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13. The Lawsuits

By the conclusion of the AB 816 fight, the principled position that the voluntary health agencies had taken left them free to pursue relief in the courts. The fact that the American Lung Association (ALA), American Cancer Society (ACS), and American Heart Association (AHA) had agreed to the diversions under AB 75 and AB 99 made it both legally and politically difficult for the organizations to reverse their position and challenge the diversions in court when those bills were passed. The AB 816 fight left them with no such encumbrance.

During the conflict over AB 816, everyone knew that the issue would end up in court. On the same day that the Conference Committee was to vote on AB 816, Lee Sanders and Americans for Nonsmokers' Rights (ANR) had filed the SAYNO suit to derail the early deal that ANR believed ALA and others had made to support AB 816, including the diversions. ANR also wanted to put everyone on notice that there would be legal challenges to any bill that did not comply with Proposition 99. By the end of the legislative debate over AB 816, the health groups were openly threatening to sue if the Legislature and the governor persisted in adopting legislation that was not consistent with Proposition 99. The Legislature attempted to head off or at least weaken a potential legal challenge to AB 816 by the way it wrote the “findings” portion of the bill. All references to the medical problems caused by smoking were eliminated, and instead the bill stated that “the efforts to reduce smoking in California have led to a drop in the consumption of tobacco. Although

not on target to meet the goal of achieving a 75-percent reduction in tobacco consumption in California by the year 1999 [established in AB 75], the results are encouraging.”[1]

ANR filed the first lawsuit over AB 816 on August 31, 1994, asking the court to block the $128 million in expenditures from the Health Education and Research Accounts during fiscal years 1994-1995 and 1995-1996 for purposes other than health education and research. At that time, ANR withdrew from the SAYNO suit to pursue this new case, since the legal issues in the AB 816 case were similar and its resolution would move more quickly for procedural reasons. (As a result, Lee Sanders and the Attorney General agreed to suspend action on the SAYNO suit until the AB 816 case was resolved.) A week later, on September 6, ALA and ACS filed a similar lawsuit. (AHA refused to join the suit because it thought that the fight would be costly and the plaintiffs would lose.[2]) The two lawsuits were consolidated and heard in Superior Court in Sacramento. At issue was the nature of two programs—Child Health and Disability Prevention (CHDP) and Comprehensive Perinatal Outreach (CPO)—and whether they could legitimately be considered “health education.”

Child Health and Disability Prevention

AB 75 had mandated that the Department of Health Services (DHS) issue protocols for an anti-tobacco component in CHDP, including protocols dissuading children from beginning to smoke, encouraging cessation, and providing information on the health effects of tobacco use on the user and nonsmokers, including children. DHS used a report produced by the National Cancer Institute, How to Help Your Patients Stop Smoking: A National Cancer Institute Manual for Physicians, and a supplement, Clinical Interventions to Prevent Tobacco Use by Children and Adolescents, as a model for developing and implementing tobacco prevention programs within CHDP.[3-6]

According to DHS, the department informed local agencies of the anti-tobacco requirement, developed a protocol, added three questions on tobacco to the CHDP claim form, and provided training in the use of the protocol.[7] While training targeted CHDP staff, the screens were actually performed by 4,500 provider organizations, not local CHDP staff.[8] The “train the trainer” model used by DHS assumed that the county-level staff, once trained, would indeed train the actual providers and require that the tobacco use prevention be done. This model assumed a commitment

to anti-tobacco programs throughout CHDP that simply did not exist.

Gordon Cumming, the DHS official responsible for CHDP, made his view of the CHDP funds clear when he met with the Tobacco Education Oversight Committee (TEOC) on December 3, 1991. When asked about a formal evaluation, Cumming told TEOC that “tobacco funds were meant primarily to provide for screenings of more children, and that the only evaluation is that entailed in the program management.”[9] He also admitted that he had little faith in the data collected on the answers to the three tobacco questions “because of the context of its collection and the difficulty with just getting correct birth dates on the invoices.”[9]

Another indication of the level of CHDP's commitment to tobacco use prevention is the nature of its program. The National Cancer Institute (NCI) guidelines are much stronger than those of CHDP, even though the CHDP program was supposedly based on the NCI guidelines. Under the CHDP protocol, the only requirement was an answer to three questions on the reimbursement form:

  1. Is the patient exposed to secondhand smoke?
  2. Does the patient use tobacco?
  3. If the patient does use tobacco, was the patient counseled about/referred for tobacco use prevention or cessation programs?[10]

The NCI guidelines recommend a much more involved role for the physician and the office staff. In 1994, when asked to critique the CHDP protocol, Marc Manley, chief of the NCI Public Health Applications Research Branch and a coauthor of the NCI guidelines, saw wide variances between those guidelines and the CHDP protocol.[11] For example, while the CHDP protocol makes the creation of a smoke-free office a “suggested” intervention, the NCI guidelines state unequivocally, “Create a smoke-free office” and require a list of six steps for accomplishing this.[4][12][13] Furthermore, the NCI provides detailed guidance on how to deal with smoking by people of different ages. The CHDP protocol simply says, “Reinforce the positive behaviors [and] dissuade patients and parents from beginning to use tobacco.”[10]

During the debate over AB 816, Lester Breslow, a former head of DHS and a member of the TEOC, was more direct when he described CHDP: “`Issuing a protocol' on tobacco education, but doing nothing to follow-up on its use; bringing administrators and physician aides into brief `training sessions”; and requiring checking three `tobacco points'

on the payment claims forms—all for the expenditure of tens of millions of dollars annually, a total of more than 100 million dollars since 1989—is lampooning public health and Proposition 99.”[14] In one county, according to the LLA director, the CHDP staff did pick up brochures, train staff, and refer people to the LLA. But a physician in this county commented, “The fact is, given a busy practice, 15 minutes is probably generous because those pediatric visits are more like 7 1/2 to 10 minutes. …So I don't think much was actually happening. I think the idea that was education money was just wishful thinking more than honesty.”[15]

Comprehensive Perinatal Outreach

TEOC had earlier raised concerns about the perinatal diversion. In the fall of 1992, Carolyn Martin wrote the DHS director, Molly Joel Coye, on behalf of the TEOC expressing concerns about how the money was being used and how its use would be evaluated.[16] Coye responded on January 22, saying that spending Health Education money on CPO was appropriate because the expenditure was “formulated through a protracted process involving the various anti-tobacco constituencies, health care professionals, and others. The passage of these bills indicates that both the Legislature and the Administration approve of the appropriations in them.”[17] She then indicated that plans were still incomplete for the implementation of the CPO component. The CPO dollars were going to be used by counties to generate their matching funds for a federal program providing outreach to pregnant women.

The program structure and the rules governing it created confusion in the field, compounded by a September 15, 1991, memo from Dileep Bal, the head of the DHS Chronic Disease Control Branch (which included the Tobacco Control Section, TCS), and Rugmini Shah, the director of the state-level Maternal and Child Health (MCH), discussing the CPO program. According to the memo, AB 99 broadened AB 75 to include identifying pregnant women, assessing their health needs, and facilitating the delivery of services to them. The fourth step, according to the memo, was to “provide the necessary resources to help the pregnant woman deal with the negative effects of tobacco use and exposure to cigarette smoke on herself, her baby, and her family.”[18] This “provision of resources” step, however, violated the rules for federal matching funds for CPO, which explicitly required that the dollars be used only for outreach, not to deliver services, such as anti-tobacco education.

After a year of trying to get CPO working in the counties, the local lead

agencies (LLAs) complained to TEOC. In October 1992 Breslow reported to Coye on the widespread discontent among the LLAs about CPO. These feelings were voiced at a statewide event called the Revolt Against Tobacco Conference, a meeting of approximately 300 leaders of the California tobacco control movement. After the TEOC met with the leaders, Breslow reported allegations of illegal use of Proposition 99 funds to match federal funds, orders from MCH staff to do traditional outreach, refusals to train staff in tobacco use prevention, and responses from MCH staff that were given with “arrogance and insistence that no one can `take money away from babies.'” He told Coye, “How the department can tolerate, and apparently even encourage, the diversion of such funds to MCH and CHDP without any substantial effort to ascertain what is being accomplished by those services toward tobacco use control is difficult to understand.”[19]

