On Petition for a Writ of Certiorari
to the Pennsylvania Supreme Court

SUPPLEMENTAL BRIEF
IN SUPPORT OF PETITION FOR
WRIT OF CERTIORARI

Robert B. Sklaroff, MD
pro se
Suite #130
50 East Township Line Road
Elkins Park, PA  19027-2253
(215) 663-8200
June 28, 2000

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ISSUES PRESENTED

I. Whether this Court has jurisdiction to issue a writ of certiorari to the Supreme Court of Pennsylvania where all the Pennsylvania state courts’ decisions did not rest on “adequate and independent” state law principles.

II. Whether this Court has jurisdiction to issue a writ of certiorari to the Supreme Court of Pennsylvania where the Petitioner has satisfied the criteria for standing under Article III of the United States Constitution.

III. Whether this Court has jurisdiction to issue a writ of certiorari to the Supreme Court of Pennsylvania where the Petitioner has preserved a federal issue in the Pennsylvania state courts, and has raised federal issues in the petition.

IV. Whether the petition presents many issues worthy of review by this Court.

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TABLE OF CONTENTS

Page
ISSUES PRESENTED ……..…………..……………………
i

TABLE OF CONTENTS …………………….………..….…
 ii-iv

TABLE OF AUTHORITIES ………………………….…….
 v-viii

INTRODUCTION  …………………………………………..
1

SUMMARY OF ARGUMENTS ……………………………
2

REASONS FOR APPROVING THE WRIT ………………..
 2

I. ALL ISSUES RAISED IN THE WRIT WERE NOT DECIDED ON ADEQUATE AND INDEPENDENT STATE GROUNDS, AND ARE THEREFORE SUBJECT TO THIS COURT’S JURISDICTION .….
2

a. The ASARCO Case Supports Dr. Sklaroff .
3

b. The Coleman Case Supports Dr. Sklaroff
5

c. The Herb Case Supports Dr. Sklaroff …..
5

d. The Michigan Case Supports Dr. Sklaroff
6
e. Summary ……………………………...….
7

II. DR. SKLAROFF HAS STANDING TO OBTAIN REVIEW BY THIS COURT UNDER ARTICLE III OF THE UNITED STATES CONSTITUTION …….
8

a. The ASARCO Case Supports Dr. Sklaroff .
8

b. The Fairchild Case Supports Dr. Sklaroff .
11

c. The Flast Case Supports Dr. Sklaroff ……
12

d. The Gladstone Case Supports Dr. Sklaroff
13

e. The ASARCO Case Supports Dr. Sklaroff .
14

f. The Fairchild Case Supports Dr. Sklaroff
14

g. The Flast Case Supports Dr. Sklaroff ..….
15

h. The Gladstone Case Supports Dr. Sklaroff
16

i. Summary ………………………...……….
16

III. THE WRIT RAISES NUMEROUS FEDERAL ISSUES ………………………………………………
17

a. The Briefs and Opinions in this case include federal citations of specific cases and statutes that were invoked in the state court system, but the interpretation of which is now subject to review by the U.S. Supreme Court …………………………...
17

b. PM’s legal citations corroborate the view that Dr. Sklaroff’s appeal has properly posed fundamental federal issues for consideration by the Court ……………….
20

IV. THE WRIT RAISES ISSUES WORTHY OF REVIEW BY THIS COURT ………………………..
22

CONCLUSION ……………………………………………...
23

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TABLE OF AUTHORITIES

Page
UNITED STATES CONSTITUTION

U.S.Const. Art. III …………………………………………...
2, 8-16

U.S.Const. Amend. I ………………………………………...
4, 7, 18

U.S.Const. Amend. V ………………………………………..
7, 18

U.S.Const. Amend. XIV……………………………………...
7, 18

FEDERAL CASES

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989) ……………..
3-5, 8-11

Adams v. Robertson, 520 U.S. 83 (1997) ……………………
20-21

Baker v. Carr, 369 U.S. 186, 217 (1962) ……………….……
17

Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Incorporated, 36 F.Supp.2d 560 (E-D. N.Y. 1999) ...
17, 18

Board of Directors of Rotary International v. Rotary Club of Duarte, 480 U.S. 537 (1987) ………………………………...
21
 

Bowe v. Scott, 233 U.S. 658, 664-665 (1914) …………………
21

Coleman v. Thompson, 501 U.S. 722 (1991) ………………..
3, 5-6

Fairchild v. Hughes, 258 U.S. 126, 129 (1922) ……………..
8, 11

Flast v. Cohen, 392 U.S. 83 (1968) ………………………….
8, 12

Frothingham v. Mellon, 262 U.S. 447 (1923) ……………….
12

Georgine et al v. Amchem Products, Inc. et al., 83 Fed 3rd 610 …………………………………………………………...
17

Gladstone, Realtors V. Village of Bellwood, 441 U.S. 91 (1979) ………………………………………………………..
8, 10, 13

Hawaii v. Standard Oil Company, 405 U.S. 251, 257 (1972)
19

Herb V. Pitcairn, 324 U.S. 117 (1945) ……………………...
3, 6

In re: General Motors Corporation Pick-Up Truck Fuel Tank Products Liability Litigation, 65 Fed 3rd 768 ………….
17

In re:  Washington Public Power Supply System Sec. Litig., 720 F.Supp. 1379, 1387 (D.Ariz. 1989), aff’d Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992, cert. Denied, 506 U.S. 953 …………………………………………………
20

