From: "Attila T. Hun" <attila@primenet.com>
Date: Wed, 22 Jan 1997 22:40:51 -0800 (PST)
To: CYPHERPUNKS-OUTGOING-KSIUW@toad.com
Subject: YEEHAW! Tobacco argument heats up in AZ
Message-ID: <199701230640.WAA06726@toad.com>
MIME-Version: 1.0
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    summary: AZ AG filed for an injunction in the public interest
    to stop the sale of tobacco in AZ.  tobacco company response 
    claimed he was infringing on legislative rights...   full story is
    below.

        pure warmed-over buffalo chips --the tobacco interests.  

        ...create a conflict between the judiciary and the legislative
    branches since the judiciary can ban the sale of something the 
    legislative branch has decided to regulate and collect taxes 
    from ...  ?

        where did this boy learn his logic, let alone his law (of 
    course, who ever said any lawyer used logic any more than
    statistics are used to defend lies?)

        big tobacco will spend at least $200 million, maybe even $1
    billion in advertising and diversions to avoid this one --this is
    not a tort issue with delayable appeals --this is injunctive
    relief which could stop the sale of tobacco in a single hearing.

        bravo! and, I'll bet AZ never passed legislation which states 
    the death merchants have a mandated "right" to sell tobacco 
    products, even though the legislature did elect to pass a law to 
    "regulate" the sale of tobacco.  a mandated right implies 
    endorsement, and places the endorser in the product liability 
    chain. 

        A fine line maybe for the tobacco companies to hang their hats
    on, but a Grand Canyon worth of the state if there has no "right"
    to sell granted --granting a "right to sell" would be tantamount to 
    endorsing the sale of tobacco products.  this may be the perfect 
    shot. 

        let's see how long before the ACLU jumps in!  and, on which
    side will they jump?!?   Is 'smoking' a libertarian privilege 
    cranted unconditionally to the people despite the side effects, 
    and collatgeral damage, even if you do not smoke? 

        This case should draw enough amicus curiae to require an 
    entirely new complex of libraries just to hold the pleadings, 
    and an army of law clerks with a massively parallel database 
    to catalogue and service the briefs.

        I can see the fine hand of the Association of Attorney Generals
    driving this one.  Arizona is constituted just mean enough to take 
    this kind of action.  

        Let's see how long it is before the Feds try to step in on the 
    possible Constitutional grounds of regulating trade between the
    states, or claiming "jurisdiction" under rule 10 FRCP where 
    the combatants are of differing 'citizenship' AND the amount is
    more than $10,000 (the injunctive relief has no monetary value in
    and of itself) can be moved by any party to the Federal court 
    having jurisdiction (that was how I prevented AT&T from moving from 
    NV to NY or NJ where they could stall forever and indulge in the 
    usual payoffs).

        --as an aside, I wonder if we could ban tobacco sales in Utah 
    by referendum?  if the population is 70% LDS, the rural more 
    likely to follow the word of wisdom active members might be enough 
    to tip the vote on a referendum.  hmmm.  that would send a message
    even McCaffey and Reno would have a problem with --there is no
    medical defense for tobacco.

        As for the loss of revenue argument, the excise taxes the state
    collects from the sale of tobacco certainly does not cover the 
    increased health costs and the collateral economic and social costs 
    associated with tobacco related health problems.  the state might 
    have a net loss position initially, but over the long run, the
    reduced health costs will more than cover the loss of tobacco excise 
    tax.

        meanwhile, back to prohibition: rolling your own from back 
    yard weeds is a lot harder than making bathtub gin!

  ==
  "When buying and selling are controlled by legislation, 
    the first things to be bought and sold are legislators"  
        --P.J. O'Rourke.

  ==
  "hunt lawyers, not big game!
    lawyers are more numerous,
    you can not become attached to them,
    and they taste just like chicken."
        --attila

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::            06:30 PM ET 01/14/97

::            Tobacco industry seeks dismissal of Arizona case

::                     
::      PHOENIX, Arizona (Reuter) - The tobacco industry filed
:: motions on Tuesday in a bid to dismiss the Arizona Attorney
:: General's law suit which seeks to ban the sale of tobacco in the
:: state.
::      Lawyers for two of the defendants, Brown & Williamson
:: Tobacco Corp. and Philip Morris Cos Inc. (MO.N), said in a
:: statement the proposed ban would eliminate tax revenue from the
:: sale of tobacco which is used to fund healthcare and education
:: programs statewide.
::      "We have filed motions asking the court ... whether these
:: claims should be permitted to proceed,'' said William Maledon a
:: lawyer at Osborn Maledon which represents Philip Morris Inc.
:: "We believe it is clear that the Attorney General has no
:: authority to initiate at least six of the 11 claims he has
:: brought,'' he said.
::      The tobacco industry on Tuesday filed eight motions to
:: dismiss the suit in Maricopa County Superior Court in Arizona.
:: The Arizona lawsuit against the tobacco industry was filed
:: in August and amended by the state's attorney general in
:: November.
::      The suit seeks to ban the sale of tobacco products statewide
:: and recover increased healthcare insurance premiums the state
:: alleges to have paid for ``tobacco-related illnesses'' by state
:: employees and their dependents.
::      The suit also seeks ``corrective'' advertising and funding
:: of programs to help people give up smoking as well as
:: unspecified damages for alleged consumer fraud, restraint of
:: trade and civil racketeering.
::      Paul Eckstein, an attorney with Brown & Bain which
:: represents Brown & Williamson, said Arizona would suffer should
::  the attorney general win the suit.
::      "If the Attorney General prevails on this public nuisance
:: argument, the tobacco tax revenue source would be eliminated
:: without legislative input,'' he said.
::      "This raises the question of which state programs would be
:: eliminated for lack of funding,'' he added.
::      The lawyers said Arizona collected $650.5 million in tobacco
:: excise taxes from 1980 through 1993 and that the state will
:: collect another $167.5 million in fiscal 1996.
::      "The Arizona Legislature has not chosen to ban the sale or
:: use of tobacco, but rather regulate and profit from it,''
:: Eckstein said. ``This lawsuit would create a direct and
:: irreconcilable conflict between the judicial and legislative
:: branches of government.''