|EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
PETITION FOR RECONSIDERATION
|Leroy J. Pletten||
|Appellant,||Docket No. 01 A2 2322||
|v.||DA Docket No.: BEAEFO0108BO150||
|Thomas E. White,||Reconsideration No.: 05A30273||
|Secretary, Department of the Army,||Assoc. No. 01a22322
|Agency.||26 November 2002 Filed 3 Dec 2002||
|/s/Leroy J. Pletten
|8401 18 Mile Road #29
|Sterling Heights, MI 48313-3042
TABLE OF CONTENTS
|Statement of Facts||1
|1. Rules Are To Be Obeyed||3
|2. Note the Agency's "Stalingrad-Type" Defense||3
|3. Due Process Is An "Absolute" Right||4
|4. The "Right to Work" Is Being Ignored||4
|5. The Agency Began The Situation With Extortion||5
|6. Discovery of New Evidence||7
|7. Even Slaves Were Entitled To Due Process||7
|8. No Qualification Requirement Was Involved/Cited/Published||8
|9. Note the Jurisdictional Point of Law||10
|10. The Agency Decision Made No Subordinate Findings of Fact||11
|11. Assuming Arguendo Failure to Have Alleged Current Injury,||
|Please Note Agency Responsibility||12
| 1. Abortion Data||15
| 2. Alcoholism Data||19
| 3. Drug Data||22
| 4. Pure Air Precedents Underlying 32 CFR 203, AR 1-8, and USACARA Report||26
| 5. Ease of Enforcement Data||41
| 6. Affidavit||42|
|EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
BRIEF IN SUPPORT OF PETITION FOR RECONSIDERATION
|Leroy J. Pletten||
|Appellant,||Docket No. 01 A2 2322||
|v.||DA Docket No.: BEAEFO0108BO150||
|Thomas E. White,||Reconsideration No.: 05A30273||
|Secretary, Department of the Army,||Assoc. No. 01a22322
|Agency.||26 November 2002||
STATEMENT OF FACTS
32 CFR 203 (1977) and AR 1-8 (1977) came as a shock to Pentagon types used to hard drinking, being pro-abortion, aiding and abetting drug smuggling, and defying the right to pure air. As EEOC noted, Docket 03810087 (8 April 1983), p 5, the agency's "own regulations [32 CFR 203 and AR 1-8] permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others" (the standard pure air rights concept [Encl 4]). And there's much more, the tobacco link to, e.g., abortion (Encl 1), alcoholism (Encl 2), drugs (Encl. 3).
Yes, drug smuggling, aided and abetted at the highest military levels. See Jonathan
Kwitny, The Crimes of Patriots: A True Tale of Dope, Dirty Money, and the CIA (New York: W. W. Norton, 1987) (this Wall Street Journal investigative reporter--and biographer of Pope John Paul II--gives examples of military smuggling drugs into the U.S. and taking action against honest government agents trying to halt the smuggling. Military brass would transfer or order into combat, honest personnel working to expose the illegality. This case arises from that pervasive attitude among military brass; drug smuggling good, exposure/dealing with entry drug, bad.
And on abortion. "As early as 1902 Ballantyne had found an increase in the abortion rate
in French and Austrian women working in tobacco factories." Beulah R. Bewley, "Smoking in
Pregnancy," 288 Brit Med J (#6415) 424-426 (11 Feb 1984). About "fifty-three per cent. of . . . abortions . . . are due to tobacco. . . . inhalation of [second- hand] tobacco smoke by pregnant mothers when sitting among smokers is sufficient to cause fatal poisoning of the fetus." Herbert H. Tidswell, M.D., The Tobacco Habit: Its History and Pathology (London: J. & A. Churchill, 1912), p 238. Wherefore, says Dr. Tidswell, tobacco, including second-hand smoke, has a record of significantly leading to abortion, p 184, terminating about 1/7 of live-births, p 177.
"The smoking mother is . . . 80 percent more likely than the nonsmoker to have a
spontaneous abortion." Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 162.
Re drugs: "The first step toward addiction may be as innocent as a boy's puff on a
cigarette in an alleyway," said the U.S. Supreme Court in
Robinson v California, 370 US 660, 670; 82 S Ct 1417; 8 L Ed 2d 758 (25 June 1962). The government already long knew that "all" drug addicts are smokers, say Commissioner of Narcotics Harry J. Anslinger and U.S. Attorney William F. Tompkins, The Traffic in Narcotics (New York: Funk & Wagnalls, 1953), p 196.
"When we take a thorough drug history, we are forced to admit that nicotine--not alcohol or cannabis--is the drug of entry for most young people."--Emanuel Peluso and Lucy Silvay Peluso, "The Challenge of Treating Teenagers," 9 Alcoholism &p Addiction (#2) 21 (Dec 1988). And drugs, with tobacco as the starter drug, the entry point, lead to the money trail to terrorism. See Rachel Ehrenfeld, Ph.D., Director, NYC Center for the Study of Corruption & the Rule of Law, Narco-Terrorism (NY: Basic Books, 1990) and Evil Money (NY: HarperCollins, 1992).
Along come the rules, 32 CFR 203 and AR 1-8, to break up the underpinnings of abortion, alcoholism, drugs, and other matters related to tobacco. (Those rules should be read in conjunction with Michigan's cigarette law, MCL §750.27, MSA § 28.216, which bans manufacture and sale of deleterious and adulterated cigarettes, the only kind there are!) Said rules were "designed to disrupt" nonconforming practice, as per the concept of rules' purpose cited in U. S. v City of Los Angeles, 595 F2d 1386, 1391 (CA 9, 1979). "What ought to be done is fixed by a standard . . . whether it usually is complied with or not." Texas & Pac Ry v Behymer, 189 US 468, 470; 23 S Ct 622, 623; 47 L Ed 903 (1903).
At TACOM, management brass in combination with the legal office, determined to defy
the rules. They would simply fire anyone trained to push for enforcement. Public safety,
preventing alcoholism, being 'pro-life' on abortion, fighting terrorism at the drug-use entry, American lives at stake, none of that mattered. What counted to TACOM management and attorney personnel, was fighting, defying, the rules and laws.
In this hostile environment, I raised the issue of 'let's start compliance.' My personnel file shows I am an excellent employee, with multiple recognitions, attendance, and performance recognitions and awards. EEOC has already verified, I won an investigation, the USACARA Report (25 Jan 1980). Note EEOC reference (Docket Nos. 01800273 et al, 23 Feb 1982, p 2), to TACOM defying what I'd won (and cutting me off from review thereafter).
EEOC has further noted, Docket 03810087 (8 April 1983), p 5, the agency's "own regulations [32 CFR 203 and AR 1-8] permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others." With tobacco linked to alcoholism, abortion, drug abuse and thus the money trail to terrorism, all of this is discomforting, annoying, even fatal to many Americans, as the nation sadly, especially, felt 9-11-2001.
TACOM fired me without notice, without stating any misconduct or performance deficiency, thus violating 5
USC 7513(b) notice requirement. Nor notice of all review rights.
1. RULES ARE TO BE OBEYED.
Rules are not to be made a mockery of, by pretense that enforcement is too difficult! A constitution, or regulation, is not satisfied with half-way measures and does not prefer dissimulation to straightforwardness. Duties and requirements may not be avoided on ground that it might be a lot of work to comply. Alan v County of Wayne (1972) 388 Mich 210, 200 NW2d 628, 67 ALR3d 1079, adhered to (1972) 388 Mich 626, 202 NW2d 277. In fact, controlling smoking is easy (Encl 5), as citations from multiple sources show, as TACOM knew all along:
Here, EEOC noted (Docket 03810087) on 8 April 1983, p 5, the agency's "own
regulations permitted smoking only to the extent that it did not cause discomfort or unreasonable annoyance to others" (the standard pure air rights concept). There is no issue of trying to get a rule established. Enforcement will be "easily" achieved if only the rule would be "recognized" that
it exists. As in Schnadig, supra, p 4189, "The Company expects the employees to live within the restriction." That is what TACOM refused to do, pretending it couldn't comply, a lot of work!
Compliance is what it would be ordered to do, if ever review begins. Then investigator, like USACARA, will again tell TACOM to admit that AR 1-8/32 CFR 205 exist (i.e., to "recognize" them). Wherefore, I again request to be treated same as others, allowed EEOC review, investigation, hearing. And that this situation be treated as per EEOC instructions issued in EEOC Request No. 05820275 (4 March 1983).
Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with prior EEOC decisions, is a clearly erroneous interpretation of material fact or law. Inconsistency needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984).
2. NOTE THE AGENCY 'STALINGRAD-TYPE' DEFENSE.
Note a similar case decided since the 23 Oct 2002 EEOC decision, the Reilly case. "This was a case that did not have to be. The record in this case covers more than five years of activity, from filing to decision after trial . . . Two Reports and Recommendations were issued by a magistrate judge, each attesting to the seriousness of the allegations of the complaint. . . . Early on in the case, had Grayson, Daniels, or Cross, or better yet, one of their lawyers, taken a moment to reflect on what was going on, and simply taken steps to transfer Reilly out of Parnell (or at least given him the clear opportunity to reject a transfer), the result likely would have been much different. Instead, Grayson, Daniels, and Cross, or perhaps their lawyers, were determined to mount a Stalingrad-like defense, ignoring the allegation of the complaint, as well as the view of the magistrate judge. In contrast, Bolden, when alerted to issues in the case, immediately saw what needed to be done to resolve Reilly's situation and ordered him transferred out of Parnell." Reilly v Grayson, 157 F Supp 2d 762  (ED MI, 2001) affirmed, Case Nos. 01-1993/2189; 2002 FED App 0397P;  F3d  (CA 6, 18 Nov 2002).
This parallels what TACOM did, and is doing, to me. It refused to obey the rules. Said it 'can't.' Then it defied the 25 Jan 1980 USACARA Report, which told TACOM it 'can.' TACOM defiance continued, still tirading 'can't.'
TACOM fired me without notice, without stating a misconduct or performance deficiency. This violates 5 USC 7513(b) notice requirement. And TACOM did not notify me of my right to EEOC review (as per 29 C.F.R. 1613.403). When I asked for EEOC review anyway, TACOM refused to process my every such request. EEOC has already verified that. See EEOC Docket Nos. 01800273 et al (23 Feb 1982), p 3, on TACOM refusing me review. This refusal is still continuing. The 23 Oct 2002 EEOC [decision] is inconsistent with the 23 Feb 1982 EEOC decision, and is clearly erroneous in not saying the lack of notice, and how it arrived at such a contrary decision.
3. DUE PROCESS IS AN "ABSOLUTE" RIGHT.
TACOM continues refusing me due process even though due process is an "absolute" constitutional right, Carey v Piphus, 545 F2d 30 (CA 7, Ill, 1977) rev'd and remanded 435 US 247; 98 S Ct 1042; 55 L Ed 2d 252 (1978) (damages award as procedural due process is an "absolute" constitutional right). This refusal has a continuing injurious effect.
Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, and ignoring the lack of due process, is a clearly erroneous interpretation of material fact or law.
4. THE 'RIGHT TO WORK' IS BEING IGNORED.
TACOM's duty was, and is, to protect the right to remain at work in safe conditions, as
OSHA and 5 USC § 7902 provide; and as detailed by Prof. Alfred Blumrosen, et al, "Injunctions Against Occupational Hazards: The Right to Work Under Safe Conditions," 64 Califronia Law Rev. (#3) 702 at 707 (May 1976). The even more basic right to work (at all) has been recognized in cases such as Yick Wo v Hopkins, 118 US 356 (1886), and Truax v. Raich, 239 US 33 (1915).
The Federal Personnel Manual recognizes the same concept. See FPM Suppl. 752-1. S5-4c(l)(e), "in view of the objective of keeping the employee in an active duty status in his regular position whenever practicable, it is good practice for an agency to use the alternative which most nearly approximates active status or otherwise causes the employee the least possible loss." The installation ignores that rule, and refuses to even cooperate in efforts to eliminate the hazard, an resolve the overall situation. The duty is especially clear considering the "irreparable injury" that the installation is presently causing-career destruction, family destruction, loss of home with bankruptcy pending, etc. Present injury should be obvious on a 22 year firing: no pay check for 22 years! No benefits, all lost, as per Col. Benacquista's extortion as per legal office aiding and abetting in the felony.
TACOM was refusing to provide reasonably safe conditions; it was refusing to provide "an environment reasonably free of contamination . . . to . . . not endanger life or property, cause discomfort or unreasonable annoyance to nonsmokers, or infringe upon their rights" (AR 1-8 language, as per 32 CFR 203).
|Ed. Note: Job discrimination is "one of the most deplorable forms of discrimination known to our society, for it deals not with just an individual's sharing in the 'outer benefits' of being an American citizen, but rather the ability to provide decently for one's family in a job or profession for which he qualifies or chooses.' Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 891," says Rowe v General Motors Corp, 457 F2d 348, 354 (CA 5, 1972).|
The safety duty law 29 USC §§ 651 - 678, is "unqualified and absolute," Nat'l Realty & C. Co. v. OSHRC, 489 F2d 1257 (1973). "A workplace cannot be just 'reasonably free' of a hazard." To TACOM, the safety duty is "unreasonable," hence an "undue hardship." (The claim is false, as without "business necessity," there can be no "undue hardship.") Even if "unreasonable" as TACOM insisted, AR 1-8 (as per standard pure air principles, Encl 4) nevertheless forbids smoking when nonsmokers report "discomfort" or "unreasonable annoyance." The AR 1-8 synonym for the "unqualified and absolute" safety duty is clear. 5 USC § 7902 is stricter than the "unqualified and absolute" OSHA, if such be conceivable.
Compare FPM Suppl. 532-1, S8-7a. When the employer ignores the law, such is a prohibited personnel practice under 5 USC § 2302; no agency shall "grant any preference or advantage not authorized by law, rule, or regulation . . . ."
Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with
its prior decisions, and ignoring the right to work, is a clearly erroneous interpretation of material fact or law.
5. THE AGENCY BEGAN THE SITUATION WITH EXTORTION.
This case began with agency extortion. Recall 23 Feb 1982 EEOC Decision, Dockets 01.80.0273, et al., TACOM's superior, USACARA verified my position Jan 1980, whereupon TACOM ended my employment February 1980, as Ms. Darius now admits against interest.
Please bear in mind that I filed class action cases on behalf of fellow employees, due to the regulatory violations in process at TACOM, and made clear my intent to use the USACARA Report for me, to aid others. Filing reports of violation is an employee job duty, pursuant to Army Reg 685-10.3-5a. - b. Reaction: Col. John Benacquista admitted against interest his extortion:
"All" I had to do was to" lie, deny the extant hazardous conduct; I'd still be at TACOM. Same is extortion, in violation of Michigan law, MCL 750.213, and case law, People v Atcher, 65 Mich App 734; 238 NW2d 389 (1975).
Removals, suspensions, forced leaves, forced absences pre-disability retirement, all are banned by 5 USC §§ 7513.(b), and a long line of case law on point, including the recognition that such forbidden action is done ex parte. Such contacts are banned, Sullivan v Dept of Navy, 720 F2d 1266 (1983). In my case, there were several ex parte contacts, among
CS Benacquista - CG Decker;
OPM - PO Averhart;
PO Averhart - CPO Hoover;
CPO Hoover - DCG Stallings; and
IH Braun - AMC, for example. All these people were in the position to influence, impact, or otherwise impact action in my situation.
Actions without prior notice are banned, Woodall v FERC, 28 MSPR 192 (1985), Pittman v Army, 832 F2d 598 (1987). Agency violations of its own regulations are banned, Watson v Army, 162 F Supp 755 (1958); Piccone v U.S., 407 F2d 866, 871 (1969); Service v Dulles, 354 US 363 (1957).
|"All he [Pletten] had to do was to say, 'I agree that this is reasonably free of contaminants.'" (4/23/82 Dep. p. 62)."All" I "had to do was to" change anticipated testimony, or be put on enforced leave, fired, retired, have pay embezzled.|
When I refused to alter my anticipated testimony, refuse to cease seeking enforcement of the rules, and the 25 Jan 1980 USACARA Report, TACOM fired me.
Note the continuing injury to me, that the agency has decided to not be truthful and responsive to Congress, e.g., my Senator. This is new harm. It arises from the initial extortion. And constitutes continued TACOM obstruction of justice in my case. The offending correspondence at issue was, of course, relied on by the agency and Senator. The agency, pursuant to that offending correspondence, concluded to take the action of committing fraud on the Senator, thus on me, by giving the false, misleading, unlawful impression (in violation of 18 USC 1001 which requires proper disclosure); and thus to renew its decision to not allow me to have notice and review such as other people receive as a matter of routine.
