http://www.tobacco.org/newsfeed/category/courtdocuments.rss Latest top tobacco news headlines en-us http://www.malawyersweekly.com/signup/opinion.cfm?page=ma/opin/sup/1010108.htm http://tobacco.org/news/265323.html CORDY, J. The Commissioner of Revenue (commissioner) appeals from an Appellate Tax Board (board) decision vacating the suspension of a retailer's license to sell cigarettes and declaring the "Fair Pricing of Cigarettes" regulation, 830 Code Mass. Regs. § 64C.14.1 (1993) (§ 64C.14.1), "invalid on its face as inconsistent with the provisions of G. L. c. 64C and the decision of the Supreme Judicial Court in Commissioner of Corps. & Taxation v. Ryan, 323 Mass. 154 (1948)." We affirm the board's decision vacating the retailer's suspension, albeit on different grounds. We also conclude that the board did not have the authority to declare the regulation in question invalid. . . . 3. Conclusion. The board's ruling that § 64C.14.1, in its entirety, was invalid on its face and of no legal effect, is vacated. Further, although we conclude that the presumptive pricing framework set forth in the regulation, § 64C.14.1(1)-(4), (7)-(11), is rationally related to the enforcement of G. L. c. 64C, §§ 12-21, a licensed retailer like Duarte must be afforded an opportunity to demonstrate that he has sold cigarettes "at a price made in good faith to meet the prices of a competitor," G. L. c. 64C, § 16, before his license can be suspended. To the extent that the hearing regulation set forth in § 64C.14.1(5) and (6), foreclosed Duarte's opportunity to make such a showing, they are inconsistent with the statute and due process. Finally, the board's determination that Duarte set his prices in a good faith effort to meet the prices charged by competitors and that his license should therefore not be suspended is supported by substantial evidence and is affirmed. Massachusetts Lawyers Weekly SJCReporter@sjc.state.ma.us Wed, 14 May 2008 04:00:00 GMT https://ecf.njd.uscourts.gov/cgi-bin/DktRpt.pl?772612336655342-L_567_0-1 http://tobacco.org/news/265076.html 05/07/2008 74 OPINION. Signed by Judge Joseph A. Greenaway, Jr. on 5/6/08. (dc, ) (Entered: 05/07/2008) 05/07/2008 75 ORDER granting 56 Motion to Dismiss; granting 58 Motion to Dismiss; granting 61 Motion to Dismiss; granting 62 Motion to Dismiss; granting 63 Motion to Dismiss. Signed by Judge Joseph A. Greenaway, Jr. on 5/6/08. (dc, ) (Entered: 05/07/2008) U.S. Courts ECF Sun, 11 May 2008 04:00:00 GMT http://dockets.justia.com/docket/court-njdce/case_no-2:2007cv02162/case_id-202286/ http://tobacco.org/news/265075.html Filed: May 7, 2007 . . . May 10, 2007 3 Court Opinion or Order OPINION filed Signed by Judge Joseph A. Greenaway, Jr. on 5/7/07. (cs, ) Justia Thu, 10 May 2007 04:00:00 GMT https://ecf.njd.uscourts.gov/cgi-bin/qrySummary.pl?198673 http://tobacco.org/news/265073.html Date filed: 01/24/2007 Date terminated: 05/04/2007 Date of last filing: 06/29/2007 U.S. Courts ECF Fri, 29 Jun 2007 04:00:00 GMT http://www.ca5.uscourts.gov/opinions/unpub/07/07-40340.0.wpd.pdf http://tobacco.org/news/264523.html As set forth above, Murrell has presented evidence that creates a genuine issue of material fact as to whether the defendants violated his Eighth Amendment right to be free from cruel and unusual punishment. The defendants, therefore, are not entitled to qualified immunity. See Rochon, 122 F.3d at 320. The judgment for defendant Watts is AFFIRMED; judgment for the remainder of the defendant-appellees is REVERSED and REMANDED. US Court of Appeals for the Fifth Circuit Wed, 30 Apr 2008 04:00:00 GMT http://www.publications.ojd.state.or.us/S054378.htm http://tobacco.org/news/264444.html Our precedents control this issue, and the differing decisions from the other jurisdictions do not provide a basis for overruling Oregon's well-established negligence requirements. See G.L., 306 Or at 58-59 (declining to modify common-law precedent). Following our precedents, we hold that negligent conduct that results only in a significantly increased risk of future injury that requires medical monitoring does not give rise to a claim for negligence. The trial court correctly dismissed plaintiff's complaint for failure to state a negligence claim, and the Court of Appeals correctly affirmed the trial court's judgment. Oregon Judicial Department Thu, 01 May 2008 04:00:00 GMT http://www.courts.gov.bc.ca/Jdb-txt/SC/08/04/2008BCSC0419.htm http://tobacco.org/news/263281.html [89] As a result of Canada’s agreement to be bound by the Rules of Court, the Defendants will be entitled to seek document production under Rule 26 and witness testimony under Rules 28 and 38. They will also continue to have the right to make application under the federal Access to Information Act, R.S.C. 1985, c. A-1 to obtain Canada’s tobacco-related documents. [90] There is nothing in the Costs Recovery Act to suggest that Canada must be a party in order to allow the court to determine the extent of the Defendants’ liability. It is settled law that a trial judge may make an assessment of fault against a non-party in order to reduce the defendant’s proportionate liability. [91] Where a third party is immune by operation of law, all proceedings against it are precluded: Pearse v. Canpar Transport Ltd. et al., 2001 BCSC 594, 88 B.C.L.R. (3d) 312. [92] In B.C. Ferry, the Court of Appeal emphasized at pp. 129-130 that the third party in