Petition — Gasper v. Louisiana Stadium & Exposition District

Supreme Court brief1979

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FILED

| NOV 8 1978

1 '

MIGHAEL ABDAK, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-768

KENNETH O. GASPER, ET AL.,

Petitioners,

versus

LOUISIANA STADIUM AND

EXPOSITION DISTRICT, ET AL.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

JACOB J. MEYER

OF COUNSEL:

Coleman, Dutrey, Thomson,

Meyer & Jurisich

321 St. Charles Avenue

Tenth Floor Suite

New Orleans, Louisiana 70130

Telephone: (504) 586-1979

ATTORNEYS FOR PETITIONER

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096. N. O., LA. 70153 - 504/822-1611

ES, OPN

TABLE OF CONTENTS

Page

Gece eS edbeeeecscecccccdcces 1

TE a ceca S as oeesecseccccccccocs 2

Nee ed wc Secs ceensocecccccens 2

TEER Tee 6

Constitutional and Statutory Provisions In-

EE ete ae eb eececerscesccccccese 10

ea cases bcc ses vesccccaces 11

Reasons for Granting the Writ ................... 13

Conclusion ...... DUC PCUCERR SG barcdceveccceccccecs 25

cee cen cee ssecccaqeceeccceces 26

APPENDIX

A. Opinion of the Court of Appeals ........... la

B. Order of Court of Appeals on Rehear-

ES ILS OPP E TTT ET ESET EE 10a

C. The District Court’s Opinion .............. lia

TABLE OF AUTHORITIES

CASES

Conley v. Gibson, 355 U.S. 41, 78S.Ct.99(1957) ..... 17

Environmental Defense Fund v. Hoerner

Waldorf, D.C. Montana, 1970, 1 ERC 1640 ...... 23

Griswold v. State of Connecticut, 381 U.S. 479,

eae R ese neeascsecccccccs 22

Lamont v. Postmaster General of the United

States, 381 U.S. 301, 85 S.Ct. 1493 (1965) ...23,24,25

TABLE OF AUTHORITIES (Continued)

Olmstead v. The United States, 277 U.S. 438

CRED dc by Wa waeea een eoeeee Dees OniCob eked 20

Pollak v. Public Utilities Commission of the

District of Columbia, C.A.D.C. 1951, 191 F.2d

450, Rev. 343 U.S. 451, 72 S.Ct. 813

CGR) avis nd d ten teen aa rant 2-3,13-14,15,16

Pred v. Board of Public Instruction of Dade

City, 415 F.2d 851 (C.A. 5th Cir., 1969) ........ ae

Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705 (1973) ..... 22

Stanley v. Georgia, 394 U.S. 557, 80S.Ct. 1243

CORE ov back cdae VER PARAS aaa wae pee KGabKs Lohse ' 23

Virginians for Dulles v. Volpe, D.C. Va., 1972,

DOG Fs Be ib bac ens oe ches ceed sok 22

UNITED STATES CONSTITUTION

Peek HI av kk oS Fobra oc Seek dnd eons passim

ae PS 05 5 oi nak ccccadTenkeceven passim

Ninth Amendment .............. een heb oeeies passim

Fourteenth Amendment ..................5:: passim

Declaration of Independence ................ 18,19,21

Preamble to the United States Constitution ...... 19

FEDERAL STATUTES:

SB WRAL. GE 5 o.c vhikcg ban saeesbcknucwes cesaae 2,11

WD WN. SEE 8.60 kos pcacbngkauccscdecakahvacanaas 2

TS UR BIOS bakes os cdasiecdsccsivnes canteen 2,10

Fed. R. Civ. Pro., Rule 12(b)(6) .............. 4,13,16

iii

TABLE OF AUTHORITIES (Continued)

Page

OTHER AUTHORITIES:

Aronow, W.S. “Effect of Passive Smoking on

Angina Pectoris”, New England Journal of

Medicine, 299:21-24 (July, 6), 1978 ...........445. 4

Cameron, P. “Second-Hand Smoke: Chil-

dren’s Reactions”, J. School Health 42:280-

RE ia irca sk Paks ChkeP Wore ceeoreees 7

Cameron P., et al., “Urban Americas Most

Common Annoyances” Paper delivered at

Rocky Mtn., Psych. Ass'n Convention,

es EY SE OEE shed cher aa soevbscnces eviocss 7

Columbia Journal of Environmental Law,

Vol. 3, No. 1, Fall, 1976, pp. 62 et seq. ........ 15,16

Environmental Affairs, Vol. 6, No. 2, p. 345, et

Gs svc ret eks woke se sccrcersscaneerecdsicsscvesses 16

Hoffmann, D. ‘“Benzo[a]pyrene In Polluted

Air’, Preventive Medicine 1:450-451, 1972 ....... 9

New York Times, December 13, 1972, p. 59,

SE ae ca Layee sks Whe wd bie 66k COR a ved ew N00 bees 7

New York Times, June 6, 1975, p. 36, Col. 1 ....... 6

Orlien, N., “Passive Smoking, Which Com-

pounds Contribute to The Potential Health

Hazards of Passive Smoking?’’, J.

Norwegian Med. Ass'n 31:2300-2303, 2318,

(Timm. GEE.) BOTS occ ccc cc ccseccccvcccccscvess 7

“Putting the Smoker in His Place-Alone”,

Modern Medicine, December 25, 1972, p.72 ...... 6

TABLE OF AUTHORITIES (Continued) IN THE

Page SUPREME COURT OF THE UNITED STATES

“The Health Consequences of Smoking, A OCTOBER TERM, 1978

Report of The Surgeon General”’ (1972), U.S.

Dept. of Health, Education & Welfare, 123 ..... 8-9

No.

U.S. Dept. of Health, Education & Welfare,

Pub. No. (HSM) 73-8727, ‘“‘Adults Use of

Tobacco - 1970", June, 1973, II-21 ................ 6 KENNETH O. GASPER, ET AL.,

U.S. Dept. of Health, Education & Welfare, Petitioners

“Adult Use of Tobacco - 1975”, 1976, II-17 ....... 7 : 3

versus

World Health Organization, Technical |

Report Series No. 568, pp. 16, 28. World

Health Organization, Geneva, (1975) ............ 6 LOUISIANA STADIUM AND

World Health Organization, Technical EXPOSITION DISTRICT, ET AL..,

Report Series No. 568, pp. 15, World Health Respondents.

Organization, Geneva (1975) .............c0eeees 6

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners, Kenneth O. Gasper, etal, pray thata

writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit in the above entitled case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

577 F.2d 897, and is reprinted in the Appendix hereto, p.

la infra. The opinion of the District Court for the

Eastern District of Louisiana is reported at 418

F.Supp. 716 and is reprinted in the Appendix, pp. 11a-

27a, infra (hereinafter referred to as “App.’’)

JURISDICTION

The judgment of the Court of Appeals was rendered

on August 1, 1978 (App. pp. 1la-9a). A timely Peti-

tion for Rehearing and suggestion for Rehearing En

Banc was denied on September 14, 1978. (App.

pp. 10a-11a). The jurisdiction of this Court is in-

voked pursuant to 28 U.S.C. §1254(1). The basis of

jurisdiction in the District Court was 42 U.S.C. §1983

and 28 U.S.C. §1343(3).

QUESTIONS PRESENTED

As to the Certiorari Policy: The issues presented in

this petition are de novo. This Court writes on a clean

slate. Its importance in terms of national health and

preventive medicine are, we believe, far reaching and

profound. Its importance in terms of determining the

question of what constitutes the full extent of “liberty”

under the Fifth Amendment to the United States Con-

stitution is also of paramount significance. The full

meaning and intent of the Ninth Amendment is also

significantly at issue. The lower Courts’ failure to in-

volve themselves in this new area of national concern,

coupled with the fact that two prominent commen-

tators in environmental journals have viewed the Dis-

trict Court below’s decision as being contrary to a

decision of this Court in Pollak v. Public Utilities

Commission of the District of Columbia, 89 U.S. App.

D.C. 94, 191 F.2d 450 (1951), reversed, 343 U.S. 451, 72

S.Ct. 813, 96 L.Ed. 1068 (1952) make it imperative that

this Honorable Court issue a writ of certiorari to

review all of the constitutional issues raised in this

new but important case. The lower Courts’ have shown

a fundamental reluctance to involve themselves in the

far reaching constitutional issues presented in this

case. The lower Courts’ in this case have also shown a

basic misunderstanding of the allegations contained

in the plaintiffs’ complaints and have confused the

plaintiffs’ claims that they have the right to breathe

smoke-free air in an indoor State operated facility as

being equated to an attempt to enforce prohibition on

smokers in general. The lower Court’s basic mis-

conceptions of the plaintiff's claims, the extent to

which they claim that forced inhalation of tobacco

smoke is dangerous to health, and the extent to which

the District Court and the Court of Appeals have re-

fused to involve themséives in this important issue

also lends tothe importance of this case. This is not the

type of case to be decided on barebone pleadings alone.