Anyone with Army personnel office experience knows our policy is to treat a Senatorial or Congressional inquiry as an invitation to correct an error. We decide de novo to do so or not. That happened in my case, a de novo decision to not correct the error. The Senator relied on the agency letter, as per his staff aide David Allen so telling me. Thus a new current injury is clear.
Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, and not taking into account the extortion, one of the many unlawful aspects of the situation, is a clearly erroneous interpretation of material fact or law. The inconsistency with long-standing evidence and prior decisions needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984).
|"One cardinal principle must be borne in mind, that any element of illegality essential to a scheme or combination makes the whole illegal." Newton Co v Erickson, 70 Misc 291, 298; 126 NYS 949, 954 (6 Jan 1911).|
And "an act which, in itself, is merely a voluntary muscular contraction, derives all its character from the consequences which will follow it under the circumstances in which it was done. "When the acts consist of making a combination calculated to cause temporal damage, the power to punish such acts, when done maliciously, cannot be denied because they are to be followed and worked out by conduct which might have been lawful if not preceded by the acts. "No conduct has such an absolute privilege as to justify all possible schemes of which it may be a part. "The most innocent and constitutionally protected of acts or omissions [as terminations are normally] may be made a step in a criminal plot, and if it is a step in a plot, neither its innocence nor the Constitution is sufficient to prevent the punishment of the plot by law." Aiken v Wisconsin, 195 US 194, 205-206; 25 S Ct 3, 6; 49 L Ed 154, 159 (1904).
6. DISCOVERY OF NEW EVIDENCE.
In essence, the case of Reilly v Grayson, 157 F Supp 2d 762 (ED MI, 2001) affirmed, Case Nos. 01-1993/2189; 2002 FED App 0397P;  F3d  (CA 6, 18 Nov 2002), is a sharp parallel to my situation. As EEOC will recall, TACOM committed similar misconduct as there - a massive 'Stalingrad-like' campaign to refuse to enforce the rules, and to deny ability to do so.
Another parallel case is that of In re Julie Anne, Case No. 97-PR-755; ___ Ohio Misc 2d ___; 2002 Ohio 4489 (Court of Common Pleas of Ohio Juvenile Division, Lake County, Judge William Chinnock, 27 Aug 2002). There the court ordered smoke-free action sua sponte. Since Army rules (the AR 1-8) and the State cigarette law, MCL § 750.27, MSA § 28.216, are to be obeyed voluntarily, this is what TACOM should have done, enforce the rules, not do a 'Stalingrad-like' defense of refusing to do so. (Note that in violation of Michigan law, TACOM sells cigarettes on-base! The 23 Oct 2002 EEOC decision is an enabler, allowing this practice to continue unabated.)
TACOM committed massive fraud (on ability to deal with the situation, on my notice rights, etc.), as EEOC will recall, in the process of obstructing my right to notice, and review. This warrants reopening, if ever the case had been opened," Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238 (1944).
7. EVEN SLAVES WERE ENTITLED TO DUE PROCESS.
Due process includes the right to notice, and to reply, prior to decision. Even slaves had a right to proper notice of charges! Josephine, a slave v State of Mississippi, 39 Miss (10 Geo) 613, 647 (1860-1): The right to a properly drafted statement of charges is "a substantial right . . . and not a mere question of form or proceeding."
TACOM never issued me a "statement or citation of the written regulations . . . said to have been violated [and] a detailed statement of the facts,"
Boilermakers v Hardeman, 401 US 233, 245; 91 S Ct 609, 617; 28 L Ed 2d 10, 21 (1971).
To protect the public by protecting federal employees from unjust, discriminatory termination, Congress requires the agency to state why it wants to terminate the worker. It put this 30 days advance written notice requirement in 5 USC § 7513.(b). The notice must:
(a) comply with 5 CFR 752.404(f) by stating all reasons including ex parte contacts.
Sullivan v Navy, 720 F2d 1266, 1273-4 (Fed Cir 1983);
(b) say more than a conclusion, Mulligan v Andrews, 93 US App DC 375, 377; 211 F2d 28, 30 (1954);
(c) enable more than "general denials," Deak v Pace, 88 US App DC 50, 52; 185 F2d 997, 999 (1950);
(d) list witnesses and say "the names . . . places . . . dates" of alleged acts, Money v Anderson, 93 US App DC 130, 134; 208 F2d 34, 38 (1953). Examples include being:
(i) "lengthy and detailed," Baughman v Green, 97 US App DC 150; 229 F2d 331 (1956);
(ii) "numerous examples of specific errors," Long v Air Force, 683 F2d 301 (CA 9, 1982);
(iii) "item by item," Mandel v Nouse, 509 F2d 1031, 1032 (CA 6) cert den 422 US 1008; 95 S Ct 2630; 45 L Ed 2d 671 (1975).
Although the agency issues 30 days advance written notices pursuant to 5 USC § 7513.(b) to others, it did not do so for me. This difference shows discrimination, e.g., retaliation, as per the extortion cited above. The agency never claims under oath issuance of a notice; and knows under cross-examination, nobody will testify to one. And nobody will testify that at any time, it has ever notified me of any specifics. I have asked for specifics repeatedly, never received any.
I remain an employee as a matter of law--the status of a federal employee against whom termination is effected without 30 days advance written notice. Sullivan, 720 F2d 1274, supra. I look forward to returning to duty.
Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, mumerous federal court precedents, and disregarding the record of 22 years of my efforts to get review to begin, and the lack of due process which even slaves were entitled to, is a clearly erroneous interpretation of material fact or law. It sets an outlandish precedent that an agency can violate even the most basic of rights, and get away with it. The inconsistency needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984). Please do not enable agency practice, treating long-recognized-for excellence employees below slaves.
8. NO QUALIFICATION REQUIREMENT WAS INVOLVED/CITED/PUBLISHED
TACOM will likely say that [it] got rid of me over the "smoking" issue. But no qualification requirement for smoking is in my job description, showing by omission, violating standard civil rights BFOQ concepts. An alleged requirement that does not exist that is "not reasonably related to the duties of the position. McDonnell Douglas Corp v Green, 411 US 792; 93 S Ct 1817; 36 L Ed 2d 668 (1973)," cited in Hill v Nettleton, 455 F Supp 514, 519 (1978). In that case, a Ph.D. was not a job requirement, notwithstanding employer claim otherwise. In my case, there is nothing in any job description or BFOQ even mentioning presence of tobacco smoke in the air, much less as a job requirement, much less, as so essential that failure to meet it, overrides everything, including qualification waivers, my many performance awards, supervisory recognitions, pay increases, etc.
"Workmen are not employed to smoke," Maloney Tank Mfg Co v Mid-Continent Petroleum Corp, 49 F2d 146 (CA 10, 1931). There is "no necessity to fill the air with tobacco smoke in order to carry on defendant's business," Shimp v N J Bell Telephone Co, 145 NJ Super 516, 523; 368 A2d 408, 411 (1976).
Even if the agency were to claim that cigarette smoke is a BFOQ, and even if it were true (it is not), "the job requirements and qualifications had never been formally changed," Sabol v Snyder, 524 F2d 1009, 1011 (1975). TACOM fears letting an honest investigator or EEOC AJ "examine the position descriptions," look for "legitimate job requirements," Coleman v Darden, 595 F2d 533 (1979), Stalkfleet v U.S. Postal Service, 6 MSPB 536, 541 (1981). Tobacco smoke is not "in the requirements for any position," 5 USC §§ 2302(b)(6). No such requirement is published pursuant to law, a jurisdictional requirement by law, 5 USC §§ 552.(a)(1). This law is followed for others, not me.
Airborne tobacco smoke only arises from preferences in any case; preferences have no legal standing, Knotts v U.S., 128 Ct Cl 489; 121 F Supp 630 (1954), and Diaz v Pan Am Airways, Inc., 442 F2d 385 (1971) cert den 404 US 950 (1971).
Any claim, if TACOM were to make it, that tobacco smoke is a BFOQ "suffers from a
further inadequacy in that it failed to comply with 29 C.F.R. §§ 1607.5(b)(3), which requires that criteria used to predict job performance "must represent major or critical work behaviors as revealed by careful job analysis." Albemarle Paper Co v Moody, 422 US 405, 432 n 30; 95 S Ct 2362; 45 L Ed 280 (1975); U.S. v Chicago, 549 F2d 415, 431 (CA 7, 1970). At 432, "Job-relatedness can only be determined where the criteria for selection are clearly identified." No job analysis has occurred.