question had been properly joined, and that “a private accord between plaintiff and third party” should not entirely negate the joinder: It is important to keep in mind that the defendants had a perfect right to bring third party proceedings against the respondents, based on allegations of fault attributed to them in the Third Party Notices…. It would, in my view, by manifestly wrong if a private accord between plaintiff and third party could work to deprive a defendant of the ability to establish an element of proof essential to the just resolution of the action on which all parties had joined issue. …. In those circumstances, I am of the view that the third party claims for declaratory relief should be allowed to proceed. [93] The Court of Appeal made clear at p. 129 that such claims for declaratory relief for purely procedural advantage ought to be the exception rather than the rule: While I am of the view that the general rule against sanctioning actions brought for purely procedural relief will always be an important consideration governing the exercise of the court’s discretion to grant declaratory relief, I do not accept the proposition that it must be regarded as a controlling consideration in all cases. There will be instances, albeit rarely, where the declaratory relief should be granted notwithstanding the fact that it is needed only for such purpose. Conclusion [94] B.C. Ferry stands for the proposition that a third party which is properly part of an action at the time it is commenced may not, by settling its claim with the plaintiff, escape discovery under the Rules of Court if the result is significant prejudice to another, non-settling party. In the present case, Canada has been immune from liability from the time the action was commenced and, accordingly, was never a proper party in the litigation. [95] Further, Canada has agreed to submit to the Rules of Court which will permit the Defendants access to all of the procedures necessary to assist the court in determining their liability as distinct from the liability of Canada. VI. Summary [96] In summary, I have concluded that all of the third party claims issued by the Defendants against Canada, including the claim for procedural declaratory relief, must be struck. British Columbia Superior Courts Canada Mon, 14 Apr 2008 04:00:00 GMT http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=26467 http://tobacco.org/news/262312.html The City argues the Ordinance is not preempted by State law and is consistent with both the Constitution and the general law of the State. We agree. . . . To preempt an entire field, “an act must make manifest a legislative intent that no other enactment may touch upon the subject in any way.” . . . Furthermore, “for there to be a conflict between a state statute and a municipal ordinance ‘both must contain either express or implied conditions which are inconsistent or irreconcilable with each other…. If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand.’” . . . We find the trial court erred when it isolated a phrase from section 16-17-504 and interpreted it in such a way as to accomplish preemption under the Clean Indoor Air Act. . . . Merely because section 16-17-504 was added to the Code in the same piece of legislation which amended the Clean Indoor Air Act does not require that this section’s language about local laws be interpreted as part of the Clean Indoor Air Act. Accordingly, the trial court erred in deciding that Act 445 expressly preempts the Ordinance. . . . While the Ordinance in this case does make smoking in certain areas “unlawful” where the Clean Indoor Air Act does not, it is our opinion the Ordinance does not criminalize such behavior. Instead, the Ordinance states that a violation constitutes “an infraction.” . . . the plain language of the Ordinance is non-criminal in nature. . . . While the State has legislated restrictions on smoking in certain areas, a civil ordinance which adds areas does not in any way conflict with the State law. “Mere differences in detail do not render [statutes] conflicting. If either is silent where the other speaks, there can be no conflict between them. Where no conflict exists, both laws stand.” South Carolina Judicial Department Mon, 31 Mar 2008 04:00:00 GMT http://www.ca5.uscourts.gov/opinions%5Cpub%5C07/07-50441-CV0.wpd.pdf http://tobacco.org/news/262277.html Plaintiffs are owners of stand-alone bars in Austin, Texas. They filed this action against the City of Austin seeking a declaratory judgment and injunctive relief relating to the enforcement of Austin’s ordinance prohibiting smoking in enclosed public places, including bars, restaurants, and workplaces. The district court declared the “necessary steps” provision of the ordinance unconstitutionally vague on its face and permanently enjoined the City of Austin from enforcing it. The City of Austin appeals the district court’s judgment and injunction, arguing that: (1) the case is nonjusticiable because plaintiffs lack standing and their claims are not ripe; (2) the “necessary steps” provision is not unconstitutionally vague; and (3) the district court abused its discretion in permanently enjoining the enforcement of the “necessary steps” provision. Some plaintiffs have also appealed the district court’s denial of their motion for attorneys’ fees. Plaintiffs’ appeal has been consolidated with the City of Austin’s