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ………..
8, 14

Michigan v. Long, 463 U.S. 1032 (1983) ……………………
3, 6-7

Pope v. United States, 323 U.S. 1, 12 (1944) ………………..
5

Reverend Jessie Brown, et al. v. Philip Morris, Inc., et al., U.S. District Court for the Eastern District of Pennsylvania, Civil Action No. 98-5518 ……………………………………
17

Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972) ……...
13

Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) ……………………………………………….
8, 14-15

Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., et al., 454 U.S. 464 (1975) ………………………………………………………..
8, 15-16

Warth v. Seldin, 422 U.S. 490 (1975) ……………………….
8, 13, 14, 16

Webb v. Webb, 451 U.S. 493, 496-497, 501 (1981) …………..
21

FEDERAL STATUTES

28 U.S.C. § 1257 ……………………………………………...
20

42 U.S.C. 1981 and 1982 ……………………………………
17

FEDERAL RULES

Supreme Court Rule 10 ……………………………………….
23

Supreme Court Rule 14.1(g)(i) ……………………………….
21

Supreme Court Rule 15.8 …………………………………….
1

Supreme Court Rule 33.1(g) ………………………………….
1

STATE CONSTITUTION

Article I …..………………………………………………….
18

STATE CASES

Sklaroff v. Philip Morris Incorporated, 225 Eastern District 2000 ………………………………………………………….
12, 13, 14

Zemprelli v. Daniels, 496 Pa. 247, 436 A.2d 1165, 1169 (1981) ………………………………………………………..

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INTRODUCTION

This document is submitted on behalf of the Federation of Physicians and Dentists [“FPD”] , which is an affiliate of the National Union for Hospital and Healthcare Employees [“NUHHCE”] which, in turn, is an affiliate of the American Federation of State, County and Municipal Employees [“AFSCME”]. It follows an Amicus Curiae Brief format, responding to the “Brief for Respondents.”  Because the deadline for submitting an Amicus Curiae Brief has passed, it is filed pursuant to U.S. Supreme Court Rule 15.8; it is restricted to this new matter and it follows the form for a brief in opposition (30 pages, orange cover) [Rule 33.1(g)].

On June 26, 2000, verbal communication with the Clerk’s Office of the U.S. Supreme Court yielded information regarding the ten-day delay in distribution of the PM brief and the absence of a formal deadline for submission of a Reply Brief from the Petitioner.  That day, also, the attorney representing the Commonwealth of Pennsylvania [“CoP”] Attorney General [“AG”] reported that the CoP AG had filed a Response Brief (despite the fact that the Petitioner had not yet received a copy thereof.  Thus, this document is filed prior to the date of distribution to the Justices (June 29th) of the “Brief for Respondents,” and the Petitioner anticipates filing his Reply Brief (encompassing key concepts herein) after receipt of the CoP’s submission.  [The office of the CoP AG will remit another copy thereof.]

Were this to be an official Amicus Curiae Brief, formal disclosure of the “interest” of this party would necessarily be disclosed.  Therefore, Mr. John J. Seddon will, by co-signing this document, attest to the fact that his “interest” is solely based upon his public health concerns, as manifest on behalf of his union.  Both professionally and personally, he has been adversely affected by the carnage caused by tobacco.

Thus, he would wish to ensure that the tobacco industry does not escape liability for past, present and future conduct.  Furthermore, both the FPD and the NUHHCE have endorsed a resolution stating that monies generated through the MSA should be expended solely for Medicaid (75%) and tobacco control (25%), consistent with the original causes of action.  Thus, remand to the Philadelphia Court of Common Pleas would permit these organizations to pursue this disposition.

Candidly, Mr. Seddon immediately responded positively to Dr. Sklaroff’s expression of concern that he could not limit the length of his reply to PM’s Brief to ten pages without sacrificing clarity, content, and completeness.

Arguments generated by PM will be refuted in both terse and elaborative formats.  The former will be achieved through the Reply Brief, and the latter will be achieved through this document.  The necessity to convey “context” is the driving force behind the generation of this submission.

This Brief’s ambit does not encompass exhaustive review of myriad federal issues raised by PM (e.g., standing); rather, it is self-limited to how issues generated by PM have been misapplied through its argument that the Petition be denied.

SUMMARY OF ARGUMENTS

This Court should grant a Writ of Certiorari in this matter for the following reasons.  First, the state courts’ decisions that are the subject of Dr. Sklaroff’s petition did not turn on adequate and independent state grounds.  Second,              Dr. Sklaroff has alleged the requisite standing to bring this petition under Article III of the U.S. Constitution.  Third,  Dr. Sklaroff’s petition raises numerous federal issues that have been properly preserved for review by this Court.  Finally, Dr. Sklaroff’s petition raises issues worthy of this Court’s review.  Thus, this Court should accept the petition.
That PM failed to refute the arguments raised previously by Dr. Sklaroff reinforces their applicability to this situation; accepting this case remains the last chance to fix the MSA.

REASONS FOR APPROVING THE WRIT

I. This Court has jurisdiction to issue a writ of certiorari to the Supreme Court of Pennsylvania, where all the Pennsylvania state courts’ decisions did not rest on “adequate and independent” state law principles.

PM cited four cases in order to support the view that the Writ should not be issued because the state-level adjudication had been “adequate and independent.” [ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989), Coleman v. Thompson, 501 U.S. 722 (1991), Herb v. Pitcairn, 324 U.S. 117 (1945) and Michigan v. Long, 463 U.S. 1032 (1983).]  Each citation, however, was incomplete and the facts of this case undermine PM’s intended conclusions.  Thus, each case will be applied in the context of each issue raised by PM.

