Petition for Writ of Certiorari — Crump v. Christie (No. 07-1511)

WU

a eme Court, U.S.

sapere Cont '

071511 MAR 27 2008

OFFICE OF THE CLERK

No.

IN THE

SUPREME COURT OF THE UNITED STATES ©

Thomas A. Crump

Petitioner

v.

Mark C. Christie, et al.

Respondents

On Petition for Writ of Certiorari

To The United States Court of Appeals

for the Fourth Circuit

PETITION FOR WRIT OF CERTORARI

Thomas A. Crump, pro se

8653 Rio Grande Road

Richmond, Virginia 23229

Phone No. (804) 740-7079

ag

Questions Presented for Review

z. As “poisonous tobacco plants” are used te

manufacture cigarettes, being used by consumers as

intended, causes them to become sick, disabled, or to

die, even many non-users exposed to the use of: is it

not unconstitutional for the Virginia State

Corporation Commission to allow to any company a

“charter” to be issued, renewed, or to hold, that

manufactures cigarettes?

2. Is it not unconstitutional for the Virginia

Department of Taxation Tobacco Unit to allow these

manufacturers of cigarettes, wholesalers, and

retailers to maintain and/or obtain a “Virginia

Stamping Agent Permit” in order to purchase and

affix “Virginia Cigarette Tax Revenue Stamps” on

each pack of cigarettes?

3. As Plaintiff at times, merely by the inherent act

of breathing, forced to become an involuntary smoker,

taken way choice and exposed to the cigarette’s

dangerous substance: because of these injuries does

not Plaintiff have: (A) 1st Amen. Right to petition for

a redress; (B) 14 Amen. Right to petition: (C) Article

III Starding to Petition; (D) Cause of Action in 42

U.S.C.A. Section 1983?

il

4, Due to Defendants being the cause of violation

of Plaintiffs fundam guaranteed rights, ——

oes this not preclude having prudential standing?

5. As Defendants claim Plaintiffs fight with

secondhand smoke is not with the state, which merely

license the sale and distribution of tobacco, it is with

those who smoke. Well, is it not the Defendant’s duty:

(A) to ensure that the interest of the consumers of the

Commonwealth is represented? (B) Other duties not

inconsistent with this (VA) Constitution? (C) Not to

violate the U.S. 14th Amendment?

6. If no cigarettes could be made or sold in

Virginia, stopping assaults on Plaintiffs liberties,

with Defendants complying with federal law, does this

not state a claim of action as in Federal Rule Civil

Procedure 12(b) (6)?

=. As Congress as granted in 42. U.S.C.A. Section

1983, similarly ruled by the Supreme Court that state

officers could be held subject to a federal court of

action: Defendant’s behavior causing injury to civil

rights of Plaintiff and having Art. III standing. Does

this not allow the Court constitutional jurisdiction

over the subject matter in Federal Rule Civil

Procedure 12(b)(1)?

ill

8. __As the state is responsible for cigarettes made—____—

and sold in Virginia and over half made and sold in

the U.S., causing over half of the approximately

440,000 deaths yearly in the U.S., including

approximately 11,000 in VA, of which approximately

950 being non-smokers, causing fetus and infant

deaths. If we look at this issue anew, does this not

demonstrate that the Commonwealth's conduct..was

and still is so outrageous as to shock the conscience of

the Court?

9. As Plaintiff is called te give estimates in

people’s homes, observes cigarette smoking with

babies and children present, even pregnant mothers

smoking, also in vehicles. As no one is protecting

these children, does not tne 1st Amendment allow

Plaintiff Third Party Standing for them before the

Court?

10. Asthe Surgeon General Report states that

twelve (12) million Americans are dead from smoking

in the last 40 years and as the federal and state

governments have taken no action to stop this scourge

on we the people, does not this Court see that this

petition should be for an “EXTRAORDINARY WRIT”

as exceptional circumstance warrant the exercise of

the Court’s discretionary power and that adequate

relief cannot be obtained in any other form or from

any other Court?

1V

a.

PARTIES TO THE PROCEEDING

Thomas A. Crump, Pro Se Petitioner

MARK C. CHRISTIE, in his personal capacity as

Commissioner, State Corporation Commission; and

THEAODORE V. MORRISON, JR., in his personal

capacity as Commissioner, State Corporation

Commission; and JUDITH W. JAGDMAN, in her

personal capacity as Commissioner, State Corporation

Commission.

Serve: Mark C. Christie, Theaodore V. Morrison, Jr.,

Judith W. Jagdman, State Corporation Commission,

Commissioner Office, 11‘ Floor, 1100 East Main

Street, Richmond, Virginia 23219

AND

LARRY E. DURBIN, in his personal capacity as

Assistant Commissioner, Customer Service

Department of Taxation, Tobacco Units, and

MICHAEL G. FOJTIK, in his personal capacity, as

Senior Auditor, Department of Taxation, Tobacco Unit

Serve: Michael G. Fojtik, Senior Auditor, Customer

Service, Tobacco Unit, Department of Taxation, 600

East Main Street, Richmond, Virginia 23219, and

Serve: Larry E. Durbin, Assistant Commissioner,

Customer Service, Tobacco Unit, Department of

Taxation, 600 East Main Street, Richmond, Virginia

23219

Respondents

Oa dh clemaiaiadan

TABLE OF CONTENTS

Questions Presented for Review

Parties To The Proceeding

Table of Contents

Table of Authorities

Opinions Below

Jurisdiction

Constitution and Statutory

Provisions Involved

Statement of the Case

Reasons for Granting the Writ

I. The Statement of the Case

II. U.S. Const. Amen. XIV. Sec. 1:

No state shall make or enforce any

law which shall abridge the privileges

or immunities of citizens of the

United States: nor shall any state

deprive any person of life, liberty,

or property, without due process of

law; nor deny to any person within

its jurisdiction the equal protection

of the laws.

Vil

13

29

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TABLE OF CONTENTS--CONTINUED

Conclusion 31

‘Table of Contents to the Appendix 32

Opinion of United States Court of

Appeals for the Fourth Circuit, filed

December 28, 2008 App. 1

Formal Mandate of the

Fourth Circuit App. 3

Opinion of the United States District

Court for the Eastern District of

Virginia, Richmond Division App. 13

Cause No. 91-12.244(B)(W) filed the

11% day of May 1993. Jeanette Wilks

and Jessie Willie Bell v. American

Tobacco Company and New Deal

Tobacco and Candy Company, Inc.,

in the Circuit Court. Washington

County, Mississippi App. 25

From the 2004 Surgeon General’s

Report “The Health Consequences

Of Smoking” App. 27

vl

TABLE OF AUTHORITIES

CASES PAGE

Butchers Union Co. v. Crecent City Co., 22

11. U.S. 746.750-51

Greenwood v. Marginal Freight Co.,

105 U.S. 13 18-19.21 22

Jeanette Wilks and Jessie Willie Bell v.

The American Tobacco Company and 16

New Deal Tobacco Company and New

Deal Tobacco and Candy Company, Inc.,

Cause No. 91-12.2 44 (B)(W) May 11, 1993

Philadelphia Fire Association v. New York,

119 U.S. 110; National Council v. State

Council, 203 U.S. 151 23

Rohr. Fighting for the Rights of Others.

The Troubled Law of Third Party Standing

and Mootness in the Federal Courts, 35 U.

Miami L.Rev 393(1981) 26

Secretary of State v. Joseph H. Munson Co.,

Inc., 467 U.S. 947, 956,104 5. CT. 2839, 2847,

81 L.Ed. 2d 786, 795-96 (1984) 26

vill

TABLE OF AUTHORITIES--CONTINUED

Stone v. Mississippi, 101 U.S. 819-20 21

Thomas A. Crump v. Mark C. Christie, et al.

(3:07-CV-244): 07-7260 App. 1

Western Tort Association v. Greenberg

204 U.S. 359 22

Constitutional Provisions

U.S Const. Art. I Section 8 CL. 3 3

U.S Const. Art. III Section 2 3, 25

U.S Const. Amendment I 3

U.S Const. Amendment XIV

Section I 1,11,3,18,19,24,25

U.S Const. Amendment IX 4,19

VA Const. Article I Section 1 4, 18, 24

VA Const. Article I Section 3 4,18

VA Const. Article I Section 11 Clause 1 4,18

VA Const. Article I Section 15 Clause 1 5,18

VA Const. Article I Section 17 5

VA Const. Article [IX Section 1, Clause 1 5, 19, 24

VA Const. Article IX Section 2, Clause 1 5,19

VA Const. Article [IX Section 2, Clause 2 6,19

VA Const. Article IX Section 2, Clause 3 6, 20

VA Const. Article IX Section 6 6, 20

STATUTES AND RULES

Code of Va. Section 13.1-775 and 13.1-986 10

VIX

TABLE OF AUTHORITIES--CONTINUED

Chapter 28 Virginia Indoor Clean Act follows:

Code of Va. Section 15.1-291.2 11, 25

Code of Va. Section 15.1-291.2 C 11

Code of Va. Section 15.1-291.2 D 11

Code of Va. Section 58.1-1011 10

Code of Va. Section 58.1-1037 10

Fed. R. Civ. P. 12(b)(1) ii, 9, 26

Fed. R. Civ. P. 12(b)(6) 1, 9, 26

42 U.S.C. Section 1983 1,11,2,7,25

28 U.S.C. Section 2201 2,7,8,25

28 U.S.C. Section 2202 2,7,8,25

Act April 9, 1866 Ch. XXXI Stat.

