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Auditor Seeks Review of Tobacco Initiative

County counsel is asked to assess constitutionality of the measure, which requires spending on health care.


A ranking county official said he has asked for a legal opinion on the constitutionality of Measure H, foreshadowing possible legal steps to dismantle an initiative supported by 65% of the voters in Tuesday's election.

David E. Sundstrom, the county's auditor-controller, said he has doubts about the initiative's authority to direct where and how more than $30 million a year from the national tobacco settlement will be spent.

"This has everything to do with staying within the law and meeting the will of the people," Sundstrom said. "I want to do both."

But a county supervisor and a state senator who supported the initiative said it would be an injustice if county bureaucrats tried to topple the initiative in court.

If legal action is forthcoming, it would mark the second time in consecutive elections the county has legally attacked an initiative that voters passed overwhelmingly. Last March, the county joined a lawsuit over spending limits in Measure F, an anti-airport initiative that passed with 67% of the vote.

Under Measure H, 80% of the tobacco funds will pay for health care and anti-smoking programs. The remainder will pay for public safety. By contrast, Measure G would have used 40% of the money to pay down the county's bankruptcy debt, 42% for health care and 18% for jails.

As auditor-controller, Sundstrom's office is authorized to release allocations such as tobacco money, provided he receives permission from county supervisors and assurances that the measure is constitutional. He said County Counsel Laurence M. Watson shares his worry with the initiative's constitutionality.

The measure does not take effect until July 1, 2001, giving the county time to determine which legal course, if any, it will take without slowing distribution of the tobacco money.

Watson said he believes the initiative is unconstitutional because it prevents future supervisors from making decisions on how tobacco funds can be spent.

But Measure H supporters, who raised more than $800,000 to support their initiative, said a lawsuit by the county would be wrong.

"We think it would be a huge mistake if they pursue any litigation," said Michele Revelle, executive director of the Orange County Medical Assn. "A clear majority of the voters said that this is [what] the money should be used for and the board and other county officials shouldn't circumvent the will of the voters."

Watson said, in this case, he doesn't necessarily need permission from county supervisors to bring a lawsuit and plans to conduct his own legal research on the initiative.

Supervisor Todd Spitzer said if the county counsel took any action on his own it would be a "serious injustice" to voters who approved Measure H.

During the campaign, Watson had expressed concerns about Measure H. But in a lighthearted moment during a conversation with Spitzer this week, Watson said he told the supervisor: "I'm not sure I need board authority to bring a lawsuit [against Measure H]. I think I might be able to bring one myself."

Spitzer, who supported the measure, said he was surprised by Watson's comments and retorted that he would enjoy "the opportunity" of hiring an attorney to help defend Measure H and sue Watson.

On Wednesday, the jocular mood that had surrounded the earlier discussion vanished. Watson acknowledged that as county counsel, he had trouble with both Measure H and its counterpart, Measure G, because both essentially left supervisors no say on how the tobacco money should be spent in years to come.

The prospect of a decision to challenge the initiative rankled pro-H supporters such as state Sen. Joe Dunn (D-Santa Ana).

Dunn, an attorney, said the difference between Measure H and G was simple: G was put on the ballot by county supervisors while H resulted from a successful petition drive.

"The constitutional difference here is that the people put Measure H on the ballot," Dunn said.

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