BFOQ's must be applied across the board, not just to one person (me, as TACOM had done, i.e., disparate treatment). BFOQ's must be stated in advance, not fabricated retroactively, i.e., must be pre-listed in hiring and medical forms, tests, be actually required for the job, checked for in background investigations, etc. The process is described in case law, e.g., U.S. v City of Chicago, 549 F2d 415, 429-434 (CA 7, 1977). TACOM knows that there are minimal medical requirements for personnel work, due to the nature of the job, and those few are on the "Health Qualification Placement Form." Mine were use of fingers, rapid mental and muscular coordination, near and far and color vision, hearing, clear speech, and mental and emotional stability. I meet them all. TACOM's own Dr. Francis Holt certified I met them, and never certified otherwise. EEOC review would reveal such facts in minutes.
In Michigan especially, smoking is not a BFOQ. Cigarettes are illegal in Michigan, illegal since 1909, pursuant to Michigan's law MCL 750.27, MSA 28.216 (which bans cigarettes in Michigan). Far from cigarette smoke being a BFOQ, it is illegal.
An EEOC AJ would see that suppressing smoker conduct, even if done "'brusquely,'" is legally valid, Diefenthal v C.A.B., 681 F2d 1039, 1042 (1982); Jacobs v Mich Mental Health Dept, 88 Mich App 503; 276 NW2d 627 (1979); Keyser Canning Co v Klots Throwing Co, 94 W Va 346; 118 SE 521 (1923). TACOM Regulation 190-4 bans drugs from being brought on-post (nicotine is a drug). There is no "requirement", no "BFOQ," for what is banned!
5 USC §§ 552.(a)(l)(C) - (D) makes the publication of a qualification requirement "jurisdictional," Hotch v U.S., 212 F2d 280 (1954); Bowen v City of New York, 476 US 467 (1986). EEOC can take official notice that no federal employee has ever, but me, been accused of having a "presence of tobacco smoke" qualification requirement. Actually, TACOM did not say it was a requirement, remember, there was no notice. TACOM just said afterwards that I fail to meet the requirement! Well, what is it? TACOM denies me the right to reply until it provides notice identifying what it is referring to.
Others have had actions taken against them canceled when there was no notice of a qualification requirement or other rule violation by them. Morton v Ruiz, 415 US 199, 231; 94 S Ct 1055, 1072; 39 L Ed 2d 270 (1974); Hotch v U.S., 212 F2d 280, 281 (CA 9, 1954); W. G. Cosby Transfer & Storage Corp v Dept of Army, 480 F2d 498, 503 (CA 4, 1973) (Army has a pattern of law violations); and Onweiler v U.S., 432 F Supp 1226, 1229 (D Idaho, 1977). The agency's not obeying the law for me, is part of the agency retaliation and disparate treatment against me. Others similarly situated are not so treated.
I repeatedly return to duty as per Bevan v N Y St T R System, 74 Misc 2d 443; 345 NYS 2d 921 (1973) (the case of an employee also falsely accused of not meeting a non-existent qualification requirement!). Please treat this reconsideration petition and brief as yet another return to duty on my part. Note that I continue as always to work fulltime, doing personnel and crime prevention duties, studying pertinent writings on the subject, prepping self for immediate actual return to duty.
The inconsistency of the 23 Oct 2002 EEOC decision with federal precedents needs explaining. needs explanation, Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984). Absent explanation, it is a clearly erroneous interpretation of material fact or law.
9. NOTE THE JURISDICTIONAL POINT OF LAW.
Re the "smoking" issue, no qualification requirement for smoking is in my job description, showing by omission, violating standard civil rights BFOQ concepts. TACOM could not persuade Michigan's Employment Security Commission (MESC), in its merits review! Granting me unemployment as fully qualified to work! - thus overruling TACOM.
EEOC is familiar with BFOQ matters, so [no] need to belabor you with that. But please make sure to note that 5 USC §§ 552.(a)(l)(C) - (D) makes same "jurisdictional," Hotch v U.S., 212 F2d 280 (CA 9, 1954); Bowen v City of New York, 476 US 467 (1986). This is significant, as the agency keeps claiming courts had jurisdiction! Not by the law and facts shown here, No.
Also, please take official notice that no federal employee has ever, but me, been accused of having a "presence of tobacco smoke" qualification requirement. Actually, TACOM did not say it was a requirement, remember, there was no notice. TACOM just said I fail to meet the requirement! Unspecified! Well, what is it? TACOM denies me the right to reply until it provides notice identifying what it is referring to.
There is no jurisdiction, by law, 5 USC §§ 552.(a)(l)(C) - (D), to act outside the rule of law, published law and regulation. The Office of Personnel Managment (Enclosure 2 with the original appeal), the Army itself, all deny that smoking is a "qualifications" matter, a "BFOQ" matter. They have published nothing making "smoking" a requirement, so Army in turn can not disqualify me for allegedly failing to meet a non-requirement.
10. THE AGENCY DECISION MADE NO SUBORDINATE FINDINGS OF FACT.
Agency decisions must make findings on all material issues; reasons must be clearly enunciated; each disregard of its own staff writings must be explained. In re United Corporation, 249 F2d 168 (CA 3, 1957). The agency did not. It offered nothing to rebut Ms. Darius' showing the decision to terminate my employment in February 1980. As you recall, EEOC's own Detroit Examiner, Henry Perez, Jr., had confirmed likewise, in his 9 April 1980 letter (Enclosure 1 with the original Appeal Brief), showing his awareness of the agency "decision to terminate" me.
The agency must let you know in the decision the basis for its conclusions; there is to be no speculation; even proper reasons are not to be implied; reject the improper processing (here no hearing nor investigation) due to the unfairness. Great Lakes Screw Corp v N. L. R. B., 409 F2d 375 (CA 7, 1969).
The absence of required findings requires reversal, even if there may allegedly or actually be evidence in the record to support proper findings. Anglo-Canadian Shipping Co, Ltd v Federal Maritime Commission, 310 F2d 606 (CA 9, 1962).
The Army is not allowed to put you, EEOC, the higher level agency, in the position of speculating as to the basis for the Army conclusion; you must know what it means first. Northeast Airlines, Inc v Civil Aeronautics Board, 331 F2d 579 (CA 1, 1964). Here, the agency's own assigned Counselor, Kathy Darius, has officially put in the Report, the end of employment data, as of February 1980 -- something the agency had denied until now!
Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with
its prior decisions, is a clearly erroneous interpretation of material fact or law. See Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v MSPB, 746 F2d 1454 (CA Fed, 1984). This is especially so, as EEOC is ignoring the letter by its own Henry Perez, Jr. That letter is particularly worthy of mention, as it is a document from the era, from an impartial source. The 23 Oct 2002 EEOC decision appears to have substituted its own "findings of fact" (allegations that I failed to provide data showing "current injury" for those lacking by the agency). Not only is this odd, it is inconsistent with the guidance of the precedents cited in this section.
11. ASSUMING ARGUENDO FAILURE TO HAVE ALLEGED
CURRENT INJURY, PLEASE NOTE AGENCY RESPONSIBILITY.
Recall that the agency did NOT allow the Counselor to even meet with me. The Counselor thus did not obtain my situation. Counselors have a responsibility to assist complainants in articulating their complaint. This is especially applicable here, where the agency is already documented by EEOC as not recognizing its own regulations, as not complying with its own 1980 USACARA Investigator's Report, as not allowing me review like others. But nonetheless, current injury was evident to the Counselor, though evidently not recorded specifically articulated.
Where the violations cited exist, injury is in law to be presumed; "irreparable injury should be presumed from the very fact that the statute has been violated." U.S. v Hayes Int'l Corp., 415 F2d 1038 (5th Cir. 1969). Here, the violation is of the numerous rules and laws cited herein, and the Army policy to correct errors upon Congressional or Senatorial inquiry.
The 23 Oct 2002 decision allows the agency to make a mockery of rules, laws, and agency policy, to say that their continuing or current violation is not present injury. Present injury is in law to be presumed; "irreparable injury should be presumed from the very fact that the statute has been violated." U.S. v Hayes Int'l Corp., 415 F2d 1038 (5th Cir. 1969). Here, the agency decided to, and did provide, information to the Senator contrary to my actual notice rights. And it decided to not correct the errors. And it decided that since it had fooled the Senator, by its deceptive, misleading, fraudulent approach, to continue the pattern.