To aver the converse of PM’s assertion, the state-level reviews of the MSA were both deficient from the perspective of applying state law (as extensively documented previously) and defective from the perspective of invoking federal law.

a. The ASARCO Case Supports Dr. Sklaroff.

ASARCO was quoted as having stated, “the state courts are not bound to adhere to federal standing requirements.”  No effort, however, had been made to invoke these criteria in any submission by Dr. Sklaroff at any time to any court.  Nevertheless, a more complete analysis of this opinion yields additional insight into why Dr. Sklaroff does merit standing.

In ASARCO, the U.S. Supreme Court ruled in favor of the petitioners because “This Court has jurisdiction to review the decision below. . . ;[the lower Supreme Court] had issued a final judgment; there is standing and an actual case or controversy that permits [of] a decision in federal court; and  . . .the decision below is reviewable because it does not rest on an adequate and independent state ground.”

Discussion of jurisdictional and final judgment issues is deferred, and the standing issue will be analyzed vide infra.  The focus currently, therefore, is upon § II-C:  “References to the Arizona Constitution simply reflect a holding which rests on the state court’s interpretation of federal law.”

The Petitioners’ Brief cited federal rather than state-level Constitutional language when referencing Article I of the U.S. Bill of Rights—inasmuch as the Petitioners were petitioning government—and grammatically severing this argument from the subsequent citation of a “state”-related concern (in the same sentence):

"Against this background, Petitioners’ position in this litigation is that the release provisions of the MSA effect an unconstitutional deprivation of Petitioners’ right of access to the courts, and that the indemnity provisions of the MSA, by which the citizenry indemnifies the tobacco companies even for awards of punitive damages, are directly contrary to the public policy of the State which expressly forbids insurance against such liabilities."

Thus, from its inception, this case was framed federally.

The Commonwealth Court’s terse Majority Opinion summarized its rationale for adopting a dismissive approach in one sentence (which Dr. Sklaroff extensively parsed and discounted thereafter through subsequent appellate efforts) devoid of references.  Dr. Sklaroff could not compel it to cite federal law, despite prior references thereto that appeared in the Petitioners’ Brief plus concomitant citations thereof that permeated Judge Kelley’s Minority Opinion.

Indeed, the Minority Opinion didn’t cite the CoP Constitution (in a broad context); it cited (in other contexts) analyses of other states’ constitutions.  (Naturally, most of its case-citations were derived from the CoP.)  PM asserted incorrectly this court “did not address any federal issues” in its “Counter-Statement of the Case, one of the many errors therein that will be corrected in the Petitioner’s Reply Brief.

Judge Kelley started his analysis by citing a federal case:  “However, the contractual nature of a consent decree does not affect the judicial character of a court's acceptance of the decree or its imposition of judgment thereon. Indeed, “[i]t is a judicial function and an exercise of the judicial power to render judgment on consent. A judgment upon consent is ‘a judicial act’.” Pope v. United States, 323 U.S. 1, 12 (1944)

ARASCO said:  “Although the Arizona Supreme Court was free to rest its holding on the State Constitution as an independent ground, the decision below did not divorce the state constitutional issue from the questions of federal law.”

Similarly, the Herron Opinion had referred to Article V of the U.S. Bill of Rights when portraying the Petitioners’ views, as distinct language from the CoP Constitution:

"They assert, for instance, that their constitutionally protected right of access to the courts and their right to be free from governmental taking of property without due process or just compensation would be violated by such a sweeping interpretation of the MSA."

Thus, the ASARCO case demonstrates that the Petition should be accepted because it more than satisfies the specific criteria articulated therein, with particular reference to the need to have judicable arguments based upon federal law.

b. The Coleman Case Supports Dr. Sklaroff.

This is a habeas corpus case that includes the following quotation, per PM’s Brief:  “In the context of direct review of a state court judgment, the independent and adequate state ground doctrine is jurisdictional.”  Ignored, however, is the clear distinction (“with a difference”) made by the Court:  “The basis for application of the independent and adequate state ground doctrine in federal habeas is somewhat different than on direct review by this Court. . . .The Court does not review a judgment [in a habeas case], but the lawfulness of the petitioner’s custody simpliciter.”  [reference omitted]

Thus, the Coleman case demonstrates that the Petition should be accepted because citing this doctrine (even in this context) does not defeat the necessity for Court review of the MSA based upon both state and federal law.  PM’s citation merely is of a truism, rather than of a defect in the Petition.

c. The Herb Case Supports Dr. Sklaroff.

PM accurately quoted the essence of this case thusly:  “[this Court’s] only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights.”  The Court, however, found the situation ambiguous because “The Supreme Court of Illinois did not decide whether under the State Constitution the Venue Act was unconstitutional, apparently because it held the Act not to apply.”  Therefore, it held the case in abeyance until the Supreme Court of Illinois had determined whether any federal issues had been weighed in the adjudication thereof.
This choice of disposition would provide an alternative in unclear cases, but subsequent opinions supersede it.

Thus, the Herb case demonstrates that the Petition should be accepted because it is deemed necessary for the federal judiciary to correct a state court’s error in interpreting federal law related to honoring the Petitioner’s due process rights.

d. The Michigan Case Supports Dr. Sklaroff.

Again, PM accurately quotes the essence of the opinion:  “When a state court decision fairly appears to rest primarily on federal law, or [appears] to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” The Court will neither try to interpret state law nor await clarification.   Such is the situation in the instant case.