It should be decided on the basis of evidence assayed

within the constitutional arguments set forth by

petitioners in their complaint. Should not this Court

resolve this most fundamental issue of physical

rights, namely: does a person have a right under the

Bill of Rights in general and the First, Fifth, Ninth and

Fourteenth Amendments in particular to be free from

the forced inhalation of hazardous tobacco smoke in a

state operated facility such as the Louisiana Super-

dome? This issue is worthy of this Court’s review.

On the Merits: The main thrust of the District Court

below’s opinion, affirmed by the Court of Appeals, is

that “the process of weighing one individuals’ right to

be left alone, as opposed to other individuals’ alleged

rights under the Fifth and Fourteenth Amendments is

better left to the processes of the legislative branches

of Government’. See District Court opinion at App.

p. 21a, infra. The District Court below, as well as

the Court of Appeals, showed a fundamental reluc-

tance to involve itself in the smoking controversy

notwithstanding the serious constitutional issues

raised in the plaintiffs’ complaint. Ever since the Sur-

geon General's report of 1964 linking cigarette smok-

ing with cancer and other serious killer diseases,

there has been a growing awareness that second hand

smoke or smoke which non-smokers are compelled to

inhale by reasons of proximity to the smoker, is alsoa

serious health hazard. This has now become well

documented and established by learned investigators

and has been reported in such prestigious journals as

the New England Journal of Medicine, among others.

See “Effect of Passive Smoking on Angina Pectoris,”

Aronow, W.S., New England Journal of Medicine 299:

21-24 (July 6), 1978. It has now been scientifically

established that by reason of proximity and poorly

ventilated enclosures, non-smokers are subjected to

serious and permanent health hazards by reasons of

being forced to inhale tobacco smoke against their

will. The question presented here is: Does an in-

dividual have the constitutional right to be free from

the involuntary inhalation of hazardous tobacco

smoke in a public facility? Since the District Court

dismissed the plaintiff's complaint under Rule

12(b)(6) of the Federal Rules of Civil Procedure, all of

the allegations, arguments and inferences to be drawn

from the plaintiffs’ allegations and arguments must

be accepted as true. The plaintiffs have alleged and ar-

gued, inter alia, that tobacco smoke is dangerous to

health; that smoking in the Superdome interferes with

the plaintiffs’ rights of self-preservation; to be let

alone; to be free from injury and to he free from the ex-

posure to and involuntary consumption of hazardous

smoke fumes, all of which rights, privileges and im-

munities are guaranteed and secured to them by the

First, Fifth, Ninth and Fourteenth Amendments to the

United States Constitution. In their request for oral

argument in their Brief to the United States Fifth Cir-

cuit Court of Appeals, petitioners herein stated:

“The constitutional issues raised in this

Appeal are of the highest magnitude. They

concern the most basic and fundamental

rights that any government can confer upon

the governed: the right to life itself, the right of

bodily integrity; the right to be let alone, the

right of self-preservation; the right to be free

from injury. Without the fullest protection of

these rights, all other rights, privileges and

immunities secured to the people by the Con-

stitution become meaningiess.”’

In the petitioners’ statement of the case in their Brief

to the Court of Appeals, they stated:

“Plaintiffs contend that under the Con-

stitutional Amendments cited above, they

have the right to be let alone; the right of

privacy; the right to be free from the un-

necessary exposure to life threatening and

disease-causing gases and fumes in a public

facility; the right to be free from injury ina

public facility.”

INTRODUCTORY STATEMENT

Prior to 1972, it was widely believed among the

public that smoking was the smoker's problem.

However, in 1972 the American College of Chest

Physicians issued a stateznent that cigarette smoke is

“harmful to the health of the individual who does not

smoke but who inhales the hazardous constituents in

the air produced by the smoker” (Quoted in Editorial,

“Putting the Smoker in his Place — Alone’, Modern

Medicine, December 25, 1972, p. 72.). Since then, the

World Health Organization and the World Conference

on Smoking and Health have recognized that smoking

may be harmful to non-smokers and have recom-

mended restrictions on smoking in public places. See

World Health Organization Technical Report Series

No. 568, pp. 16, 28. World Health Organization, Geneva

(1975) and New York Times, June6, 1975, p. 36, Column

In addition, the World Health Organization noted

that pregnant cigarette smokers affect the health not

only of those within the vicinity of their tobacco

smoke but also of their expected children. World

Health Organization Technical Report Series No. 568,

p. 15. World Health Organization, Geneva (1975).

A 1970 survey of the United States Department of

Health, Education and Welfare, found that 58.6% of the

persons surveyed agreed with the statement “It is an-

noying to be near a person who is smoking

cigarettes.’’ U.S. Department of Health Education and

Welfare, Pub. No. (HSM) 73-8727, “Adults Use of

Tobacco — 1970” June, 1973, II-21. By 1976, the percen-

tage of persons who agreed with the statement had in-

creased to 62.7%. U.S. Department of Health Education

and Welfare, “Adult Use of Tobacco — 1975”, 1976, II-

17. According to one survey of a group of adults, sec-

ond hand tobacco smoke was the fourth most frequent-

ly named annoyance in their daily lives. Cameron P.,

“Second-Hand Tobacco Smoke: Children’s Reac-

tions”, J. Schoo! Health 42:280-284 at 283 (1972). Quot-

ing Cameron F’., et al., “Urban Americas Most Com-

mon Annoyances”, Paper delivered at Rocky Mtn.,

Psych. Ass’n Convention, Denver, May 12, 1971.

Second hand tobacco smoke is not a harmless an-

noyance. Tobacco smoke contains about 2,000 iden-

tifiable components. The following sixteen com-

pounds, found in tobacco smoke, and thought to be the

most dangerous to passive smokers, are listed in the

order of “‘risk-priority”: acrolein, carbon monoxide,

nicotine, ammonia, formic acid, hydrogen cynaide,

nitrous oxides, formaldehyde, phenol, acetaldehyde,

hydrogen disulfide, pyridine, methyl chioride,

acetronitrile, propionaldehyde and methanol. See

Orlien, N., “Passive Smoking, Which Compounds

Contribute to the Potential Health Hazards of Passive

Smoking?” J. Norwegian Med. Ass'n. 31:2300-2303,

2318, (Eng. Abstr.), 1973.

(We note in passing, that in the New York Times of

December 13, 1972, p. 59, Col. 3, Chief Justice Berger of

this Honorable Court. while traveling on the

Metroliner to New York City, complained about cigar

smoke, and Amtrack restricted cigar smoking to the

coach class smoking areas. It was George Bernard

Shaw who once remarked that “Smokers and non-

smokers cannot be equally free in the same railway

carriage’’).

One of the most deadly gases emitted by burning

tobacco smoke is carbon monoxide. This is the

colorless, odorless and tasteless gas best tnown tothe

public as the automobile emission responsible for the ©

deaths of so many people who leave their car motors

running in unventilated garages. This gas is absorbed

by the passive smoker to a greater degree than any

other compounds in tobacco smoke because of its high

affinity to the red blood cells or hemoglobin;

hemoglobin combined with carbon monoxide (car-

boxyhemoglobin) cannot then perform the function of

hemoglobin, i.e., transporting oxygen throughout the

body. This results in the starvation of the vital organs

of our bodies such as the heart, the brain and the lungs

of vital life-giving and life-sustaining oxygen.

Sustained depravation of the proper function of

hemoglobin will cause cellular death and ultimately

death of the entire body.

It is within this context of the serious health hazards

posed to the general public, and the majority of the

general public’s reaction to being forced to inhale

tobacco smoke against its will, that this case arises. It

involves non-smokers who are forced to inhale dense

tobacco smoke in the poorly ventilated, completely

enclosed Louisiana Superdome in New Orleans,

Louisiana. Even when one sits next to a smoker in a

ventilated room, the air around the seat contains 90

ppms (parts per million) of carbon monoxide. See

“The Health Consequences of Smoking, a Report of

the Surgeon General (1972)", U.S. Dept. of Health,

Education and Welfare, 123. In fact it has been dis-

covered that cigarette smoke contains one million

times more particulates and one hundred thousand

times more benzopyrene, a carcinogen, than polluted

air. Hoffmann, D. ‘“‘Benzo[a]pyrene in Polluted Air”,

Preventative Medicine 1:450-451, 1972.

Thus, it is imperative that this Honorable Court

issue a writ of certiorari to review the far reaching

health questions involved in this Appeal and the ques-

tion of whether or not an individual has a con-

stitutional right in a public facility (within an ar-

tificially controlled environment) not to be exposed to

such easily preventable and regulated health hazards.

It is stressed that plaintiffsin this action do not have

as their goal prohibition of tobacco smoking. Under-

signed counsel would be among the first to defend the

rights of a cigarette smoker who is faced with a

generalized law that would attempt to prohibit

altogether smoking of tobacco products. This suit

does not concern itself with prohibition. It concerns

itself with the reguiation of smoking tobacco in a par-

ticular public facility under artificially controlled

conditions. The regulation of tobacco smoking in the

Superdome is nomore related to the danger of prohibi-

tion anymore than isthe regulation of traffic related to

the prohibition of automobiles. This distinction was

missed and misapplied by the District Court and the

Court of Appeals.