Martin also wrote Coye on behalf of the TEOC, which had received San Diego State's analysis of the county CPO plans, drawn up under contract with TCS. The majority of counties (52 percent) did not even include any mention of providing enhanced tobacco use prevention in their CPO plans. She also mentioned the “abysmal response” to the ethnic-specific training workshops and anecdotal reports of county health officers telling units to “spend the money as you wish—don't worry about tobacco.”[16]

By July 1993, Jennie Cook, who had become TEOC chair, had written to Coye to again express TEOC's concerns. She specifically asked how much of the Health Education money was being used to educate women about the risks of smoking and secondhand smoke. Coye sent her letter to Stephen Kessler, the deputy director for Primary Care and Family Health, who wrote back, “I believe it would not be the best use of these limited funds to conduct the level of data collection and analysis required to answer your specific question.”[20] Not surprisingly, this response did little to assuage TEOC's concerns about how the money was being used. The issue of CHDP and CPO was on its way to the courts.

The Health Groups' Victory

On December 2, 1994, Superior Court judge Roger Warren heard the lawsuits against AB 816. The Attorney General argued that the medical programs to which funds had been diverted had a health education component and thus could legitimately be funded from the Health Education

Account. For example, the state argued that the diversion of funds to CHDP, a medical screening program for the poor, was appropriate because three questions about smoking were included on the forms and physicians were told to provide cessation advice.

Evidence presented by ANR and ALA/ACS, however, showed that CHDP and CPO were not legitimate anti-tobacco programs: 80 percent of CHDP health screens involved children under six years of age and only 0.4 percent of those eligible for the screens smoked.[21] All county CPO services were funded by Proposition 99 Health Education Account monies, and 86 percent of these funds were used to generate matching funds for federal money. Under federal guidelines, state matching funds could not be used for interventions to prevent smoking or interventions to stop exposure to smoke during pregnancy and after birth. It was therefore impossible for these funds to be used for anti-tobacco education.

On December 22, 1994, Judge Warren ruled that AB 816 illegally diverted $128 million from the Health Education and Research Accounts. He wrote, “In my view, one can't make a cat into a dog by calling it Fido or by putting a dog collar on it. …It seems to me that the legislature has called this component of the program an education program and has attached a tobacco-related education component to the health services program, but those two facts do not, in my view, convert this health services program into a tobacco-related education program.”[22] The court ruled that the Legislature had violated the specification in Proposition 99 that the funding allocations could be amended only by a four-fifths vote of the Legislature and then only for purposes “consistent with its purposes.” The court further ruled that the Proposition 99 ballot arguments assured voters that money allocated for tobacco education and research would be spent for these purposes and that the Legislature could not amend the allocation of revenues until Proposition 99's “finding of fact” (i.e., that tobacco is the number one preventable cause of death and disease and causes pain and suffering) changed. All use of the contested funds was to stop.

At the hearing, Judge Warren had requested that both sides advise him on how to tailor the relief to be granted ANR and ALA/ACS should they prevail. The Attorney General argued that, if no other fund source for the programs could be found, “a great many needy people with serious medical problems will find themselves without access to the health care they require.”[23] Alternative funding was a possibility, according to the state, but locating an alternate funding source would require at least

ninety days. If alternate funding was not found, it would require the state an additional sixty to ninety days after this fact was established to implement the cutoff of the programs. Based on this arithmetic, the state argued that the programs should be allowed to finish the fiscal year.[23]

Lawyers for ANR and ALA/ACS argued that the courts should order the state to cease and desist immediately from the illegal expenditures. They argued that the lawsuit had been brought promptly and that the state had been warned by its own Legislative Counsel—twice in 1991 and once in 1992—that the diversions were likely illegal.[24-26] Fred Woocher, ANR's lawyer, specifically argued that

Respondents [the state] were on full notice well before AB 816 was enacted that the diversions from the Health Education and Research Accounts were illegal, and that Petitioners [ANR] were prepared to challenge the diversions in court. Having elected to violate their legal duty nonetheless, Respondents simply cannot now be heard—much less in the name of equity—to complain that they must be permitted to continue their unlawful activities in order to avoid “confusion” or “disruption” to the other programs that they have chosen to fund with the Health Education and Research Account monies. Any such confusion and disruption is solely the result of Respondents's [sic] own wrongdoing, and they cannot be permitted to use that as a justification for violating the people's will under Proposition 99.[27] [emphasis in original]

