Opposition Brief — Sklaroff v. Pennsylvania ex rel. Fisher

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D | Supreme Court, U.S.

No. 99-1852 FILED

IN THE JUN 19 2000

Supreme Court of the Anited States

CLERK

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rym sy

Petitioner,

ROBERT B. SKLAROFF,

Vv

COMMONWEALTH OF PENNSYLVANIA

By D. MICHAEL FISHER, in his OFFICIAL CAPACITY

AS ATTORNEY GENERAL OF

THE COMMONWEALTH OF PENNSYLVANIA,

and

PHILIP MORRIS INCORPORATED, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the Pennsylvania Supreme Court

BRIEF FOR RESPONDENTS

PHILIP MORRIS INCORPORATED, BROWN &

WILLIAMSON TOBACCO CORPORATION

(INDIVIDUALLY AND AS SUCCESSOR BY MERGER

TO THE AMERICAN TOBACCO COMPANY, INC.),

R.J. REYNOLDS TOBACCO COMPANY, LORILLARD

TOBACCO COMPANY, UNITED STATES TOBACCO

COMPANY, THE COUNCIL FOR TOBACCO

RESEARCH-USS.A., INC., THE TOBACCO

INSTITUTE, INC. AND HILL & KNOWLTON, INC.

IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

THOMAS J. GRIFFIN, JR. NORBERT F. BERGHOLTZ

KENNETH J. PARSIGIAN _ (Counsel of Record)

JEREMY STERNBERG ALINE FAIRWEATHER

GOODWIN, PROCTER & HOAR JOHN P. QUINN

LLP DECHERT PRICE & RHOADS

Exchange Place 4000 Bell Atlantic Tower

Boston, MA 02109-2881 1717 Arch Street

(617) 570-1000 Philadelphia, PA 19103-2793

(215) 994-4000

Counsel for Respondent Philip Morris Incorporated

June 19, 2000

[Additional Counsel Listed Inside]

eRe aR TOS EERE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 - WASHINGTON, D.C. 20001

MARJORIE PRESS LINDBLOM

PETER A. BELLACOSA

KIRKLAND & ELLIS

153 E. 53rd Street

New York, NY 10022-4675

(212) 446-4800

Counsel for Respondent

Brown & Williamson

Tobacco Corporation

(individually and as successor

by merger to The American

Tobacco Company, Inc.)

JOHN D. GOETZ

JONES, DAY, REAVIS & POGUE

One Mellon Bank Center

31st Floor :

500 Grant Street

Pittsburgh, PA 15219

(412) 391-3939

Counsel for Respondent

RJ. Reynolds Tobacco Company

JEFFREY S. NELSON

TINA M. SCHAEFER

SHOOK, HARDY & BACON LLP

One Kansas City Plaza

1200 Main Street

Kansas City, MO 64105

(816) 474-6550

WILLIAM J. O’ BRIEN

HOWARD M. KLEIN

CONRAD O’ BRIEN GELLMAN

& ROHN, P.C.

1515 Market Street

Sixteenth Floor

Philadelphia, PA 19102-1916

(215) 864-9600

Counsel for Respondent

Lorillard Tobacco Company

PETER J. MCKENNA

ERIC S. SARNER

MELISSA A. RULE

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

Four Times Square

New York, NY 10036

(212) 735-3000

STEPHEN J. IMBRIGLIA

HECKER BROWN SHERRY

AND JOHNSON

1700 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103

(215) 665-0400

Counsel for Respondent

United States Tobacco Company

PATRICK W. KITTREDGE

JOSEPH W. FULLEM

GLEN E. DAVIS

KITTREDGE, DONLEY, ELSON,

FULLEM & EMBICK, LLP

421 Chestnut Street

Fifth Floor

Philadelphia, PA 19106-2416

(215) 829-9900

Counsel for Respondent

The Council for Tobacco

Research-U.S.A., Inc.

WILLIAM J. O’ BRIEN

HOWARD M. KLEIN

CONRAD O’ BRIEN GELLMAN &

ROHN, P.C.

1515 Market Street

Sixteenth Floor

Philadelphia, PA 19102-1916

(215) 864-9600

Counsel for Respondent

The Tobacco Institute, Inc.

RICHARD L. KREMNICK

ALAN J. HOFFMAN

BLANK ROME COMISKY &

MCCAULEY LLP

One Logan Square

10th Floor

Philadelphia, PA 19103-6998 é

(215) 569-5500 i

Counsel for Respondent &

Hill & Knowlton, Inc.

ISSUES PRESENTED

1. Whether this Court lacks jurisdiction to issue a writ of

certiorari to the Supreme Court of Pennsylvania where all of

the Pennsylvania state courts’ decisions rested on “adequate

and independent” state law principles.