27 Thirty-ninth Congress Sess. 8

Act April 20, 1871 Ch. XXII Sec. I

Stat. 13 Forty-Second Congress Sess. I 8

United States Supreme Court Rule 13(1) 2

Others

The 2004 Surgeon General’s Report App. 27

(The Health Consequences Of Smoking)

OPINIONS BELOW

The December 28, 2007 opinion of the

United States Court of Appeals for the Fourth Circuit

is herein sought to be reviewed, is reported at:

Thomas A. Crump v. Mark C. Christie, in his personal

capacity as Commissioner, State Corporation

Commission; Theaodore V. Morrison, Jr., in his

personal capacity as Commissioner, State Corporation

Commission; Judith Williams Jagdmann, in her

personal capacity as Commissioner, State Corporation

Commission; Larry E. Durbin, in his personal

capacity as Assistant Commissioner, Customer

Service, Department of Taxation; Michael G. Fojtik, in

his personal capacity as Senior Auditor, Department

of Taxation, Tobacco Unit, No. 07-7260 (3:07-CV-

00244-JRS) and is reprinted at page App. 1.

BASIS FOR JURISDICTION

Defendants being state officials can be sued in their

personal capacity, as they have no immunity from

federal action. As the officials are acting

unconstitutionally and beyond the scope of their

authority by allowing the license and sale of the

dangerous cigarettes that cause sickness and death

not only to the user, but to non-users as well. These

cigarettes are the cause of injury to Plaintiff's

fundamental liberties and due process.

The United States Court of Appeals

for the Fourth Circuit

Judgment was entered against Plaintiff

December 28, 2007.

This Court has jurisdiction in 42 U.S.C.A.

Section 1983 and Declaration Judgment is sought

pursuant to 28 U.S.C. Section 2201 and 2202.

The above-captioned petition for a Writ of

Certiorari is timely pursuant to United States

Supreme Court Rule 13(1).

3

THE CONSTITUTIONAL PROVISIONS

INVOLVED IN THE CASE (U.S.)

Article III Section 2: The judicial power shall extend

to all cases in Law and Equity, arising under this

Constitution. The Laws of the United States—

Article I, Section 8, Clause 3: The Congress shall have

Power to regulate commerce with foreign nations, and

among the several states and with the Indian Tribes.

Amendment I: Congress shall make no law respecting

an establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of speech,

or of the press, or of the right of the people peaceably

to assemble, and to petition the government for a

redress of grievance.

Amendment XIV, Section 1: All persons born or

naturalized in the United States and subject to the

jurisdiction thereof are citizens of the United States

and of the State wherein they reside. No state shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States: nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the law.

Amendment IX: The enumeration in the Constitution

of certain rights shal! not be construed to deny or

disparage others retained by the people.

THE CONSTITUTIONAL PROVISIONS (VA STATE)

IN THE CASE

Article I, Section I Constitution of Virginia: That all

men are by nature equally free and independent and

have certain inherent rights, of which, when they

enter into a state of society, they cannot by any

compact, deprive or divest their posterity: namely, the

enjoyment of life and liberty, with the means of

acquiring and possessing property, and pursuing and

obtaining happiness and safety.

Section 3. That government is, or ought to be,

instituted for the common henefit, protection, and

security of the people, nation, or community; of all the

various modes and forms of government that is best

which is capable of producing the greatest degree of

happiness and safety, and is most effectually secured

against the danger of maladministration.

Section 11, Clause 1: That no person shall be deprived

of his life, liberty, or property without due process of

law.

Section 15, Clause 1: That no free government, nor

the blessing of liberty, can be preserved to any people,

but by a firm adherence to justice, moderation,

temperance, frugality, and virtue, and by the

recognition by all citizens that they have duties as

well as rights, and that such right cannot be enjoyed

save 1n a society where law is respected and due

process is observed.

Section 17. The rights enumerated in this Bill of

Rights shall not be construed to limit other rights of

the people not therein expressed.

State Corporation Commission, Article [X: Section 1.,

Clause 1: There shail be a permanent Commission

which shall be known as the State Corporation

Commission and which shall consist of three

members. Members of The Commission shall be

elected by The General Assembly. . . Any

Commissioner may be impeached or removed in the

manner provided for the impeachment or removal of

judges of courts of record.

Section 2, Clause 1. Subject to the provisions of this

Constitution and to such requirements as may be

prescribed by law, the Commission shall be the

department of government through shall issue all

charters, and amendments or extensions thereof, of

domestic corporations and all licenses of foreign

corporations to do business in the Commonwealth.

6

Clause 2. Except as may be otherwise prescribed by

this Constitution or by Law, The Commission shall be

charged with the duty of administering the laws made

in pursuance of this Constitution for the regulation

and control of corporations doing business in this

Commonwealth. Clause 3. The Commission shall in

proceeding before it ensure that the interest of the

consumers of the Commonwealth is represented,

unless The General Assembly otherwise provides for

representation of such interest.

Section 6. The creation of corporations, and the

extension and amendment of charters whether

heretofore or hereafter granted, shall be provided for

by general law, and no charter shall be granted,

amended, or extended by special act, nor shall

authority in such matters be conferred upon any

tribunal or officer, except to ascertain whether

applicants have, by complying with the requirement

of law, entitled themselves to the charter,

amendment, or extension applied for and to issue or

refuse the same accordingly. Such general laws may

be amended, repealed, or modified by the General

Assembly. Every corporation charted in this

Commonwealth shall be deemed to hold its charter

and all amendments thereof under the provisions of,

and subject to all the requirements, terms, and

conditions of, this Constitution and any laws passed

in pursuance thereof. The police power of the

Commonwealth to regulate the affairs of corporations,

the same as individuals, shall never be abridged.

~]

STATUTORY PROVISIONS INVOLVED

IN THE CASE (U:S.)

42 U.S.C.A. Section 1983. Civil action for deprivation

of rights:

Every person who under color of any statue,

ordinance, regulation, custom, or usage, of any state

or territory or the District of Colombia, 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 I an action at law,

suit in equity, or other proper proceeding for redress,

except that in any action brought against a judicial

officer for an act or omission taken in such officer’s

judicial capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaration relief was unavailable. For the purpose of

this section, any Act of Congress applicable

exclusively to the District of Columbia shall be

considered to be a statue of the District of Columbia.

28 U.S.C. Section 2201. Creation of Remedy: (a) In a

case of actual controversy within its jurisdiction,

except with respect to federal taxes other than actions

brought under Section 2428 of the Internal Revenue

Code of 1986, a proceeding under Section 505 or 1146

of Title 11, or in any civil action including an

8

antidumping or countervailing duty proceeding

regarding a class or kind of merchandise of free trade

area country (as defined in Section 516A(F)(10) of the

Tariff Act of 1930) as determined by the

administering authority, any court of the United

States, upon the filing of an appropriate pleading,

may declare the rights and other legal relations of any

interested party seeking such declaration, whether or

not further relief is or could be sought. Any such

declaration shall have the force and effect of a final

judgment or decree and shall be reviewable as such.

28 U.S.C. Section 2202. Further relief:

Further necessary or proper relief based on a

declaratory judgment or decree may be granted after

reasonable notice and hearing against any adverse

party whose rights have been determined by such

judgment.

Act April 9, 1866 Chap. XXXI Stat. 27: An act to

protect all persons in the United States in their Civil

Rights, and furnish the means of their vindication.

Act April 20, 1871 Chap. XXI Stat. 13: An act to

enforce the provisions of the Fourteenth Amendment

to the Constitution of the United States and for other

purposes.