The fact that a lawsuit had not been filed before 1994, when the CHDP diversion had begun in 1989 and the CPO diversion in 1991, the lawyers argued, should not affect the cease and desist order because the health groups “did everything that they could do to prevent the health education diversions short of litigation.”[27] The groups filed suit as soon as “AB 816 increased the diversions from the Health Education Account and gutted the Research Account [and] petitioners saw that there was no recourse short of litigation.”[27]

The health groups also argued that the state's claims of harm needed to be balanced against the harm caused by underfunding the health education campaign. This assertion was based on work done at the University of California at San Francisco by Stanton Glantz, who prepared an estimate of the health impact of underfunding. One of the state's arguments was that immediate harm would be experienced by those who relied on the state for health care, while those served by the Health Education and Research Accounts would not experience immediate harm. Glantz demonstrated that, especially in the case of heart disease, there was immediate harm. Among individuals who stop smoking, the cardiovascular system starts working better by the next day; the excess risk

of a heart attack is halfway back to that of a nonsmoker in a year. Similarly, if a woman quits smoking even two-thirds of the way through her pregnancy, the chance that she will have a low-birthweight baby is substantially reduced. Based on the quit rates achieved by the Proposition 99 programs before they were cut under AB 816, Glantz figured that the short-term hospitalization costs of the additional cases of disease caused by funding the program at 12 percent instead of 20 percent was approximately $28 million in fiscal year 1994-1995. Moreover, this estimate did not include physician fees, subsequent hospitalizations, outpatient care, rehabilitation, disability costs, lost tax income, or the costs associated with passive smoking or fires. California government paid about one-third of this amount, or $9 million.[28]

At a hearing on January 19, 1995, Judge Warren granted the plaintiffs' request for an injunction against further illegal diversions in the 1994-1995 budget. The ruling was memorialized in a written order on January 23, 1995. The court ruled specifically that the $64 million in expenditures for medical services from the Health Education and Research Accounts authorized for 1994-1995 by AB 816 were illegal.

The degree to which the state was allowed to spend money that was illegally appropriated had to be established. Similar diversions that AB 816 authorized for 1995-1996 were also found illegal and enjoined. Judge Warren entered different judgments in the ANR and ALA/ACS lawsuits. In the former case, the state was allowed to spend $83,000 in CPO funds; in the latter, $4.25 million. The ANR ruling blocked all CHDP expenditures, and the ALA/ACS ruling allowed $18.5 million to be spent on CHDP. Thus, the ANR judgment blocked spending of $128 million while the ALA/ACS judgment blocked $105 million. The judge gave ALA and ACS the opportunity to sign on to the ANR judgment, but they declined on the grounds that they sought only prospective relief, following through on their assurances to legislators who agreed to be plaintiffs in the suit. Further, the ALA/ACS lawyer advised them that since ANR was asking for the full amount, they “would not really lose anything if there is a good strategic reason for asking for less” and the lesser judgment might have a better chance of not being stayed by the Court of Appeal.[29] The governor appealed Warren's decision, and the California Medical Association (CMA) and Californians for Smokers' Rights filed friend of the court briefs supporting the state.

On May 24, 1995, the Third District Court of Appeal denied the state's request to issue a stay of the lower court's ruling. A stay would have unfrozen the illegally diverted funds and allowed the governor to spend

the money as authorized by AB 816 while the appeal was in progress. The plaintiffs successfully argued that if Judge Warren's order was stayed, the contested funds would be lost forever.

The governor tried to avoid complying with the ruling. In response to the injunction, DHS verbally instructed counties to proceed with business as usual in terms of spending money on health services. The administration claimed it wanted to keep the programs alive while a new source of funds was found for CPO programs. In fact, the state waited three months (until April 21, 1995) before it mailed notices to the local health departments formally notifying them that they could not rely on AB 816 appropriations to fund CPO services.[30]

The state returned to court late in 1995 to request that it be allowed to spend an extra $3.1 million on CPO services in 1994-1995. This move was in response to the portion of the ANR judgment that restricted the state to spending $83,000 on CPO but allowed the state to ask for more. On January 30, 1996, ANR protested the state's application. Specifically, ANR pointed out that the state had not advised the counties in a timely manner to stop using funds for illegal purposes and had not used rollover funds from previous years to fund CPO services. The state, in fact, had used “new” AB 816 monies in 1994-1995 before using rollover funds from the previous years. Using the new money was prohibited by the court while using the rollover funds was not. ANR further pointed out that the state had sufficient funds to reimburse the counties for illegally spent monies. The court denied the state's request to use $3.1 million from AB 816 monies to fund CPO services.