In Louisiana, it is politically unrealistic to expect

Legislative action on the issue in this case, Both the

State and local legislative branches of Government

have rejected non-smoking laws. The Tobacco Lobby

is too powerful. It is an unequal contest.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the Constitution of the

United States provides in pertinent part as follows:

“Congress shall make no law... abridging the

freedom of speech, ...”

The Fifth Amendment to the Constitution of the

United States provides in pertinent part as follows:

“No person shall... be deprived of... liberty

... Without due process of law;...”

The Ninth Amendment to the Constitution of the

United States provides as follows:

“The enumeration in the Constitution, of cer-

tain rights, shall not be construed to deny or

disparage others retained by the people.”

The Fourteenth Amendment to the Constitution of

the United States provides in pertinent part as follows:

“nor shall any State deprive any person of life,

liberty, or property, without due process of

law;...°

42 U.S.C. §1983 provides as follows:

“Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.”

28 U.S.C. §1343(3), provides in pertinent part as

follows:

“The District Courts shall have original

jurisdiction of any civil action authorized by

law to be commenced by any person:

(3) Toredress the deprivation, under color of

any State law, statute, ordinance, regulation,

custom or usage, of any right, privilege orim-

munity secured by the Constitution of the

United States...”

STATEMENT OF THE CASE

This action is brought by the petitioners to enjoin

the Louisiana Stadium and Exposition District

(LSED) and its Board of Commissioners from permit-

ting smoking in the Louisiana Superdome during the

staging therein of public events. LSED, is an agency of

the State of Louisiana. The Louisiana Superdome is a

public building operated by LSED.

Specifically, plaintiffs set out in their complaint and

their amended complaints that smoking in the Super-

dome violates their constitutional rights under the

First, Fifth, Ninth, and Fourteenth Amendments tothe

Constitution.

Petitioners contend that under the Constitutional

Amendments cited above, they have the right to be let

alone; the right of privacy; the right of liberty; the

right to be free from the unnecessary exposure to life-

threatening tobacco smoke in a public facility; the

right to be free from injury in a public facility; the

right to receive information and ideas in a public

facility unfettered by the dangerous pre-condition that

they involuntarily inhale tobacco smoke; and the right

of bodily integrity.

The Louisiana Superdome is a multi-purpose, fully

enclosed structure located in the Central Business

District of New Orleans, that was designed, inter alia,

to accommodate sporting events, entertainment,

cultural activities, conventions and trade shows. It

opened to the public on August 3, 1975 and since that

time, has accommodated millions of patrons.

The gravamen of petitioners’ complaint and the con-

clusions reasonably to be drawn therefrom, is that

tobacco smoke is a clear and present danger to their

health and bodily integrity — not merely a tolerable

inconvenience or minor discomfort; and that all of the

above constitutional rights emanate from and exist

within the penumbra of specific guarantees of basic

fundamental rights of the Bill of Rights.

The types of health hazards complained of by the

petitioners relate not merely to minor irritations, in-

conveniences and annoyances caused by the forced in-

halation of toabcco smoke but rather to such

catastrophic and life-threatening illnesses as cardio-

vascular disease, cancer, stroke, emphysema and

chronic bronchitis.

Petitioners contend that tobacco smoking is

associated with increased risk, often a sharply in-

creased risk, of lung, lip, oral, larynx, esophagus and

bladder cancer; of coronary heart disease and stroke,

and of such lung problems as chronic bronchitis and

emphysema. Petitioners further contend, more ap-

propriate to this petition, that as non-smokers, they

are exposed to the same health hazards as smokers by

being compelled involuntarily to inhale tobacco

smoke within the enclosed confines of the Louisiana

Superdome.

The respondents filed a motion to dismiss the

petitioners’ complaint under Rule 12(b)(6) of the

Federal Rules of Civil Procedure on the ground that

the complaint, and amended complaints, failed to state

any Claim upon which relief can be granted. The Trial

Court granted respondents’ motion and dismissed

petitioners’ complaint. The Court of Appeal affirmed.

Rehearing En Banc was denied. The Court of Appeal's

ruling on constitutionality is contained in App. p. 3a.

infra.

REASONS FOR GRANTING THE WRIT

1. In October Term, 1952, this Court decided Pollak

v. Utilities Commission of District of Columbia, 89

U.S. App. D.C. 94, 191 F.2d 450 (1951), reversed 343 U.S.

451, 72 S.Ct. 813, 96 L. Ed. 1068 (1952), in which Capital

Transit Co. (Capital) operated public streetcars and

buses in the District of Columbia in accordance with

congressional authority. The authorization came in

the form of a Joint Resolution of Congress giving

Capital the franchise to operate a local business of

mass transportation in the District of Columbia area.

In 1948, Capital then entered into an agreement with

Washington Transit Radio, Inc. (Transit Radio)

wherein, Transit Radio agreed to install and maintain

loudspeakers in all of the public vehicles owned by

Capital and to provide broadcasting for at least eight

hours each day. The programming broadcast included

music, announcements and advertisements. Such an-

nouncements were transmitted irrespective of the

wishes of the passengers. In order to sell advertising

spots in these programs, Capital assured prospective

buyers that their advertisements would reach a

guaranteed audience.

Pollak and others brought suit alleging that they

were being forced against their will, to listen to the

broadcasts which were obnoxious. They further alleg-

ed that “forced listening’’ amounted to an infringe-

ment of their constitutionally protected rights and

that they were heing deprived of liberty without due

process of law. The District Court granted the defen-

dant’s motion to dismiss the petition as not stating a

claim upon which relief can be granted, but the United

States Court of Appeal for the District of Columbia

Circuit reversed, holding that forced listening on a

public bus constituted an unwarranted violation and

invasion of freedom in violation of the Fifth Amend-

ment. This Court reversed the District of Columbia

Circuit, only because it found that the forced listening

did not interfere with public safety, comfort and con-

venience.

In Poll-k, supra, this Court implicitly indicated that

the unreasonable “forced listening” of radio an-

nouncements, music and commercials on a public bus

would have constituted an invasion of an individuals

rights to privacy and liberty under the Fifth Amend-

ment had it been proven that such forced listening in-

terfered with ‘the general public convenience, com-

fort and safety.” 343 U.S. at 464, 465, 72 S.Ct. at 882.

Petitioners herein submit that if unreasonable forced

listening has been held by this Honorable Court to bea

violation of an individual's right to liberty and an in-

vasion of his privacy, then, a fortiori, forced inhala-

tion of poisonous gases and highly toxic fumes clearly

constitute a violation of an individual's liberty and

right of privacy contrary to the Fifth Amendment to

the United States Constitution and contrary to the

holding of this Court in Pollak.

2. Inthe prestigious Columbia Journal of Environ-

mental Law, Vol. 3, No. 1, Fall, 1976, pp. 62 et seq., a

comment appeared under the title “Where There's

Smoke There’s Ire: The Search For Legal Paths To

Tobacco-Free Air.” The author criticizes the District

Court’s attempt to distinguish Pollak from the case

sub judice. The author was of the opinion that the con-

tentions made by the petitioners herein have merit, Id.

p. 78; that the attempts by the District Court to dis-

tinguish Pollak “are not convincing”’, Id. p. 79; and that

the United States Supreme Court in Pollak implicitly

acknowledged the right “to be free from forced lis-

tening’’, Id. p. 80.

In the equally prestigious Environmental Affairs

published by the Boston College of Law, Vol. 6. No. 2

pp. 345, et seq., there is an article titled “Legislation

Against Smoking Pollution”. In addition to referring

to the Columbia Journal of Environmental Law

criticism of the District Court's attempt to distinguish

Pollak from this case, the author further stated:

“One commentator [the author of Columbia

Journal of Environmental Law] has criticized

this portion of the Gasper Opinion as un-

responsive to the plaintiff's meritorious con-

tention that the right to be free from forced

breathing of smoke filled air is analogous to

the right to be free from forced listening to

radio broadcasts which was recognized by the

Supreme Court in the Pollak case, and that the

important question in each case, is the

reasonableness of the interference with each

right.” Id. p. 353.

3. In Pred v. Board of Public Instruction of Dade

City, 415 F.2d 851 (C.A. 5th Cir., 1969) the very same

Court of Appeals which affirmed the District Court's

opinion in the case, sub judice, in a scathing comment

on the Court below’s dismissal of a new but serious

question of constitutional law on barebone pleadings

under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, stated as follows:

“This is another monument to the needless

waste of lawyer and Judge time and perhaps

more important, client money. For now, four-

teen months later, the case must go back to

start the normal process of discovery leading

to the production of facts or the demonstrated

lack of them, on which, either before or after a

conventional trial, the real merits of the case

will be determined. This is but a different

prelude to the common refrain on the high

mortality rate to a dismissal under F.R.Civ.P.