2. Whether this Court lacks jurisdiction to issue a writ of

certiorari to the Supreme Court of Pennsylvania where the

Petitioner has failed to satisfy the criteria for Standing under

Article Il of the United States Cunstitution.

3. Whether this Court lacks jurisdiction to issue a writ of

certiorari to the Supreme Court of Pennsylvania where the

Petitioner has failed to preserve a federal issue in the

Pennsylvania state courts, and failed to raise a federal issue in

the petition.

4. Whether the petition presents any issue worthy of

review by this Court.

(i)

ii

LIST OF PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENTS

The named parties to the proceeding in the Supreme Court

of Pennsylvania included:

Robert B. Sklaroff (Appellant/Petitioner for

Intervention)

The Commonwealth of Pennsylvania, by

D. Michael Fisher, in his official capacity as

Attorney General of the Commonwealth of

Pennsylvania (Appellee/Plaintiff)

Philip Morris Incorporated; R.J. Reynolds

Tobacco Company; Brown & Williamson

Tobacco Corporation; B.A.T. Industries, p.l.c.;

The American Tobacco Company, Inc., c/o

Brown & Williamson Tobacco Corporation;

Lorillard Tobacco Company; Liggett Group

Inc.; United States Tobacco Company; The

Tobacco Institute, Inc.; The Council for

Tobacco Research-U.S.A., Inc.; Smokeless

Tobacco Council, Inc.; and Hill & Knowlton,

Inc. (Respondents/Defendants)

The following Respondent companies are joining in this

opposition:

Philip Morris Incorporated

Brown & Williamson Tobacco Corporation

(individually and as successor by merger to

The American Tobacco Company, Inc.)

R.J. Reynolds Tobacco Company

Lorillard Tobacco Company

United States Tobacco Company

The Council for Tobacco Research-U.S.A.,

Inc.

iii

The Tobacco Institute, Inc.

Hill & Knowlton, Inc.

Pursuant to Rule 29.6 of the Supreme Court Rules, the

following statements identify the corporate parents and all

publicly held companies owning ten (10) percent or more of

the voting stock of each corporate Respondent:

Respondent Philip Morris Incorporated has the following

parent corporation:

Philip Morris Companies Inc.

Philip Morris Companies Inc. is the only

publicly held company that owns 10% or more

of Philip Morris Incorporated’s stock.

Respondent Brown & Williamson Tobacco Corporation

(individually and as successor by merger to The American

Tobacco Company, Inc.) has the following parent

corporations:

B.A.T. Industries, p.l.c.

BATIC Inc.

BATUS Holdings Inc. UK/US

BATUS Tobacco Services, Inc.

British American Tobacco p.l.c.

British American Tobacco (1998) Limited

British-American Tobacco (Holdings) Ltd.

Louisville Securities Ltd.

British American Tobacco p.l.c. is the only

publicly held company that owns 10% or more

of Brown & Williamson Tobacco

Corporation’s stock.

iV

Respondent R.J. Reynolds Tobacco Company has the

following parent corporation:

R.J. Reynolds Tobacco Holdings, Inc.

(formerly known as RJR Nabisco, Inc.)

R.J. Reynolds Tobacco Holdings, Inc. is the

only publicly held company that owns 10% or

more of R.J. Reynolds Tobacco Company’s

stock.

Respondent Lorillard Tobacco Company has the following

parent corporations:

Lorillard, Inc.

Loews Corporation

Lorillard Tobacco Company is a wholly

owned subsidiary of Lorillard, Inc., which is a

wholly owned subsidiary of Loews

Corporation, which has outstanding securities

in the hands of the public.

Respondent United States Tobacco Company has the

following parent corporation:

UST Inc.

UST Inc. is the only publicly held company

that owns 10% or more of United States

Tobacco Company’s stock.

Respondent The Council for Tobacco Research-U.S.A.,

Inc. (“CTR”) has no parent corporations. There are no

publicly held companies that own 10% or more of CTR’s

stock.

Vv

Respondent The Tobacco Institute, Inc. has no parent

corporations. There are no publicly held companies that own

10% or more of The Tobacco Institute, Inc.’s stock.

Respondent Hill & Knowlton, Inc. has the following parent

corporations:

WPP Group Holdings Corp.

WPP Group USA, Inc.

WPP Group International Holdings, Inc. ;

WPPIH Two, Inc.

WPP Luxembuorg S.ARL

WPP Group plc

Ogilvy Group Inc.

J. Walter Thompson Company

WPP Group plc is the only publicly held

company that owns 10% or more of Hill &

Knowlton, Inc.’s stock.

