Metropolitan News-Enterprise


Wednesday, June 11, 2003


Page 1


C.A. Upholds Tobacco-Tax Initiative to Fund Children’s Programs


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Fourth District Court of Appeal yesterday upheld the constitutionality of Proposition 10, the 1998 initiative that increased tobacco taxes in order to fund anti-smoking and child development programs.

Div. One rejected various challenges brought by tobacco retailers, including a claim that it violates the prohibition against initiatives covering more than one subject.

They particularly objected to the provisions creating a special state commission and local commissions in the various counties to spend the funds generated by the tax, claiming that the commissions’ independence violates the separation of powers and the constitutional provisions designed to prevent public spending for private purposes.

In Los Angeles County, Proposition 10 funds have been used to create a children’s waiting room at the Long Beach courthouse and for child abuse prosecutions, among other things.

Rob Reinser’s Idea

The initiative was the brainchild of actor/director Rob Reiner, who provided much of the funding for the 1998 campaign and now serves as chairman of the state commission created by Proposition 10. Proposition 28, an effort to repeal the tax, was backed by some of the plaintiffs and by the California Republican Party, but was voted down in 2000 by a margin of nearly 3 to 1.

San Diego Superior Court Judge Ronald Prager, hearing various consolidated cases, ruled that the initiative was constitutional. Justice Alex McDonald, writing yesterday for the appellate panel, agreed.

McDonald concluded that improving the health and well-being of children, and taxing tobacco to pay for those improvements, are sufficiently related to meet the single-subject requirement based on a long line of California Supreme Court precedents.

“The single-subject requirement is not construed in an unduly narrow or restrictive manner to preclude the use of the initiative process to accomplish comprehensive, broad-based reform in particular areas of public concern...,” the justice wrote. “Rather, the single-subject rule is interpreted liberally to uphold legislation that includes a matrix of reasonably germane elements.”

‘Focused and Specufuc’

Proposition 10’s concentration on childhood development, McDonald said, was “sufficiently focused and specific” to meet the single-subject test. He cited the Supreme Court’s decisions rejecting single-subject challenges to anti-gang measure Proposition 21, term limits and political reform measure Proposition 140, criminal justice measure Propositions 8 and 115 and political reform measure Proposition 9.

The justice also rejected the contention that the Proposition 10 commissions have so much autonomy, they violate the state Constitution’s requirement that—with specified exceptions—every agency that spends taxpayer funds be “under the exclusive control and management of the State.”

McDonald acknowledged that unlike other agencies, the Proposition 10 commissions are not managed by agency secretaries appointed by the governor, are not subject to the regular budgetary process and make appropriations that are not subject to the governor’s line-item veto.

But none of those distinctions are necessarily inconsistent with the notion of state control, the jurist reasoned. The commissions, he noted, are appointed by the governor and county boards in a manner similar to other commissions, and are subject to budgetary controls overseen by a number of state agencies.

The creation of a continuous revenue stream to fund a specific state or local agency, he added, is neither unconstitutional nor unusual. And the ultimate control lies with the voters, who can—and were given the opportunity to—repeal the initiative and abolish the commissions, and who can amend it by another initiative if they determine the commissions need more oversight, McDonald said.

The case is California Association of Retail Tobacconists v. State of California, D037599.


Copyright 2003, Metropolitan News Company