Be it enected by the Senate and House of

Representatives of the United States of America in

Congress assembled, that any person who, under color

of any law, statue, ordinance, regulation, customer, or

usage of any state, shall subject, or cause to be

subjected, any person within the jurisdiction of the

United States to be deprivation of any rights,

privileges, or immunities secured by the Constitution

of the United States, shall, any such law, statue,

ordinance, regulation, customer, or usage of the State

to the contrary notwithstanding, be liable to the party

injured in any action at law, suit in equity, or other

proper proceeding for redress; such proceeding to be

prosecuted in the several district or circuit courts of

the United States, with and subject to the same rights

of appeal, review upon error, and other remedies

provided in like cases in such courts, under the

provisions of the Act of the Ninth of April eighteen

hundred and sixty-six, entitled “An Act to Protect All

Persons in the United States in Their Civil Rights,

and to Furnish the Means of Their Vindication”; and

the other remedial laws of the United States which

are in their nature applicable in such cases.

FEDERAL RULES OF CIVIL PROCEDURE

Rule 12. Defenses and Objections—when and how

presented—by pleading or motion—motion for

Judgment on the Pleadings.

(b)(1) Lack of Jurisdiction over the subject matter

(b)(6) Failure to state a claim upon which relief can be

granted.

10

STATUTORY PROVISIONS INVOLVED

IN THE CASE (VA STATE)

Section 13.1-775 and 13.1-936 of the Code of Virginia:

Each assessed corporation shall pay the annual

registration fee required by law on or before the

corporation’s annual report due date determined in

accordance with Section 13.1-775 (stock corporations)

or Section 13.1-936 (non-stock corporations) of each

year.

Section 58.1-1011 of The Code of Virginia: only

manufacturers, wholesale dealers, and retail dealers

may be permitted as stamping agents. It shall be

unlawful for any person to purchase, possess, or affix

Virginia Revenue Stamps without first obtaining a

permit to do so from The Department in order to

purchase and affix Virginia Cigarette Tax Stamps on

each pack of cigarettes.

Section 58.1-1037: Seizure-cigarettes that are

acquired, held, owned, possessed, transported in,

imported into, or sold or distributed in the =

Commonwealth in violation of this chapter shall be

deemed contraband and shall be subject to seizure,

forfeiture, and destruction.

11

Section 15.1-291.2 Code of Virginia relating to

the Virginia Indoor Clean Air Act: penalty, Chapter

28.

Section 15.1-291.2 C says, “Any restaurant

having a seating capacity of fifty or more persons

shall have a designated no-smoking area sufficient to

meet customer demand.”

Section 15.1-291.2 D says, “The proprietor or

other person in charge of a space subject to the

provisions of this chapter shall post signs conspicuous

to public view stating “smoking permitted” or “no

smoking” and in restaurants, signs conspicuous to

ordinary public view at or near each public entrance

stating “no smoking section available.”

The General Assembly in its 1996

Session amended and reenacted Section 15.1-291.2 of

The Code of Virginia, relating to the Virginia Indoor

Clean Air Act. (A) The Commonwealth or any agency

thereof and every court, city, or town shall provide

reasonable no-smoking areas. (B) Smoking shall be

prohibited in... ; provided, however, that smoking

may be allowed by a local school division in a

designated area which is not a common area, . . .. (C)

Any restaurant having a seating capacity of fifty or

more persons shall have a designated no-smoking

area sufficient to meet customer demand. (D) The

proprietor or other person in charge of an educational

facility, except any public elementary, intermediate,

12

or secondary school, health care facility, or retail

establishment of 15,000 square feet or more serving

the general public, including, but not limited to,

department stores, grocery stores, drug stores,

clothing stores, shoe stores, and recreational facilities

shall designate reasonable no-smoking areas,

considering the nature of the use and the size of the

building. (E)... and in restaurants signs conspicuous

to ordinary public view at or near each public

entrance stating “no-smoking section available.”

13

STATEMENT OF THE CASE

Plaintiff filed a petition in the United States

District Court for the Eastern District of Virginia

Richmond Division case no. 3:07 CV244 on April 26,

2007: A hearing was held on July 25, 2007: The court

dismissed plaintiffs petition August 7, 2007: Plaintiff

filed appeal to the United States Court of Appeals for

the Fourth Circuit September 24, 2007 case no. 07-

7260; Plaintiff filed a supplement informa! brief

November 2, 2007: The Appeals Court affirmed the

judgment of the District Court on December 28, 2007;

The Appeals Court issued mandate January 22, 2008.

Petition is against three commissioners in the

state corporation commission in their personal

capacity: Mark E. Christie, Theodore V. Morrison, Jr.

, and Judith Williams Jagdmann, and two in the

Department of Taxation, Tobacco Unit: Larry E

Durbin, Assistant Commissioner, Customer Service

and Michael G. Fojtik, Senior Auditor.

The state corporation commissioners issue and

renew a “Charter” to companies that manufacture

cigarettes. Those in the Department of Taxation,

Tobacco Unit issue a “Virginia Stamping Agent

Permit,” to be qualified to purchase and affix a

“Virginia Cigarette Revenue Stamp” on each pack of

14

cigarettes, as can not be sold without a stamp in

Virginia.

This petition arises out of the continuing

arbitrary assault of injury to liberties of plaintiff from

secondhand smoke by the consumption of cigarettes,

merely by the inherent act of breathing in most places

we go near our home in Henrico County, Richmond,

VA., the state, in private home, that plaintiff is

requested to give estimates and do work, where also

observes pregnant women, babies, and children

breathing this dangerous smoke from cigarcttes.

The defendants have prior knowledge that the

poisonous tobacco plant is used to make cigarettes

and that the use of cigarettes causes people to become

sick, disabled or to die, as happens in most families

and is not something that just happened, but has been

happening for hundreds of years, with twelve million

Americans dead from smoking in the last 40 years.

Then, too, the State is collecting money yearly from

tobacco companies of the tobacco settlement that is

paying for some of the health care cost caused by

cigarettes.

The Defendants in the state corporation

commission know defense attorney’s are the states

Attorney Generals, which have lists and keep track of

all the cigarettes made and sold in Virginia including

interstate cigarettes and can prosecute for non-

15

compliance. The Defendants in the tobacco unit also

have prior knowledge of this dangerous cigarette and

keep information on the tobacco companies names of

permit holders (cannot buy “Virginia cigarette

revenue tax stamps’ to affix to each pack of cigarettes

without a “Virginia Stamping Agent Permit”) to buy

the tax stamps, as no cigarettes can be sold in

Virginia without a tax stamp on every pack.

The Plaintiff claims injury to his liberties by

the state, caused by the Defendants conduct of

allowing “charters” and “permits” to companies that

make and sell the defective and unusually dangerous

for human consumption cigarette, because when used

as intended, they cause cancer, emphysema, heart

disease, and other illness. The government licenses

other drug companies to make and sell their products.

But when a drug is found to kill a “small number’ of

users, the drug is pulled off the market and no longer

made. The injury to liberties is two-fold: first,

Plaintiff's choice of not to smoke cigarettes is taken

away whenever there is environmental tobacco smoke,

as Plaintiff is forced to be an involuntary smoker;

second, Plaintiff is exposed to a dangerous substance

and merely by the act of breathing. The only way to

stop environmental tobacco smoke is the enjoin

Defendants from issuing “charters” to manufacturers

of cigarettes and holders of those permits that sell

cigarettes.

16

A Mississippi court has ruled on the dangerous

cigarettes as following:

In Cause No. 91-12.244 (B) (W) filed the 11% day of

May 1993, Jeanette Wilks and Jessie Willie Bell v. The

American Tobacco Company and New Deal Tobacco

and Candy Company, Inc., in the Circuit Court,

Washington County, Mississippi, a ruling said,

“... the Court has considered this

matter anew and concludes that

cigarettes are, as a matter of law,

defective and unreasonably dangerous for

human consumption. Cigarettes are

defective because when used as intended,

they cause cancer, emphysema, heart

disease, and other illness . . . cigarettes

are the most lethal products that may be

legally sold in this country. According to

the affidavits of Dr. David Burns, Senior

Reviewer of several Surgeon General's

reports, cigarettes kill approximately

435,000 persons annually from cancer,

emphysema, and heart disease.

Cigarettes kill more Americans each year

than AIDS, automobile accidents, alcohol,

fire, heroin, morphine, cocaine, suicide,

and homicide combined . . . cigarettes kill

40% of the people who smoke them. The

health costs to the nation from cigarette

smoking exceed $50 billion per vear.. .”

17

So ORDERED, this the 11 day of

May 1993. Eugene Bogen Circuit Judge.

From the Surgeon General’s Report 2004, Twenty-

eight Reports. Since the first Surgeon General’s

Report on smoking and health in 1964 medical

experts have written 27 more reports for The Surgeon

General on tobacco use. In each report, leading

scientists have found that using tobacco causes people

to become sick, disabled, or to die. (A) Fetus and

Infant Deaths (970); (B) Heart Diseases (142.600); (C)

Respiratory Diseases (98,000); (D) Secondhand smoke

causing cancer or heart disease (38,000); (E) House

fires set by cigarettes (970); (F) Cancers (159,000)

causing 440,000 deaths each year by cigarette

smoking.