+

TABLE OF CONTENTS

Page

Sa STI dirs Sinsio dissects dddadndadesclictsdacinrsocsees i

LIST OF PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENTS ........... ii

TABLE OF AUTHORITIES .00........:ceccececcssessscscscssoeoeees ix

COUNTER-STATEMENT OF THE CASE .......0000.00.-. |

A. The Master Settlement Agreement between the

State Attorneys General and the Tobacco

ho ac gp MOL LINAS T CATE 1

B. The Pennsylvania Court of Common Pleas’

Rejection of Sklaroff’s Petition to Intervene ..... 2

C. The Pennsylvania Appellate Courts’ Rejection

of Sklaroff’s Appeals .............c.ccccccccesescececeseeeeees 4

D. Sklaroff’s Petition to this Court.................. arn 5

SUMMARY OF ARGUMENTS ...0.0.......ccccececccssssceceseee 6

REASONS FOR DENYING THE WRIT...........c00000-.-. 6

I. ALL ISSUES RAISED BY SKLAROFF

WERE DECIDED ON ADEQUATE AND

INDEPENDENT STATE GROUNDS, AND

ARE THEREFORE NOT SUBJECT TO THIS

COURT’S JURISDICTION. .0.0..0....cccccsccccsssseees 6

If. SKLAROFF DOES NOT HAVE STANDING

TO OBTAIN REVIEW BY THIS COURT....... 8

If. SKLAROFF’S PETITION FAILS TO RAISE

Ps I icccassicsssisnLasscdhnasdseesnenancsece 9

(vii)

Vill

TABLE OF CONTENTS—Continued

Page

IV. SKLAROFF’S PETITION DOES NOT RAISE

AN ISSUE WORTHY OF REVIEW BY THIS

RINNE vaisisictbcisesranssscisnesbiseeeanetadanauueen 11

CET stviniseutsisdikreineitanntencnectannnadscenasion 1}

ix

TABLE OF AUTHORITIES

Page

UNITED STATES CONSTITUTION

Re Ss NU Nich ithe <iinslpbailipbginadesddeahadiantinns 6, 8-9

Re eens SEINE WE Laie deadclastistieénasnctintanceiinscbistibons 10

Stes ME MII tittnciinteicecstinictocishbebnccdaradeadanans 10

Cs I, II TREY eek eipciatntdesdeclncchiandasiocseicces 10

FEDERAL CASES

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989)...... 7

Adams v. Robertson, 520 U.S. 83 (1997)........c00000 10

Board of Directors of Rotary International v.

Rotary Club of Duarte, 481 U.S. 537 (1987)..... 10

Coleman v. Thompson, 501 U.S. 722 (1991)......... 6

Flast v. Cohen, 392 U.S. 83 (1968) ........cccscesceeeees 9

Gladstone, Realtors v. Village of Bellwood,

NE SE, Oe UE iciatrrainininksacicsinktnininceiasssesnee 8

Herb v. Pitcairn, 324 U.S. 117 (1945)........ccccceceees 6

Lujan v. Defenders of Wildlife, 504 U.S. 555

CAD iiiinsihiniihailpeialaiabiainseginliahiiulsscecuiipdiepniieniaantindiioeasinin 8

Michigan v. Long, 463 U.S. 1032 (1983) .............. 7

Simon v. Eastern Kentucky Welfare Rights

Organization, 426 U.S. 26 (1976) .......ccceeeeees 8

Valley Forge Christian College v. Americans

United for Separation of Church and State,

Inc., et al., 454 U.S. 464 (1982)........ccccccccceeeeeees 8-9

Warth v. Seldin, 422 U.S. 490 (1975) .......cccccccceeees 8

FEDERAL STATUTES

Fe en Ce weidibieintetiiabiniiteaaiaiiatainnbingiatiameiens 9-11

FEDERAL RULES

Supreme Court Rule 10.................. uinatialidininionignengi 11

x

TABLE OF AUTHORITIES—Continued

STATE CASES Page

Pennsylvania Crime Commission Subpoena, 309

ADE GRE GO. Fae incrnintnitnnittttsintiicteniannnctiatiiaians 3,4,7

Sierra Club v. Hartman, 605 A.2d 309 (Pa.

DOCKETED CASES

Commonwealth of Pennsylvania v. Philip Morris,

Inc., No. 2443 (Philadelphia County Ct. C. P.

