# Opposition Brief — Sklaroff v. Pennsylvania ex rel. Fisher

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 917

## Text

a

D | Supreme Court, U.S.

No. 99-1852 FILED

IN THE JUN 19 2000
Supreme Court of the Anited States
CLERK

4

xr
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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1066%3A3. Public record. Not legal advice.