appeal. We REVERSE that portion of the district court’s judgment declaring the “necessary steps” provision of the ordinance unconstitutionally vague, VACATE the provision of the permanent injunction enjoining enforcement of said provision, and otherwise AFFIRM the judgment. We also AFFIRM the district court’s denial of attorneys’ fees. US Court of Appeals for the Fifth Circuit Thu, 27 Mar 2008 04:00:00 GMT http://www.ca5.uscourts.gov/opinions/unpub/07/07-30153.0.wpd.pdf http://tobacco.org/news/262038.html Murrell has established that a genuine issue of material fact exists concerning whether the defendants were subjectively deliberately indifferent to his plight. Whitley v. Hunt, 158 F.3d 882 (5th Cir. 1998), abrogated on other grounds, Booth v. Churner, 532 U.S. 731 (2001); Rochon v. City of Angola, 122 F.3d 319, 320 (5th Cir. 1997). Murrell’s summary judgment evidence shows that the defendants knew that Murrell was allergic to environmental tobacco smoke (ETS) and that ETS caused him to have migraines and high blood pressure. Murrell specifically asked the defendants to enforce the no smoking policy. His evidence, particularly the sworn statements of two other inmates, indicates that prison officials essentially looked the other way when inmates smoked in their cells or in other no smoking areas. He also asked prison officials to house him with inmates who did not smoke and gave the officials the inmates’ names. The prison responded that it was not feasible to move him. Accordingly, the district court erred when it granted the defendants’ motion for summary judgment. . . . . the summary judgment evidence shows that a material issue of genuine fact exists regarding whether the defendants were deliberately indifferent. The district court’s dismissal of Murrell’s suit is VACATED, and the case is REMANDED for further proceedings. US Court of Appeals for the Fifth Circuit Tue, 25 Mar 2008 04:00:00 GMT http://www.courts.state.co.us/coa/opinion/2008/2008q1/06CA2260.pdf http://tobacco.org/news/261690.html Here, we need not decide whether the legislature reached the best solution in enacting the Smoking Ban. That is not the court’s role. We need only conclude that it was reasonable for the legislature to have determined that preventing involuntary exposure to tobacco smoke is achieved most effectively by banning all smoking in indoor locations, including theaters. We therefore conclude that, although the Smoking Ban is not the least restrictive means, it is narrowly tailored to achieve a legitimate state interest. For these reasons, we conclude that the Smoking Ban, as applied to the Theaters, does not violate their First Amendment right to freedom of expression. COLORADO COURT OF APPEALS Thu, 20 Mar 2008 04:00:00 GMT http://www.ucsf.edu/senate/townhallmeeting/dckessler-rico-uc.pdf http://tobacco.org/news/260549.html Finally, despite Defendants’ claims that they have materially altered their management and are now “new” companies, the evidence demonstrates that they have not changed their policies or personnel in any meaningful way. For example, Philip Morris’ current top executive staff is composed entirely of veteran employees with an average of fifteen to twenty years of company experience. The assertion that such longstanding, faithful employees will usher in dramatically new corporate policies seems reasonably unlikely. University of California at San Francisco Thu, 17 Aug 2006 04:00:00 GMT http://www.supremecourt.ne.gov/opinions/2008/february/feb22/s06-764.pdf http://tobacco.org/news/260244.html The pool halls include a bar and a delicatessen where “burgers and fries” are prepared. The buildings have 18-foot ceilings, and each building has six large “smoke eaters” to remove smoke. A warning sign posted on the front door of each pool hall states: “WARNING[:] ‘SMOKER FRIENDLY POOL HALL[.]’ The air in this building may be hazardous to your health[.] NON-SMOKERSE NTER AT AT [sic] YOUR OWN RISK [.] IT’S YOUR CHOICE[.] Cigarette Smoke Cleaned Electronically[.]” . . . Prout testified that he had made no attempt to comply with the Act’s requirements. In fact, he did not believe it would be possible to come into compliance by modifying the pool halls. However, Falter, the Department’s representative, testified that Big John’s could divide the Omaha building into smoking and nonsmoking areas and thereby comply with the Act. CONCLUSION We find no error on the record. The record shows that the district court’s affirmance of the Department’s denial of a waiver conformed to the law, was supported by competent evidence, and was not arbitrary, capricious, or unreasonable. The judgment of the district court is affirmed. Nebraska Administrative Office of the Courts Fri, 22 Feb 2008 05:00:00 GMT http://tobaccodocuments.org/pm_ex/about.php http://tobacco.org/news/260109.html This is a set of both the offered and accepted U.S. and Joint trial exhibits from U.S. v. PM. TDO: Tobacco Documents Online Thu, 21 Feb 2008 05:00:00 GMT http://www.supremecourtus.gov/opinions/07pdf/06-457.pdf http://tobacco.org/news/260091.html given Morales, where the Court held that federal law pre-empts state consumer-protectionlaws, we find that federal law must also pre-empt Maine’sefforts directly to regulate carrier services. For these reasons, the judgment of the Court of Appeals is affirmed. Supreme Court of the United States Wed, 20 Feb 2008 05:00:00 GMT