Ra. Di, THOUS cansenniantanpitiavinaiceigaliinais 2

STATE RULES

Pennsylvania Rule of Civil Procedure 2326 .......... 3

Pennsylvania Rule of Civil Procedure 2327 .......... 3,4,7

Pennsylvania Rule of Civil Procedure 2329 .......... 3

COUNTER-STATEMENT OF THE CASE

Respondents Philip Morris Incorporated, Brown & William-

son Tobacco Corporation (individually and as successor by

merger to the American Tobacco Company, Inc.), R.J. Reynolds

Tobacco Company, Lorillard Tobacco Company, United States

Tobacco Company, The Council for Tobacco Research-U.S.A.,

Inc., The Tobacco Institute, Inc., and Hill & Knowlton, Inc.

(collectively, “Respondents”) oppose the frivolous petition of

Dr. Robert B. Sklaroff (“Sklaroff’) to this Court for a writ of

certiorari to the Supreme Court of Pennsylvania. This petition is

part of Sklaroff’s continuing assault on the historic settlement

agreement between various manufacturers of tobacco products

(“tobacco manufacturers”) and the attorneys general of 46 states,

the District of Columbia, and five U.S. territories. Courts in all

52 jurisdictions have approved this agreement, and 49 jurisdic-

tions—including the Commonwealth of Pennsylvania (the

“Commonwealth”)—have already begun receiving payments

from the tobacco manufacturers. Nonetheless, despite having

been told repeatedly by the Pennsylvania courts that he has no

standing to bring such an action, Sklaroff continues to challenge

this agreement, wasting substantial time and resources of the

Commonwealth and Respondents. This Court should end Skla-

roff’s effort to disrupt the national settlement agreement and

deny his petition on the grounds that: (1) the Pennsylvania

courts’ decisions were based on adequate and independent state

grounds; (2) Skiaroff lacks standing; (3) no federal issue is

properly presented for review by this Court; and (4) Sklaroff’s

petition raises no issue worthy of this Court’s review.

A. The Master Settlement Agreement between the State

Attorneys General and the Tobacco Manufacturers

On April 23, 1997, the Attorney General of the

Commonwealth filed a lawsuit in the Court of Common Pleas of

2

Philadelphia County against a number of tobacco manufactur-

ers' seeking damages, recovery of Medicaid and other medical

payments and injunctive relief. See Commonwealth of Pennsyl-

vania v. Philip Morris, Inc., No. 2443 (Philadelphia County Ct.

C.P. April 23, 1997). The Commonwealth’s lawsuit was one of

a series of lawsuits filed by other states, the District of Colum-

bia and several U.S. territories. Shortly after the filing of these

cases, the various plaintiffs and tobacco manufacturers entered

comprehensive settlement negotiations. These negotiations

concluded on November 23, 1998, when 46 states, including the

Commonwealth, the District of Columbia and five U.S. territo-

ries, agreed to the Nationwide Master Settlement Agreement

(the “MSA”).

Pursuant to the MSA, the tobacco manufacturers agreed to

pay the Commonwealth of Pennsylvania $1 1.26 billion over the

next 25 years, and an additional $500 million per year in perpe-

tuity thereafter. The tobacco manufacturers also agreed to nu-

merous restrictions that otherwise could not have been imposed

by court order. The Commonwealth has already begun receiv-

ing payments from the tobacco manufacturers under the MSA.

B. The Pennsylvania Court of Common Pleas’ Rejection

of Sklaroff’s Petition to Intervene

On December 11, 1998, the Commonwealth and the tobacco

manufacturers filed Joint Motions with the Court of Common

Pleas to approve the settlement agreements and dismiss the law-

suit. However, before the trial court could rule on the motions,

' Specifically, the Commonwealth sued the following parties: Philip Mor-

ris Incorporated; R. J. Reynolds Tobacco Company; Brown & Williamson

Tobacco Corporation; B.A.T. Industries, p.1.c., The American Tobacco Com-

pany, Inc.; Lorillard Tobacco Company; Liggett Group, Inc.; United States

Tobacco Company; The Tobacco Institute Inc.; The Council for Tobacco

Research-USA, Inc.; Smokeless Tobacco Council, Inc.; and Hill &

Knowlton, Inc.

3

a number of anti-tobacco organizations and individuals, includ-

ing Sklaroff (collectively, the “Activists”), together with a group

of not-for-profit hospitals and the County of Allegheny, Penn-

sylvania, petitioned to intervene in the Commonwealth’s case.

The Activists, although not opposing the negotiation or conclu-

sion of the MSA, challenged the MSA’s release and offset pro-

visions, which the petitioners asserted might impair their right to

bring legal actions against the tobacco manufacturers in the fu-

ture. At the time of the intervention petitions, the Activists had

not instituted any suit against the tobacco manufacturers.

