Subject:
             Thanksgiving Weekend Status Summary of PA-MSA Challenge
        Date:
             Fri, 26 Nov 1999 16:49:57 -0500
       From:
             "Robert B. Sklaroff, MD" <rsklaroff@home.com>
 Organization:
             @Home Network
         To:
             Multiple recipients of list INTL-TOBACCO <intl-tobacco@essential.org>,
             Settlement Talk Discussion List <settlement-talk@smokescreen.org>
 
 
 

One person newly-receiving this past week's three "Wawa's BAAACK"
messages commented that they were a bit excessive for a project that she
viewed (externally) to be mine (rather than, proverbially, "shared").  I
replied that this week represented, I hope, a "break" of staggering
proportions.  The purpose of this memo is to state succinctly why this
is the case.  [Believe it or not, this represents a SUMMARY of the
strategy that has been followed, thus far.]

*

We know tobacco abuse is the #1 cause of preventable illness worldwide,
particularly in America.  We know that the only way to stop this
epidemic is to force the tobacco industry to abide by restrictions, such
as ensuring the cost of their product includes the health implications
thereof.  We know that the tobacco industry must be forced to accept
such limitations, not withstanding its protestations to the contrary.
We know that the tobacco industry's lobbyists are least able to affect
the judiciary (rather than the legislative/executive branches of
government).  Thus, we must be able to employ litigation to discipline
it.

The key phraseology in the MSA is intended to forestall the capacity to
sue it.  Merely hyperlinking through "naag.org" [National Association of
Attorneys General] to the text of Exhibit T (near the end) will reveal
the absence of the disclaimer ("to the power of the signatories") that
otherwise exists in the MSA, proper, thus signaling legislative intent
(in HB 445 in PA and, presumably, in each other state) to indemnify the
tobacco industry in return for the windfall.

Such "stealth immunization" unambiguously threatens to undercut the
debated phraseology that has been at the heart of my MSA challenge
[paragraph ii (pp)], and it is difficult to believe this was an
unintended result of this process.  My testimony, in PA, has forestalled
approval of this bill until the Supreme Court has ruled on the overall
MSA challenge...but this bill is probably greased for adoption in most
other states.

Thus, the only way to stop the tobacco industry from becoming immunized
from future prosecution (recalling the phrase that it is indemnified for
anything done in the normal course of business) is to amend the MSA.
The only pending challenge to the MSA's nonseverable clauses is mine, I
believe, inasmuch as everyone else is seeking a cut in the profits (or
has been thrown out of other courts, as has been the fate recently - for
example - of the Native American federal suit in San Francisco).

*

Therefore, I conclude that the ONLY way to stop the MSA is for me to
gain standing to remand the entire matter, then to demonstrate its
inherent unconstitutionality (remembering that NO COURT has YET studied
its CONTENTS, for NO ONE has ever been able to attain STANDING so that
this might occur).  The next move would be to gain a national injunction
against the proven-to-be onerous sections thereof.

THE PATH FOR THIS TO BE ACHIEVED HAS NOW, FORTUITOUSLY, BEEN PLACED
BEFORE THE COURTS.  The reason my MSA challenge has been perceived as
"moot" by both the Philadelphia Court of Common Pleas and the
Pennsylvania Commonwealth Court has been that, allegedly, I have not
presented a legally enforceable interest based upon a case or
controversy that was ripe for adjudication at this time;  the Wawa
billboard situation was termed "moot" because the billboards had been
removed.

This argument--employed both by Philip Morris and by the PA Attorney
General--now is empty, for (as predicted) the Wawa billboard advertising
program has restarted.

Thus, working backwards, if the AG has "prosecutorial discretion" and
demonstrated that (lack of) power by refusing to pursue matters in
April, it seems apt that SOMEONE should be able to help him enforce a
COURT ORDER (not, merely, a "contract" as the MSA has been portrayed to
be by the settling parties).  And many legal mechanisms could be
employed in the process (citizen/taxpayer/private-AG).

So, according to Judge Herron's Opinion of two weeks ago, the only
"dispositive" issues are "standing" and "mootness."  By reversing the
latter, I attain the former.  By attaining the former (i.e., empowered
to enforce the MSA), the Supreme Court would be petitioned to
acknowledge that the MSA could then be remanded due to a petition filed
by someone (moi) who had demonstrated a legally enforceable interest in
the results thereof; if I'm to be able to help enforce it, I should be
able to influence its not-yet-approved contents.

*

Funny, it only took me six lines to make this point to her, yesterday,
so I guess I became a bit elaborative.  This "three step proof" is,
succintly, (1)--attaining standing to seek enforcement of the
not-yet-moot Wawa billboard advertising, from the Common Pleas Court;
(2)--attaining standing to seek amendment of the MSA, from the PA
Supreme Court; and (3)--attaining a Federal injunction against the
sections of the MSA that indemnify the tobacco industry.

This appears to be a tall order, and yet it can be compartmentalized and
sequenced.  Anyone who has any useful suggestions is invited to provide
them, asap.

...