The governor's May revision of his proposed 1995-1996 budget included a request to use $36.7 million in General Fund monies to replace the funds lost because of the lawsuits, although he made it clear he was not giving up on new attempts at diversion of Proposition 99 Health Education and Research Account funds during the 1995-1996 fiscal year.[31] While Wilson sought to keep the medical services programs funded from the General Fund, he did not seek permission to spend the contested funds for anti-tobacco education and research. He was happy to let the money sit in the bank pending appeal. Money in the bank, after all, would not hurt the tobacco industry.

The Lawsuit's Aftermath: SB 493 in 1995

Judge Warren could only block money from being spent illegally. He could not order money to be spent as the voters specified; only the Legislature

could appropriate the funds. Thus, the victory in Judge Warren's court for ANR and ALA/ACS was only the beginning of the battles to be fought in 1995 over the illegally diverted funds. The health organizations had to go to the Legislature for a new bill to restore full funding. They did not, however, publicize their victory in the lawsuit or otherwise use it to bring public pressure to bear on the governor or the Legislature. The court victory was viewed as a new piece of ammunition in the insider game, not as a way to involve the public and get the media to frame the issue as “following the will of the voters.”

Senator Diane Watson (D-Los Angeles), a longtime supporter of Proposition 99, proposed SB 949, which would have appropriated the frozen Proposition 99 funds for legitimate anti-tobacco health education and research in accordance with Proposition 99 and with the court's judgment. While SB 949 was passed by Watson's Health and Human Services Committee, it was stopped in the Senate Appropriations Committee by the same forces that had supported the use of funds from the Health Education and Research Accounts for medical services: the CMA, CAHHS, and the Western Center for Law and Poverty.[32] Meanwhile, the tobacco industry continued to escalate its campaign contributions to members of the Legislature. In 1995-1996 the tobacco industry spent $10,440 per member, twice its U.S. Congress contributions of $5,044 per member.[33]

Rather than accommodating the court rulings, Governor Wilson worked to get around them. He wrote the Legislature urging it to enact new legislation that continued to divert Proposition 99 funds into medical services but which would pass legal muster:

I hope that you will agree with me that neither the executive nor legislature [sic] branches of state government can abide the court's decision to substitute its will for that of the elected representatives of the people of California with regard to the allocation of critical state resources. Indeed, the State has met the very requirements of the proposition to make allocation decisions consistent with the Proposition's purposes and done so with the required 4/5 vote of both houses of the Legislature. I therefore call upon you to establish an appropriate structure for immediate consideration of legislative alternatives to resolve this egregious action by the court so that we may minimize the disruption and loss of medical care to uninsured and indigent persons in California.[31]

Wilson was offended that the court had imposed its will on the state's elected representatives; he did not object to elected representatives imposing their will on the expressly stated mandate of the people. On June 27 the voluntary health agencies wrote an angry response to the governor:


We believe that the intent and effect of your proposal, as stated in your letter, is to circumvent the judicial system, subvert the Constitution, and impose your will over that of the voter. We are unified in our opposition to this action and will pursue every avenue to ensure that Proposition 99 is upheld. …The Superior Court made two points very clear. First, funds in the Proposition 99 Health Education and Research Accounts cannot be used to fund medical care. Second, any attempt to divert the Health Education and Research Accounts into medical care will be closely scrutinized.[34]

They did not release this letter to the press or make any effort to marshal public support.

As the governor requested, the Legislature passed SB 493, which contained a funding plan that was identical to AB 816. SB 493, originally sponsored by Senator Cathie Wright (R-Simi Valley), had proposed a minor change in the portion of the health and safety code dealing with radiologic technologies. In this form, it had passed through the committee structure and the Senate and was awaiting final action on the Assembly floor. There Wright was replaced by minority leader Ken Maddy (R-Fresno) as the bill's sponsor, and the old bill was amended in its entirety to appropriate Proposition 99 funds. The section on radiologic technologies was dropped. By using an existing bill in this manner, there would be no hearings on the issue and virtually no deliberation. It was the ultimate insider deal.