Ultimately, on January 13, 1999, after considering all of the

arguments and the relevant Pennsylvania laws governing stand-

ing to intervene and ripeness, Judge John W. Herron of the

Court of Common Pleas of Philadelphia County, Pennsylvania,

entered orders approving the MSA and denying all the petitions

to intervene (with the exception of the petition of a particular

health care maintenance organization, which was denied later).

The court concluded that the proposed intervenors failed to sat-

isfy the criteria for intervention set forth in Pennsylvania Rules

of Civil Procedure 2326 through 2329.”

Specifically, the court dismissed the Activists’ challenge to

the release provision of the MSA pursuant to the Pennsylvania

Supreme Court’s opinion in Pennsylvania Crime Commission

Subpoena, 309 A.2d 401 (Pa. 1973). In that case, the Pennsyl-

vania Supreme Court denied certain police officers’ petitions to

intervene and challenge the subpoenaing of disciplinary records

maintained by the Police Commissioner for the City of Phila-

delphia because the officers’ only interest was the possibility

that the subpoenaed information could be used against them in a

future action. Pennsylvania Crime Commission Subpoena, 309

? Pennsylvania Rule of Civil Procedure 2327 provides that intervention

should be permitted if: “(4) the determination of such action may affect any

enforceable interest of such person whether or not he may be bound by a

judgment in the action.” Pa.R.C.P. 2327.

4

A.2d at 405. In rejecting the Activists’ petition to intervene, the

Court of Common Pleas found that the Activists’ challenge to

the MSA’s release provision, like the petitions to intervene in

Pennsylvania Crime Commission Subpoena, raised “anticipatory

concerns about the effect of a third party’s action (i.e., the MSA)

on a future action that [the imtervention petitioners] might

bring.” C.P. Op., Appendix A to Petition at 31. Because the

effect of the MSA provision “if any . . . [could not) be deter-

mined except in the context of that future [action the Activists

might bring],” the court concluded that the Activists’ challenge

to the release provision failed to present “an actual case or con-

troversy — a legally enforceable interest — ripe for disposition.”

Id. Accordingly, the Activists’ challenge to the release provi-

sion failed to satisfy Pennsylvania Rule of Civil Procedure 2327.

Similarly, the Court of Common Pleas concluded that the Ac-

tivists lacked standing to intervene and standing to challenge the

MSA's indemnity provision. The court found that the Activists

failed to satisfy the Pennsylvania Supreme Court’s standing re-

quirements set forth in Sierra Club v. Hartman, 605 A.2d 309

(Pa. 1992), which requires:

[gjenerally, in order to have standing, a party must have an

interest in the controversy that is distinguishable from the

interest shared by other citizens. To surpass that common

interest, the interests must be substantial, direct, and im-

mediate.

Sierra Club, 605 A.2d at 310. In particular, the court concluded

that the Activists “failed to establish either direct or immediate

harm” caused by the indemnification provision of the MSA.

C.P. Op., Appendix A to Petition at 37. Accordingly, the peti-

tions were denied.

C. The Pennsylvania Appellate Courts’ Rejection of

Sklaroff’s Appeals

While most of the Activists ajppealed to the Pennsylvania

Commonwealth Court, all of the Activists subsequently with-

5

drew their appeals prior to the Commonwealth Court’s decision

— except Sklaroff. See Opinions of the Commonwealth Court,

attached as Appendix B to Petition. On August 10, 1999, the

Commonwealth Court issued an opinion, en banc, with one dis-

sent, affirming the decision of the Court of Common Pleas, and

holding that Sklaroff failed to satisfy the standing requirement

for intervention under Pennsylvania law. Specifically, the

Commonwealth Court held that Sklaroff sought “to represent

the public interest common to all citizens,” and that such inter-

est was “insufficient to confer standing” to intervene under the

Pennsylvania Supreme Court’s holding in Sierra Club v. Hart-

man, supra. See Appendix B to Petition at 63-64. The Com-

monwealth Court’s opinion did not address any federal issues.

Undeterred, Sklaroff petitioned the Supreme Court of Penn-

sylvania for review of the Commonwealth Court’s opinion. In

his request for review, Sklaroff argued that the lower courts had

failed to apply Pennsylvania state law properly. The Pennsyl-

vania Supreme Court summarily dismissed Sklaroff’s petition

on December 20, 1999. Sklaroff has now petitioned this Court

for the issuance of a writ of certiorari to the Pennsylvania Su-

preme Court.