12(b) for failure to state a claim. To the usual

perils, should be added the unsoundness —

both administratively and substantively of

trying, in the orbital atmosphere of this

dynamic era, to resolve new, but serious

questions of constitutional law on barebone

pleadings. Courts ought not to be pulled into

academic exercises on a case that factually

may never be. [citing cases}”’

4. Under the test laid down by this Court in Conley

v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957) it must appear

“beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitled him

to relief,” 78 S.Ct. at 102.

5. Petitioners urge this Court to grant a writ of cer-

tiorari because of the profound nature of the constitu-

tional rights asserted by petitioners and the erroneous

interpretation placed upon the Bill of Rights by the

Courts below. The constitutional issues raised in this

appeal are new, but are serious and of the highest

magnitude. They concern the most basic and fun-

damental rights that any government can confer upon

the governed — the right to life itself and the right of

bodily integrity, liberty, the right of self preservation

and the right to be free from injury. Without the fullest

protection of these rights, all other rights, privileges

and immunities secured to the people by the Constitu-

tion become meaningless. This is a case of first im-

pression. This Court writes on a clean slate. No other

case, to our knowledge, has involved the issue of

whether an individual has the constitutional right to

be free from the involuntary inhalation of hazardous,

disease-causing and life-threatening tobacco smoke

in a public building owned and operated by the State.

The decisions of the Courts below, if left to stand, will

adversely affect the lives, safety and comfort of

millions upon millions of people. It will have a

profound adverse affect on preventive medicine,

public health, safety and the general welfare of the

people of this country.

6. Petitioners contend as non-smokers they enjoy

the constitutional rights of life, liberty, the pursuit of

happiness, to be let alone, to be free from injury and

discomfort and to be free from being made involuntary

smokers against their will, thus subjecting them to all

of the known hazards of cigarette smoking. These

rights are guaranteed and secured to them under the

Bill of Rights to the United States Constitution and

particularly the First, Ninth, and Fourteenth

Amendments to the United States Constitution.

7. The Founding Fathers, in the Declaration of In-

dependence, stated certain fundamental rights of the

individual and enumerated personal liberties which

are considered part of the natural law pursuant to

John Locke's theories of natural law. These rights

were considered so basic and established that there

was no necessity of even mentioning them in the Con-

stitution itself. As was stated in the Declaration of In-

dependence, these rights were deemed to be ‘“‘self evi-

dent”. The Declaration of Independence lists among

these rights, the rights to “Life, Liberty, and the Pur-

suit of Happiness’. The Declaration of Independence

also lists and recognizes as a fundameniai right the

right of “Safety”.

8. In the Preamble to the United States Constitu-

tion, it is pointed out that the Constitution was or-

dained and established to “promote the general

welfare’’ among other things. There is therefore no

doubt that among civilized nations and by reason of

natural law the rights which are basic, fundamental

and inherent to every member of civilized society are

the rights of Life, Liberty, and the Pursuit of Hap-

piness, Health and Safety.

9. The Bill of Rights, consisting of the first Ten

Amendments to the United States Constitution, were

proposed to the legislatures of the several states by

the First Congress and were ratified in December of

1791 at which time they became law. The Bill of Rights

contains within themselves a vast penumbra of rights,

recognized by this Court and a long line of cases,

which are not specifically enumerated in the United

States Constitution. These are the rights which are

considered “self-evident” as referred to in the Declara-

tion of Independence. A number of these _ un-

enumerated rights are listed hereinabove. The Ninth

Amendment to the United States Constitution

provides:

“The enumeration in the Constitution, of cer-

tain rights, shall not be construed to deny or

desparage others retained by the people.”

It is respectfully submitted that under the Bill of

Rights and the Fourteenth Amendment to the United

States Constitution, non-smokers are vested with

constitutional rights to be free from the forced and in-

voluntary inhalation of dangerous tobacco smoke

which endangers their health. They have theconstitu-

tional right in a public place, reasonably to be free

from unnecessary injury; to be let alone; to pursue

happiness without being exposed to tobacco smoke

and the inhalation of the same. All of these rights are

contained within the penumbra of natural rights that

are self-evident and are secured to them as members of

a Civilized nation under the Constitution of the United

States.

10. In one of the landmark cases of this Court,

Olmstead v. The United States, 277 U.S. 438, 478 (1928),

the question involved was one of whether wire tap-

ping violated per se the Fourth Amendment to the

Federal Constitution. The dissenting opinion of

Justice Brandeis, considered one of the most famous

dissenting opinions in the history of this Court, stated,

in part, as follows:

“The makers of our Constitution undertook to

secure conditions favorable to the pursuit of

happiness. They recognized the significance

of man’s spiritual nature, of his feelings and of

his intellect. They knew that only a part of the

pain, pleasure and satisfactions of life are to

be found in material things. They sought to

protect Americans in their beliefs, their

thoughts, their emotions, their sensations.

They conferred as against the Government,

the right to be let alone — the most comprehen-

sive of rights, the right most valued by civiliz-

ed men.”

Therefore, the right of privacy is clearly estab-

lished as a fundamental right of man though not ex-

pressly enumerated as such in any provision of the

Federal Constitution. It is also submitted that the right

of life, means the right to a meaningful, healthy and

happy life and is therefore a fundamental right of man

firmly embedded in natural law and the Declaration of

Independence which are part and parcel of the Bill of

Rights and the United States Constitution.

11. Petitioners submit that the Ninth Amendment

protects the right of self preservation, the right to be

let alone, the right to be free from injury and many

other important fundamental rights. While it may be

difficult to isolate the critical factors which qualify

rights as ones to be protected by the Ninth Amend-

ment, the one factor which is proven to be extremely

important is the historic significance of the rights.

The right of Life, Liberty and pursuit of Happiness,

enumerated in the Declaration of Independence, have

this historical significance. There can be nodoubt that

the Declaration of Independence enumerates the right

to life. This right implies the right not to be injured

unnecessarily and the right to be let alone in one’s per-

son so as to be free and safe from discomfort. In the 186

year history of the United States Supreme Court, the

Ninth Amendment has drawn its deep consideration

on perhaps three or four occasions, the most

celebrated occasion being the case of Griswold v.

State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678 (1965).

However, in addition to Griswold, supra, this Court

also rendered a far reaching decision in Roe v. Wade,

410 U.S. 113, 93S. Ct. 705 (1973) in which this Court af-

firmed the District Court’s Judgment declaring Texas

Criminal Abortion Laws to be unconstitutional. Mr.

Justice Blackmun, delivering the opinion of the ma-

jority of the Court, at p. 726, enumerated a number of

constitutional rights which are not explicitly men-

tioned in the Constitution. These rights include, inter

alia, the right of personal privacy or a guarantee of

certain areas or zones of privacy, marriage, procrea-

tion, contraception, family relationships, child rear-

ing and education. The roots of these rights have been

found to exist under the First, Fifth, Ninth and

Fourteenth Amendments to the United States Con-

stitution. Dean Roscoe Pound has stated that the Ninth

Amendment to the Federal Constitution solomnly

declares that:

“Natural rights are not a fixed category of

reasonable human expectations. . .laid down

once and for all inthe. . . Constitution. Those

not expressly set forth are not to be excluded

but are ... left to be secured ... by Con-

stitutional change.. .’’ Pound, Introduction to

Patterson, The Forgotten Ninth Amendment

(1955).

12. In Virginians for Dulles v. Volpe, 344 F.Supp.

573, (D.C. VA. 1972) the Court indicated that had the

plaintiffs presented a case of specific personal injury

causally related to noise, from the Washington

National Airport, and could have shown a generalized

injury to health and property from such noise, then

Fifth and Ninth Amendment rights would have been

present. The Court indicated that contained within the

Ninth Amendment rights is the “right to be free from

injury” Id. at p. 579.

13. In Environmental Defense Fund v. Hoerner

Waldorf, D.C., Montana, 1970, 1 ERC. 1640, the Court

noted that... “a person’s health is what, in a most

significant degree, sustains life,’ and the Court con-

cluded... ‘each of us is constitutionally protected in

our natural and personal state of life and health.”’

14. The First Amendment protects “the right to

receive information and ideas”. Stanley v. Georgia,

394 U.S. 557, 80 S.Ct. 1243, 1247, (1969). The Superdome

is not merely a sports palace. It is a multi-purpose

facility that already has been used for religious con-

ventions, circuses, and a multitude of non-sporting

events. Attempts were made to obtaintheD mocratic

and Republican National Conventions and undoubted-

ly such a political convention will be secured in the

future.

It has been held that First Amendment rights may

not be burdened with arbitrary conditions; that such

rights must remain unfettered and free from either in-

habition, limitation or prohibition. Lamont v. Post-

master General of the United States, 381 U.S. 301, 85

S.Ct. 1493 (1965).

