Subject:     Update to Challenge of MSA in PA
Date:         Thu, 19 Aug 1999 07:13:15 -0400
 

Some people whom I called wanted a more succinct overview of the legal status in PA.  Thus, I revised the memo that I sent to most of you earlier this week.  Additionally, the key documents have now been uploaded onto the Internet, and this memo provides those addresses.

Finally, I filed a brief yesterday regarding the "legally enforceable interest" that I claim as exemplifying why anti-tobacco activists should not be denied access to the courts.  I received a letter from Attorney General Fisher yesterday, a reply to which is in preparation.

Three of the original thirteen appellants have re-joined this effort, organizationally, but my efforts are not limited to these entities, inasmuch as the status of this effort (legal and ethical) has significantly matured following issuance of the Minority Opinion by Judge Kelley.

Copied below is the formal "invitation" letter, and appended are both that letter (formatted) and the filing in Philadelphia before the same judge who heard the initial oral argument related to approving the MSA.  Note the political reference that is explicitly made at the end of the brief, and know that the Commentary that is referenced therein will be provided upon request.

In short, there are anticipated to be three separate legal approaches extant.  First is the Reargument/Reconsideration Motion before Commonwealth Court, to be filed by next Tuesday.  Second is the Supreme Court Appeal, notice of which must be filed within the following fortnight.  And Third is the Reply to Preliminary Objections from Philip Morris, Inc., the result of which now pends in the Court of Common Pleas.

The following "entreaty" has been drafted in a way that would allow only the first page to be disseminated in a "stand-alone" fashion, if others might want to limit their study of an issue to a memo no longer than one page in length (without subsequent legal analysis).

Although not attached, you are invited to hyperlink into the update of the state-by-state "state specific finality" analysis.  With New York's approval this past Monday, and greater specificity of input from other states, it more accurately reflects the true situation than its predecessor.

*

Robert B. Sklaroff, MD
Suite #130
50 East Township Line Road
Elkins Park, PA  19027-2253
(215) 663-8200
FAX:  (215) 663-8388
rsklaroff@home.com
http://members.home.net/rsklaroff/homepage.html
August 19, 1999
PP
 

To:     Potential Co-Intervenors (Organizations & Individuals in Pennsylvania)
Re:     An Invitation

I am challenging the approval in Pennsylvania of the Master Settlement Agreement with Big Tobacco, and your support (in whatever form possible) would be helpful.  Unlike all other litigation of which I am aware, my intent is to modify the MSA so that it does not prevent future public interest lawsuits.  This self-financed effort is being pursued in tandem
with a filing in the Philadelphia Court of Common Pleas intended to penalize Philip Morris for having financed billboard advertising in contravention of specific clauses in the MSA.

The implications of this work are (inter)national, inasmuch as any clause that is determined to be unconstitutional in Pennsylvania could then be challenged in all other comparable contracts between the tobacco industry and those who would be denied legal recourse.  The key clauses relate to the "releasing parties" and "offset" provisions; the former blocks all but individual litigation, and the latter allows the tobacco industry to deduct any losses (by settlement and/or by judgment) from
their allocated annual payments under the MSA.

Available upon request are additional documents, chief among them being my filings. Other documents have been uploaded for easy-reference (and will be updated "prn").  Simply click on this address (<http://www.globalink.org/gt/misc-docs/>) and find the "sklaroff" documents listed below.  If your computer cannot open them (i.e., cannot read them directly from their Internet-page), just download and then open them internally   (i.e., within your own computer).  It takes only a few seconds to pursue either approach, and gratitude is extended to UICC International Tobacco-Control Network in Switzerland for doing this work.  [If you have any problem, contact Ms. Carole Spiess (recalling time differences) at 41-22-809-1850 or at <spies@globalink.org>; authorization for this effort was granted by Ruben J. Israel.]  Alternatively, you can go directly to each document:

http://www.globalink.org/gt/misc-docs/9908sklaroff_pr.doc
http://www.globalink.org/gt/misc-docs/9908sklaroff_opinions.doc
http://www.globalink.org/gt/misc-docs/9908sklaroff_scorecard.doc
http://www.globalink.org/gt/misc-docs/9908sklaroff_endorsement.doc

The first document is this overview letter, the second is the set of contrasting Opinions issued by Commonwealth Court, the third is the state-by-state approval status, and the fourth is a model-letter that I would ask you PLEASE to consider remitting promptly.  For those who may not have Internet-Access, I would be more than happy to FAX/mail any documentation desired.  PLEASE FEEL FREE TO CRITIQUE THESE EFFORTS, inasmuch as they have been composed in a vacuum.  (I'm an activist, not a maven!)  Following this overview will be a more detailed set of excerpts/analyses from the record.
I will file both a Motion for Reargument/Reconsideration and a Supreme Court Appeal, inasmuch as the Majority Opinion is solely predicated on an irrelevant untruth.  Indeed, the Order contains no references and cites no data (from the record or elsewhere)  supporting the following key conclusion (for which there is not one shred of evidence):  "Dr. Sklaroff's desire to represent the public interest is insufficient to confer standing, particularly where, as here, other entities such as the Commonwealth do have a direct, substantial and immediate interest and are, in fact, vigorously litigating on behalf of the public."  [punctuation added]  It therefore (in a footnote) dismissed the concept of there being a "class action," and failed to discuss the myriad additional issues raised previously (such as Taxpayer status under the Biester Exception that can been used to gain standing).  Amazingly, it failed to address the issue as to whether I have the same "direct, substantial and immediate interest" that (allegedly) the Commonwealth (among others) have been concluded to have a priori.  These data were exhaustively submitted but totally ignored.  [Although references are mostly to PA law, I'm told correlates exist in other states.]