Wherefore, under these circumstances, the 23 Oct 2002 EEOC decision, inconsistent with its prior decisions, is a clearly erroneous interpretation of material fact or law. See Garrett v F.C.C., 168 US App DC 266; 513 F2d 1056 (1975); Marco Sales Co v F.T.C., 453 F2d 1, 7 (CA 2, 1971); Yorkshire v. MSPB, 746 F2d. 1454 (CA Fed, 1984), and citations therein, on contradictions in the facts, or prior agency actions/decisions, warrant a ruling in the employee favor.
Here, at least remand for investigation, so the record will be complete, before the final decision is rendered. In all my career, never was an employee refused his right to have review in his chosen forum. This is unprecedented at TACOM, and undoubtedly in all agencies. Please do not reward such misconduct.
On remand, the investigator will find the agency policy of correcting errors on Congressional or Senatorial inquiry, the lack of a 30 days advance notice, etc., the latter the same as did Kathy Darius in this case, Col. Edward D. Bishop, and the others involved in the case. And an investigator will foreseeably sustain as factually correct, the findings of the prior EEOC decisions cited herein, and thus corrective action will begin, as would have been done for me so long ago, but for the agency cutting me off from Investigative Review (after having lost its case, with the Investigator doing the 25 January 1980 USACARA Report).
Remember, the agency never claims merits review has occurred. No such claim is made under oath. No Investigator will sustain that claim, and the agency knows it, hence, its hostility to Investigation and Hearing (with cross-examination of its claims).
Further, the 23 Oct 2002 EEOC decision will have a substantial impact on the policies, practices, or operations of the agency, in the sense that it enables continued refusal of compliance with the rule of law by this agency; and lets its management know it can defy rules, and mislead Senators, and evade corrective measures, indefinitely, with impunity.
In addition, the 23 Oct 2002 EEOC decision sets a terrible precedent that EEOC will condone misconduct, undermining other agencies as well. Please do not give the impression that
an agency can defy notice rules, prior EEOC decisions, Congressional/Senatorial inquiries, and
deny a person review, successfully, forever. Has not the nation suffered enough, from the bad
precedent of the agency in terrorizing federal employees so as to fear to mention the tobacco role in alcoholism, abortion, drugs, and thus the money trail to terrorism.
The 23 Oct 2002 EEOC decision is tantamount to repeal of the laws cited herein, including the advance notice and counseling notice rules. It in essence allows a permanent exemption, the agency need never again follow advance notice rules, never again obey EEOC orders to do case processing such as EEOC issued here. It need only defy and defy, and get away with it forever.
Is there not already too much fear by federal employees, to stand up for the rules, and promote the public interest, when need-be, against the management between them, and the top management trying so valiantly to get those in the middle to comply with the orders and rules and directives of top management?
Since my case has never been heard on merits, none of the line of precedents cited herein, has ever been applied to my situation. The agency never claims that such review has occurred, and cannot, not under oath. (Attorney pleadings are not evidence).
This case has followed the same pattern that EEOC documented over 20 years ago, Docket Nos. 01800273 et al, p 3 (23 Feb 1982), case rejection without allowing merits review, no investigation, no hearing. Nobody else, ever, in the government civil service, has been fired without review being allowed on merits in the employee's chosen forum, despite multiple efforts to obtain such review; and then the agency decides, upon deceiving the senator, it can continue to get away with this.
This is a case with a pattern of refusing review, 22 years. Please agree to remand for investigation. With others, it is likely settlement will follow, if not, a hearing will occur as is done for others. Be assured, investigation and hearing will find plenty of current injury.
Please do not allow the agency to be agency [allowed] to be assured that it can hereafter violate the rules in such an egregious manner, something never done before to others.
Wherefore, please remand for investigation and hearing.
|/s/ Leroy J. Pletten
|Leroy J. Pletten
|8401 18 Mile Road #29
|Sterling Heights, MI 48313-3042
1. Abortion Data
2. Alcoholism Data
3. Drug Data
4. Pure Air Precedents Underlying 32 CFR 203, AR 1-8, and USACARA Report
5. Ease of Enforcement Data
Memorandum on Abortion for Investigator Once Investigation Begins
"As early as 1902 Ballantyne had found an increase in the abortion rate in French and Austrian women working in tobacco factories." Beulah R. Bewley, "Smoking in Pregnancy," 288 Brit Med J (#6415) 424-426 (11 Feb 1984).
About "fifty-three per cent. of . . . abortions . . . are due to tobacco. . . . inhalation of [second-hand] tobacco smoke by pregnant mothers when sitting among smokers is sufficient to cause fatal poisoning of the fetus." Herbert H. Tidswell, M.D., The Tobacco Habit: Its History and Pathology (London: J. & A. Churchill, 1912), p 238. Wherefore, says Dr. Tidswell, tobacco, including second-hand smoke, has a record of significantly leading to abortion, p 184, terminating about 1/7 of live-births, p 177.
"The smoking mother is . . . 80 percent more likely than the nonsmoker to have a spontaneous abortion." Samuel S. Epstein, M.D., The Politics of Cancer (San Francisco: Sierra Club Books, 1978), p 162.
"No reasonable doubt now remains that smoking in pregnancy has adverse effects on the developing fetus. The effects range from retardation of fetal growth [birth defects], and prematurity, and to an increased risk of perinatal death from all causes. . . . This view is supported by a report of an increased incidence of spontaneous abortion among smokers." "Smoking Hazard to the Fetus," Brit Med J (#5850) 369-370 (17 Feb 1973).
It is known that "in female smokers menstrual disturbances are frequent and that abortion occurs often among female cigar makers." Dr. John H. Kellogg, Tobaccoism, or, How Tobacco Kills (Battle Creek, Michigan: The Modern Medicine Publishing Co, 1922), p 123.
Even before, concern was expressed on the tobacco link to infant deaths, by Dr. Hippolyte Adé on Depierris, in La Tabac et la Famille: Il Cause la Rareté; et la Stérilite des Mariages, la Débilité; Native et la Mortalité; des Enfants, la Dépopulation des Pays (Paris: E. Dentu, 1881).
"Dr. Herbert Tidswell of England, F. R. C. S., in observing a large number of families of smokers and nonsmokers, found that abortions were more common among the wives of smokers than among the wives of nonsmokers, even where the wives did not smoke." Daniel H. Kress, M.D., The Cigarette As A Physician Sees It (Mountain View, CA: Pacific Press Pub Ass'n, 1931), p 35.
Tobacco's baby-killing effect is traceable back to pre-1640's medical findings, cited by John Lizars, M.D., The Use and Abuse of Tobacco (Edinburgh: 1859), p 56.
Since then, of course, many more studies on the total subject of tobacco and abortion and infant death, have been made. Here is a partial list:
Simpson, WJ, "A Preliminary Report on Cigarette Smoking and The Incidence of Prematurity," 73 Am J Obstet Gynecol 818-815 (1957)
Herriot, A, Billewicz, WZ, and Hytten, FE, "Cigarette Smoking in Pregnancy," 1 Lancet 771-773 (1962)
Jarvinen, PA, and Osterlund, K, "Effect of Smoking During Pregnancy on The Fetus, Placenta,
and Delivery," 9 Ann Paediatr Fenn 18-26 (1963)
Yerushalmy, J, "Mother's Cigarette Smoking and Survival of Infant," 88 Am J Obstet Gynecol 505-518 (1964)
Ravenholt, RT, Levinski, MJ, Nellist, DJ, and Takenga, M, "Effects of Smoking Upon Reproduction," 96 Am J Obstet Gynecol 267-281 (1966)
Comstock, GW and Lundin, FE, "Parental Smoking and Perinatal Mortality," 98 Am J Obstet Gynecol 708-718 (1967)
Butler, NR, Goldstein, H, and Ross, EM, "Cigarette Smoking in Pregnancy: Its Influence on Birth Weight and Perinatal Mortality," 2 Brit Med J 127-130 (1972)
Kline J, Stein ZA, Susser M, and Warburton D. "Smoking: A Risk Factor for Spontaneous Abortion," 297 New Engl J Med 793-796 (1977)
Himmelberger DF, Brown BW, Cohen EN. "Cigarette Smoking During Pregnancy and The Occurrence of Spontaneous Abortion and Congenital Abnormality," 108 Am J Epidemiol 470-479 (1978)
Harlap, S, and Shiono, PH, "Alcohol, Smoking and Incidence of Spontaneous Abortions in the First and Second Trimester," 1 Lancet 173-176 (1980)
Hemminki K, Mutanen P, Saloniemi I, "Smoking and the Occurrence of Congenital Malformations and Spontaneous Abortions: Multivariate Analysis."145 Am J Obstet Gynecol 61-66 (1983)
Nelson, KB and Ellenberg, JH, "Predictors of Low and Very Low Birth Weight and The Relation of These to Cerebral Palsy," 254 J Am Med Ass'n 1473-1479 (1985)
Anokute, C, "Epidemiology of Spontaneous Abortions: The Effects of Alcohol Consumption and Cigarette Smoking," 78 J Nat'l Med Ass'n 771-775 (1986)
Sandahl B. "Smoking Habits and Spontaneous Abortion." 31 Eur J Obstet Gynecol Reprod Biol 23-31 (1989)
Armstrong BG, McDonald AD, and Sloan M, "Cigarette, Alcohol, and Coffee Consumption and Spontaneous Abortion," 82 Am J Public Health 85-87 (1992)
Windham GC, Swan SH, Fenster L, "Parental Cigarette Smoking and The Risk of Spontaneous Abortion," 135 Am J Epidemiol 1394-1403 (1992)
Suraiya, M., et al., "Cigarette Smoking as a Risk Factor for Ectopic Pregnancy," 178 Am J Obstetrics & Gynecology 493-498 (1998) (smoking 1-5 cigarettes per day causes 1.6 times more likely to have ectopic pregnancy; smoking over 20 cigarettes per day, 3.5 times more likely; a dose-response relationship)
Animal studies show likewise, tobacco harm to the young and unborn. Note this experiment on rat mothers paralleling results for human smoker mothers.