Responsibilities of Defendants

Defendants claim they are not to blame for

secondhand smoke inhaled by Plaintiff, with the court

agreeing his fight is not with the state, which merely

licenses the sale and distribution of tobacco; it is with

those who smoke. The court further said the general

theory of the case is this: that tobacco could not be

sold within the state if the officials named within this

suit were enjoined from carrying out their

18

responsibilities; that if tobacco is not sold, it cannot be

smoked, and that if tobacco cannot be smoked it

cannot be inhaled by non-smoking bystanders. Well,

let the court see what Defendants responsibilities are

as a person being in Virginia and in their official duty

in the state government as stated in the Constitution

of Virginia and the 14th Amendment, as follows:

Article I, Section I Constitution of Virginia:

That all men are by nature equally free and

independent and have certain inherent rights, of

which, when they enter into a state of society, they

cannot by any compact, deprive or divest their

posterity: namely, the enjoyment of life and liberty,

with the means of acquiring and possessing property,

and pursuing and obtaining happiness and safety.

Section 3. That government is, or ought to be,

instituted for the common benefit, protection, and

security of the people, nation, or community.

Section 11. That no person snall be deprived of

his life, liberty, or property without due process of

law.

Section 15: That no free government, nor the

blessing of liberty, can be preserved to any people, but

by a firm adherence to justice and by the recognition

by all citizens that they have duties as well as rights.

19

Amendment 14, Section 1 Constitution of the

United States: No state shall make or enforce any

law which shall abridge the privileges or immunities

of citizens of the United States, nor shall any state

deprive any person of life, hberty, or property without

due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws.

Plaintiff, as other citizens, has an inherent

power created by “God” and enforced by the above, of

self defense, liberty, pursuit of happiness, safety, and

self-preservation, and this inherent power U.S.

Constitution, Ninth Amendment may be regulated

but cannot be destroyed.

The Constitution of Virginia, Article IX: Section

1. Members of The Commission shall be elected by

The General Assembly . .. Any Commissioner may be

impeached or removed in the manner provided for the

impeachment or removal of judges of courts of record.

Section 2, Clause 1. Subject to the provisions of

this Constitution, the Commission shall be the

department of government through shall issue all

charters, and amendments or extensions thereof, of

domestic corporations. Clause 2. Except as may be

otherwise prescribed by this Constitution or by Law,

The Commission shall be charged with the duty of

administering the laws made in pursuance of this

Constitution for the regulation and control of

20

corporations doing business in this Commonwealth.

Clause 3. The Commission shall in proceeding before

it ensure that the interest of the consumers of the

Commonwealth is represented.

Section 6. Every corporation charted in this

Commonwealth shall be deemed to hold its charter

and all amendments thereof under the provisions of,

and subject to all the requirements, terms, and

conditions of, this Constitution and any laws passed

in pursuance thereof. The police power of the

Ccmmonwealth to regulate the affairs of corporations,

the same as individuals, shall never be abridged.

The State cannot contract away

some of its powers in corporate grants as

the United States Supreme Court says in

part: “No legislature can bargain away the

public health or the public morals. The

people themselves cannot do it, much less

their servants. The supervision of both

these subjects of governmental power is

continuing in its nature, and they are to be

dealt with as the special exigencies of the

moment may require. Government is

organized with a view to their preservation,

and cannot divest itself of the power to

provide for them . . . But the power of

governing is a trust committed by the

people to the government, no part of which

can be granted away. The people in their

21

sovereign capacity have established their

agencies for the preservation of the public

health and the public morals and the

protection of public and private rights.

These several agencies can govern

according to their discretion, if within the

scope of their general authority, while in

power; but they cannot give away nor sell

the discretion of those that are to come

after them, in respect to matters the

government of which, from the very nature

of things, must “vary with varying

circumstances”. They may create

corporations, and given them, so to speak, a

limited citizenship, but as citizens, limited

in their privileges, or otherwise, these

creatures of the government creation are

subject to such rules and regulatiens as

may from time to time be ordained and

established for the preservation of health

and morality.” [Stone v. Mississippi, 101

U.S. 819-20]

The United States Supreme Court says in part:

“While we are not prepared to say that the

legislature can make valid contracts on no

subject embraced in the largest definition

of the police power, we think that, in

regard to two subjects so embraced, it

cannot, by any contract, limit the exercise

22

of those powers to the prejudice of the

general welfare. These are the “public

health and public morals.” [Butchers Union

Co. v. Crescent City Co., 111 U.S. 746, 750-

51]

Power of States to Repeal Corporate Charters as

the United States Supreme Court says in part:

“One obvious effect of the repeal of a

statute is that it no longer exists. Its life is

at an end. Whatever force the law may give

to transactions into which the corporation

entered and which were authorized by the

charter while in force, it can originate no

new transactions dependent on the power

conferred by the charter.” [Greenwood v.

Marginal Freight Co., 105 U.S. 13, 18-

19.21] |

A state may determine absolutely what corporation

shall or shall not do business within the state and the

powers the corporation may exercise. Permission to do

business may be withdrawn at any time by the state.

It results that the liberty clauses of our constitutions

are scarcely applicable to corporations [Western Tort

Association v. Greenberg, 204 U.S. 359].

The requirement of the laws of equal protection

apphes only to persors “within the jurisdiction.” A

corporation cannot exist within the jurisdiction

without its permission, because the artificial

23

corporation entity has no existence except where

sustained by law. A state may thus arbitrarily exclude

corporations, or, when admitted, it may arbitrarily

put them out unless they submit to new conditions

[Philadelphia Fire Association v. New York, 119 U.S.

110; National Council v. State Council, 203 U.S. 151.

But see W. U. Tel. Co. v. Kansas 2i06 U.S.1; So. Ry.

Co. v. Greene, 216 U.S. 400).

Corporations have grant privileges in this

country, but their essential strength being economic

rather than legal.

The economic burden of cigarette use is

enormous as from 1995 to 1999, smoking-related costs

totaled $157.7 billion each year (U.S.) ($3.94 billion in

Virginia). This figure includes more than $75 billion

in direct medical cost for adults (ambulatory care,

hospital care, prescription drugs, nursing homes, and

other care), about $82 billion.in indirect cost from loss

productivity, and $366 million for neonatal care. This

equals an estimated $3,000 per smoker per year

(enclosed: 2004 Surgeon General’s Report).

Taxes v. Costs: Some officials working for the

state must think tobacco taxes help the state, but

tobacco taxes collected by the state is less than the

cost to the state, as the 2004 Surgeon General’s

Report has said the economic cost of smoking in the

United States each year from 1995 to 1999 was $157.7

24

billion. When one multiplies $157.7 billion by 2.5%

(Virginia’s part of population), it is $3.94 billion, but

all of the taxes collected from tobacco and the sale of

cigarettes is less than one billion.

As the rights and duties of people under Art. 1

(A) have shown that all people have inherent rights

(and as part of government) cannot by any compact

deprive—enjoyment of life; (B) government (officials)

is to—protection and security of the people, nation or

community; (C) no person deprived of his life, liberty,

without due process; (D) No free government, nor

liberty, can be preserved but by a firm adherence to

justice. . .all citizens have duties as well as rights; due

process is observed; (E) 14th Amen.: nor shall any

state deprive any person of life, liberty. . .without due

process. Art. IX; (F) The commission shall be charged

with the duty of administering the laws made in

pursuance of this constitution for the regulation and

control of corporations; (G) The police power of the

Commonwealth to regulate the affairs of corporations

shall never be abridged; H) This has clearly shown

that the state cannot constitutionally allow any

corporation “charter” to any company that makes

cigarettes or allow any “permits” to anyone or a

company to buy and affix tax stamps to packs of

cigarettes; (H) Therefore, if corporations that

manufacture cigarettes “charters” were to be repealed,

there would be no cigarettes made in Virginia, and if

the “permits” for cigarette makers, wholesalers, and

retailers were repealed, no cigarettes could be sold in

25

Virginia. That would stop the assaults on Plaintiff,

thus, in the future Defendants would be complying

with federal law.

Defendants are responsible for cigarettes being

made and sold being the cause of this action and the

state has made this issue even worse by code of

Virginia section 15.1-291.2 that puts people who

smoke and those who chose not to smoke in the same

atmosphere enclosures of restaurants: as all

atmosphere enclosures have central heat and air

condition that circulate the air, which goes

everywhere, therefore there is not a no smoking area

in the no smoking section, this is the same for homes

and vehicles.

