Lawsuit Filed to Block Measure F

Pro-airport forces filed suit Friday to invalidate Measure F--which two-thirds of Orange County voters approved Tuesday.

The lawsuit--brought by the city of Newport Beach, Citizens for Jobs and the Economy and the Airport Working Group--shifts the battlefield from the ballot box to the courthouse, where both sides expect a lengthy and costly fight.

In a strange twist, the sole defendant in the lawsuit is Orange County, which has spent more than $40 million on plans to convert the 4,700-acre former El Toro Marine Corps Air Station into an international airport.

“Isn’t that the irony of ironies?” asked Supervisor Todd Spitzer, who opposes the airport.

The lawsuit attempts to compel county attorneys to argue that Measure F should become law even though it could cripple plans for an airport at El Toro, which is supported by three of the five supervisors. Measure F also would make it more difficult for future supervisors to find sites for jails or hazardous-waste landfills.

“It’s up to the county to defend the law, unless they think that it is flawed,” said Bradley W. Hertz, the attorney who filed the lawsuit.

Hertz and other lawyers said the county has a legal obligation to defend a county law, so suing the county was appropriate. Attorneys on both sides expect to be represented in the lawsuit, which contends

that Measure F is fatally flawed and unenforceable.

Jeffrey Metzger, a Laguna Hills attorney and Measure F proponent, said he believes the cities and groups fighting the airport will prevail in court, just as they did last year when airport supporters tried twice, unsuccessfully, to block Measure F from appearing on the ballot.

“We didn’t come this far, and have [Measure F] win, not to do everything in our power to defend the measure,” Metzger said. “This is the people’s victory, and the people’s law, and we will do everything in our power to see it upheld. Those [who] worked to pass it will work just as hard to defend it.”

Robert Pugsley, law professor at the Southwestern School of Law, said it was uncommon for a county to defend a measure that it had opposed. The tactic was probably the pro-airport forces “demonstrating their political muscle and their legal tenacity in court,” said Pugsley, who is not on either side.

“It’s kind of biting the hand that half-fed you,” Pugsley said. “They’re putting the county on the spot, and raising the stakes. It would be better if the county recused itself or hired outside counsel to avoid any real or apparent conflict of interest.”

Spitzer said the county counsel’s office would have a conflict because it has been involved in previous legal skirmishes over the airport.

“There’s no way our county counsel can come in with a straight face and represent to the Board of Supervisors that they can--in any way--defend this lawsuit,” Spitzer said. He will ask for the county to hire an outside firm for the case.

Hertz said the courts will also be asked to sort out what activities and expenditures can be undertaken by the county while Measure F is being challenged. “There is obviously some uncertainty as to what the county can or cannot do,” he said.

Airport backers also believe they have a strong case. In December, while Los Angeles Superior Court Judge Dzintra Janavs allowed Measure F to appear on the ballot, she wrote that she had “grave doubts about the validity of the initiative.”

Now, the pro-airport forces must meet a different, and higher standard, than they did when they presented their case to Janavs last fall, Hertz said.

Hertz also said that he will attempt, as early as next week, to have the matter moved out of Orange County Superior Court. The lawsuit says that Measure F is unconstitutional on nine counts, particularly because it requires an automatic election for airports, landfills and jails while the state Constitution demands that signatures be collected before triggering an election.

The measure also requires a two-thirds vote, and California election codes only call for a majority vote. In addition, the pro-airport groups argue that Measure F violates the single-subject rule for initiatives and violates state laws by requiring an election before a county can approve a jail or airport.

Spitzer said the pro-airport group should accept defeat after Tuesday’s landslide. But that isn’t going to happen any time soon.

“The will of the people doesn’t mean that you vote in unconstitutional laws,” said Bruce Nestande, president of the Citizens for Jobs and the Economy.

* FIGHT OVER MONEY

One Measure F group challenges another’s legal fund-raising campaign. B11