"Essenberg, Schwind, and Patras (1940) of Loyola University studied the effects of nicotine and cigarette smoke on pregnant rats and their offspring. Some of the rats were placed in a jar and subjected to the smoke from about one-third of a cigarette. This is the equivalent of a human being smoking about one package of cigarettes a day. The rats were exposed to this smoke three minutes each day for a period of weeks. Other rats were daily injected with one-half to one cubic centimeter of a solution containing 1:1000 or 1:2000 parts of chemically pure nicotine."
"Two-thirds of the young from mother rats treated in this way were underweight at birth and continued so throughout life; many died in infancy. The experimenters observed numerous cases of temporary sterility, resorption of young before birth, and abortion among the "smoked" and injected mothers. Frequently the treated mothers showed faulty maternal behavior, which ranged all the way from neglecting to feed their young to eating them. This did not happen to the normally kept rats."
"The experimenters found that the "smoking" of virgin rats also had marked effects on the size and mortality rate of the young produced by them later after they "quit smoking." They say that many of their observations on rats are like those made on women who smoke much or who are engaged in [jobs in] the tobacco industries." Essenberg, J. M., Justin U. Schwind, and Anne R. Patras, "The Effects of Nicotine and Cigarette Smoke on Pregnant Female Albino Rats and Their Offsprings," 25 Journal of Laboratory and Clinical Medicine 708 (1940), cited in Prof. Arthur H. Steinhaus and Florence M. Grunderman, Tobacco and Health: Some Facts About Smoking (2nd ed) (New York: Association Press, 1941), pp 42-43.
"No evils are so manifestly visited upon the third and fourth generations as the evils which spring from the use of tobacco,"said Sir Benjamin C. Brodie (1783-1862). He was Surgeon to British King George IV, William IV, and Queen Victoria. A comparable modern position is U.S. Surgeon General. Dr. Brodie served under the British royal dynasty, the House of Hanover. The prior dynasty had been the House of Stuart. What had happened to the Stuart dynasty? Answer: The last Stuart monarch had been a snuffer. That was Queen Anne (1665-1714, reigned, 1702-1714). Anne was a snuff-user. ALL her children died. During the period 1684-1688, she had 4 miscarriages, 2 dead within hours of birth William, born 24 July 1689, died 29 July 1700 (age 11). During the period 1689-1696, Anne had 6 miscarriages, 2 dead within hours of birth.
Since snuffer Anne was clearly not leaving a surviving heir to the throne, Britain became much concerned as to who her successor would be. In 1701, Britain passed a law, a succession act, to transfer the dynasty to the House of Hanover, so as to ensure a successor! Thus ended the House of Stuart. The dynasty change led to the current monarch, Queen Elizabeth II (1952-___).
There is a cigarette link to promiscuity, pregnancy, SIDS, and abortion. See the Department of Health and Human Services book, Preventing Tobacco Use Among Young People: A Report of the Surgeon General (1994). Its key analysis is that
"Tobacco use in adolescence is associated with a range of health-compromising behaviors including being involved in fights, carrying weapons, engaging in higher-risk sexual behavior . . ."
The role of cigarettes in abortion has been cited anew by DiFranza, JR and Lew, RA, "Effect of Maternal Cigarette on Pregnancy Complications and Sudden Infant Death Syndrome," in 40 J Family Practice 385-394 (1995). The study's "result" is a finding that:
|"Carbon monoxide is a dangerous substance. The molecule binds more strongly to the hemoglobin in the blood than does oxygen. A person breathing air that contains even a small percentage (one part in 250) of carbon monoxide may die of suffocation." Gordon P. Johnson, Bonnie B. Barr, and Michael D. Leyden, Physical Science (New York: Addison-Wesly Pub Co, Inc, 1988), pp 298-299. 1/250 = 40,000 ppm; cigarette smoke contains morE than that (42,000 ppm). Such facts depict the basis underlying abortion.|
"Each year, use of tobacco products is responsible for an estimated 19,000 to 141,000 tobacco-induced abortions, 32,000 to 61,000 infants born with low birthweight, and 14,000 to 26,000 infants who require admission to neonatal intensive care units . . . an estimated 1900 to 4800 infant deaths resulting from perinatal disorders, and 1200 to 2200 deaths from sudden infant death syndrome (SIDS)."
The study's "conclusion" is that
"Tobacco use is an important preventable cause of abortions, low birthweight, and deaths from perinatal disorders and SIDS. All pregnant women should be advised that smoking places their unborn children in danger. . . . The cigarette . . . injures or kills a sizable proportion of its users when used as intended by the manufacturer. The harm caused by the cigarette is not limited to the user, however, as unborn children and infants are . . . harmed by other people's use of tobacco."
Such large numbers of foreseeable deaths are "natural and probable consequences" (events that "happen so frequently . . . that . . . they may be expected [intended, foreseen] to happen again"), as defined by Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 1026.
"The blood of cigarette smokers will contain from 2 to 10 percent carboxyhemoglobin . . . initial symptoms of poisoning . . . will result from exposures to 1,000 ppm for 30 minutes or 500 ppm for one hour. One hour at 1500 ppm is dangerous to life. Short exposures (one hour) should not exceed 400 ppm." See Julian B. Olishifski, P.E., C.S.P., Fundamentals of Industrial Hygiene, 2d ed (National Safety Council), pp 1039-1040.
Michigan law, MCL §§ 750.27, MSA §§ 28.216, in essence, an abortion prevention act, bans
"any person within the state [from action that] manufactures, sells or gives to anyone, any cigarette containing any ingredient deleterious to health or foreign to tobacco . . . ."
Army Regulation 1-8 re which Pletten obtained the USACARA Report (Jan 1980) verified by EEOC, Docket Nos. 01800273 et al (23 Feb 1982), likewise aids in preventing abortion.
Wherefore, Pletten's 'right to life" activism, promoting beginning enforcement and compliance at TACOM, should have been supported, not obstructed by agency management. TACOM should not have fired him without charges (stating alleged misconduct or performance deficiency), nor denied him notice of appeal rights to EEOC, nor obstructed his efforts in the EEOC system.
Memorandum on Alcoholism for Investigator Once Investigation Begins
Periodically the military's problem with alcoholism comes to mind. As a Personnel Official and Crime Prevention Officer, be advised that, though we do not act on it (due to the savage punishment of people such as myself who cite the material) we in the Army, in our anti-alcoholism offices, and personnel offices, know prevention data, for example:
"Nearly all alcoholics, recovered or otherwise, are heavy smokers,"-Arthur Cain, M.D., in The Cigarette Habit: An Easy Cure (NY: Dolphin Books, 1964) p 4.
Dr. Forest S. Tennant, Jr., a long-time Army analyst, "pointed out that in almost every case adults who have problems with alcohol are cigarette smokers." 27 Smoke Signals (#1) 1 (Jan 1981).