In SB 493 the Legislature sought to avoid the legal problems of AB 816 through two actions. First, it presented a long series of “findings” that were designed to convince the courts that the tobacco use situation in California had changed substantially enough to justify major cuts in the anti-tobacco education programs. For example, the Legislature included the “finding” that “the decline in overall tobacco use since 1988, the resulting decline in cigarette and tobacco tax revenues and the decline in the number of Californians with health insurance, such that 6.5 million people are uninsured, make it critically important to reallocate revenue for one year to meet urgent health care needs in a manner consistent with the purposes of the act.”[35]

Second, rather than simply using Health Education and Research money to fund medical services, SB 493 amended the percentage allocations of tobacco tax revenues in Proposition 99 to put less money into the Health Education and Research Accounts and put more directly into the Physician Services Account, where it was then appropriated to the same medical service programs that the court had ruled illegal in the AB 816

suit. SB 493 put only 10 percent of the tobacco tax revenues in the Health Education Account (instead of the 20 percent required by Proposition 99) and only 1 percent in the Research Account (instead of the 5 percent required). The Physician Services Account was given 22.5 percent of the revenues (instead of the 10 percent specified by the initiative); the Unallocated Account was given 26.5 percent (instead of 25 percent). This action was taken to deliberately amend the initiative rather than rely on the appropriations process.

By this time every county in California had formed a tobacco control coalition, which had created a network of people who were well informed about tobacco control and who could have been a substantial resource for the reauthorization effort. The lobbyists did not tap this resource. Cynthia Hallett, who at the time was working for the Los Angeles LLA, later described how advocates in the field finally began organizing their own effort: “Where I remember the most amount of activity coming up was SB 493, and that was May of '95. That was a long way down the pike. And what happened was it got to the most dire stage and then finally there was much more communication. But what was interesting was that activities to combat SB 493 did not necessarily originate from anybody out of Sacramento. …I mean, that was the first major effort that I can remember people really getting behind.”[36] The frustration in the field was clearly growing, but it was not organized and focused enough to influence the events of 1995.

On July 10 the Assembly passed SB 493 on a 67-4 vote and returned it to the Senate, where it was approved, as amended, on a 32-6 vote just five days later. The Governor signed SB 493 into law on July 27, a mere seventeen days after it was “introduced.” Once again, the established power structure within the Legislature and administration, in alliance with powerful tobacco and medical interests, pushed through an appropriation designed to reduce the tobacco control program.

Proposition 99's advocates had no chance in this game of political hardball. Carolyn Martin observed that SB 493

zoomed through the legislature faster than any bill that I've ever seen. I think it was a done deal in four days. The only thing we did to even try and slow down this missile was to require a Senate hearing and by then the Senate was in the last days of the budget session when everyone is so frazzled and tired they can't think anyway. Lots of people in the Assembly told us they didn't even know what they were voting on when they voted on 493. One of our mistakes was we did not have a strong Assembly leader who would just scream and

stomp and carry on to try and expose any chicanery on diverting the money again. We needed that and we didn't have it. And, remember, Willie Brown was still there.[37]

The SB 493 Lawsuits

ANR and the voluntaries—this time including AHA—sued again, separately, seeking temporary restraining orders against the implementation of SB 493. They asked that the matter be assigned to Judge Warren, who had presided over the earlier case, on the grounds that he already knew the legal issues. The state contested the application to assign the matter to Warren, and the case was assigned to Judge James T. Ford, who had been the judge in ALA's 1992 lawsuit to restore the media campaign.

The health groups argued that SB 493 was not “consistent with the purposes” of Proposition 99 on its face without presenting any evidence that the cuts were hurting the program, as they had done in the AB 816 case. Even so, the health groups won again. Judge Ford issued a temporary restraining order on August 1, 1995, to stop the contested expenditures and issued a preliminary injunction against SB 493 on September 1, 1995.

