Metropolitan News-Enterprise


Thursday, September 25, 2003


Page 1


High Court Won’t Hear Challenge to Tobacco-Tax Initiative


By KENNETH OFGANG, Staff Writer/Appellate Courts


The California Supreme Court yesterday declined to review a Court of Appeal ruling upholding the constitutionality of Proposition 10, the 1998 initiative that increased tobacco taxes in order to fund anti-smoking and child development programs.

The high court, at its weekly conference in San Francisco, voted 6-0 to deny a petition for review of the Fourth District, Div. One’s decision in California Assn. of Retail Tobacconists v. State of California (2003) 109 Cal.App.4th 792. Chief Justice Ronald M. George was recused—his son, Eric M. George of the Beverly Hills firm Browne & Woods, was one of the attorneys for CART, an industry group that was one of the plaintiffs in the case.

In its June 10 opinion, the Court of Appeal panel rejected various challenges brought by the tobacco retailers, including a claim that Proposition 10 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 Reiner’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 for the appellate panel, agreed.

McDonald concluded that there is a close relationship between improving the health and well-being of children, and taxing tobacco to pay for those improvements, thus meeting the single-subject requirement as broadly interpreted by the California Supreme Court.

Proposition 10’s concentration on childhood development, McDonald said, was “sufficiently focused and specific.” 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.”

State Control

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 Proposition 10 by another initiative if they determine the commissions need more oversight, McDonald said.

In other actions at the conference, the justices:

•Unanimously declined to review a Fourth District, Div. Three ruling that a libel suit by a Colorado Springs, Colo. councilwoman and her son, the subject of reporting concerning an SEC investigation into alleged stock-price manipulation, was a strategic lawsuit against public participation.

The articles in the Colorado Springs Gazette accurately reported a quasi-judicial proceeding and were thus privileged, the Court of Appeal said. The defendant in the case was Orange County-based Freedom Communications, Inc., which publishes the Orange County Register as well as the newspaper in which the articles appeared.

The case is Colt v. Freedom Communications, Inc.(2003) 109 Cal.App.4th.

•Agreed to consider whether proof of a street-gang enhancement can “bootstrap” a crime that would otherwise not be classified as a violent or serious felony into a “strike” for purposes of three-strikes sentencing. The Fourth District’s Div. Three held in People v. Briceno (2003) 109 Cal.App.4th 1330 that it could not.

•Agreed to review a Sixth District ruling that an arbitration clause in a disability insurance policy was unconscionable. The case is Boghos v. Lloyd’s of Londo (2003)  109 Cal.App.4th 1728.

•Agreed to review a Third District Court of Appeal ruling involving the Sexually Violent Predator Act. People v. Yartz (2003) 109 Cal.App.4th 1660. The court held that the defendant’s 1978 no-contest plea to a charge of child molestation, and the ensuing conviction, cannot be used against him in a proceeding under the act.

The court reasoned that the conviction could not be a predicate for a finding under the SVP Act because SVP proceedings are civil in nature, the law in effect at the time of the plea provided that a plea of no contest could not be used against the defendant in a civil proceeding, and later legislation treating no-contest pleas in felony cases as tantamount to guilty pleas could not be applied retroactively.


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