These cigarettes being the cause of injury to Plaintiffs

basic fundamental civil rights: (A) Allows for petition

of the government for a redress of grievance in the 1:*

Amen.; (B) Allows action in 42 U.S.C.A. 1983; (C)

Allows action in 28 U.S.C. Section 2201 and 2202: The

right of “liberty and due process.” The principles for

which America’s founders put their fortune and lives

at state in 1776 by their Declaration of Independence:

(D) Allows for action in the 14t Amen.; (E) Allows for

standing under Article III of this case of Plaintiff's

constitutional fundamental civil rights, as the

Constitution does not give a right in one section and

take it away in another; (F) Because Plaintiff's

26

fundamental civil rights are violated, it precludes

prudential standing; (G) This case shows Plaintiff has

stated a claim upon which relief can be granted in

Rule 12(b); (6) Has shown Article II] standing and has

shown the Court had jurisdiction over the subject

matter in Rule 12(b)(1).

For the importance of protecting civil rights

under the 1st Amen. is to allow third-party standing

for this petition to assert the rights of pregnant

women, babies, and children not before this Court.

Without Plaintiff, there is no one. Upon weighting the

gravity of the connection between the litigant and the

third party and the ability of the litigant to justify his

own right and the risk that the rights of third parties

will be diminished if third-party standing is not

allowed, then this Court should allow Plaintiff third-

party standing as third party has no other remedy, as

the environmental tobacco smoke will continue to

assault with injury by 60 carcinogens (substances that

cause cancer), polluting the free oxygen that the

pregnant women, babies, and children have to breath

to live: (“It is better to tie a millstone around one’s

neck and drown in the deepest ocean than to hurt one

of the little ones.”). Secretary of State v. Joseph H.

Munson Co., Inc., 467 U.S. 947, 956, 104 S.CT. 2839,

2847, 81 L. 2d 786, 795-96 (1984); Rohr, Fighting for

the Rights of Others: The Troubled Law of Third

Party Standing and Mootness in the Federal Courts,

35 v. Miami, L. Rev. 393 (1981).

27

As the Governor of the State appoints board members

to tobacco boards (who raise tobacco) whose duty is to

promote the use and sale of tobacco, the State General

Assembly refuses to pass a law that could protect the

people from cigarettes, the Attorney General has lists

of companies that make and the number of cigarettes

made and number sold in the state. The state has

passed laws that put smokers and non-smokers

together in the same atmosphere enclosures. The

state collects money yearly from the _ tobacco

settlement fer some of the past costs of sickness

caused by cigarettes and gives part of that money

back to the tobacco farmers. The state pays disability

to state workers even if caused by cigarettes. The

state license the makers of cigarettes, knowing they

are made from the poison tobacco plant and license

the sale of cigarettes, -,hich are defected and

unreasonably dangerous for human consumption

because when used as intended, they cause cancer,

emphysema, heart disease, and other illness, made in

Virginia cigarettes causes over half of the 440,000

deaths yearly in the U.S. including 38,000 non-

smokers, being 11,000 in VA with 950 non-smokers,

knowing is the cause of preterm birth, stillborn and

infant death, even now a bill advances in Congress

that could put the Food and Drug Administration in

regulatory over tobacco products, but not to ban, and

the duty of the F.D.A. is to protect the public, not the

tobacco industry. The Sta.es Attorneys are the

Defendants lawyers, so much for keeping the status

28

quo. Chief Justice Marshall said, “The essence of civil

liberty required a legal remedy for a legal wrong.” (A)

Does not this demonstrate that the Commonwealth’s

conduct was and is “so outrageous as to shock the

conscience of the Court?” (B) If this Court looks at this

issue anew, does not this Court see that this petition

should be for an “EXTRAORDINARY WRIT” as

exceptional circumstances warrant the exercise of the

Courts discretionary power and that adequate rcelicf

cannot be obtained in any other form or from any

other Court?

ARGUMENT FOR ALLOWING OF THE WRIT

When a state is allowed the manufacturing and

selling of a product (cigarettes) made from a poison

plant (tobacco), when used by consumers as intended

causes sickness, disability, and death, and even to

non-consumers that are around the consumer. This

injury to the liberties and due process of Plaintiff, and

all non-consumers who have made a choice to not

consume cigarettes, and not be exposed to the lethal

cigarette much less be arbitrarily forced to breath the

smoke from the burning cigarettes (which is the same

as user is breathing, mainstream smoke) plus

secondhand smoke, what the user exhales from the

cigarette, and even pregnant women, babies, and

children included. Our own Surgeon General’s report

says 440,000 deaths each year caused by smoking: 12

million dead in 40 years, yet 4,000 young people

smoke their first cigarette each day and a study has

just shown many children are addicted by the very

first cigarette.

When in the course of human events, it

becomes necessary for an average citizen to bring this

message to the Courts of Justice, as in our

Constitution, as a fundamental civil right, but the

State motion to dismiss this message is granted by

the Courts. As the federal and state governments

have abdicated their duty to protect the public health

and life of its people on this issue, in reviewing the

determination of the compatibility of the assaults on

30

the liberty of Plaintiff (third parties) by actions taken

by the Defendants as officials in the state

government, go beyond any proper sphere of

governmental activity, as is incompatible with our

democratic system of government and individual

liberty, as any property, liberty, or life limited by such

action is taken without due process, because the

Constitution never granted the government officials

the ability to take such action that comes in conflict

with the fundamental law.

We are now in a war to give and preserve

liberties, that has taken 4,000 of our warriors lives in

the last five years, and many in our Congress and the

public are demanding that we bring our troops home.

Well, because we do not teach our holders of driving

permits correctly to drive safely, we are killing over

ten times as many of our men, women, children, and

babies (not troops) in one year and every year on our

public highways. Because of behavior of officials in

the state in allowing cigarettes to be made and sold,

the state is the cause of over half (cigarettes made in

Virginia are over half the cigarettes made yearly in

the U.S.) of the 440,000 deaths yearly caused by

cigarettes, as reported by Surgeon General’s Report

(The Health Consequences of Smoking), being over

100 times in one year of our war dead in five years,

and these deaths from cigarettes are preventable.

This Court by a reversal of judgment could begin the

saving of these thousands of lives yearly, millions in

31

the next forty years, without the loss of life of a single

warrior!

Being that no money is involved (only lives) in

this case, Plaintiff could not afford to hire attorneys to

prepare the Petition, nor could any law college be

secured, and Plaintiff being just an ordinary person,

has not the ability to present the quality of petition

this court is accustomed to, but due to the importance

of this issue, with Plaintiffs right of petition to do his

best as a messenger to this Court and pray that this

Court will take action that will result in halting this

scourge on we the people.

CONCLUSION

For the foregoing reasons, statement of the case

and argument, Petitioner prays the Petition for Writ

of Certiorari be granted.

Respectfully submitted,

Thomas A. Crump, Pro Se

8653 Rio Grande Road

Richmond, VA 23229

Phone No. (804) 740-7079

32

TABLE OF CONTENTS TO THE APPENDIX

Opinion of the United State Court of

Appeals for the Fourth Circuit, filed

December 28, 2008 App. l

MANDATE of the United States Court

of Appeals for the Fourth Circuit App. 11

Opinion of the United States District

Court for the Eastern District of

Virginia, Richmond Division,

Filed August 7, 2007 App. 13

Cause No. 91-12.244(B)(W) filed the

11th day of May 1993. Jeanette Wilks

and Jessie Wilhe Bell v. the American

Tobacco Company and New Deal

Tobacco and Candy Company, Inc., App. 25

From the 2004 Surgeon General’s

Report App. 27

APP. 1

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-7260

THOMAS A CRUMP

Plaintiff — Appellant

versus

MARK C. CHRISTIE, in his personal capacity as

Commissioner, State Corporation Commission;

THEODORE V. MORRISON, JR., in his personal

capacity as Commissioner, State Corporation

Commission; JUDITH WILLIAMS JAGDMANN, in

her personal capacity as Commissioner, State

Corporation Commission; LARRY E. DURBIN, in his

personal capacity as Assistant Commissioner,

Customer Service, Department of Taxation;

MICHAEL G. FOJTIK, in his personal capacity as

Senior Auditor, Department of Taxation, Tobacco Unit

Defendants - Appellees

APP. 2

Appeal from the United States District Court for the

Eastern District of Virginia, at Richmond. James R.

Spencer, Chief District Judge. (3:07-cv-00244-JRS)

Submitted: ‘Jecember 20, 2007

Decided: December 28, 2007

Before MICHAEL and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

APP. 3

FILED: December 28, 2007

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-7260

(3:07-cv-00244-JRS)

THOMAS A CRUMP

Plaintiff — Appellant

v.

