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The legality of the Juneau smoking ordinance is less hazy after Superior Court Judge Philip Pallenberg shot down a private association's assertion that it was not subject to the city smoking ban.
In its lawsuit, the Fraternal Order of Eagles claimed that the ordinance infringed on its freedom of association under the United States and Alaska constitutions, its right to privacy and claimed illegal "intrusion" by the Juneau Police Department into its private establishment in the Mendenhall Valley to enforce the ordinance. The Eagles are the only group to have challenged the ordinance in court. . . .
The 19-page decision was filed Oct. 14. Pallenberg wrote in the summary judgment that other courts have uniformly rejected claims that smoking ordinances infringe on the freedom of association under the U.S. Constitution's First Amendment.
"One could not seriously argue that application of other penal laws, such as the laws against drug possession, theft, sexual contact with minors, or prostitution, to the conduct of members within the confines of a private club infringes upon the members' freedom of association," Pallenberg wrote. "All such laws regulate the actions of the members, not their choice of the people with whom they associate. In terms of its impact on freedom of association, regulation of smoking as an activity is not different in kind from regulation of these other activities."
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Results. Cancer in general is increasing among Inuit, in all regions, and among both men and women. Inuit continue to be at extreme high risk, relative to non-Inuit and to comparisons of global populations, for the historically recognized so-called traditional cancers (such as cancer of the nasopharynx and salivary glands). Among the so-called modern cancers prevalent in developed societies, lung cancer is rapidly increasing in incidence (especially in Canada), such that the rate in both Inuit men and women is the highest in the world; other cancers, such as colorectal cancer, are also on the rise (especially in Alaska), while breast and prostate cancer remain low relative to the non-Inuit population. The decline in cervical cancer is a positive development; in the 3 regions, the rate in Greenland is the highest.
Conclusions. Data such as these can form the basis of interventions directed towards known risk factors such as smoking, diet, obesity, viral and bacterial infections, and low screening prevalence. Cancer surveillance is a basic task of the public health system; in the Arctic, it is particularly important as Inuit continue to undergo further changes in their life-styles and social environments.
Objectives. This is first of 2 papers on the Circumpolar Inuit Cancer Review, an international collaborative effort involving researchers and health officials from Alaska, Canada and Greenland. It covers the period 1989-2003, updating the last review (1969-1988) and together provides an overview of the trends and patterns of cancer among the Inuit in 3 countries and over a 35-year period.
Methods. Inuit cancer cases by age-sex group and anatomic site were obtained from the regional cancer registries. The sources of the age-sex distribution of various Inuit populations include the population registry (Greenland), and annual estimates and periodic censuses (Alaska and Canada). Incidence rates were age- standardization by the direct method to the standard world population of the International Agency for Research on Cancer.
Conclusions. This project demonstrates the feasibility of international partnerships in cancer surveillance, and when these partnerships are extended to other diseases and health conditions, they can contribute to the development of a Circumpolar Health Observatory.
Beginning Jan. 1, the tax on cigarettes will increase to $1 a pack from 30 cents. Other tobacco products will see an increase to 45 percent from 12 percent, following voters' overwhelming passage of Proposition 2 in Tuesday's municipal elections.
"I think we had a lot of smokers who voted for it. A majority of smokers want to quit. A majority of smokers don't want to smoke at any price," said Matt Felix, director of Juneau's office of the National Council on Alcohol and Drug Dependence. . . .
The unofficial vote tally was 3,366 to 2,156.
Felix's agency was the impetus for the tax hike. In July, it asked the Juneau Assembly to raise taxes on cigarettes and tobacco products to bring the city in line with tobacco taxes elsewhere in the state. The hike is expected to make a particularly acute impact on youth smokers and potential youth smokers, which voter Tom Rutecki said got him behind the tax bump.
A U.S. appeals court on Monday reinstated an Alaska lawsuit against Altria Group Inc's (MO.N) Philip Morris USA by the survivor of a deceased smoker, saying her state product liability claims were not preempted by federal law and should have been tried in state court.
Altria and Philip Morris had argued the state claims could not go forward against them and Alaska Commercial Co, a local retailer, because a victory for plaintiffs Dolores Hunter and the estate of Benjamin G. Francis could result in a ban of cigarette sales in the state.
Francis, a native Alaskan, died at 52 of lung cancer in December of 2004, leaving a 10-year-old son and Hunter, his common law wife, his attorney Don Bauermeister said. Hunter was appointed the personal representative of his estate by a state court.
A lower court agreed the state claims were barred by "congressional intent not to ban the sale of cigarettes" and dismissed the case due to Hunter's failure to bring a claim under federal law, the opinion by the Ninth U.S. Circuit Court of Appeals said.
A federal appeals court ruled Monday that a wrongful death lawsuit against Philip Morris USA, its parent company Altria Group Inc. and an Alaska retailer that sells cigarettes belongs in state court, vacating a lower court's September 2007 dismissal.
The U.S. Court of Appeals for the Ninth Circuit's decision paves the way for the case to be reopened in a Bethel, Alaska, court.