The next sentences remove all remaining ambiguity:    “If a state court chooses merely to rely on federal precedents as it would on the precedents of all other jurisdictions, then it need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.  In this way, both justice and judicial administration will be greatly improved.  If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.”  No such phrase appears in any opinion rendered in the MSA’s adjudication process in the CoP.

In this Petition, three Constitutional Amendments were cited:  I [“Congress shall make no law. . .abridging . . .the right of the people. . .to petition the government for a redress of grievances.”]; V [“No person shall. . .be deprived of life, liberty, or property, without due process of law. . . .];  XIV [“No state shall. . .deprive any person of. . .due process.”].  The CoP Constitution was also cited in the Petition.

Thus, the Michigan case demonstrates that the Petition should be accepted because citation of three Articles in the U.S. Bill of Rights yields an undeniable federal component to the litigation history of the instant case, even if it is felt to be interwoven with state-level interpretations of due process.

e. Summary.

PM assembled a series of accurate excerpts from cases that dealt with the concept that the U.S. Supreme Court should deny a Petition in a case that had previously been decided on “adequate and independent state grounds.”  Yet, PM failed to cite a shred of evidence that linked this case with those upon which its Brief had been predicated.  Indeed, careful scrutiny of its four citations supports the Petitioner, inasmuch as examples abound that this matter has many links to federal law and cases, vide supra et vide infra.

II. This Court has jurisdiction to issue a writ of certiorari to the Supreme Court of Pennsylvania, where the Petitioner has satisfied the criteria for standing under Article III of the United States Constitution.

PM cited eight cases in order to support the view that the Writ should not be issued because of the absence of standing. [ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989), Fairchild v. Hughes, 258 U.S. 126, 129 (1922), Flast v. Cohen, 392 U.S. 83 (1968), Gladstone, Realtors V. Village of Bellwood, 441 U.S. 91 (1979), Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., et al., 454 U.S. 464 (1975), Warth v. Seldin, 422 U.S. 490 (1975).]  Each citation, however, was incomplete and the facts of this case undermine PM’s intended conclusions.  Thus, each case will be applied in the context of each issue raised by PM.

To aver the converse of PM’s assertion, Dr. Sklaroff has standing based both upon federal and state criteria.

a. The ASARCO Case Supports Dr. Sklaroff.

As noted previously, PM presumably cited ASARCO in an effort to differentiate state and federal law, despite the fact that this reference failed to support its overall viewpoint regarding the “adequate and independent” issue.  In addition, regarding the “standing” issue, PM presumably considers precedents related to federalism to support its view that the state-level determination should be final and non-reviewable. Yet, it also argues that Dr. Sklaroff doesn’t meet federal requirements for standing, despite the fact that Dr. Sklaroff hadn’t yet averred otherwise.  Thus, the goals here will be refuting its sole invocation of Article III criteria and showing that Dr. Sklaroff does actually satisfy Article III criteria.

ASARCO includes the following rationale for both accepting jurisdiction and validating the Petitioners’ views; the excerpt below will be parsed, sentence-by-sentence, harboring the intent to compare/contrast it with the Petition:

"When a state court has issued a judgment interpreting federal law in a case in which the plaintiffs in the original action lacked standing to sue under the principles governing the federal courts, this Court may exercise its jurisdiction on certiorari if the state-court judgment causes direct, specific, and concrete injury to the parties who petition for this Court's review, as long as the requisites of an Article III case or controversy are also met.  Here, petitioners possess standing to invoke federal-court authority, since they have alleged that the decision below poses a serious and immediate threat to their leases' continuing validity, that such injury can be traced to the state court’s erroneous interpretation of federal statutes, and that the injury can be redressed by a favorable decision in this Court.  Moreover, the requisites of a case or controversy are met, since the parties remain adverse, and the judgment below altered tangible legal rights. It would be inappropriate for this Court to vacate the judgment below on the ground that respondents lacked federal standing when they brought suit initially, and to remand for appropriate proceedings, since such a course would render nugatory the state proceedings and have the effect of imposing federal standing requirements on the state courts whenever they adjudicate federal law issues, whereas established traditions and this Court's decisions recognize that state courts are not bound by Article III and yet have it within both their power and proper role to render binding judgments on federal-law issues, subject only to review by this Court."

The first sentence allows for review if Article III criteria regarding “case or controversy” are met and if damages are alleged, even if federal standing criteria have not been met.  The second sentence can be paraphrased thusly, substituting assertions in the instant case for those in the ASARCO case: “Here, petitioner possesses standing to invoke federal-court authority, since he has alleged that the decision below poses a serious and immediate threat inter alia to his son’s health, that such injury can be traced to the state court's erroneous interpretation of federal statutes [and Constitutional Law related to due process rights], and that the injury can be redressed by a favorable decision in this Court.”  The third sentence also cites criteria that are met in the instant case:  “Moreover, the requisites of a case or controversy are met, since the parties remain adverse, and the judgment below altered tangible legal rights.”  The fourth sentence merely ensures that the distinction between federal and state standing criteria would persist after issuance of the order.

Later, [Section II] it is specifically stated that standing may be conferred “both by statutes and by Article III” and, thus, it is not possible to reject standing if a Petitioner did not meet Article III standards (which Dr. Sklaroff does meet).

Then, [Section II-B-1], support for Dr. Sklaroff’s philosophy may be drawn from this observation, citing inter alia Gladstone, Realtors V. Village of Bellwood, 441 U.S. 91 (1979):  “Our precedents demonstrate that a party may establish standing by raising claims of noneconomic injury.”  [This issue is subject to further analysis in “d” vide infra.]    Below, [Section II-B-2], the standing issue is elucidated:  “We have recognized often that the constraints of Article III do not apply to state courts, and accordingly the state courts are not bound by the limitations of a case or controversy or other federal rules of justiciability even when they address issues of federal law, as when they are called upon to interpret the Constitution or, in this case, a federal statute.”  [references omitted]  This section concludes by reaffirming the “case or controversy” criterion, which is extant here.