In Lamont, supra, a section of the Postal Service and

Federal Employees Salary Act of 1962 was declared

unconstitutional. The provisions in question required

any mail coming from a foreign country determined

by the Secretary of the Treasury to be “Com:munist

political propaganda” to be detained by the Post

Master General. The addressee was then informed of

its receipt and in order to receive the same had to re-

quest in writing that the mail be delivered to him. The

plaintiff, Dr. Lamont, refused to sign the request and

challenged the constitutionality of the law on the

ground that the requirement that he request the

receipt of such mail in writing placed an impermissi-

ble burden or abridgement on his First Amendment

Rights. This Court declared the law unconstitutional

and stated:

“We conclude that the Act as construed a.nd ap-

plied is unconstitutional because it required

an official act (viz., returning the reply card)

as a limitation on the unfettered exercise of the

addressee’s First Amendment Rights.” Id. at

U.S. 1495.

In Lamont, supra, this Court further stated:

“We rest on the narrow ground that the ad-

dressee in order to receive his mail, must re-

quest in writing that it be delivered. This

amounts in our judgment to an uncon-

stitutional abridgement of the addressee’s

First Amendment Rights.” Id. at U.S. 1496.

To paraphrase this Court in Lamont, supra,

petitioners submit that “the plaintiffs, in order to

receive information and ideas in the Superdome, must

subject themseives to the forced inhalation of tobacco

smoke. This amounts to an unconstitutional abridge-

ment of their First Amendment Rights.” The con-

stitutional principle of law announced by this Court in

Lamont is that the right to information and ideas.

protected under the First Amendment, may not be

fettered, limited, prohibited or inhibited by arbitrary

or unreasonable governmental actions or conditions.

Thus, the precondition placed upon non-smokers

attending the Superdome to receive information and

ideas that they subject themselves to the forced in-

halation of hazardous tobacco smoke is a violation of

their First Amendment Rights, under Lamont, supra.

CONCLUSION

For the reasons stated above, this Petition for Cer-

tiorari should be granted.

Respectfully submitted,

JACOB J. MEYER

Tenth Floor Suite

321 St. Charles Avenue

New Orleans, Louisiana 70130

Telephone: (504) 586-1979

Attorney for Petitioner

CERTIFICATE OF SERVICE

I certify this _____day of ,1978thatI

have served copies of the foregoing petition for a Writ

of Certiorari, and the attached Appendix, upon the

Honorable William J. Guste, Jr., Attorney General of

Louisiana through Kendall L. Vick, the Assistant At-

torney General of Louisiana at the Department of

Justice, State of Louisiana, 7th Floor, 234 Loyola

Building, New Orleans, Louisiana 70112, and upon

Harry McCall, Jr., Special Counsel for the Attorney

General of Louisiana at 1500 First National Bank of

Commerce Building, New Orleans, Louisiana 70112,

by mailing same, postage prepaid addressed to them

at their respective offices.

JACOB J. MEYER

APPENDIX “A”

Kenneth O. GASPER et al.,

Plaintiffs-Appellants,

versus

LOUISIANA STADIUM AND

EXPOSITION DISTRICT et al.,

Defendants-Appellees,

American Lung Association of Louisiana,

Intervenor.

No. 76-3748.

United States Court of Appeals,

Fifth Circuit.

Aug. 1, 1978.

Appeal from the United States District Court for the

Eastern District of Louisiana.

Before COL™MAN, AINSWORTH and VANCE, Cir-

cuit Judges.

PER CURIAM:

This was an action brought pursuant to the

provisions of 42 U.S.C., § 1983! to enjoin the Louisiana

1 “Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory, subjects, or

causes to be subjected, any citizen of the United States or other per-

son within the jurisdiction thereof tothe deprivation of any rights,

privileges, or immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at law, suit in equi-

ty. or other proper proceeding for redress." 42 U.S.C., § 1983.

Stadium and Exposition District from continuing to

allow tobacco-smoking in the New Orleans Super-

dome during events staged therein. Pursuant to Rule

12(b)(6), Federal Rules of Civil Procedure and without

reaching or deciding the “state action” aspect of the

case, the District Court dismissed the complaint for

failure to state claims upon which relief could be

granted, “in that nothing in the United States Con-

stitution grants unto plaintiffs the rights they claim to

have been violated’’, Gasper v. Louisiana Stadium and

Exposition District, 418 F.Supp. 716 (E.D.La., 1976). We

affirm.

The reported opinion clearly indicates that the Dis-

trict Court was well aware of the limitations

applicable to dismissals under Rule 12(b)(6). The in-

vitation to reverse on the ground that the Court did not

adequately comprehend the function of a Rule 12(b)(6)

dismissal is declined, see 418 F.Supp. at 717.

The plaintiffs prayed that those in charge of the

Superdome and its operations should be enjoined

“from in any way permitting smoking and the sale of

tobacco products in the Superdome during the staging

therein of public events”.

What it all comes down to is that the plaintiffs claim

a constitutional right to stop other individuals from

smoking in the Superdome while a performance is in

progress.

We assume that the Superdome authorities, if they

saw fit, could prohibit smoking in the facility, or the

City of New Orleans in the exercise of its police power

could prohibit smoking in public stadiums, or the

State of Louisiana could enact a similar statute of

statewide application. No such rule, city ordinance, or

state statute has been enacted.

We assume that Congress might prohibit the in-

terstate transportation of cigarettes or otherwise

restrict tobacco in interstate commerce. Congress has

not seen fit to do so.

The plaintiffs would have us to fill this great void by

elevating to constitutional dimensions their opposi-

tion to the presence of tobacco smoke at football

games or like performances in public stadiums. Ob-

viously, if one may constitutionally enforce opposi-

tion to smoking in one public place he may, as a con-

stitutional right, have it imposed at another.

We are not unaware of what happened when, by ex-

press constitutional amendment and congressional

enactment, an effort was made to prohibit alcohol for

beverage purposes, something fully as physically

harmful as tobacco smoke, if not more so.

Since we can see no constitutional basis for injec-

ting the courts and their injunctive powers into this

tobacco-smoke controversy, we are of the opinion that

the District Court was quite correct in dismissing the

complaint. The dismissal is

AFFIRMED.

AINSWORTH, Circuit Judge, dissenting:

I believe the district judge committed reversible

error in granting the motion to dismiss the present

suit on the basis of the barebone pleadings of plain-

tiffs, without granting a trial on the allegations of the

complaint as amended. I would accordingly require a

trial of the merits of the case and remand the matter

with directions to the district judge to proceed ex-

peditiously, receive evidence from the witnesses, and

give full consideration to the issues involved. For that

reason, I respectfully dissent from the majority per

curiam opinion.

In this class action brought under the Civil Rights

Act (42 U.S.C. § 1983), plaintiffs allege deprivation of

their rights under the First, Fifth, Ninth and Four-

teenth Amendments to the United States Constitution,

in that the Louisiana state agency defendants in

charge of the operation of the Superdome, an enclosed

indoor stadium and public building in New Orleans,

permit smoking therein during the staging of public

events. Plaintiffs seek injunctive relief against the

defendants on the allegations of their complaint, the

key provisions of which read as follows:

“Plaintiffs are non-smokers. On the oc-

casions when they attend events in the Super-

dome as paid invitees, they suffer great

physical, mental and emotional distress, ill-

ness and discomfort which impairs their

health, safety and ability to enjoy said events

as a direct result of noxious, ill-smelling and

harmful smoke and fumes generated, dis-

charged and trapped in the air of the Super-

dome by those patrons who smoke cigarettes,

and other tobacco substances.

“8.

“Notwithstanding requests from numerous

patrons and medical authorities, the defen-

dant has failed and refused to prohibit smok-

ing in the Superdome, having knowledge that

smoking interferes with the health, safety and

ability of the plaintiffs and all non-smoking

patrons to enjoy the events for which they paid

the price of admission to witness in safety and

free from unnecessary exposure to the serious

health hazards created by smoking in the

Superdome.

“9.

“The Surgeon General of the United States

has determined, and scientific investigation

has confirmed, that smoking is dangerous to

the health of the smoker himself and the non-

smoker who becomes subject to the inhalation

of the sidestream and mainstream smoke

emitted by burning tobacco.

10.

“The defendant's wanton disregard for the

health, safety and comfort of plaintiffs and all

other non-smoking patrons of the Superdome

has caused, and will continue to cause, plain-

tiffs to be unwilling, passive and involuntary

smokers by proximity, thereby subjecting

them to loss of health, comfort and ability to

enjoy the events at the Superdome for which

they paid the price of admission to witness.

“Smoking in the Superdome interferes with

plaintiffs’ rights of self-preservation; to be let

alone, to be free from injury; and to be free

from exposure to and involuntary consump-

tion of hazardous smoke fumes, all of which

rights, privileges and immunities are guar-

anteed and secured to them by the Fifth, Ninth

and Fourteenth Amendments to the United

States Constitution.”

In the request for oral argument in their brief tothis

Court, plaintiffs state:

“The Constitutional issues raised in this

appeal are of the highest magnitude. They

concern the most basic and fundamental

rights that any government can confer upon

the governed — the right to life itself, the right

of bodily integrity; the right to be let alone, the

right of self-preservation; the right to be free

from injury.

“Without the fullest protection of these

rights, all other rights, privileges and im-

munities secured to the people by the Con-

stitution become meaningless.”