"[T]he antidotal effect of tobacco makes drinking of stimulating liquors the natural consequence of smoking."--Dr. Albert L. Gihon, in The Surgeon General's Report (1881).
"[Tobacco] is unquestionably the greatest obstacle existing to the progress of temperance; and never will this cause triumph; never will alcoholic drinks be discarded as a beverage, until tobacco ceases to be used . . ."--The Mysteries of Tobacco, by Rev. Benjamin I. Lane (New York: Wiley and Putnam, 1845), p 87.
"It is my conviction that while the use of tobacco continues, intemperance will continue to curse the world; the use of tobacco leads to the use of intoxicating drinks. They are all of one family." Lane, supra, p 145.
And, "smoking, even in what is called a moderate degree . . . acts as an inducement to drinking--thus becoming the source of intemperance, and all its accompanying evils. It is notorious that the practices are, almost without exception, inseparably associated. The remark has become a maxim: "Smoking induces drinking, drinking jaundice, and jaundice death."--Surgeon John Lizars, The Use and Abuse of Tobacco (Edinburgh, Scotland: 1859), pages 50-51. Wherefore Dr. Lizars in 1859 recommended a total ban on tobacco sales, to both adults and youth, see p 49. (His book was reprinted in 1883 here in America.)
"Smoking is also said to induce an inclination to strong drinks. The ill effects of the tobacco seem to be momentarily counteracted by the alcohol, and the stimulating effects of the intoxicating liquors are moderated by the tobacco. Thus it happens that drinkers are always smokers, and thus it is also that smoking often leads to drinking."--Dr. John Hinds, The Use of Tobacco (Nashville, Tenn: Cumberland Presbyterian Publishing House, 1882), pp 125-126.
"In my experience non-smokers hardly ever become drunkards, while nearly all drunkards are smokers."--Herbert H. Tidswell, M.D., The Tobacco Problem (London: J. & A. Churchill, 1912), p 41.
Smoking "tends to produce a huskiness of the mouth, which calls for some liquid. Water is too insipid, as the nerves of taste are in a half-palsied state, from the influence of tobacco-smoke; hence, in order to be tasted, an article of a pungent or stimulating character is resorted to, and hence the kindred habits of smoking and drinking."--Reuben D. Mussey, M.D., LL.D., Fourth President of the A.M.A., Health: Its Friends and Its Foes (Boston: Gould & Lincoln, 1862), p 104.
"Naturally, one drug habit leads to another. It is rare to find an alcoholic who does not use tobacco in some form and often other drugs are used. There is a special reason for
the association of the alcohol and tobacco habits; a physiologic reason: Alcohol is a drug
antidote for tobacco. Tobacco contracts the small arteries. This is the reason for the
pallor observed in young smokers and in old smokers who have smoked to excess.
Alcohol produces the opposite effect. It dilates the small arteries. This is the reason for
the flushed face of the beer drinker and the red nose of the whiskey toper. A man who
has smoked until his arteries are contracted, feels tense, nervous, irritable, restless, in
spite of the narcotic effects of the drug. His blood-pressure is high and his breath a little
"short." Besides, his secretions are checked, his mouth is dry. Alcohol reverses these
conditions. A cocktail or a toddy, a glass of champagne or a bottle of beer, relaxes the
blood-vessels, relieves the nerve tension, restores comfort and so opens the way for
more cigars."--John H. Kellogg, M.D., LL.D., F.A.C.S., Tobaccoism, or, How Tobacco Kills (Battle Creek, Michigan: Modern Medicine Pub Co, 1922), pp 125-126.
And, "c'est tabac qui pousse aux liqueurs fortes, comme antidote de se effets toxiques."--Dr. Hippolyte A. Depierris, Physiologie Sociale: Le Tabac(Paris: Dentu, 1876), p 367. (Tobacco leads to strong drink, as an antidote to tobacco's toxic effects).
"Rum drinking will not cease, till tobacco chewing, and tobacco smoking, and snuff-taking, shall cease. Though all who are attached to the quid, the pipe, or the snuffbox, are not attached to the bottle; yet a vast multitude become attached to the bottle, and this attachment is continual and increased, through the poisonous, bewitching, and debasing influence of tobacco."--Rev. Orin S. Fowler, Disquisition on the Evils of Using Tobacco, and the Necessity of Immediate and Entire Reformation (Providence: S. R. Weeden, 1833), p 4.
"One of the usual effects of smoking and chewing is thirst. This thirst cannot be allayed by water, for no sedative or even insipid liquor will be relished after the mouth and throat have been exposed to the stimulus of the smoke, or juice of Tobacco. A desire of course is excited for strong drink, and these when taken between meals soon lead to intemperance and drunkenness. One of the greatest sots I ever knew, acquired a love for ardent spirits by swallowing cuds of Tobacco, which he did, to escape detection in the use of it, for he had contracted the habit of chewing, contrary to the advice and commands of his father. He died of a Dropsy under my care in the year 1780."--Dr. Benjamin Rush, First U.S. Surgeon General, "Observations Upon the Influence of the Habitual Use of Tobacco Upon Health, Morals, and Property" (Philadelphia: T. & W. Bradford Pub, 1798), p 267.
William A. Check, Ph.D., "The Mind-Body Connection" in Dale C. Garrell, MD, The
Encyclopedia of Health: Medical Disorders and Their Treatment (New York: Chelsea House
Publishers, 1990). "Pain is a prime example of the mind-body connection. . . . The sensation of pain is . . . a result of secretion of various neurotransmitters by the peripheral nerves and by the nerves in the brain," p 70.
Benjamin I. Lane, in The Mysteries of Tobacco (New York: Wiley and Putnam, 1845), p 88, notes smoker motive, to relieve his "wretched and miserable condition. Without any desire for ardent spirits, he first sipped a little gin and water, to allay the disagreeable sensation brought on by smoking, as water was altogether too insipid to answer the purpose. Thus he went on from year to year, increasing his stimulus from one degree to another until he lost all control over himself . . . ."
People don't generally favor continued pain!
"The brain also has its own chemical system for dampening pain, the endorphins and enkephalins (another group of neurotransmitters that are involved in pain reception." Check, supra, p 71. "Narcotics, such as morphine and its derivatives, are medically useful because they augment the actions of these natural pain-killing chemicals," p 72.
When tobacco, the No. 1 cause of adverse effects, causes disease resulting in suffering, pain. The person wants relief from the pain. Pertinent medical "findings have led to the self-medication hypothesis . . . that using narcotics is an attempt to dampen . . . ." Check, supra, p 69. Smokers are suffering from tobacco effects, thus attempting, even unconsciously, to self-medicate themselves with substances including alcohol. Smoking constricts blood vessels; alcohol is an antidote and dilates them. Unfortunately for smokers, the constricting effect of nicotine is much more powerful than the dilating effect of alcohol, says Alton Ochsner, M.D., Smoking and Your Life (New York: Julian Messner Pub, 1954 rev 1964), p 58. Bottom line: We know who becomes alcoholic--smokers.
Dr. Frank L. Wood deemed it a 100% factor, "all of those who become alcohol addicts, in the experience of this writer ([Wood] were first tobacco addicts."--Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 143.
"Addiction to tobacco, like addiction to opium, is a specific disease . . . . Its protracted course, the enormous numbers affected, and spreading infection making smoking one of our most serious diseases."--Lennox Johnston, "Cure of Tobacco-Smoking," 263 The Lancet 480, 482 (6 Sep 1952).
Like an infectious disease, the prevalence of smoker alcoholics later came to infect nonsmokers to a small extent (about 10% of alcoholics are nowadays nonsmokers). "Smoking prevalence among active alcoholics approaches 90%."--J. T. Hayes, K. P. Offord, I. T. Croghan, D. R. Schroeder, R. D. Hurt (ASAM), D. E. Jorenby, "Alcoholism and Nicotine Dependence Treatment," 15 Journal of Addictive Diseases 135 (1996).
The rules and laws, if enforced, would thus help prevent most alcoholism.
Memorandum on Drug Abuse for Investigator Once Investigation Begins
As a Crime Prevention Officer, and Personnel official, it is my role to assist in preventing drug abuse. As per professional research data, here is a summary of data on the drug abuse process. Professional research cites the role of the starter drug nicotine, specifically, the delivery agent, cigarettes, in the drug abuse process. The term used is "gateway drug" or "starter drug."