Thus, the ASARCO case demonstrates that the Petition should be accepted because Dr. Sklaroff meets all standing criteria—both federal and state—contained therein.

b. The Fairchild Case Supports Dr. Sklaroff.

PM argues that Dr. Sklaroff lacks standing because “Sklaroff asserts only that ‘[he] has an interest in the outcome of the suit that surpasses the common interest of all citizens in procuring obedience to the law, but which is asserted in the present/future interest.’ ” [emphasis added]  The only problem, here, is that PM selectively excerpts from Dr. Sklaroff’s prior submissions; this is but one of many reasons why he asserts he has standing.

PM then quotes Fairchild as supporting the view that standing cannot be predicated on “the right, possessed by every citizen, to require that the Government be administered according to law.”  PM, however, omits the next sentences of each of Dr. Sklaroff’s quotation and that from Fairchild.    Dr. Sklaroff is focused on both the present and the future capacity to sue the tobacco industry, while Fairchild notes the above-asserted “general right does not entitle a private citizen to institute in the federal courts a suit to secure by indirection a determination whether a statute (if passed) or a constitutional amendment (about to be adopted) will be valid.” [citations omitted]   The contrast is obvious, for the Petitioner has not instituted any federal litigation, certainly none that would be intended to overturn a statute or a constitutional amendment.  Even assuming arguendo that this were the sole reason for Dr. Sklaroff’s assertion of standing, PM purposefully fails to recognize the Petitioner is trying to acquire standing to abrogate the provision of unprecedented degrees of immunity for future misconduct.

Thus, the Fairchild case demonstrates that the Petition should be accepted because Dr. Sklaroff is not encompassed by the stated rationale for rejecting the provision of standing with regard inter alia to the desire to file federal litigation.

c. The Flast Case Supports Dr. Sklaroff.

PM quotes Flast because it attempts to characterize the Petitioner’s claim as “a claim which amounts to ‘little more than [an] attempt[] “to employ a federal court as a forum in which to air. . .generalized grievances about the conduct of government.” ’ ”  PM omits the fact that this citation was from a case in which “a taxpayer” was making this attempt [Frothingham v. Mellon, 262 U.S. 447 (1923)].  PM also omits the fact that the plaintiff in Flast had gained standing because seemingly absolute barriers in Frothingham were punctured by overriding Constitutional considerations.  Indeed, taxpayers were empowered (as long as they met key criteria) and it was concluded that “There is no absolute bar in Article III of the Constitution to suits by federal taxpayers challenging allegedly unconstitutional federal taxing and spending programs since the taxpayer may or may not have the requisite personal stake in the outcome.”

Extensive discussion of the inability to acquire any type of “advisory opinion” is included in this opinion, along with detailed analysis of what constitutes a “case or controversy.”  That this case can no longer be characterized as an attempt to obtain an advisory opinion is proven by the existence of a case or controversy that remains ripe for adjudication [Sklaroff v. Philip Morris Incorporated, 225 Eastern District 2000, argued before CoP Superior Court on June 27, 2000].

Article III considerations were depicted therein thusly:  “the question of standing is related only to whether the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.”  These criteria are surely met by the Petitioner.

Thus, the Flast case demonstrates that the Petition should be accepted because Dr. Sklaroff is not attempting merely to employ a federal court to air generalized grievances related to governmental conduct; rather, Dr. Sklaroff is invoking the U.S. Supreme Court to rectify a particular governmental act.

d. The Gladstone Case Supports Dr. Sklaroff.

PM argues that Dr. Sklaroff has not suffered an injury warranting standing, invoking the following excerpt from Gladstone:  Dr. Sklaroff, to invoke the federal judiciary, must “show that he personally has suffered some actual or threatened injury.”  Amazingly, omitted from memory is the litigation filed against PM which satisfies this very criterion, particularly the “threatened” component thereof; amazingly, also, forgotten in this context is the aforementioned capacity for a Plaintiff to allege a non-economic injury (such as the concern averred that Dr. Sklaroff’s son might start smoking, were PM to be allowed to violate the MSA’s billboard bar).

Again, PM fails to note that the holding in the case it was citing favored the Petitioner’s capacity to gain standing.  Specifically, the word “threatened” can be paired with the word “future” (as excerpted previously) to illustrate why the Petitioner merits standing.  Specifically, PM’s intent to twist all the facts and all the citations to befit its restrictive model stands exposed as exemplifying a series of non sequiturs.  Quoting again from Gladstone, the Court must “accept as true all material allegations of the complaint, and. . .construe the complaint in favor of the complaining party.”  Warth v. Seldin, 422 U.S. 490 (1975).  PM fails to challenge any of the allegations in Sklaroff v. Philip Morris Incorporated; indeed, it denies the case exists.  Such selective amnesia must not be validated by the judicial system.

The issue of non-economic harm merits elucidation, also, inasmuch as this motivation is admittedly at the heart of the effort by the Petitioner.  In Gladstone, the desire to reside in an integrated community—quoting Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972)—was sufficient to justify conferring standing to those living in the target area.

Thus, the Gladstone case demonstrates that the Petition should be accepted because Dr. Sklaroff has suffered the precise type of injury (including, in particular, noneconomic) that justifies his being conferred standing in this case.

e. The Lujan Case Supports Dr. Sklaroff.