MARK C. CHRISTIE, in his personal capacity as

Commissioner, State Corporation Commission;

THEODORE V. MORRISON, JR., in his personal

capacity as Commissioner, State Corporation

Commission; JUDITH WILLIAMS JAGDMANN, in

her personal capacity as Commissioner, State

Corporation Commission; LARRY E. DURBIN, in his

personal capacity as Assistant Commissioner,

Customer Service, Department of Taxaticn:

MICHAEL G. FOJTIK, in his personal capacity as

Senior Auditor, Department of Taxation, Tobacco Unit

Defendants — Appellees

APP. 4

JUDGMENT

In accordance with the 4ecision of this Court,

the judgment of the District Court is affirmed.

This judgment shall take effect upon issuance

of this Court’s mandate in accordance with Fed. R.

App. P. 41

/s/Patricia S. Connor, Clerk

Thomas A. Crump, Appellant Pro Se. A. Ann

Berkebile, Philip Reed DeHass, STATE

CORPORATION COMMISSION OF VIRGINIA,

Richmond, Virginia; Flora Townes Hezel, OFFICE OF

THE ATTORNEY GENERAL OF VIRGINIA,

Richmond, Virginia, for Appellees.

Unpublished opinions are not binding precedent in

this circuit.

PER CURIAM:

Thomas A. Crump appeals the district court’s

order dismissing his 42 U.S.C. Section 1983 (2007)

complaint. We have reviewed the record and find no

reversible error. Accordingly, we affirm for the

reasons stated by the district court. Crump v.

Christie, No. 3:07-cv-00244-JRS (E.D. Va. Aug. 7,

2007). We deny Crump’s motion to recuse judges of

this court that smoke from this case. We dispense

with oral argument because the facts and legal

contentions are adequately presented in the materials

before the court and argument would not aid the

decisional process.

AFFIRMED

APP. 6

FILED: December 28, 2007

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-7260, Crump v. Christie, et.al

3:07-cv-00244-JRS

NOTICE OF JUDGMENT

Judgment was entered on this date in this case.

PETITION FOR REHEARING (FRAP 40)

PETITION FOR REHEARING EN BANC (FRAP 35)

FILING TIME: A petition must be received in the

Clerk’s Office within 14 days after judgment to be

timely. There are three exceptions to this rule:

(1) In all civil cases in which the United States or an

agency or officer thereof is a party, any petition for

rehearing must be received in the Clerk’s Office

within 45 days after entry of judgment.

(2) The Court may grant an extension of time or leave

to file a petition for rehearing out of time if the party

establishes that the delay resulted from the death or

serious illness of counsel or a family member (or of a

APP. 7

party or family member in pro se cases) or other

circumstances wholly beyond the control of counsel or

a party proceeding without counsel.

(3) Prison petitions are deemed files when delivered to

prison authorities.

If a petition for rehearing en banc is to be filed, it

must be filed at the same time and in the same

document as the petition for rehearing and must be

clearly identified in the title.

Each case number to which the petition applies must

be listed on the petition, even in companion or

consolidated cases, in order to identify the cases to

which the petition applies and to avoid companion

cases proceeding to mandate during the pendency of a

petition for rehearing in the lead case.

A timely filed petition for rehearing or petition for

rehearing en banc will stay for mandate and toll the

running of time for filing a petition for writ of

certiorari.

PURPOSE: A petition should only be made to direct

the Court’s attention to one or more of the following

situations:

1. A material fact or law overlooked in the decision.

APP. 8

2. A change in the law which occurred after the case

was submitted and which was overlooked by the

panel.

3. The opinion is in conflict with a decision of the

United States Supreme Court, this Court, or another

court of appeals, and the conflict is not addressed in

the opinion.

4. The proceeding involves one or more questions or

exceptional importance.

STATEMENT OF COUNSEL: A petition shall

contain an introduction stating that, in counsel’s

judgment, one or more of the situations exist as

described in the above “Purpose” section. The points

to be raised shall be succinctly listed in the statement.

FORM: The 15 page limit allowed by the Ruie shall

be observed. File 4 copies of a petition for rehearing. If

a petition for rehearing en banc is filed, 12 copies are

required.

BILL OF COSTS (FRAP 39)

FILING TIME: A party to whom costs are allowed,

who desires taxation of costs, shall file a bill of costs

within 14 calendar days of entry judgment.

APP. 9

MANDATE (FRAP 41)

ISSUANCE TIME: In original proceedings before this

Court, there is no mandate. Unless the Court shortens

or extends the time, in all other cases, the mandate

issues 7 calendar days after the expiration of the time

for filing a petition for rehearing. A timely petition for

rehearing, petition for rehearing en banc, or motion to

stay the mandate will stay the issuance. If the

petition or motion is denied, the mandate will issue 7

calendar days later. If a stay of mandate is sought, 4

copies of the motion must be filed.

STAY: A motion for stay of the issuance of the

mandate shall not be granted simply upon request.

Ordinarily the motion will be denied unless it would

not be frivolous or filed merely for delay and would

present a substantial question or otherwise set forth

good or probably cause for a stay.

CRIMINAL CASES (Local Rule 46(d), CJA Plan)

CRIMINAL: In criminal cases, counsel must inform

the defendant in writing of the right to file a petition

for writ of certiorari from an adverse decision of this

Court. If the defendant requests that a petition be

filed and counsel believes that a petition would be

frivolous, counsel may file a petition for certiorari.

Counsel appointed under the Criminal Justice Act

must file their vouchers within 60 days of the later of

APP. 10

entry of judgment, denial of a petition for rehearing,

or the grant or denial of a petition for writ of

certiorari.

PETITION FOR WRIT OF CERTIORARI

(Sup. Ct. R. 13)

FILING TIME: Review on writ of certiorari is not a

matter of right, but of judicial discretion, and will be

granted only for compelling reasons. The petition

must be filed in the United States Supreme Court

within 90 days of this Court’s entry of judgment. The

time does not run from the issuance of the mandate. If

a petition for panel or en banc rehearing is timely

filed, the time runs from the denial of that petition.

APP. 11

FILED: January 22, 2008

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-7260

(3:07-cv-00244-JRS)

THOMAS A CRUMP

Plaintiff — Appellant

V.

MARK C. CHRISTIE, in his personal capacity as

Commissioner, State Corporation Commission;

THEODORE V. MORRISON, JR., in his personal

capacity as Commissioner, State Corporation

Commission; JUDITH WILLIAMS JAGDMANN, in

her personal capacity as Commissioner, State

Corporation Commission; LARRY E. DURBIN, in his

personal capacity as Assistant Commissioner,

Customer Service, Department of Taxation;

MICHAEL G. FOJTIK, in his personal capacity as

Senior Auditor, Department of Taxation, Tobacco Unit

Defendant-Appellees

APP. 12

MANDATE

The judgment of this Court, entered December

28, 2007, takes effect this date.

This constitutes the formal mandate of this

Court issued pursuant to Rule 41(a) of the Federal

Rules of Appellate Procedure.

/s/Patricia S. Connor, Clerk

APP. 13

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

THOMAS A. CRUMP,

Plaintiff,

v. Civil Action No.: 3:07-CV-244

MARK C. CHRISTIE, et ad,

Defendants

FINAL ORDER

THIS MATTER comes before the Court on the

Motions to Dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(1) & (6) by Defendants

Commissioners of the State Corporation Commission,

filed as Docket Entry No. 4, and by Defendants Larry

Durbin and Michael Fojtik, filed as Docket Entry No.

7. Hearing upon the Motions was held by July 25,

2007. Upon due consideration of the briefs submitted

and the arguments presented, and for the reasons

stated in the Memorandum Opinion that accompanies

this Order, the Defendants’ Motions shail be

APP. 14

GRANTED. Mr. Crump’s action shall be dismissed

for lack of standing and for the failure to state a claim

for which relief may be granted.

The Court understands that the Plaintiff is

proceeding on his own behalf, and so shall take this

opportunity to advise Mr. Crump of his right to appeal

this decision. To do so, the Plaintiff must file notice of

appeal with the Clerk of Court for the Eastern

District of Virginia within thirty (30) days of the date

of this Order’s entry. Fed. R. App. P. 3(a)(1),

4(a)(1)(B). The notice of appeal must set forth the

name of the party taking the appeal, the judgment for

which appeal is sought, and the court to which appeal

is taken. Fed. R. App. P. 3(c)(1). Failure to file timely

notice may result in the forfeiture of the right to

appeal.

Let the Clerk send a copy of this Order and

accompany Memorandum Opinion to all counsel of

record and to Mr.-Crump, who is without counsel.

It is SO ORDERED.

James R. Spencer

Chief United States District Judge

ENTERED this 7‘ day of August 2007

APP. 15

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

RICHMOND DIVISION

THOMAS A. CRUMP,

Plaintiff,

v. Civil Action No.: 3:07-CV-244

MARK C. CHRISTIE, et a/,

Defendants

MEMORANDUM OPINION

THIS MATTER comes before the Court on the

Motions to Dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(1) & (6) by Defendants

Commissioners of the State Corporation Commission,

filed as Docket Entry No. 4, and by Defendants Larry

Durbin and Michael Fojtik, filed as Docket Entry No.

