Two Utah smokers have sued Utah's chief executive and top attorney in an ongoing bid to tap into the state's $1 billion tobacco settlement on behalf of countless smoking-injured Utahns.

The federal lawsuit, filed Thursday in Utah U.S. District Court, comes two weeks after the plaintiffs' attempts to intervene in the national tobacco company settlement were dismissed by U.S. District Judge Dee Benson. The new action asserts class action status for any Utahn with smoking-related Medicaid bills. Linda K. Villagrana and Carolyn Malm are attempting to block the state from spending its share of the tobacco settlement. They say the state originally sued various tobacco companies to recover Medicaid funds spent to treat people like themselves who had suffered illness or death due to tobacco. Because Utah's actual Medicaid expenses amount to about $100 million, the plaintiffs assert they are among a class of other injured smokers who deserve "substantial sums potentially reaching" the remainder of the $1 billion settlement. Utah officials say the lawsuit is misdirected toward defendants Attorney General Jan Graham, Gov. Mike Leavitt and three other state officials. "We did not bring suit on behalf of victims -- that's their claim and no we don't agree with that at all," Utah Solicitor General Jim Soper said Thursday. "To the extent [the plaintiffs or other Utah victims] still have damages they haven't been compensated for they can sue the tobacco companies." Plaintiffs' attorneys did not return calls Thursday, but in the lawsuit they claim that "Defendants have taken, and will in the future take, this property [the settlement] for public use without just compensation." A number of like-minded claims have been filed in courts across the country, all seeking a portion of the $206 billion settlement with the tobacco companies. Most of the lawsuits claim "Big Tobacco" settled various state and federal claims with a stipulation that individuals would "no longer have any legal right to pursue the tobacco companies for medical expenses arising out of their tobacco-related illnesses." That stipulation never existed, Soper said. "The most controversial aspect is that the state did not sue on behalf of injured victims, the state made its own claim for direct damages." The state has argued that its lawsuit, filed in 1996, not only pertained to the harm suffered by tobacco users served by Medicaid, but also included other claims, such as consumer fraud and civil conspiracy. However, plaintiff attorneys Brent O. Hatch, Mark F. James and Mark R. Clements, argue that "Under federal law, amounts recovered by the State in excess of actual expenditures must be paid to the injured parties and may not be used in any way by the State."

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