PM cites Lujan because it alleges an “injury in fact” must be “concrete and particularized and actual or imminent, not conjecture or hypothetical.”  It is, of course, ironic that this very concept was cited in Judge Kelley’s Minority Opinion when he argued that the tobacco industry (including PM)— not the Petitioners—had raised conjectural arguments.
Nevertheless, the essence of the case is that the necessity to demonstrate an injury had been suffered hadn’t been met.

This conclusion was drawn because specific facts hadn’t been set forth (e.g., by affidavit) at the summary judgment stage of the process.  Again, in the instant case, such facts have been alleged (Sklaroff v. Philip Morris Incorporated) and, therefore, this hurdle to standing has been overcome.  Furthermore, that PM has failed to challenge the veracity thereof in any court at any time bespeaks the fact that the evidence it has violated the Master Settlement Agreement [“MSA”] must be assumed to be true, per Warth v. Seldin, 422 U.S. 490 (1975).  Thus, the Lujan standards have been satisfied in the instant case; the Petitioner merits standing.

Thus, the Lujan case demonstrates that the Petition should be accepted because Dr. Sklaroff has alleged concrete, particularized, actual and imminent injuries.

f. The Simon Case Supports Dr. Sklaroff.

PM argues Dr. Sklaroff does not merit standing because the alleged injury must be “fairly. . .traced to the challenged action” and “likely to be redressed by a favorable decision.”

Obviously, both with regard to the approval of the MSA and to the subsequent conduct of PM, the desire of PM for immunity from prosecution for alleged violation of the MSA serves as an obvious reason why both criteria are met.  These observations contrast with those in Simon, inasmuch as the latter lawsuit averred speculative harms and goals that were neither supported by evidence nor alleged with particularity.

In contrast, the alleged injury in the instant case (immunity and funding the Wawa billboards) can be traced directly to the MSA and to the billboard clauses therein; furthermore, a favorable action by the Court would afford standing to challenge inter alia the onerous immunity clause and to gain injunctive relief inter alia against funding of the billboard advertising by PM (and other members of the tobacco industry) that can entice youth to start smoking.

Thus, the Simon case demonstrates that the Petition should be accepted because Dr. Sklaroff has alleged injuries that can be traced directly to the interests and conduct of PM and that will be altered by favorable action by the Court.

g. The Valley Forge Case Supports Dr. Sklaroff.

PM argues Dr. Sklaroff does not merit standing because he presents a legal question to the court that he wishes to be resolved “not in the rarified atmosphere of a debating society, but in concrete factual context conducive to a realistic appreciation of the consequences of judicial action.”

PM again would forget that Dr. Sklaroff has alleged a legally enforceable interest that PM has failed to refute, thus demonstrating he is not merely engaged in intellectual debate regarding an ethereal issue.  Dr. Sklaroff wants PM to be precluded from indirectly funding billboard advertising, and Dr. Sklaroff wants to ensure someone (including himself) can ensure the MSA is enforced within this context.

Although the Valley Forge Petitioners hadn’t alleged “any personal injury suffered as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees,” Dr. Sklaroff has alleged such personal injury suffered because he has been denied standing to rectify both “micro” (i.e., billboard) and “macro” (i.e., MSA-related) conduct that portends present/future harm both to himself (e.g. his son) and to society (e.g. youth).

Thus, the Valley Forge case demonstrates that the Petition should be accepted because Dr. Sklaroff has alleged injuries “in fact” that are not merely conjectural.

h. The Warth Case Supports Dr. Sklaroff.

PM argues that Dr. Sklaroff is not asserting “his own legal rights and interests” rather than those of “third parties.”  In Warth, however, standing had been requested by persons who shared “attributes common to persons who may have been excluded from residence in the town” in which alleged discrimination had occurred.  In the instant case, Dr. Sklaroff requests standing inter alia as parens patriae [with regard to his ten year-old son’s risk of becoming attracted to smoking] and, thus, does not comport with the limitations in Warth.  Indeed, Dr. Sklaroff has noted that this very rationale for standing was validated in Judge Kelley’s Minority Opinion, particularly when it recalled that the “cause of action” in the original complaint (filed April 23, 1997) had invoked this pivotal reason for suing the tobacco industry (including PM).

Thus, the Warth case demonstrates that the Petition should be accepted because Dr. Sklaroff has alleged direct injury rather than any type of injury referable to a third party.

i. Summary.

PM argues that Dr. Sklaroff has failed to demonstrate he has standing under Article III of the U.S. Constitution, despite the facts that he has, indeed, demonstrated this fact and that this sole assertion is not controlling in this regard.  Specifically, Dr. Sklaroff has met each component in the Article III cases cited, and Dr. Sklaroff has met additional criteria (with regard to state-level standing) which both overlap and are distinct.  Specifically, he has demonstrated that he has an active case or controversy that is ripe for adjudication in which he has a direct interest in the outcome rather than merely a conjectural pursuit of a federal case.

III. This Court has jurisdiction to issue a writ of certiorari to the Supreme Court of Pennsylvania, where the Petitioner has preserved a federal issue in the Pennsylvania state courts, and has raised federal issues in the petition.

a. The Briefs and Opinions in this case include federal citations of specific cases and statutes that were invoked in the state court system, but the interpretation of which is now subject to review by the U.S. Supreme Court.