7. The arguments raised in both Motions are

substantially similar and so shall be considered at

once. For the reasons set forth below, both Motions to

Dismiss shall be GRANTED.

I.

On April 26, 2007, Thomas Crump filed this

action to enjoin the State of Virginia from allowing

the further sale or distribution of tobacco products,

claiming violations of the Fourth, Fifth, and

Fourteenth Amendments to the United States

Constitution. To be concise, Mr. Crump is tired of

inhaling secondhand smoke, and he is concerned that

his continued exposure to such smoke will impair the

quality of his life, if not the duration.

To that end, Mr. Crump has sued several

officers of the state government, including the

Commissioners of the State Corporation Commission.

The Commissioners are the Honorable Mark C.

Christie, the Honorable Theodore V. Morrison, Jr.,

and the Honorable Judith W. Jagdmann. The

Commission is responsible for issuing, amending, or

extending all charters of domestic corporations and all

licenses of foreign corporations to do business in the

Commonwealth. Va. Const. art. IX, Section 2. Mr.

Crump has also sued two officers of the Virginia

Department of Taxation: (1) Larry E. Durbin,

Assistant Commissioner, Customer Services, Tobacco

Unit; and (2) Michael G. Fojtik, Senior Auditor,

Tobacco Unit. The Plaintiff alleges that these

gentlemen are responsible for issuing permits to

cigarette manufacturers, wholesalers, and retailers so

that they may affix Virginia cigarette tax stamps to

APP. 17

packs of cigarettes sold within the state, as required

by state law. The general theory of the case is this:

that tobacco could not be sold within the state if the

officials named within this suit were enjoined from

carrying out their responsibilities; that if tobacco is

not sold, it cannot be smoked: and that if tobacco

cannot be smoked, it cannot be inhaled by non-

smoking bystanders.

H.

Federal courts are courts of limited jurisdiction:

therefore, the existence of jurisdiction must

necessarily be the threshold requirement in every

federal case. Collectively, the Defendants assert that

the Court is without jurisdiction to hear the case, and

have moved to dismiss, in part, for lack of subject

matter jurisdiction pursuant to Federal Rule of Civil

Procedure 12(b)(1). When challenged, it is the burden

of the non-moving party to prove the existence of

subject matter jurisdiction by a preponderance of the

evidence. Evans v. B.F. Perkins Co., 166 F.3d 642, 647

(4*» Cir. 1999)({citation omitted); see also Luckett v.

Bure, 290 F.3d 493, 496-97 (2d Cir. 2002)(“[T]he

plaintiff asserting subject matter jurisdiction has the

burden of proving by a preponderance of the evidence

that it exists.”). A motion to dismiss for lack of subject

matter jurisdiction may be granted “only if the

maternal jurisdictional facts are not in dispute and the

moving party is entitled to prevail as a matter of law.”

APP. 18

Evans, 166 F.3d at 647 (internal quotation and

citation omitted).

The existence of subject matter jurisdiction

depends to some extent on whether the plaintiff has

standing to sue. Very simply, “the question of

‘standing’ is whether the litigant is entitled to have

the court decide the merits of the dispute or of

particular issues.” Warth v. Seldin, 422 U.S. 490, 498

(1975). “The core goal of the standing inquiry is to

ensure that a plaintiff bringing an action has enough

of a stake in the case to litigate it properly.” Pye v.

U.S., 269 F.3d 459, 466 (4th Cir. 2001). Dismissal is

necessary in cases where standing is not established.

The doctrine of standing is comprised of two

analytical strains. See, e.g., Elk Grove Unified Sch.

Dist. V. Newdow, 542 U.S. 1, 11 (2004). The first

regards Constitutional limitations on the Court’s

adjudicative capacity and is rooted firmly in Article

III. There, the judicial power of the United States is

said to extend only to a limited class of “cases” and

“controversies.” U.S. Const. art. III, Section 2. To

establish Article III standing, it must be shown: (1)

that the plaintiff suffered the invasion of a legally

protected interest; (2) that there is a fairly traceable

causal connection between the injury alleged and the

conduct challenged; and (3) that there is a reasonable

likelihood that the injury alleged could be redressed

by a favorable decision from the court. See, e.g., Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The

elements of standing are not mere pleading

APP. 19

requirements; instead, they are “an indispensible part

of the plaintiffs

case. . [and] must be supported in the same way as

any other matter on which the plaintiff bears the

burden of proof.” Id. At 561.

There is also prudential standing. Though it

contours are far from certain, it is clear that

“prudential standing encompasses the general

prohibition on a litigant’s raising another persen’s

legal rights, the rule barring adjudication of

generalized grievances more appropriately addressed

in the representative branches, and the requirement

that a plaintiff's complaint fall within the zone of

interests protected by the law invoked.” Elk Grove,

542 U.S. at 12 (internal quotation and citations

omitted).

Article III and prudential standing are equally

necessary to a federal adjudication. Mr. Crump’s

claim, however, is lacking both. The Defendants have

identified two ways in which Mr. Crump has failed to

establish Article III standing. The first is that Mr.

Crump has not demonstrated a “fairly traceable

connection” between the conduct complained—the

execution of government functions with respect to the

sale of tobacco, and the injury alleged—the inhalation

of secondhand smoke. Mr. Crump’s theory pays no

mind to the fact that secondhand smoke is the product

of smoking, and that those who smoke—who are

therefore producing the smoke that he inhales—are

APP. 20

not before the Court. “When a plaintiff is not the

direct subject of government action, but rather when

the asserted injury arises from the government’s

allegedly unlawful regulation (or lack of regulation),

satisfying standing requirements lis] substantially

more difficult.” Frank Krasner Enters. v. Montgomery

County, Md., 401 F.3d 230, 234—35 (4th Cir.

2005)(citing Lujan, 504 U.S. 555, and Allen v. Wright,

468 U.S. 737 (1984)Gnternal quotations omitted). It is

more difficult because Article II] requires a

reasonable causal nexus between offensive conduct

and resultant harm. “Speculative,” “indirect,” or

“attenuated” connections are not sufficient. See Allen,

468 U.S. at 757, 758.

But that is precisely the type of causal

connection Mr. Crump has stated. His fight with

secondhand smoke is not with the state, which merely

licenses the sale and distribution of tobacco; it is with

those who smoke. And to the extent it is stated, Mr.

Crump’s theory of causation can only be described as

attenuated.

There is also a failure of Article III standing

due to the inability of this Court to order competent

redress. First, there is neither evidence nor allegation

that any Defendant has performed his state-

mandated responsibilities unlawfully. Second, even if

the Court were to issue an injunction against these

state officers from performing their official duties, Mr.

Crump’s secondhand smoke problem would not simply

blow away. Visitors and Virginians alike could

APP. 21

continue to smoke within the Commonwealth, so long

as their tobacco was purchased somewhere else.

Granted, the incidence of smoking would decline

dramatically if tobacco could not be sold within the

state. But this Court cannot offer the final solution

Mr. Crump is seeking.

For these reasons, Article III standing is found

wanting. And for similar reasons, prudential standing

is also lacking. Prudential standing “embodies

judicially self-imposed limits on the exercise of federal

jurisdiction.” Elk Grove, 542 U.S. at 11. Among the

situations contemplated by this principle are those in

which a plaintiff seeks adjudication of a generalized

grievance whose resolution is better suited for the

representative branches. See id. Everywhere, state

and local legislatures are debating the very issue for

which Mr. Crump seeks a decision. His private war on

public smoking is better suited for those fora.

IIT.

The Defendants have also moved to dismiss for

the failure to state a claim upon which relief may be

granted pursuant to Federal Rule of Civil Procedure

12(b)(6). Mr. Crump claims a violation of due process

pursuant to the Fourteenth Amendment of the United

APP. 22

States Constitution,! and he seeks relief pursuant to

the Declaratory Judgment Act? and Title 42, United

States Code Section 1983. The Fourteenth

Amendment guarantees that “[nJo State. . .shall

deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV. As an

intellectual convention, “due process” consists of both

procedural and substantive components. Here, we

concern ourselves only with substantive due process.

Among the liberty interests secured by substantive

due process is the right to bodily integrity free from

unjustifiable governmental interference. See

Washington v. Glucksburg, 521 U.S. 702, 720

(1997)(citing Planned Parenthood of Southeastern Pa.

v. Casey, 505 U.S. 833 (1992), and Rochin v.

California, 342 U.S. 165 (1952)).

