smith, Cynthia P. Coad and Jim Silva had endorsed a competing initiative that was defeated.

Coad said she and her colleagues filed suit to determine whether the initiative is constitutional before the board enacts it in July.

“All I asked was, ‘Is it constitutional?’ ” she said Wednesday. “And our county counsel had questioned the measure’s constitutionality because it seemed to tie the hands of future board members.”

Cassidy’s attorneys have argued that the county’s suit against him was punishment for exercising his First Amendment right to file an initiative.

Coad denied that the county singled out Cassidy and said it would be “a stretch of the imagination” to consider the lawsuit a punishment.

State Atty. Gen. Bill Lockyer made a rare visit to Orange County Superior Court last month to argue before Myers that supervisors had abused the law and were thwarting the will of voters in their attempt to overturn a ballot measure.

Lockyer said he intervened to protect the rights of county voters and the initiative process. The attorney general filed a friend of the court brief characterizing the county’s action as a nuisance lawsuit against Cassidy, who must pay for his own legal defense.

Should Myers agree with that argument, it would mark an embarrassing judgment against the county and could help Cassidy recover his legal fees.

Cassidy said he has already paid his legal costs out of pocket. “The attorneys don’t work for free,” he said.