The Herron Opinion cited Zemprelli v. Daniels, 496 Pa. 247, 436 A.2d 1165, 1169 (1981), quoting Baker v. Carr, 369 U.S. 186, 217 (1962) and, in footnote #74, cited additional cases thusly:  “The Pennsylvania Supreme Court has relied on the Baker v. Carr analysis in other cases where it considered whether a particular case presented a nonjusticiable political question.”  The root forces invoked when interpreting this entire case were framed in a federal context at the start of the process.

Discussion of class action litigation in numerous briefs cited two federal cases: In re: General Motors Corporation Pick-Up Truck Fuel Tank Products Liability Litigation, 65 Fed 3rd 768 & Georgine et al v. Amchem Products, Inc. et al., 83 Fed 3rd 610.

The Appendix to the Petitioners’ Brief cited a federal case:  Reverend Jessie Brown, et al. v. Philip Morris, Inc., et al., U.S. District Court for the Eastern District of Pennsylvania, Civil Action No. 98-5518. . .a federal race discrimination case brought under the federal Civil Rights Act of 1866, 42 U.S.C. 1981 and 1982, and other statutes.

Judge Kelley’s analysis included citation of a parens patriae reference in a federal case [footnote #24: Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris, Incorporated, 36 F.Supp.2d 560 (E-D. N.Y. 1999)].

Illustrative of the approach adopted in briefs prepared by Dr. Sklaroff, the Petitioner, is the following complete citation from the Writ, drafted prior to knowledge of PM’s critique:

d. Constitutional Concerns.

Blocking Dr. Sklaroff and the Activists from intervening denies them due process (under the 1st, 5th and 14th Amendments) and equal protection (under the 14th Amendment and the PA Constitution’s Declaration of Rights).
In the latter (Article I), for example, Section 1 deals with the Inherent Rights of Mankind, Section 20 deals with the Right of Petition, and Section 25 deals with Reservation of Powers in People. The class action and civil rights of many future putative litigants have been violated in this matter.

As anticipated, a federal court filing by PM on 3/31/99 raised the MSA as an affirmative (11th) defense for present and future actions. Blue Cross/Blue Shield of New Jersey, Inc. et al. v. Philip Morris, Inc. et al., Civil Action # 98-3287 36 F.Supp.2d 560 (E-D. N.Y. 1999). PM also invoked the MSA in its Preliminary Objections to the current filing against the Wawa Billboard Advertising.

In addition to his Wawa cases against PM and the CoP AG, Dr. Sklaroff articulated two causes-of-action based upon tax-related implications of the MSA justifying a taxpayer suit.

These causes-of-action are as follows.  One would block the Tobacco Industry from making settlement monies tax-deductible.  The second would block the Tobacco Industry from invoking Section X [“Effect of Federal Tobacco-Related Legislation”] to invoke  “a continuing dollar-for-dollar offset” against the annual payments by the TI to the state were Congress to increase excise taxes, as the MSA depicted in complicated legal language.

Such federal litigation could be filed by Dr. Sklaroff.

Judge Kelley analyzed parens patriae litigation thusly:

"As the United States Supreme Court has noted:
"The concept of parens patriae is derived from the English constitutional system. As the system developed from its feudal beginnings, the King retained certain duties and powers, which were referred to as the “royal Prerogative.” These powers and duties were said to be exercised by the King in his capacity as “father of the country.”

"Traditionally, the term was used to refer to the King’s power as guardian of persons under legal disabilities to act for themselves. For example, Blackstone refers to the sovereign or his representative as “the general guardian of all infants, idiots, and lunatics” and as the superintendent of “all charitable uses in the kingdom.” In the United States, the “royal prerogative” and the “parens patriae” function of the King passed to the States. The nature of the parens patriae suit has been greatly expanded in the United States beyond that which existed in England. Hawaii v. Standard Oil Company, 405 U.S. 251, 257 (1972)"

In all his appeals, “Dr. Sklaroff argued that the lower courts had failed to apply Pennsylvania state law properly.”  It is not true that this was the sole basis for these efforts, for this federal concern is in prior filings, plus the Writ, and is distilled as a particular question that was posed throughout:

The petitioner—functioning as a citizen, taxpayer, father, activist, physician, private AG and litigant—should not be deprived of standing to intervene prior to final approval of the Master Settlement Agreement between the Tobacco Industry and the Commonwealth of Pennsylvania, under state and federal law, based upon his current and future civil and due-process constitutional rights.

Other state-level cases (from around the country) were cited in the Petitioner’s Briefs.  For example:  “The Court was required to weigh the merits of the MSA to ensure it was fair, reasonable and adequate.”  In re:  Washington Public Power Supply System Sec. Litig., 720 F.Supp. 1379, 1387 (D.Ariz. 1989), aff’d Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir. 1992, cert. Denied, 506 U.S. 953.

It its “Counter-Statement of the Case,” PM admitted that the Writ is “premised almost exclusively on interpretations of Pennsylvania state law.”  It thereby admitted it includes interpretations of applicable non-state law, i.e. federal law.
PM again functioned in a disingenuous legal context when it argued this case lacks federal underpinnings, as is illustrated by this disinterested appraisal by Judge Herron of how it was responsible for a state-focused case-critique:

"Both the Commonwealth and the Tobacco defendants are careful not to address these substantive arguments in their memoranda. Rather, they suggest that such [federal] arguments are premature."

Therefore, it must be concluded that the pleadings and the opinions rendered in this case have fundamental federal underpinnings; furthermore, the state-level interpretations of such issues as due process were predicated on federal law.

b. PM’s legal citations corroborate the view that Dr. Sklaroff’s appeal has properly posed fundamental federal issues for consideration by the Court.