Due process establishes an affirmative proscription on

the power of state governments. It commands states

to refrain from engaging in conduct when that

conduct would offend traditional notions of individual

1 Mr. Crump also claims violations of the Fourth and Fifth

Amendments. The Fourth Amendment protects against

unreasonable searches and seizures. The Fifth Amendment

prohibits only the federal government from denying due process

of law. These Amendments are not implicated on the facts

alleged. To the extent the Complaint attempts to state claims

predicated on these Amendments, those claims are dismissed.

228 U.S.C. Sections 2201—02.

APP. 23

liberty. That door, however, does not swing both ways.

Due process doe not require the states to act in an

affirmative manner in order to prevent the occurrence

or to mitigate the effect of some harm to an

individual’s liberty interest When the state otherwise

would not act. “[Nlothing in the language of the Due

Process Clause itself requires [a state] to protect the

life, liberty, or property of its citizens against invasion

by private actors. The Clause is phrased as a

limitation on the State’s power to act, not asa

guarantee of certain minimum levels of safety and

security.” DeShaney v. Winnebago County Dep't of

Soc. Servs., 489 U.S. 189, 195 (1989). Accordingly, the

fact that the Plaintiff on occasion inhales secondhand

smoke does not itself establish a violation of the

Fourteenth Amendment.

Affirmative conduct is necessary to sustain an

action for a violation of due process. In this case, the

only conduct that has been alleged is the officers’

performance of their official responsibilities. Enough

attention has already been given to the attenuated

connection between the offensive conduct and the

harm suffered. Suffice to say that the Court is as

equally concerned now by the remote causation as it

was previously with respect to standing. In addition,

to prevail in his due process action, Mr. Crump must

demonstrate that the Commonwealth’s conduct was

“so outrageous as to shock the conscience of the

court.” U.S. v. Osborne, 935 F.2d 32, 36 (4 Cir.

1991)(citing Rochin, 342 U.S. 165). There is an

APP. 24

absolute dearth of facts in this case that could

support such a proposition.

Despite Mr. Crump’s contentions, he has

suffered no constitutional violations. Without that

predicate, there is no basis on which to sustain an

action for declaratory or injunctive relief.

IV.

For the foregoing reasons, it is the judgment of

the Court that Mr. Crump’s claims shall be

DISMISSED for lack of subject matter jurisdiction

and for failure to state a claim upon which relief may

be granted.

An appropriate Order shall issue.

James R. Spencer

Chief United States District Judge

ENTERED this 7*» day of August 2007

APP. 25

A Mississippi court has ruled on the dangerous

cigarettes as following:

In Cause No. 91-12.244 (B) (W) filed the 11* day of

May 1993, Jeanette Wilks and Jessie Willie Bell v. The

American Tobacco Company and New Deal Tobacco

and Candy Company, Inc., in the Circuit Court,

Washington County, Mississippi, a ruling said,

“.. the Court has considered this

matter anew and concludes that

cigarettes are, as a matter of law,

defective and unreasonably dangerous for

human consumption. Cigarettes are

defective because when used as intended,

they cause cancer, emphysema, heart

disease, and other illness. . . cigarettes

are the most lethal products that may be

legally sold in this country. According to

the affidavits of Dr. David Burns, Senior

Reviewer of several Surgeon General’s

reports, cigarettes kill approximately

435,000 persons annually from cancer,

emphysema, and heart disease.

Cigarettes kill more Americans each year

than AIDS, automobile accidents, alcohol,

fire, heroin, morphine, cocaine, suicide,

and homicide combined . . . cigarettes kill

40% of the people who smoke them. The

APP. 26

health costs to the nation from cigarette

smoking exceed $5¢ billion per year .. .”

So ORDERED. this the 11 day of May 1993. Eugene

Bogen Circuit Judge.

APP. 27

From the Surgeon General’s Report 2004 (Exhibit A)

1. Twenty-eight Reports

Since the first Surgeon General’s Report on smoking

and health in 1964 medical experts have written 27 more

reports for The Surgeon General on tobacco use. In each

report, leading scientists have found that using tobacco causes

people to become sick, disabled, or to die.

2. Promote and Protect

The Surgeon General is appointed by the President of

the United States to help promote and protect the health of our

citizens. AS the nation’s highest-ranking public health officer,

the Surgeon General can direct studies on health risks such as

smoking.

3. Top Scientist

The 2004 Surgeon General’s Report on The Health

Consequences of Smoking was prepared by 19 of the

country’s top scientists, doctors, and public health experts.

The full report is nearly 1,000 pages long and took more than

3 years to complete. it is written for a scientific audience.

However, the Surgeon Gencral believes that the findings are

very important to everyone and asked that this booklet be

created. This booklet explains what the report says and what it

means to you:

4. Smoking harms nearly every organ of your body. It causes

diseases and worsens your health.

5. The list of diseases that we know are caused by smoking

now includes cancers of cervix, pancreas, kidneys, and

stomach, aortic aneurysms, leukemia, cataracts, pneumonia,

APP. 28

and gum disease. Cardiovascular disease, respiratory diseases,

reproductive effects, and other harmful health effects.

6. Smoking causes cancers of the mouth, throat, larynx(voice

box), lung, esophagus, pancreas, kidney, and bladder.

7. Smoking causes cancers of the stomach, cervix, and acute

myeloid leukemia, which is cancer of the blood.

8. Certain agents in tobacco smoke can damage important

genes that control the growth of cells and lead to cancer.

9. Heart disease and stroke are cardiovascular (heart and

blood vessel) diseases caused by smoking. Heart disease and

stroke are also the first and third leading causes of death in the

United States.

10. More than 61 million people in the United States suffer

some form of heart and blood vessel disease. In 2003, heart

disease and stroke cost the United States an estimated $351

billion in health care cost and lost productivity from death and

disability. Even with treatment, 25 percent of men and 38

percent of women die within one year of a heart attack.

11. Smoking harms your lungs. Your lungs cannot fight

infection well and this causes injuries to lung tissues. Tissue

injury leads to chronic obstructive pulmonary disease

(COPD), sometimes called emphysema, and other respiratory

diseases. People with COPD slowly start to die from lack of

alr.

12. Effects of smoking on lung development can begin before

birth. When mothers smoke during pregnancy, it hurts their

baby’s lung. Children and teens who smoke are less physically

fit and have more breathing problems. Smoking at this age can

slow lung growth.

13. Cigarettes are not the only dangerous kind of tobacco.

Even smokeless tobacco can lead to heart and blood vessel

disease. Cigarette smoking can increase your risk of dangerous

APP. 29

blood clots, both because of swelling and redness and by

causing blood platelets to clump together.

14. Smoking harms every phase of reproduction. Women who

smoke have more difficulty becoming pregnant and have a

higher risk of never becoming pregnant. Women who smoke

during pregnancy have a greater chance of complications,

premature birth, low birth weight infants, still birth, and infant

mortality. Low birth weight is a leading cause of infant deaths.

15. Women who smoke have more complications. One

complication is placenta previa, a condition where the placenta

(the organ that nourishes the baby) grows too close to the

opening of the womb. This condition frequently requires

delivery by Caesarean section. Pregnant women who smoke

are aiso more likely to have placental abruption. In this

condition, the placenta separates from the wall of the womb

earlier than it should. This can lead to preterm delivery, still

birth, and early infant death. Also at a higher risk that your

waier will break before labor begins.

16. Babies of mothers who smoke have lower birth weights,

often weighing less than 5.5 pounds. Low birth weight babies

are at a greater risk of childhood and adult illnesses and even

death. Nicotine causes the blood vessels to constrict in the

umbilical cord and womb. This decreases the amount of

oxygen to the unborn baby.

17. Babies exposed to secondhand smoke after birth have

double the risk of sudden infant death syndrome (SIDS).

Babies who mothers smoke before and after birth are three to

four times more likely to die from SIDS. .

18. Smokers are less healthy overall than nonsmokers.

Smoking harms your immune system and increases your risk

of infections. The toxic ingredients in cigarette smoke travel

throughout your body. For example, nicotine reaches your

APP. 30

brain within 10 seconds after you inhale smoke. It has been

found in every organ of t) = body, as well as in breast milk. If

you smoke, you cells will not get the amount of oxygen

needed to work properly. This is because carbon monoxide

keeps red blood cells from carrying a full load of oxygen.

Carcinogenic, or cancer-causing, poisons in tobacco smoke

bind to cells in your airways and throughout your body.

19. Smoking harms our whole body. It increases your risk of

fractures, dental diseases, sexual problems, eye discascs, and

peptic ulcers. Your illnesses last longer and you are more

likely to be absent from work. In a study of U.S. military

personnel, those who smoked were hospitalized 28 percent to

55 percent longer than nonsmokers.

20. Cigarette smoking is the leading cause of preventable

disease and death in the United States, causing 12 million

deaths since the First Surgeon General’s Report on smoking in

1964. The 2004 Surgeon General’s Report is attached as

Exhibit A.