D. Sklaroff’s Petition to this Court

In his petition, Sklaroff raises several meritless and irrelevant

arguments premised almost exclusively on interpretations of

Pennsylvania state law. First, Skiaroff asserts that he is entitled,

pursuant to Pennsylvania law, to intervene and challenge the

adoption of the MSA as a “citizen, taxpayer, father, activist,

physician, private [attorney general] and litigant.” Petition at

17. Second, Sklaroff asserts that his subsequent lawsuit against

Philip Morris Incorporated, which is completely separate from

this case and is not a part of the record here, should give Skla-

roff standing. Petition at 23-24. And finally, Sklaroff argues

that granting his petition would yield the “required judicial re-

view” of the MSA. Petition at 24-30. None of these grounds

justifies issuing a writ of certiorari in this case.

6

SUMMARY OF ARGUMENTS

This Court should not grant a writ of certiorari in this matter

for the following reasons. First, the Pennsylvania courts’ deci-

sions that are the subject of Sklaroff’s petition turned on ade-

quate and independent state grounds. Second, Sklaroff still has

not alleged the requisite standing to bring this petition under Ar-

ticle ITI of the United States Constitution. Third, Sklaroff’s peti-

tion does not raise a federal issue that has been properly pre-

served for review by this Court. Finally, Sklaroff’s petition

raises no issue worthy of this Court’s review. Accordingly, this

Court should deny the petition.

REASONS FOR DENYING THE WRIT

I. ALL ISSUES RAISED BY SKLAROFF WERE DE-

CIDED ON ADEQUATE AND INDEPENDENT

STATE GROUNDS, AND ARE THEREFORE NOT

SUBJECT TO THIS COURT’S JURISDICTION

This Court lacks jurisdiction to issue a writ of certiorari in

this case because the Pennsylvania courts’ orders denying Skla-

roff standing to intervene were based on adequate and inde-

pendent state grounds. From the time of its formation, this

Court has adhered to the principle that “it will not review judg-

ments of state courts that rest on adequate and independent state

grounds.” Herb v. Pitcairn, 324 U.S. 117, 125 (1945); see also

Coleman v. Thompson, 501 U.S. 722, 729 (1991) (“in the con-

text of direct review of a state court judgment, the independent

and adequate state ground doctrine is jurisdictional”). As ex-

plained by the Pitcairn Court, “[this Court’s] only power over

State judgments is to correct them to the extent that they incor-

rectly adjudge federal rights.” /d., 324 U.S. at 125-126. Conse-

quently, this Court will review opinions of a state court only

when the “state court decision fairly appears to rest primarily on

federal law, or [appears] to be interwoven with the federal law,

and when the adequacy and independence of any possible state

7

law ground is not clear from the face of the opinion.” Michigan

v. Long, 463 U.S. 1032, 1040 (1983).

The Pennsylvania courts denied Sklaroff’s petition to inter-

vene on adequate and independent state grounds. As stated

above, the Court of Common Pleas dismissed Sklaroff’s petition

because he failed to satisfy the standard for intervention under

Pennsylvania Rule of Civil Procedure 2327 and otherwise

lacked standing under the Pennsylvania Supreme Court’s opin-

ions in Pennsylvania Crime Commission Subpoena and Sierra

Club. See C.P. Op., Appendix A to Petition at 31-37. The

Commonwealth Court, in affirming the opinion of the Court of

Common Pleas en banc, with one dissent, agreed that Sklaroff

lacked standing to intervene under the standard set forth in the

Sierra Club opinion. See Appendix B to Petition at 62-63. Fi-

nally, upon consideration of the above record, the Pennsylvania

Supreme Court, in a summary order, denied Sklaroff’s petition

for review of the Commonwealth Court’s order and allowed the

lower courts’ application of Pennsylvania law to stand. Appen-

dix C to Petition.

These decisions by the Pennsylvania state courts did not im-

plicate federal law. The Pennsylvania courts applied the Penn-

sylvania Rules of Civil Procedure, which are clearly distinct

from the federal rules. Furthermore, it is well recognized that

Pennsylvania state law standing requirements are independent of

federal standing jurisprudence. See ASARCO, Inc. v. Kadish,

490 U.S. 605, 617 (1989) (“the state courts are not bound to ad-

here to federal standing requirements”). Accordingly, the state

courts’ opinions were based on adequate and independent state

grounds, and this Court has no jurisdiction to review such opin-

ions.

8

II. SKLAROFF DOES NOT HAVE STANDING TO

OBTAIN REVIEW BY THIS COURT

Sklaroff’s petition fails to establish that he has standing to

challenge the MSA and consequently fails to present this Court

with a “case or controversy” upon which jurisdiction may rest.