The irony here, of course, is that the Commonwealth is "vigorously litigating" in only one tobacco-related venue:  against my ability (representing the public interest) to ensure it doesn't immunize Big Tobacco (virtually) forever.  No other entity is litigating elsewhere.

The double-irony here, recalling the original Opinion written by Judge John W. Herron, is that he accused the anti-tobacco activists of, essentially, attempting to supercede the political judgment of the Attorney General; we were advised to register our views at the ballot box.  Yet, the Majority Opinion is essentially a political document, devoid of any legal analysis of any of the issues raised either in the Trial Court or in Appellate Briefs.  Thus, it is necessary to consider issuing a "political" response, issued through the myriad customary vehicles (such as the media) that are recognized by our society.

The triple-irony here, recalling my suit against Philip Morris, is that the Attorney General has failed to prosecute the manufacturer sponsored promotion" that constituted placing billboards (by Wawa Food Markets, Inc.) that contravened the tenets of the MSA.  Today, the AG sent me a letter requesting that I defer future appeals; I will respond negatively, and I will ask him to explain why he didn't seek penalties comparable to those levied this spring in Rhode Island (after a United
States Tobacco spokesperson was caught in a lie).

Thus, I was "disappointed" even before I read the 24-page Dissenting Opinion composed by Judge James R. Kelley.  Its exhaustive analysis led to the following last-paragraph:

"In conclusion, it is clear to me that a trial court may not place its judicial imprimatur on a proposed settlement and consent decrees, and order the entry of judgment thereon, where the record utterly fails to demonstrate that it is a just and fair resolution to the matter.  This is particularly so where the proposed settlement and consent decrees are of such a broad expanse, so absolutely preclude future claims and liability, and may never be altered or amended in any manner by the court.  To my mind, the entry of judgment based on such a speculative and conjectural predicate affecting such significant rights must surely constitute an error of law.  Accordingly, I would deny the application to discontinue the instant appeals, adjudicate these matters on the merits, and reverse the orders of the trial court in this case."

Today, also, a political maelstrom (that will be fleshed-out in the Reconsideration Motion) was released when the reason for Allegheny County's withdrawal was said to be political.  Specifically, the Governor threatened to withdraw fiscal support for Pittsburgh's airport. The discontinuation by Allegheny County was accepted without comment by the Majority, despite lack of compliance with Pa. Rules of Appellate Procedure #1973(a) & 123(a):

1973:   An appellant may discontinue an appeal after argument by leave of court upon application.

123:    An application must, inter alia, state with particularity the grounds on which it is based, and shall set forth the order or relief requested. . . .Any party may file an answer to an application within 14 days after service of the application.  [I would have invoked criteria listed in Pa.R.Civil.P #229 (unreasonable inconvenience, vexation, harassment, expense or prejudice)].

The rest of the discussion focuses upon this bold statement (with which I heartily concur):  "I strongly believe that it was incumbent upon the trial court in this case to make an independent examination of the proposed settlement and consent decrees, and to refuse to accept either unless it determined, among other considerations outlined below, that the 'j]udgment to be entered is a just one. . . .'  [reference deleted]  Because I believe that the trial court misapprehended the nature of its
review of the proposed settlement and consent decrees in this case, I am convinced that it erred in accepting the settlement and decrees and its orders should be reversed."  It doesn't mention my name throughout its analysis, but it cites my assertion that there is strong precedent for the need "to protect the rights of minors in the settlement of their claims. . . .to ensure that the interests of the minor are protected above all other conflicting interests, and to protect the minor's interests in all phases of litigation."  This is the essence of the "class action" concern that I have raised.

THESE ISSUES ARE NOT UNIQUE TO PENNSYLVANIA. THUS, OTHERS WHO VIEW THEMSELVES AS ANTI-TOBACCO ACTIVISTS MUST NOW CONSIDER HOW TO APPLY THEM IN OTHER JURISDICTIONS (STATE & FEDERAL).  Inasmuch as they have now been "validated" (with detailed, "universalist" legal references) they
must be applied AS SOON AS POSSIBLE, by AS MANY PEOPLE AS POSSIBLE, if for no other reason than to get the dormant anti-tobacco "movement" MOVING again!

These data have been provided in a user-friendly format, intended to convince the reader that he/she could apply the extensive references in the brief to his/her state (and federally).  Those who have defined themselves for decades as anti-tobacco activists must now arise, lest the entire effort become crushed by the mating of Big Tobacco Big Government.  Judge Kelley elucidated a step-by-step study guide, and it behooves everyone to invoke it.

A final consideration that the reader may wish to weigh is that few states are committing MSA-generated monies to public health, let alone tobacco control.  Serious proposals include scholarships (Michigan), school construction (New York), road building (Virginia) and refacing the Capitol Building (Pennsylvania).  For this reason, some commentators have suggested that I may gain some influence over ultimate disbursement of these funds merely by having an ongoing court presence.  This was not
my motive when we filed, but it could prove helpful when attempting to motivate the government to spend these monies on prevention/cessation activities as a priority over other tangential pet projects.

One final point:  due to my ongoing litigation, the media have inquired as to my objectives.  This has afforded me the opportunity to elucidate the many deficiencies in the MSA, concerns that multiple authors issued last year on the Internet.  Thus, others who apply these legal theories in their own states could obtain comparable levels of "secondary gain."