Lockyer Argues Against County Measure H Suit

In a rare courtroom appearance, state Atty. Gen. Bill Lockyer stood before an Orange County commissioner Tuesday to argue that county supervisors are abusing the law and thwarting the will of voters in their attempt to overturn a ballot measure.

Lockyer asked that the county’s lawsuit be dismissed, saying the will of Orange County was made clear in November when 65% of the voters approved an initiative stipulating that tens of millions of dollars in annual tobacco settlement funds be spent on health care.

The attorney general said he wanted to handle the case himself because it carries statewide significance and that Orange County is the state’s lone county government seeking to overturn such a health care initiative.

Commissioner Jane D. Myers continued the hearing to Feb. 14 but left attorneys with the impression that she might rule on the merits of Measure H itself and not merely on the constitutionality of the county’s lawsuit.

The lawsuit, backed by a majority of county supervisors, attacks the merits of Measure H and lists one of the measure’s supporters, Newport Beach physician J. Brennan Cassidy, as the only defendant.

The ballot measure mandated 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.

It was an unprecedented appearance by Lockyer, who during his tenure as attorney general has never argued in a state court. “This is a first for me,” he said.

Lockyer said the case was an example of “an abuse by the county” and a form of legal punishment against Cassidy, who has to foot his own legal defense bill.

The attorney general said he has a duty to aggressively protect the national tobacco litigation settlement, which involves multibillion-dollar annual payments by tobacco companies. The agreement was reached with the states, which are spending a portion of the funds on efforts to fight smoking and other related programs.

“At the national conferences of attorney generals we are regularly lectured by the federal government not to spend tobacco money on things other than health, like for roads or to fix potholes,” Lockyer said, “because the federal government may rescind the agreement.”

Cassidy, meanwhile, is upset that he is being sued by the Board of Supervisors because he happened to be a supporter of the initiative, said his attorney, Thomas W. Hiltachk.

“There can be no question that Dr. Cassidy was brought to court only because he exercised his rights as a citizen. . . . Why should he be the one to pay?” Hiltachk argued.

The county chose Cassidy because it was “the most efficient way” to get the issue to court, said Deputy County Counsel James C. Harman.

Hiltachk argued tobacco funds are a windfall and not part of the county’s typical budget, but county officials said Measure H interferes with the basic financial authority of supervisors.