At an irreducible minimum, Article II] of the United States Con-

stitution requires the party who invokes a federal court’s author-

ity to “show that he personally has suffered some actual or

threatened injury.” Gladstone, Realtors v. Village of Bellwood,

441 U.S. 91, 99 (1979). This “injury in fact” must be “concrete

and particularized and actual or imminent, not conjecture or hy-

pothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992). The injury must also be “fairly . . . traced to the chal-

lenged action” and “likely to be redressed by a favorable deci-

sion.” Simon v. Eastern Kentucky Welfare Rights Org., 426

U.S. 26, 38 (1976). These criteria ensure that the “legal ques-

tions presented to the court will be resolved, not in the rarified

atmosphere of a debating society, but in concrete factual context

conducive to a realistic appreciation of the consequences of ju-

dicial action.” Valley Forge Christian College v. Americans

United for Separation of Church and State, Inc., et al., 454 U.S.

464, 472 (1982).

In applying these Article III standing criteria, this Court has

adhered to the basic principle that “the plaintiff generally must

assert his own legal rights and interests, and cannot rest his

claim to relief on the legal rights or interests of third parties.”

Warth v. Seldin, 422 U.S. 490, 499 (1975); Valley Forge Chris-

tian College, 454 U.S. at 474. “This Court has repeatedly re-

jected claims of standing predicated on ‘the right, possessed by

every citizen, to require that the Government be administered

according tolaw...’” Id., 454 U.S. at 482 (quoting Fairchild v.

Hughes, 258 U.S. 126, 129 (1922)).

It is plain from the record before this Court that Sklaroff has

no standing to prosecute his petition. Sklaroff fails to assert any

actual, concrete injury caused by either the MSA or the inability

9

to intervene in the Commonwealth’s lawsuit against the tobacco

manufacturers. Instead, Sklaroff asserts only that “[he] has an

interest in the outcome of the suit that surpasses the common

interest of all citizens in procuring obedience to the law, but

which is asserted in the present/future interest.” Petition at 17

(emphasis added). This interest in “procuring obedience to the

law” is exactly the type of claim that this Court has repeatedly

rejected — a claim which amounts to “little more than [an] at-

tempt[] ‘to employ a federal court as a forum in which to air...

generalized grievances about the conduct of government.”

Flast v. Cohen, 392 U.S. 83, 106 (1968). Like the public inter-

est group that this Court held to have no standing in Valley

Forge Christian College, Sklaroff has asserted no injury other

than “the psychological consequence . . . [of] observation of

conduct with which one disagrees.” See Valley Forge Christian

College, 454 U.S. at 485. Accordingly, this Court should deny

Sklaroff’s petition for certiorari, as Sklaroff has failed to dem-

onstrate that he has standing under Article III of the United

States Constitution.

Ill. SKLAROFF’S PETITION FAILS TO RAISE A

FEDERAL ISSUE

This Court should not issue a writ of certiorari because a fed-

eral issue is not properly before this Court. This Court is spe-

cifically empowered to review only “final judgments or decrees

rendered by the highest court of a State . .. where the validity of

a treaty or statute of the United States is drawn in question or

where the validity of a statute of any State is drawn in question

on the ground of its being repugnant to the Constitution, treaties,

or laws of the United States, or where any title, right, privilege,

or immunity is specially set up or claimed under the Constitu-

tion or the treaties or statutes of, or any commission held or au-

thority exercised under, the United States.” 28 U.S.C. § 1257.

Except in “very rare circumstances,” this Court has “adhered to

the rule in reviewing state court judgments under 28 U.S.C.

10

§ 1257 that [it] will not consider a petitioner's federal claim

unless it was either addressed by, or properly presented to, the

state court that rendered the decision we have been asked to re-

view.” Adams v. Robertson, 520 U.S. 83, 86 (1997) (dismissing

writ of certiorari where petitioner, although raising certain due

process arguments before the Alabama Supreme Court, failed to

raise the due process challenge contained in the petition).

“When ‘the highest state court has failed to pass upon a federal

question, it will be assumed that the omission was due to want

of proper presentation in the state courts, unless the aggrieved

party in this Court can affirmatively show the contrary.” Board

of Directors of Rotary Int’l v. Rotary Club of Duarte, 481 U.S.

537, 550 (1987) (citing Exxon Corp. v. Eagerton, 462 U.S. 176,

181, n.3 (1983)).