In the statement of the case in their brief they say:

“Plaintiffs contend that under the Con-

stitutional Amendments cited above, they

have the right to be let alone; the right of

privacy; the right to be free from the unneces-

sary exposure to life-threatening and disease-

causing gases and fumes in a public facility;

the right to be free from injury in a public

facility; the right to receive information and

ideas in a public facility unfettered by the

dangerous pre-condition that they inhale

tobacco smoke against their will; the right of

bodily integrity.”’

In considering a motion to dismiss under Rule

12(b)(6), Federal Rules of Civil Procedure, the well-

pleaded allegations of facts must be accepted as true.

Mannings v. Board of Public Instruction of

Hillsborough County, Florida, 5 Cir., 1960, 277 F.2d

370, 372. Also, most pertinent hereto is the principle of

law established by the Supreme Court in the leading

case of Conley v. Gibson, 355 U.S. 41, 45, 78S.Ct. 99, 102,

2 L.Ed.2d 80 (1957), as follows:

“In appraising the sufficiency of the com-

plaint we follow, of course, the accepted rule

that a complaint should not be dismissed for

failure to state a claim unless it appears

beyond doubt that the plaintiff can prove no

set of facts in support of his claim which enti-

tle him to relief.’’ (emphasis supplied)

This Court has made it clearthat a motion todismiss

for failure to state a claim is viewed with disfavor and

is rarely granted, Madison v. Purdy, 5 Cir., 1969, 410

F.2d 99, 100, and that “[dJismissal of a claim on the

basis of barebone pleadings is a precarious disposi-

tion with a high mortality rate.” International Erec-

tors, Inc. v. Wilhoit Steel Erectors and Rental Serv., 5

Cir., 1968, 400 F.2d 465, 471; Barber v. Motor Vessel

“Blue Cat,” 5 Cir., 1967, 372 F.2d 626, 627.

In their brief plaintiffs state:

“Plaintiffs contend that the tobacco smoke

they are forced to inhale causes them phy-

sical injury, and discomfort and further sub-

jects them to the same health hazards to which

smokers themselves are subjected, namely,

cancer, heart disease, stroke, emphysema,

chronic bronchitis (all life-threatening ill-

nesses), as well as a myriad of other ailments,

discomforts and impairment of normal] bodily

functions. Plaintiffs have marshaled scien-

tific evidence to support their claims and will

be prepared to make such evidence a matter of

judicial record on the trial of the merits ofthis

case; and the defendants will have the oppor-

tunity to rebutt [sic] such evidence if they

can.”

The allegations in plaintiffs’ pleadings and the con-

tentions which they assert must be measured as to a

motion to dismiss against the test which the Supreme

Court has established in Goosby v. Oser, 409 U.S. 512,

518, 93 S.Ct. 854, 858-59, 35 L.Ed.2d 36 (1973), as follows:

“ ‘Constitutional insubstantiality’ for this

purpose has been equated with such concepts

as ‘essentially fictitious,’ Bailey v. Patterson,

369 U.S. [31] at 33, 82 S.Ct. [549] at551[7 L.Ed.2d

512] ‘wholly insubstantial,’ ibid; ‘obviously

frivolous,’ Hannis Distilling Co. v. Baltimore,

216 U.S. 285, 288, 30 S.Ct. 326, 327, 54 L.Ed. 482

(1910); and ‘obviously without merit,’ Ex parte

‘Poresky, 290 U.S. 30, 32,54S.Ct. 3, 4-5, 78 L.Ed.

152 (1933). The limiting words ‘wholly’ and ‘ob-

viously’ have cogent legal significance. In the

context of the effect of prior decisions upon the

substantiality of constitutional claims, those

words import that claims are constitutionally

insubstantial only if the prior decisions in-

escapably render the claims frivolous;

previous decisions that merely render claias

of doubtful or questionable merit do not render

them insubstantial for the purposes of 28

U.S.C. § 2281. A claim is insubstantial only if

‘ “its unsoundness so clearly results from the

previous decisions of this court as to foreclose

the subject and leave noroom forthe inference

that the questions sought to be raised can be

the subject of controversy.” ’ "(emphasis add-

ed)

Since I do not believe that on the state of this record,

looking only to plaintiffs’ pleadings, and without hav-

ing a trial on the merits, that “it appears beyond

doubt” that plaintiffs can prove no set of facts to sup-

port their claim, or that the constitutional allegations

are “essentially fictitious,” ‘wholly insubstantial,” or

“obviously frivolous,” I would give the plaintiffs the

opportunity to show what they can in support of their

allegations and contentions. Dismissal of the suit at

this stage was therefore erroneous.

10a

lia

Very truly yours,

APPENDIX “B” EDWARD W. WADSWORTH,

Clerk

UNITED STATES COURT OF APPEALS /s/ BRENDA M. HAUCK

FIFTH CIRCUIT Deputy Clerk

OFFICE OF THE CLERK cc: Mr. Jacob J. Meyer

Messrs. Harry McCall, Jr.

September 14, 1978 James P. Farwell

Messrs. Kendall L. Vick

Edward W. Wadsworth Barbara S. Bruckner

Clerk Mr. J. Harrison Henderson, III

TO ALL PARTIES LISTED BELOW:

NO. 76-3748 — KENNETH O. GASPER, Et Al, v. LA. APPENDIX “‘C”

STADIUM & EXPOSITION DIS-

TRICT, Et Al, AMERICAN LUNG ~ Kenneth O. GASPER et al.,

ASSOCIATION OF LA.

versus

Dear Counsel:

LOUISIANA STADIUM AND

This is to advise that an order has this day been EXPOSITION DISTRICT et al.

entered denying the petition for rehearing on behalf of

Kenneth O. Gasper, Et Al., and no member of the panel Civ. A. No. 75-3732.

nor Judge in regular active service on the Court hav-

ing requested that the Court be polled on rehearing en United States District Court,

banc (Rule 35, Federal Rules of Appellate Procedure; E. D. Louisiana.

Local Fifth Circuit Rule 12) the petition for rehearing

en banc has also been denied. Sept. 8, 1976.

See Rule 41, Federal Rules of Appellate Procedure for JACK M. GORDON, District Judge.

issuance and stay of the mandate.

This action is brought pursuant to the provisions of

42U.S.C., § 1983, and 28 U.S.C., § 1343, in an attempt by

12a

the named plaintiffs to enjoin the Louisiana Stadium

and Exposition District from continuing to allow

tobacco-smoking in the Louisiana Superdome during

events staged therein. The Louisiana Superdome is an

enclosed arena located in New Orleans, Louisiana,

owned and maintained by a political subdivision of the

State of Louisiana known as the Louisiana Stadium

and Exposition District (hereinafter referred to as

“LSED”). The building is a public, multipurpose

facility, and, since its completion, has been used for

many events ranging from concerts to Mardi Gras

parades.

The plaintiffs, Kenneth O. Gasper, Allen C. Gasper,

Beverly Guhl, Dorothy L. Smira, Edward Smira,

Albert E. Patent, and David A. Patent, individually and

as representatives of other nonsmokers who have

attended, or who will attend, such functions in the

Louisiana Superdome, challenge LSED’s permissive

attitude toward smoking as being constitutionally

violative of their right to breathe smoke-free air while

in a State building. In support of their complaint, the

plaintiffs aver that by allowing patrons to smoke in

the Louisiana Superdome, LSED is causing other non-

smokers involuntarily to consume hazardous tobacco

smoke, thereby causing physical harm and discom-

fort to those nonsmokers, as well as interfering with

their enjoyment of events for which they have paid the

price of admission, all in violation of the First, Fifth,

Ninth and Fourteenth Amendments to the United

States Constitution.

The defendants have filed a motion to dismiss the

complaint pursuant to Rule 12(b)(6), Federal Rules of

13a

Civil Procedure, contending the plaintiffs have failed

to state claims upon which relief can be granted, in

that nothing in the United States Constitution grants

unto plaintiffs the rights they claim to have been

violated.

In considering the merits of a Rule 12(b)(6) motion to

dismiss, the Court must view the complaint in the

light most favorable to the complainants and must

regard all alleged facts as true. Hargrave v.

McKinney, 413 F.2d 320 (5th Cir. 1969), vacated on

other grounds, Askew v. Hargrave, 401 U.S. 476, 91

S.Ct. 856, 28 L.Ed.2d 196 (1971). Hence, although plain-

tiffs contend that a motion to dismiss is inappropriate,

this Court, is of the opinion that the Constitutional

issues raised could never be more squarely presented

than in the motion tc dismiss now before the Court.

The plaintiffs have brought this action pursuant to

Title 42, § 1983, of the United States Code. That section

provides:

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage,

of any State or Territory, subjects, or causes to

be subjected, any citizen of the United States

or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper

proceeding for redress.

14a

There are two essential elements of a cause of action

under § 1983. First, the conduct complained of must

have been done by some person acting under color of

state law and, second, such conduct must have depriv-

ed the plaintiff of rights, privileges or immunities

secured by the Constitution and laws of the United

States. Adickes v. S. H. Kress and Company, 398 U.S.

