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California and the West

2 City Attorneys Criticize Lungren

Tobacco: Officials in L.A. and San Jose accuse him of undermining lawsuit and opposing local ban on smoking.


Atty. Gen. Dan Lungren is under fire from the city attorneys of Los Angeles and San Jose on two lawsuits involving tobacco--once again raising an issue that has proved controversial in Lungren's race for governor.

In Los Angeles, City Atty. James Hahn on Thursday accused Lungren of trying to undermine the city's suit that alleges 16 national tobacco companies violated California law by failing to inform consumers of risks from secondhand smoke.

On Sept. 23, Lungren's office sent a letter to Hahn saying that the city attorney had exceeded his authority by filing the suit as a statewide action and urged him to reduce its scope.

Otherwise, Lungren's letter warned, the state attorney general's office would file a brief stating that Hahn has authority only to sue on behalf of Los Angeles residents. The tobacco industry has already filed a motion seeking to have the case dismissed on other grounds.

Hahn asserted Thursday that Lungren's letter constituted a threat to force him to drop the suit, a charge hotly disputed by Lungren and his key aides.

"That is an absurd statement," Lungren said. Hahn "doesn't have the authority" to sue on behalf of all California residents, Lungren said.

Special Assistant Atty. Gen. Tracey Buck-Walsh, one of Lungren's top aides on tobacco litigation, said that Hahn's move was politically motivated and accused Hahn of "grandstanding."

Hahn, a Democrat who supports Lt. Gov. Gray Davis against Lungren, who is the Republican candidate in the gubernatorial race, denied the charge, saying: "I'm not running for office right now."

Hahn argues that the law gives him the authority to file a statewide suit, citing language saying that suits "may be brought by the attorney general in the name of the people of the state of California or by . . . any city attorney of a city having a population in excess of 750,000."

In San Jose, meanwhile, City Atty. Joan R. Gallo said she is mystified and disturbed at the position Lungren's office has taken in an anti-smoking case stemming from a San Jose ordinance. That law, adopted in 1993, prohibits smoking in "all enclosed areas of buildings which are open to the public or which are places of employment."

In May 1995, San Jose officials told personnel of a nursing home that they were in violation of the law by permitting smoking in enclosed areas of the home and for failing to conspicuously post "No Smoking" signs.

Nursing home officials retorted that state Health Services Department personnel had told them that San Jose's ordinance was preempted by state law. San Jose sued the state agency to get its rights clarified. The city won at the trial court and in a unanimous decision by the state Court of Appeal, which said the plain language of the statute showed that the health department was wrong.

Recently, the attorney general's office, which has been representing the health department, filed a notice of appeal with the state Supreme Court.

"I'm surprised that the attorney general's office has taken this position," Gallo said. "Why on policy grounds would you want people in nursing homes who have emphysema or on oxygen to be exposed to secondary smoke?" she added.

Lungren said Thursday that he had not been briefed by staff on this case. Buck-Walsh said the case had not been brought to the attention of top officials in Lungren's office.

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