According to the record presented in the petition, Sklaroff did

not properly present a federal issue to the Pennsylvania state

courts. The Pennsylvania courts failed to pass on any federal

issue, and dismissed Sklaroff’s intervention petition on state law

grounds. Moreover, Sklaroff’s petition fails to demonstrate that

a federal issue was nonetheless properly raised in the courts be-

low, as is his burden. In fact, Sklaroff’s petition to this Court

centers almost exclusively on the state law principles applied by

the lower courts. See Petition at 15, 17-21. While Sklaroff

poses the conclusory and unsupported assertion that “[b]locking

Dr. Sklaroff and the Activists from intervening denies them due

process (under the 1", 5" and 14 Amendments) and equal pro-

tection (under the 14°" Amendment and the PA Constitution’s

Declarations of Rights),” Petition at 23, he fails to explain how

any of these federal constitutional provisions are implicated by

the state courts’ rulings, or whether the issues were even pre-

served in the state courts.” Accordingly, as Sklaroff has failed

* In fact, in the very next sentence of his petition, Sklaroff elaborates only

on the provisions of the Declaration of Rights in the Pennsylvania Constitu-

tion and provides no discussion of the federal constitutional provisions.

11

to raise a federal issue in his petition, or to allege that a federal

issue was preserved in the state courts below, this Court should

not issue a writ of certiorari under 28 U.S.C. § 1257.

IV. SKLAROFF’S PETITION DOES NOT RAISE AN

ISSUE WORTHY OF REVIEW BY THIS COURT

Finally, in addition to its constitutional and statutory deficien-

cies, Sklaroff’s petition fails to raise any issue of substance wor-

thy of this Court’s review. Certainly, none of the reasons for

review set forth in Rule 10 of the Rules of the Supreme Court

apply to his petition. See Sup. Ct. R. 10. Accordingly, this

Court should deny Sklaroff’s petition.

CONCLUSION

For all of the foregoing reasons, this Court should deny

Sklaroff’s petition.

Respectfully submitted,

NORBERT F. BERGHOLTZ

(Counsel of Record)

ALINE FAIRWEATHER

JOHN P. QUINN

DECHERT PRICE & RHOADS

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA 19103-2793

(215) 994-4000

THOMAS J. GRIFFIN, JR.

KENNETH J. PARSIGIAN

JEREMY STERNBERG

GOODWIN, PROCTER & HOAR

LLP

Exchange Place

Boston, MA 02109-2881

(617) 570-1000

Counsel for Respondent Philip Morris Incorporated

12

MARJORIE PRESS LINDBLOM

PETER A. BELLACOSA

KIRKLAND & ELLIS

153 E. 53rd Street

New York, NY 10022-4675

(212) 446-4800

Counsel for Respondent

Brown & Williamson

- Tobacco Corporation

(individually and as successor

by merger to The American

Tobacco Company, Inc.)

JOHN D. GOETZ

JONES, DAY, REAVIS & POGUE

One Mellon Bank Center

31st Floor

500 Grant Street

Pittsburgh, PA 15219

(412) 391-3939

Counsel for Respondent

RJ. Reynolds Tobacco Company

JEFFREY S. NELSON

TINA M. SCHAEFER

SHOOK, HARDY & BACON LLP

One Kansas City Plaza

1200 Main Street

Kansas City, MO 64105

(816) 474-6550

WILLIAM J. O’ BRIEN

HOWARD M. KLEIN

CONRAD O’ BRIEN GELLMAN

& ROHN, P.C.

1515 Market Street

Sixteenth Floor

Philadelphia, PA 19102-1916

(215) 864-9600

Counsel for Respondent

Lorillard Tobacco Company

PETER J. MCKENNA

ERIC S. SARNER

MELISSA A. RULE

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

Four Times Square

New York, NY 10036

(212) 735-3000

STEPHEN J. IMBRIGLIA

HECKER BROWN SHERRY AND

JOHNSON

1700 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103

(215) 665-0400

Counsel for Respondent

United States Tobacco Company

PATRICK W. KITTREDGE

JOSEPH W. FULLEM

GLEN E. DAVIS

KITTREDGE, DONLEY, ELSON,

FULLEM & EMBICK, LLP

421 Chestnut Street

Fifth Floor

Philadelphia, PA 19106-2416

(215) 829-9900 ;

Counsel for Respondent

The Council for Tobacco

Research-U.S.A., Inc.

WILLIAM J. O’ BRIEN

HOWARD i. KLEIN

CONRA’” O’BRIEN GELLMAN &

ROHN, P.C.

1515 Market Street

Sixteenth Floor

Philadelphia, PA 19102-1916

(215) 864-9600

Counsel for Respondent

The Tobacco Institute, Inc.

RICHARD L. KREMNICK

ALAN J. HOFFMAN

BLANK ROME COMISKY &

MCCAULEY LLP

One Logan Square

10th Floor

Philadelphia, PA 19103-6998

(215) 569-5500

Counsel for Respondent

Hill & Knowlton, Inc.