144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Beaumont v.

Morgan, 427 F.2d 667 (ist Cir. 1970); Needleman v.

Bohlen, 386 F.Supp. 741 (D.Mass.1974). The absence of

either of these elements is fatal to a cause of action un-

der 42 U.S.C., § 1983, and it is the defendants’ position

that neither element exists in this lawsuit. By way of

response, the plaintiffs contend that state action is

established by the State’s permitting smoking in the

Superdome and by the selling of tobacco products,

therein, and further alleges that such state action

violates the First, Fifth, Ninth and Fourteenth

Amendments to the Constitution. This Court does not

believe that it is necessary to decide whether the

complained-of conduct is or is not state action as re-

quired by § 1983, since the Court is of the opinion that

there clearly has been no violation of plaintiffs’ con-

stitutional rights. Each of the alleged violations will

now be considered.

First Amendment

Just as the First Amendment protects against the

making of any law which would abridge the freedom of

speech or of the press, it also protects against any law

or activity which would interfere with or contract the

concomitant rights to receive those thoughts dis-

seminated under the protection of the First Amend-

15a

ment. Asthe Courtin Griswold v. State of Connecticut,

381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965) said,

“Without those peripheral rights the specific rights

would be less secure.” See also, Stanley v. Georgia,

394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).

It is this peripheral right to receive others’ thoughts

and ideas that the plaintiffs herein contend is being

subverted by the State’s condoning tobacco-smoking

in the Louisiana Superdome. The nonsmokers argue

that the existence of tobacco smoke in the Superdome

creates a chilling effect upon the exercise of their First

Amendment rights, since they must breathe that

harmful smoke as a precondition to enjoying events in

the Superdome. In support of this rather unique argu-

ment, the nonsmokers cite Lamont v. Postmaster

General of United States, 381 U.S. 301, 85 S.Ct. 1493, 14

L.Ed.2d 398 (1965). In Lamont, the plaintiff was the sub-

ject of a rule imposed by the Postmaster requiring a

written statement evidencing the undersigned'’s

desire to receive communist propaganda literature. In

the absence of this written request, the literature,

although properly addressed, would not be delivered.

The United States Supreme Court held that this was an

unconstitutional infringement on the recipient's First

Amendment rights, citing several other cases where

licensing and taxing had been employed by federal

agencies to regulate the flow of information. The

Court reasoned:

“Just as the licensing or taxing authorities

in the Lovell, Thomas, and Murdock cases

sought to control the flow of ideas to the

public, so here federal agencies regulate the

flow of mail.” (Lamont, supra, at 1496.)

16a

The Court in Lamont was understandably concerned

with the apparent attempts of the Postmaster General

to either identify or harass those individuals who

wished to receive communist propaganda through the

mail. The laudable purpose of the Lamont decision

was to prohibit unfettered regulation of the free ex-

change of information and ideas. Unlike the Lamont

case, the instant case contains no facts even remotely

indicating an attempt by the State of Louisiana to

restrict anyone’s right to receive information or

entertainment. Other than making periodic requests

that patrons of the Louisiana Superdome voluntarily

refrain from smoking, the State has adhered to the

tenet of not interfering with the manner in which spec-

tators watch events for which they have paid.

To say that allowing smoking in the Louisiana

Superdome creates a chilling effect upon the exercise

of one’s First Amendment rights has no more merit

than an argument alleging that admission fees

charged at such events have a chilling effect upon the

exercise of such rights, or that the selling of beer

violates First Amendment rights of those who refuse

to attend events where alcoholic beverages are sold.

This Court is of the opinion that the State’s permissive

attitude toward smoking in the Louisiana Superdome

adequately preserves the delicate balance of in-

dividual rights without yielding to the temptation to

intervene in purely private affairs. Hence, this Court

finds no violation of the First Amendment to the Unit-

ed States Constitution.

17a

Due Process of Law

In further support of his argument that the State is

violating Title 42, § 1983 of the United States Code, the

plaintiffs cite the Fifth and Fourteenth Amendments

to the Constitution, alleging that the State of

Louisiana is unlawfully depriving those non-

smoking patrons of the Louisiana Superdome of their

life, liberty and property without due process of law.

The plaintiffs contend that the penumbral protection

of the Fifth and Fourteenth Amendments includes the

right to be free from hazardous tobacco smoke while in

State buildings, and cite Pollak v. Public Utilities

Commission of District of Columbia, 89 U.S.App.D.C.

94, 191 F.2d 450 (1951), reversed, 343 U.S. 451, 72 S.Ct.

813, 96 L.Ed. 1068 (1952), as authority for such an argu-

ment. In Pollak, the Capital Transit Co. (Capital)

operated streetcars and buses in the District of Colum-

bia pursuant to Congressional authorization. Such

authorization came in the form of a Joint Resolution of

Congress, giving Capital not only a franchise, but a

virtual monopoly of the entire local business of mass

transportation in the District of Columbia area.!

In 1948, Capital-entered into a contract with

Washington Transit Radio, Inc. (Transit Radio),

wherein Transit Radio agreed to install and maintain

loudspeakers in all vehicles owned by Capital and to

provide broadcasting for at least eight hours each day.

The programming of such broadcasts included music,

announcements and advertisements and would be

transmitted irrespective of the wishes of passengers.

1 Act of March 4, 1925, 43 Stat. 1265; Joint Resolution of Jan. 14,

1933, 47 Stat. 752.

18a

To sell advertising spots in these programs, Capital

would assure prospective buyers that their adver-

tisements would reach a guaranteed or captive

audience since Capital knew that most commuters

were compelled to begin or complete their trips into or

out of the District of Columbia by using buses or

streetcars owned by Capital.

The plaintiffs brought suit alleging that because

they were obliged to use the buses and streetcars of

Capital in connection with the practice of their profes-

sion, they were being forced to listen to the allegedly

obnoxious broadcasts against their will. They further

alleged that this “forced listening” amounted to an in-

fringement of their constitutionally protected rights

in that they were being deprived of liberty without due

process of law. The District Court granted the defen-

dant’s motion to dismiss the petition as not stating a

claim upon which relief could be granted, and the case

was appealed. The United States Court of Appeals,

District of Columbia Circuit, reversed, holding that

the broadcasts were in violation of the Fifth Amend-

ment. The Supreme Court, finding no such violation,

reversed and remanded the case back to the District

Court.

The plaintiffs in the case now before this Court rely

primarily upon the Circuit Court's opinion in Pollak,

stating in memorandum that the case was reversed by

the United States Supreme Court on grounds other

than those for which they now cite the Circuit Court

opinion. This Court cannot agree with the plaintiffs’

argument.

19a

In a section of its opinion entitled “No violation of

the Fifth Amendment,” the Supreme Court recog-

nized, but did not agree with, the Circuit Court's con-

clusion that if one passenger objects to the program-

ming in question as an invasion of his constitutional

right of privacy, the use of radio broadcasting on those

public vehicles must be discontinued. The Court said:

“This position wrongly assumes that the

Fifth Amendment secures to each passenger

on a public vehicle regulated by the Federal

Government a right of privacy substantially

equal to the privacy to which he is entitled in

his own home. However complete his right of

privacy may be at home, it is substantially

limited by the rights of others when its

possessor travels on a public thoroughfare or

rides in a public conveyance. Streetcars and

buses. are subject to the immediate control of

their owner and operator and by virtue of their

dedication to public service, they are for the

common use of all of their passengers. The

Federal Government in its regulation of them

is not only entitled, but is required to take into

consideration the interests of all concerned.

* * * *

“The liberty of each individual in a public

vehicle or public place is subject to reasonable

limitations in relation to the rights of others.”

Public Utilities Commission v. Pollak, supra,

343 U.S. at 464, 465, 72 S.Ct. at 821, 822.

(Emphasis added.)

20a

Even if this Court were to consider only the Circuit

Court’s opinion in Pollak, there are material factors in

that case which distinguish it from the case presently

at bar. First, the Circuit Court did not have occasion to

weigh or balance an individual's “right” to bring a

radio on the bus or streetcar for his own pleasure

against the “right” of others to remain in silence. To

the extent the Circuit Court found in favor of those who

wished to remain free of forced listening, as opposed

to those who wished to listen tothe broadcasts provid-

ed by Transit Radio, the Court was specifically re-

versed. The question remains whether the Circuit

Court’s decision in Pollak would have been the same if

a private citizen, rather than the transit company

itself, had been permitted to bring and play a radio on

the busor streetcar. This latter factual situation would

be analogous to that before this Court, as opposed to

that which the Circuit Court had before it in Pollak.

More important, however, is the fact that the

passengers in Pollak, unlike the spectators in this

case, were “a captive audience.” Put another way,

those commuters in Pollak were forced to listen to the

broadcasts in question because they were forced to

ride the transit system. There was no other alternative

to taking the bus or streetcar. In fact, because Capital

was the only transit company authorized by Congress

to operate in the District of Columbia, it had a virtual

monopoly of the entire local business of mass

transportation.