"While disappointed with today's ruling, it is important to note that the decision addressed only where the case should be tried and does not address the merits of the plaintiff's claim," Altria Group spokesman Jack Marshall said Monday. "We will defend the case vigorously in state court."
A U.S. appeals court on Monday reinstated an Alaska lawsuit against Altria Group Inc's Philip Morris USA by the survivor of a deceased smoker, saying her state product liability claims were not preempted by federal law and should have been tried in state court.
Altria and Philip Morris had argued that the state claims could not go forward against Alaska Commercial Co, a local retailer, because a victory for plaintiffs Dolores Hunter and the estate of Benjamin G. Francis could result in a ban of cigarette sales in the state.
Francis died at 52 of lung cancer in December of 2004. Hunter was his common law wife and was appointed the personal representative of his estate by a state court.
The Ninth Circuit Court of Appeals reinstated a wrongful death suit against Philip Morris and Altria.
Delores Hunter brought the suit on behalf of her common law husband, Benjamin Francis, who died from lung cancer in 2004 at age 52. . . .
HUNTER v. PHILIP MORRIS USA
DOLORES HUNTER; ESTATE OF BENJAMIN G. FRANCIS, Plaintiffs-Appellants,
v.
PHILIP MORRIS USA; ALTRIA GROUP, INC.; THE ALASKA COMMERCIAL COMPANY, Defendants-Appellees.
No. 07-35916. . . .
[14] For the foregoing reasons, the judgment of the district court is vacated and the case is remanded with instructions that the case be remanded to state court.
VACATED and REMANDED with instructions.
The question of the preemption of state law by federal tobacco legislation has been addressed numerous times. Today, we address the preemption issue in the context of the doctrine of fraudulent joinder, which is invoked to achieve diversity jurisdiction. We hold that the district court erroneously allowed the defendants-appellees to achieve diversity jurisdiction by its incorrect finding that the plaintiffs-appellants’ state law claims were preempted and constituted fraudulent joinder. Because the district court should have remanded the action to state court, we vacate the judgment and remand with instructions to remand the action to state court. . . .
In sum, the Altria defendants have failed to overcome the presumption against removal because Hunter’s complaint does not indicate that she has obviously failed to state a claim against ACC. Accordingly, the district court erred in concluding that ACC was fraudulently joined. The Altria defendants further have failed to establish a clear conflict between Hunter’s claim and federal law. Implied preemption therefore does not apply. Because ACC was not fraudulently joined, there was no complete diversity of citizenship, and the case should have been remanded to the state court. Appellants shall recover their costs on appeal from Appellees.
9th Circuit reinstated an Alaska widow's lawsuit against Altria Group's Philip Morris USA on behalf of her smoker-husband who died of lung cancer because her state product liability claims were not preempted by federal law.
Dolores Hunter sued on behalf of her deceased common-law husband, Benjamin Francis, but Altria and Philip Morris argued that the state claims against them and retailer Alaska Commercial could not go forward because a victory would result in the ban of sales of cigarettes in Alaska. . . .
the circuit found that Altria, failed to show a "clear conflict between Hunter's claim and federal law," and that U.S. laws "do not provide strong evidence of a federal policy against more stringent state regulation."
The three-judge panel in Anchorage sent the lawsuit back to the Alaska state court.
Smokers in this stormy city in the Aleutian Islands are trying to get the City Council to reverse its ban on lighting up in bars.
At least 300 people in the community of 3,500 have signed a petition asking the council to allow smoking in bars or let voters reconsider the issue, said Jessica Culp, who is organizing the petition.
"It's a community issue, and it should have been decided on by the community," she told the Dutch Harbor Fisherman newspaper.
Bartender Julie Schacht said the council should provide shelters outside businesses to protect smokers from Unalaska's weather.
Voters will be asked to decide in October whether or not to raise taxes on cigarettes and tobacco products.
The Juneau Assembly voted unanimously to put a proposition on the Oct. 6 general election ballot to raise city taxes on cigarettes from 30 cents a pack to $1, and taxes on all other tobacco products from 12 percent to 45 percent.
The National Council on Alcohol and Drug Dependence-Juneau asked the committee in July to raise taxes on cigarettes and tobacco so Juneau would be closer in line with the rest of the state.
The organization also said the increased cost of tobacco products would help prevent youth from using them.
One of Alaska's largest and most notorious fishing ports has gone smoke-free. Unalaska, also known as Dutch Harbor, now has a ban on smoking in all public buildings, including businesses, restaurants, and bars.
Joe Camel is expected once again to be in the spotlight during tonight's Kenai City Council meeting when a public hearing is scheduled on an ordinance designed to put a little muscle in the city's cigarette smoking regulations.
Smoking is already prohibited in Kenai restaurants and bowling alleys, and the new ordinance would extend the ban to health care facilities, other businesses that choose to be non-smoking and at outdoor events that clearly mark event areas as "no smoking" areas.
The change also would establish a "minimum reasonable distance" of 20 feet from doors, windows and ventilation systems where smoking would not be allowed in order to ensure smoke does not enter enclosed areas where smoking is prohibited.
Case Number:
07-35916
Case Panel:
NELSON, TASHIMA, FISHER
Hearing Location:
Anchorage, AK
Hearing Date:
08/04/2008