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Court orders new review on torture, allows tobacco lawsuits

The Supreme Court on Monday ordered the D.C. Circuit Court to reconsider a ruling rejecting claims of torture and religious bias against detainees at Guantanamo Bay, Cuba. The Circuit Court is to take into account the Justices’ June 12 ruling on detainees’ rights in Boumediene v. Bush (06-1195). The Circuit Court had issued its ruling in Rasul, et al., v. Myers, et al., on Jan. 11 — five months before the Boumediene ruling came down.  The Supreme Court, acting Monday in case 08-235,  vacated the lower court’s ruling and told it to look again at the claims of four Britons who formerly were held at the U.S. military prison at Guantanamo.

The Justices’ action has at least two immediate effects: it will allow the new administration of President-elect Barack Obama to take a position on the years-long controversy over torture, and it raises the prospect that detainees might gain some rights other than the basic right — recognized in Boumediene — to go to court to challenge their long-term captivity.  The Britons claimed that they have a constitutional right not to be tortured, relying on the Eighth Amendment ban on cruel and unusual punishment and on the “Due Process Clause,” and they contended that their rights to practice their religion under the Religious Freedom Restoration Act were violated at Guantanamo.

In a decision on the merits issued Monday (see here), the only one of the day, the Court cleared the way for smokers to file lawsuits to challenge deceptive marketing of cigarettes as “light” and “low in tar and nicotine.”  The Court ruled that such lawsuits are not barred by federal law or the actions of the Federal Trade Commission. The 5-4 ruling, with Justice John Paul Stevens writing for the majority, was announced in his absence by Justice Anthony M. Kennedy, who was also in the majority. The case is Altria Group Inc., et al., v. Good, et al. (07-562).

In an order issued without explanation, the Court — for the fifth time in recent weeks — refused to hear a challenge to Barack Obama’s election to the presidency based on theories that he is not a “natural-born citizen.”  The new order came without any indication of dissent in Wrotnowski v. Bysiewicz (application 08A469), a Connecticut case.

The Court’s ruling in the tobacco case does not necessarily mean that the three Maine citizens who filed the lawsuit — or the class of smokers they represent — will ultimately win their claim that Philip Morris USA ,Inc., and its parent, Altria Group, violated Maine’s deceptive practices law. It does mean, though, that the cases may move forward in federal court because the Court has now concluded that they are not “preempted” by federal law or regulatory action.

The decision upheld a ruling of the First Circuit Court, which concluded that the lawsuit was not based on claims of the health hazards of smoking, but rather on the duty under Maine law not to deceive consumers who had bought Philip Morris’s Marlboro Lights or Cambridge Lights.

Justice Stevens, in Monday’s majority opinion, said that the claims in the case have nothing to do with smoking and health — the issues that are covered by a federal law passed in 1969 governing the labeling and marketing of cigarettes.  Besides rejecting the tobacco company’s argument that the fraud claims at issue were expressly preempted by federal law, the Court rejected a separate, alternative claim that those claims were preempted by implication, based on the theory that the FTC had encouraged consumers to rely on test results of lower tar and nicotine in choosing a brand to smoke.  The Court said that the FTC has never required the tobacco industry to disclose tar and nicotine yields from the test, and has not condoned depictions of those results by using the word “light” or the phrase “low tar and nioctine” in marketing and advertising.

Bersides Justice Kennedy, joining Stevens’ opinion were Justices Stephen G. Breyer, Ruth Bader Ginsburg and David H. Souter.  Justice Clarence Thomas wrote for the dissenters, joined by Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Antonin Scalia.

The main thrust of the dissent was that the majority had taken a ruling by less than a majority of the Court in 1992 — Cipollone v. Liggett Group — and turned it into “governing law.”

Among the issues the Court opted not to review were these:

** Whether the Pentagon should be ordered to release all of the documents in which private outsiders had given it advice on the creation of military commissions to try war crimes charges for those suspected of terrorism.  The D.C. Circuit Court ruled that the advice was protected from disclosure under the Freedom of Information Act. (National Institute for Military Justice v. Defense Department, 08-125)..

** Whether the operators of a plutonium-production plant in Hanford, Wash., making materials for use in atomic bombs as part of the “Manhattan Project,” are entitled to legal defenses against damage lawsuits by individuals claiming they were harmed by radioactive releases from the facility.  The Ninth Circuit rejected three legal defenses the operating companies had asserted to try to head off the lawsuits. (DuPont Co., et al., v. Stanton, et al., 08-210).

** Whether an individual who wins a civil rights case has a right under federal law to recover attorneys’ fees from someone else who shared that victory.  The Eleventh Circuit Court upheld such an award against the state of Alabama in a case involving a court-imposed requirement for racial preferences in state employment actions.  The state ultimately took the same side as a white worker who had lost a promotion because of the preference system; still, lower courts awarded that worker $105,000 in fees from the state on the theory that he was a “prevailing party.”  (Alabama, et al., v. Pope, 08-345).

** Whether the city of Philadelphia owes back pay for overtime to paramedics who do not regularly fight fire.  The Third Circuit Court ruled that the paramedics were not exempted from the overtime pay required under federal law.  (Philadelphia v. Lawrence, et al., 08-388).

** Whether the Court would revive a libel lawsuit against The New York Times by a former bioweapons chemist, Stephen J. Hatfill, once investigation by federal authorities over a possible role in the anthrax-spreading episode in late 2001.  The Fourth Circuit Court upheld summary judgment for The Times. (Hatfill v. New York Times, 08-483).

** Whether a January 2007 decision, Cunningham v. California, striking down a criminal sentencing plan in that state, applied to federal cases decided before that date, thus wiping out an array of criminal sentences in California and other western states. The Ninth Circuit Court ruled Cunningham did apply in federal habeas cases before the date of that ruling. (Curry v. Butler, 08-517).