The gravamen of the Circuit Court’s opinion in

Pollak was the fact that the Capital Transit Company

was bombarding passengers with sound they could

not ignore in a place where they had to be.

2ia

This case differs greatly from the scenario in Pollak

since those who attend events in the Louisiana Super-

dome are in no way compelled to use the facility. On

the contrary, they are free to attend or not attend as

they see fit, and consequently the most important

premise upon which the Pollak decision rests is

absence in the case sub judice.

This Court is of the further opinion that the process

of weighing one individual's right to be left alone, as

opposed to other individuals’ alleged rights under the

Fifth and Fourteenth Amendments, is better left to the

processes of the legislative branches of Government.

For this reason, the rationale of Tanner v. Armco Steel

Corporation, 340 F.Supp. 532 (S.D.Tex.1972) is more

persuasive to this Court. In Tanner, the plaintiffs

brought suit to recover for injuries allegedly sus-

tained as aresult of the exposure of their persons to air

pollutants emitted by defendant's petroleum

refineries and plants located along the Houston Ship

Channel. As in the instant case, the plaintiffs in

Tanner cited a potpourri of federal constitutional and

statutory provisions to establish jurisdiction. The

Court found both “state action” and “constitutional

deprivation” lacking.

After the Court acknowledged a recent boom of

claims asserting the right of the general populace to

enjoy a decent environment, it explained,

“... the judicial process, through con-

stitutional litigation, is peculiarly ill-suited

to soiving problems of environmental control.

Because such problems frequently call for the

22a

delicate balancing of competing social in-

terests, as well as the application of specializ-

ed expertise, it would appear that their resolu-

tion is best consigned initially to the

legislative and administrative processes.

Furthermore, the inevitable trade-off between

economic and ecological values presents a

subject matter which is inherently political,

and which is far too serious to relegate to the

ad hoc process of ‘government by lawsuit’ in

the midst of a statutory vacuum.

” a * +

“[N]o legally enforceable right to a healthful

environment, giving rise to an action for

damages, is guaranteed by the Fourteenth

Amendment or any other provision of the

Federal Constitution.” Tanner v. Armco Steel

Corp., supra, 340 F.Supp. at pp. 536, 537.

Accord, Hagedorn v. Union Carbide Corp., 363 F.Supp.

1061 (N.D.W.Va.1973); (holding that plaintiff's

allegations that emissions from Union Carbide Cor-

poration’s plant in West Virginia were fouling the air

did not present a controversy arising under the Fifth,

Ninth or Fourteenth Amendments to the Constitu-

tion); see also, Doak v. City of Claxton, Georgia, 390

F.Supp. 753 (S.D.Ga.1975).

This language accurately reflects the fact that the

courts have never seriously considered the right toa

clean environment to be constitutionally protected

under the Fifth and Fourteenth Amendments. It is well

established that the Constitution does not provide

judicial remedies for every social] and economic ill.

23a

Lindsey v. Normet, 405 U.S. 56, 92 S.Ct. 862, 31 L.Ed.2d

36 (1972). Accordingly, if this Court were to recognize

that the Fifth and Fourteenth Amendments provide

the judicial means to prohibit smoking, it would be

creating a legal avenue, heretofore unavailable,

through which an individual could attempt to regulate

the social habits of his neighbor. This Court is not

prepared to accept the proposition that life-tenured

members of the federal judiciary should engage in

such basic adjustments of individual behavior and

liberties.

Fundamental Rights

Citing the Ninth Amendment to the United States

Constitution and Griswold v. State of Connecticut, 381

U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the plain-

tiffs finally argue thatthe right to breathecleanairisa

fundamental right, although not specifically

enumerated in the Bill of Rights, and is thus protected

by the Constitution. The Ninth Amendment reads,

“The enumeration in the Constitution of cer-

tain rights, shall not be construed to deny or

disparage others retained by the people.”

U.S.C.A.Const. Amend. 9.

The Ninth Amendment renaissance began with

Griswold v. State of Connecticut, supra, wherein the

Court recognized that the right of privacy in amarital

relationship is a fundamental right protected by the

Constitution. The plaintiffs herein contend that the

right to be free from hazardous smoke fumes caused

by the smoking of tobacco is as fundamental as the

24a

right of privacy recognized in the Griswold decision.

This Court does not agree. To hold that the First, Fifth,

Ninth or Fourteenth Amendments recognize as fun-

damental the right to be free from cigaret smoke would

be to mock the lofty purposes of such amendments and

broaden their penumbral protections to unheard-of

boundaries. The jurisprudence bears this out. In Ely v.

Velde, 451 F.2d 1130 (4th Cir. 1971), the Court con-

Sidered a suit brought by residents of the Green

Springs area of Louise County, Virginia, to halt the

proposed funding and construction in their

neighborhood of a Medical and Reception Center for

Virginia prisoners. With regard to the § 1983 action

against the State Director of the Department of

Welfare and Institutions for the State of Virginia, the

Court said,

“An ancillary argument of the complaining

parties, not vigorously pressed, is that apart

from NHPA and NEPA, the federal Constitu-

tion was violated by Brown’s ‘unreasonable

and arbitrary action’ in placing the proposed

Center in Green Springs. We decline the in-

vitation to elevate to a constitutional level the

concerns voiced by the appellants. While a

growing number of commentators argue in

support of a constitutional protection for the

environment, this newly-advanced con-

stitutional doctrine has not yet been accorded

judicial sanction; and appellants do not pre-

sent a convincing case for doing so.

“Appellants baldly attempt to stretch

rights, protected by law against infringement

25a

by federal agencies only, to cover the states

and their officers in disregard of the plainly

limited character of the legislation. They

make their assertion without citation of a

single relevant authority and with no attempt

to develop supporting reasons. The general

concept of conservation and protection of the

environment has, inthe recent past, made vast

advances, prompting the adoption of NHPA,

NEPA and other legislation. But without any

showing whatever, we are not free to lay upon

the State of Virginia new obligations on con-

stitutional grounds.

“Neither the statutes nor the Constitution

confers rights on the appellants which are en-

forceable vis-a-vis the State of Virginia under

42 U.S.C. § 1983.” Ely v. Velde, supra, at 1139. —

Accord, Hagedorn v. Union Carbide Corp., 363 F.Supp.

1061 (N.D.W.Va.1973); see also, Doak v. City of Clax-

ton, Ga., 390 F.Supp. 753 (S.D.Ga.1975).

In another case, Environmental Defense Fund, Inc.

v. Corps of Eng. vf U.S. Army, 325 F.Supp. 728

(E.D.Ark.1970), the plaintiff fiied suit against the

Corps of Engineers of the U. S. Army and others, seek-

ing to enjoin the making of any contract or the doing of

any work in furtherance of the plan of the defendants

to construct a dam across the Cossatat River in Arkan-

sas. Although denying on other grounds several

motions to dismiss filed by the defendant, the Court

explained,

26a

“The Ninth Amendment may well be as im-

portant in the development of constitutional

law during the remainder of this century as

the Fourteenth Amendment has been since the

beginning of the century. But the Court con-

cludes that the plaintiffs have not stated facts

which would under the present state of the law

constitute a violation of their constitutional

rights as alleged in the seventh cause of action

in their complaint. The Court’s decision on

this point gives further emphasis to its state-

ment, supra, that final decisions in matters of

this type must rest with the legislative and ex-

ecutive branches of government.” En-

vironmental Defense Fund, Inc. v. Corps of

Eng. of U. S. Army, supra, at 739.

This Court feels that, unlikethe right of privacy as it

relates to the institution of marriage, the “right” to

breathe smoke-free air while attending events in the

Louisiana Superdome certainly does not rise to those

constitutional proportions envisioned in Griswold v.

State of Connecticut. To hold otherwise would be to in-

vite government by the judiciary in the regulation of

every conceivable ill or so-called “right” in our

litigious-minded society. The inevitable result would

be that type of tyranny from which our founding

fathers sought to protect the people by adopting the

first ten amendments to the Constitution.

Conclusion

Pretermitting the issue of state involvement, this

Court is satisfied that the plaintiffs herein have failed

27a

to allege a deprivation of any right secured by the

United States Constitution and, hence, have failed to

state a clairn upon which relief could be granted under

42 U.S.C. § 1983. It is worth repeating that the United

States Constitution does not provide judicial remedies

for every social and economic ill. For the Constitution

to be read to protect nonsmokers from inhaling tobac-

co smoke would be to broaden the rights of the Con-

stitution to limits heretofore unheard of, and to engage

in that type of adjustment of individual liberties better

left to the people acting through legislative processes.

Since this Court has concluded that the plaintiffs

have asserted no claim to sustain federal jurisdiction,

there can be no jurisdiction in this Court for the alleg-

ed “pendent” state claims asserted in the complaint by

plaintiffs. United Mine Workers of America v. Gibbs,

383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966).

Accordingly,

IT IS ORDERED that the defendants’ motion to dis-

miss the plaintiffs’ complaint be and is hereby

GRANTED.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.