PM cites the fact that, except in rare instances, the Supreme Court has “adhered to the rule in reviewing state court judgments under 28 U.S.C. § 1257 that [it] will not consider a petitioner’s federal claim unless it was either addressed by, or properly presented to, the state court that rendered the decision we have been asked to review.” Adams v. Robertson, 520 U.S. 83 (1997).

PM admits that in Adams, a Writ of Certiorari was dismissed “where petitioner, although raising certain due process arguments before the Alabama Supreme Court, failed to raise the due process challenge contained in the petition.”  In the instant case, as has been amply documented, this was certainly not the case.

Key characteristics of what has to have been alleged are contained in Adams, criteria that specifically were not met by the Petitioner in that case but which have been met herein.  Referencing the “patter” of prior citations, it must be noted that they show incontrovertible evidence of the following:  (1) federal due process claims were raised initially and subsequently by citing the Constitution (rather than simply relying upon citation of the words “due process”); (2) discussion of federal cases was not immersed in unrelated argument [citing Board of Directors of Rotary International v. Rotary Club of Duarte, 480 U.S. 537 (1987), vide infra]; (3) no court could fairly have read these citations (both individually and in the aggregate) as merely referencing narrow state-level questions; (4) specific reference has been made to the places in the record where the matter appears [Supreme Court Rule 14.1(g)(i)]; (5) the minimum requirement was met that a federal claim was presented [Webb v. Webb, 451 U.S. 493, 496-497, 501 (1981) & Bowe v. Scott, 233 U.S. 658, 664-665 (1914)] and (6) there can be no doubt that federal issues were raised when the statement of the first question posed under the Petition specifically cited federal due process.

PM cites Board of Directors of Rotary International v. Rotary Club of Duarte, 480 U.S. 537 (1987) to support its view that “When ‘the highest state court has failed to pass upon a federal question, it will be assumed that the omission was due to want of proper presentation in the state courts, unless the aggrieved party in this Court can affirmatively show the contrary.’ ”  In the instant case, as noted earlier,  Dr. Sklaroff could not force the CoP Supreme Court to rule; thus, its judgment was directly derived from that of the Commonwealth Court which supra weighed federal issues.

Thus, federal issues permeated the initial complaint, appeals generated therefrom, opinions derived therefrom and the proper presentation of this case at both the state and federal levels.  The characteristics thereof meet all legal citations provided by PM, and necessitate rectification by the U.S. Supreme Court.  A more detailed discussion of such “due process” concerns is beyond the scope of this Brief, inasmuch as the focus is simply to demonstrate that federal issues were raised (via a Brief that is replete with examples).

Ultimately, PM argues that Dr. Sklaroff failed to preserve a federal issue for adjudication by the U.S. Supreme Court, despite the fact that this “thread” that ran through all Briefs resembled, rather, a “rope” that it continues to shun.  Indeed, that PM has avoided dealing with these fundamental issues does not minimize their importance, as PM would wish.

IV. The petition presents many issues worthy of review by this Court.

The best way to illustrate how many vital, federal issues remain unresolved with regard to the MSA is to recall the four questions raised in the Petition for a Writ of Certiorari, thusly:

Dr. Sklaroff has a Legally Enforceable Interest in the unprecedented MSA, inter alia due to his capacities to pursue a wide range of public interest litigation, to file a taxpayer lawsuit, and to function in parens patriae on behalf of his son.  Far from “moot,” his pending litigation has been prescient.  And far from being insubstantial, this is a basic standing issue.

He and other activists merit standing, so that they can elucidate clauses in the MSA that require stipulation.  The Releasing Parties clause must exclude activists; the Offset clause is procedurally unfair, unreasonable, unconstitutional and inadequate to Pennsylvanians.  The AG isn’t empowered to immunize the Tobacco Industry, to countenance use of the offset, or to deprive citizens of civil (due process, constitutional) rights.  Such concerns are hardly irrelevant, and such concerns are increasingly gaining recognition.

Abuse of discretion has been documented related both to these specific concerns and to the generic concerns raised by the absence of Trial Court analysis of the intentionally-vague MSA; it is not fair, reasonable or adequate for the CoP’s youth.  These remedies may be achieved through remand (to study its scientific, legal and ethical implications) or through direct intervention by the Court.  The MSA is misconstrued as a “useful first step” in achieving decreased tobacco use in America and around the world; indeed, it threatens to become “the last word” in meaningful smoking cessation, for the TI will have achieved de facto indemnification.  Further, all of these issues are national in scope and impact.

The Settling Parties are attempting to “have it both ways” for they deny the public any power to enforce the MSA, even as the TI violates it and the AG fails to investigate.  These arguments appear in briefs (filed in the year 2000), despite solemn promises they would act responsibly (issued in the year 1999).  They misportray the MSA as a contract, when it is a court-approved resolution of a class-action suit.  Again, PM would attempt to escape responsibility for its (mis)conduct, and the U.S. Supreme Court must thereby act to protect the right of the public to ensure it behaves as the “good citizen” it argues it has suddenly become.

These considerations meet U.S. Supreme Court Rule 10 criteria regarding review of vital litigation by this Court.

CONCLUSION

For these reasons, Robert B. Sklaroff, MD possesses standing to appeal from the Order of Dismissal of his Intervention Petition and, thus, requests remand of the MSA to the Philadelphia Court of Common Pleas in the CoP.
And, for these reasons, Dr. Sklaroff’s Petition for a Writ of Certiorari must be honored by the U.S. Supreme Court.

Respectfully submitted,
__________________                          ___________________
John J. Seddon, MA                               Robert B. Sklaroff, MD