As with the rulings on AB 816, none of the litigation surrounding SB 493 compelled spending the $64 million in contested funds from the Health Education and Research Accounts, and the governor again simply let the money sit in the bank. Nevertheless, the health groups' victory represented a shot in the arm for the people working in the field. According to Cynthia Hallett,

The lawsuits were really when…the larger sort of California constituencies started moving…the Prop 99 constituency. …People finally got the word out, “This is what's happening, and this is what they're doing. Are we going to sit behind and let this happen?” And a lot of that message came from ANR. …We were able to clearly communicate with our coalition members. And we were able to help. We were able to say, “They're collecting affidavits or letters of support from previous clients. Can you do it?” And sure enough, people were popping them out. And it was great because then the community agencies felt a part of the process. And that's what it takes because they do so much of this work.[36]

The lawsuits also demonstrated how far away from each other the original Proposition 99 coalition members had moved, with the voluntary health agencies on one side and the medical service providers on the other. As noted in the ALA newsletter, “The beneficiaries of the diverted

tobacco monies, the California Medical Association, California Association of Hospitals and Health Services, medical clinics, the Western Center on Law and Poverty, and the tobacco companies wielded enough political influence to achieve the diversion and are expected to lend legal support to the State's Attorney General in order to keep the Prop 99 money.”[38] The health groups finally accepted that the CMA, CAHHS, and Western Center for Law and Poverty were not even potential allies. They were linked with the tobacco companies.


The lawsuits did several useful things for the Proposition 99 programs. They increased the visibility of the Proposition 99 issue, framing it not as sick babies versus prevention but as voter-approved initiatives versus illegal legislative deals. For the constituency in the field, those who worked on the programs on a daily basis, the lawsuits showed a greater level of commitment to protecting those programs than they had seen before in Sacramento. The lawsuits showed that the health groups were willing to fight for the Proposition 99 programs and to fight for them outside the world of Capitol insider politics. The litigation also engaged ANR in the fight over Proposition 99. Although ANR was not working with the voluntary health agencies, ANR's experience in grassroots political fights had the potential to be useful in protecting Proposition 99.

In 1996 new legislation would again be needed to authorize the Proposition 99 programs. Regardless of the legality or illegality of AB 816 and SB 493, both were facing a sunset deadline on June 30, 1996. The question before tobacco control advocates was how they could exploit both their legal victories and their organizational strengths in a way that would make full funding of the anti-tobacco education and research programs a reality.


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10. California Department of Health Services. “PM 160 Instructions.” Sacramento, 1992 January. UC-eLinks

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13. Epps RP, Manley MW. “A physician's guide to preventing tobacco use during childhood and adolescence” . Pediatrics 1991;88(1):140-144. UC-eLinks

14. Breslow L. “Declaration of Lester Breslow” . Declaration. Los Angeles: University of California, Los Angeles. November 17, 1994. UC-eLinks

15. Kennedy R. “Interview with Edith Balbach” . April 1, 1997. UC-eLinks

16. Martin C. “Letter to Molly Joel Coye” . October 16, 1992. UC-eLinks

17. Coye MJ. “Letter to Carolyn Martin” . January 22, 1993. UC-eLinks

18. Bal D, Shah R. “Memo to health officers, Maternal and Child Health directors, Tobacco Control Project directors, Local Lead Agencies” . November 14, 1991. UC-eLinks

19. Breslow L. “Letter to Molly Joel Coye” . October 5, 1992. UC-eLinks

20. Kessler SW. “Letter to Jennie Cook” . July 26, 1993. UC-eLinks

21. Gregory MA. “CHDP Information Notice #94-C” . February 10, 1994. UC-eLinks

22. Skolnick A. “Judge rules diversion of antismoking money illegal, victory for California Tobacco Control Program” . JAMA 1995;273(8):610-611. UC-eLinks

23. Lungren DE. “Respondents' memorandum of points and authorities re: Tailoring of relief to be granted, Case No. 379257 [American Lung Association et al. v. Pete Wilson, Governor of the State of California et al.,” Consolidated Case Nos. 379257 and 379460], Superior Court of the State of California, County of Sacramento. December 30, 1994. UC-eLinks

24. Gregory BM. “Letter to Diane E. Watson” . June 13, 1991. UC-eLinks

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