Opening Pandora's Box

• Drew Beam

  

• Anthony Pidgeon

  

  Oakland attorney Lee Sanders accuses Big Tobacco of subverting the law with its secret diversion plan.

Details:

Stanton Glantz is shoveling a salad into his mouth at the cafeteria in one of the many UCSF buildings that line Parnassus Avenue. With a stocky frame and a shock of silver, mad-scientist hair, the UCSF cardiology professor is unassuming. He wears an unpressed shirt and trousers, and pickled beet juice runs down his chin as he speaks.

This image of a disheveled, too brilliant academic is an ironic contrast to the picture of a fiery anti-tobacco activist for which Glantz is known best. As the tobacco industry's admitted nemesis, Glantz has pledged his life to crusading against Big Tobacco, contributing to research that secondhand smoke causes heart disease and publishing extensively on tobacco influence in politics. Brash and outspoken, Glantz began critically observing the tobacco industry in 1978, and has become a one-man spokesperson for national anti-tobacco activity, endearing himself to the media by consistently delivering punchy, hard-hitting quotes on anything anti-tobacco.

Glantz is perhaps best known for penning The Cigarette Papers, a book that used confidential tobacco industry memos to expose 30 years of sinister activities by tobacco company Brown & Williamson. The documents were the first wholesale airing of tobacco insider memos.

Having watched tobacco politics for so long, Glantz was certain that Big Tobacco was behind the Prop. 99 diversions all along. But it took nearly 10 years for Glantz to get hard proof.

In April 1998, word spread that 39,000 pages of confidential tobacco industry memos were being made public through a lawsuit that the state of Minnesota had filed against the tobacco companies. Glantz was just putting the finishing touches on a book about California tobacco politics to be published by the end of 1999. Spotting a chance to unearth more clues on the industry's political scheming, co-author Edith Balbach immediately booked a cheap flight to the records depository in southeast Minneapolis. When she returned to San Francisco four days later, she brought back dozens of memos that confirmed what she and Glantz had suspected all along - that the tobacco industry had orchestrated the diversion of Prop. 99 money.

Glantz gave copies of the memos to an attorney he knew in Oakland -- Lee Sanders, who had already filed his lawsuit against the state seeking to restore the diverted Prop. 99 funds. Piecing the memos together, Sanders found powerful ammunition for his claims of a conspiracy, charging that California legislators, plied with tobacco dollars, were puppets to tobacco industry interests.

The Prop. 99 anti-tobacco education diversions stopped in 1996 after a lawsuit filed jointly by Berkeley's Americans for Non-Smokers' Rights and the major public health organizations convinced a judge that redirecting Prop. 99 money violated state law because it subverted an initiative approved by voters. The courts found that programs like Brown's CHDP did not have legitimate anti-smoking purposes, and taking Prop. 99 money to fund them was not justified.

Wilson rebelled against the 1996 ruling, sending a letter to the Legislature asking it to disregard the judgment, or find a way around it. The state was simply in too much of a financial downward spiral to not have access to Prop. 99 funds, he wrote.

The Legislature followed Wilson's directions and tried to amend Prop. 99 to reduce the percentage of funds dedicated to the education campaign. The Americans for Non-Smokers' Rights filed another lawsuit to block the change. Though they would eventually lose the case, they managed to prolong the fight long enough to stop the Legislature from diverting any more money.

Between the lawsuits, media attention, and waning influence of the tobacco industry, there have been no further successful efforts to divert Prop. 99 money. Some $30 million that was left unappropriated after the 1996 lawsuit is still sitting unused in a restricted reserve.

But while the diversion may have stopped, the quest for accountability from the state -- and the tobacco industry -- continues in the form of Lee Sanders' lawsuit. In the suit, Sanders claims that the state violated the re-enactment clause of the California Constitution, by failing to make it clear to legislators that they were, effectively, rewriting Prop. 99 when they diverted money.

The suit is filed on behalf of an unincorporated group of individuals, the Just Say No to Tobacco Dough Campaign, but it is truly Sanders' case. And Sanders wants accountability, from both Big Tobacco and the state.

"I want the whole story to be known to the judicial system," Sanders says. "You can't know the whole story unless you know how the tobacco industry buys influence in Sacramento with campaign contributions.

"This litigation has two facets," Sanders continues. "One is public health and the second is civic virtue. The tobacco industry kills 42,000 people [in California] a year for money. Industries like tobacco should not be able to buy legislators and influence public policy like they do."

But even with an unending string of anti-tobacco statistics that he can pull from his memory at will, and a pile of exhibits over 2 feet tall, Sanders' case has never seen a day in court. After it was filed in 1994, the suit was put on hold, pending the outcome of the two Americans for Non-Smokers' Rights lawsuits. When Sanders' case was reinstated in 1998, it was refused by the California Superior Court, and Sanders immediately filed an appeal in the 3rd District Court. He is currently awaiting notification to file an opening brief. In the meantime, Sanders has amended his complaint twice, once to include the tobacco industry memos and again to include campaign contribution statistics, a somewhat unusual tactic since the tobacco industry isn't even named as a defendant in the case.