Professionals find that cigarettes serve as the starter drug delivery agent. Cigarettes deliver the drug nicotine. Children are being hooked on cigarettes at an early age. Nicotine has demonstrated dose-related euphoric effects similar to those of cocaine and morphine, say J. E. Henningfield, K. Miyasato, and D. R. Jasinski, "Cigarette smokers self-administer intravenous nicotine," 19 Pharmacol Biochem Behav 887-990 (1983).
Cigarettes cause "the worst of all drug habits, the smoking of tobacco"--Herbert H. Tidswell, M.D., The Tobacco Habit: Its History and Pathology (London: J. & A. Churchill, 1912), p 69.
"The first step toward addiction may be as innocent as a boy's puff on a cigarette in an alleyway," said the U.S. Supreme Court in Robinson v California, 370 US 660, 670; 82 S Ct 1417; 8 L Ed 2d 758 (25 June 1962).
This was repeating a fact already long known. The government already long knew that "all" drug addicts are smokers, say Commissioner of Narcotics Harry J. Anslinger and U.S. Attorney William F. Tompkins, The Traffic in Narcotics (New York: Funk & Wagnalls, 1953), p 196.
Re cigarettes as the starting point, they are delivery agent for nicotine, the gateway (starter) drug for children. The average age of onset is 12. Next in sequence, alcohol follows, average age 12.6; then marijuana, average age 14, say Raymond Fleming, Howard Levanthal, Kathleen Glynn, and Joann Ershler, "The Role of Cigarettes in The Initiation And Progression Of Early Substance Use," 14 Addictive Behaviors (#3) 261-272 (1989).
Re the cigarette-drugs link, Dr. Frank L. Wood cites a 100% factor, "there would be no marijuana addicts . . . if people did not first learn to smoke cigarettes."--Frank L. Wood, M.D., What You Should Know About Tobacco (Wichita, KS: The Wichita Publishing Co, 1944), p 143.
Wood also says, "all of those who became alcohol addicts, in the experience of this writer [Wood], were first tobacco addicts."
"Since the first line of battle in the war against narcotic addiction is prevention, we must look to the predisposing causes and attempt to remove them. The first of these is cigarette smoking. If no one smoked at all . . . there would be no marijuana menace, for few nonsmokers can be induced to experiment with marijuana cigarettes. [So] the efforts of all . . . should be directed toward preventing [smoking beginning]," Wood, supra, p 133.
Analysts have also found that drug dependence does not suddenly occur overnight! A nonsmoker suddenly wants to use crack cocaine! Not so. Drug dependence develops in stages, over a period of years. People who do not use the starter drug, rarely proceed to later drugs in the sequence. Tobacco is an addiction, not a habit. --Ronald M. Davis, M.D., (a health authority during Mich. Gov. John Engler's first term), "The Language of Nicotine Addiction: Purging the Word 'Habit' From Our Lexicon," 1 Tobacco Control 163-164 (1992), opposing the tobacco lobby/media myth that smoking is merely a habit.
"Tobacco . . . holds a special status as a 'gateway' substance in the development of other drug dependencies not only because tobacco use reliably precedes use of illicit drugs, but also because use of tobacco is more likely to escalate to dependent patterns of use of most other dependence producing drugs. . . These observations have led growing numbers of researchers and policy makers concerned with illicit drug use to consider the role of tobacco in programs aimed at preventing other forms of drug abuse."--Jack E. Henningfield, Richard Clayton, and William Pollin, "Involvement of Tobacco in Alcoholism and Illicit Drug Use," 85 British J of Addiction 279-292, especially p 283 (1990).
Moreover, "tobacco use is associated with the initiation of use of other addicting substances, and . . . increasing levels of tobacco use are associated with increasing levels of use of other psychoactive substances. "Furthermore, factors affecting initiation, abstinence, and relapse to the use of tobacco, alcohol, and opioids are similar in nature. In addition, there are similarities in the addictive processes underlying the use of these substances."--Jack E. Henningfield, Clayton, et al., "Involvement of Tobacco in Alcoholism and Illicit Drug Use," supra, especially p 279 (1990).
"Goode demonstrated that college students who smoke were more likely to have used every kind of abusable substance, both legal and illegal, than were their nonsmoking classmates." [Goode, E, "Cigarette smoking and drug use on a college campus," 7 Int'l J Addict 133-140 (1972).]
The National Institute on Drug Abuse reports that daily use of marijuana is 20 times higher among high school seniors who smoke tobacco, and the daily use of other illicit drugs is 13 times higher among smokers." [Fishburne PM, Abelson HI, Cisin I, "National Survey on Drug Abuse: Main Findings, 1979" (1980)], cited by Joseph R. DiFranza, and M. P. Guerrera, "Alcoholism and Smoking," 51 Journal of Studies on Alcohol (#2) 130-135 (1990).
In U.S. National Institute on Drug Abuse ("NIDA") Monograph 17 (1977), then Director, William Pollin, M.D., says at page vi. why NIDA gives "increased priority to" smoking. There are
"several reasons: the increasing identification of smoking as a prototypic addiction, the status of smoking as a gateway drug to use of stronger or illicit drugs, and our focus on substance abuse as a generic phenomenon that includes tobacco."
William Pollin's predecessor as NIDA Director, Robert L. DuPont, Jr., M.D. (1973 - 1977), in "Teenage drug use: Opportunities for the pediatrician," 102 Journal of Pediatrics (#6) 1003-1007 (June 1983), says at pages 1004-1005:
"all drug use is positively correlated with all other drug use, so persons who use tobacco, for example, are more likely to smoke marijuana than those who do not use tobacco . . . .
"these relationships are quantitative: those who use large amounts of marijuana are more likely to use heroin than are those who use marijuana infrequently, whereas those who
have never used marijuana virtually never use heroin at all . . . .
"many who start with one drug do go on to other drugs. Conversely, decisions not to use a particular drug predict subsequent decisions not to use other drugs in the sequence. . . .
"Put simply, prevention means stopping the progression of the drug-dependence process at each stage, experimentation, occasional use, regular use, and dependent use."
Sadly, as noted by the book, Preventing Tobacco Use Among Young People: Surgeon General Report (1994), p 10, "Illegal sales of tobacco products are common." We at TACOM should not be aiding and abetting such law violations, especially not by selling cigarettes on-post.
"Adolescents need effective drug use prevention programs . . . Support for substance abuse . . . prevention . . . must come from all sides . . . policymakers."--Drs. Bruner and Fishman of Johns Hopkins University School of Medicine, "Adolescents and Illicit Drug Use," 280 J Am Med Ass'n 597-598 (19 August 1998).
"When we take a thorough drug history, we are forced to admit that nicotine--not alcohol or cannabis--is the drug of entry for most young people."--Emanuel Peluso and Lucy Silvay Peluso, "The Challenge of Treating Teenagers," 9 Alcoholism & Addiction (#2) 21 (Dec 1988).
"And . . . cigarette addiction undoubtedly leads to the use of . . . other habit-forming drugs."--Daniel H. Kress, M.D., The Cigarette As A Physician Sees It (Mountain View, CA: Pacific Press Publishing Ass'n, 1931), p 68, as "cigarette addiction leads to other pernicious habits," p 72. Kress then gave examples such as morphine addiction and alcoholism.
"Avant le . . . tabac, la folie était une maladie très rare dans l'humanité,"--Depierris, Hippolyte A., Physiologie Sociale: Le Tabac (Paris: Dentu, 1876), p 346. Before tobacco, this was rare.
The bottom line is that tobacco is an "extremely harmful drug," says Dr. Wood, What You Should Know About Tobacco, supra, p 5.
Michigan has a law banning the starter drug. MCL § 750.27, MSA § 28.216, bans cigarettes, the starter-drug delivery mechanism. "A stitch in time saves nine." Eliminate the cause; the effect disappears. "Sublatâ causa, tollitur effectus: Otez la cause, l'effet disparaît."--Dr. Hippolyte A. Depierris, Physiologie Sociale (Paris: Dentu, 1876), p 328.
This is the same solution as to end, for example, lung cancer. Ban the cause = the effects don't occur. A stitch in time PREVENTS nine. Our great-grandparents, then children, were taught cigarette toxicity a century ago.
Ban the starter drug (do the stitch in time), there is essentially no post-starter drug problem (no need for nine stitches)! No need to spend vast amounts of tax dollars on drug control units! treatment! rehabilitation!
The tragic result of cigarettes, the starter drug delivery agent, is post-starter-drug drug abuse: According to Hugo Black and William O. Douglas of the U.S. Supreme Court:
"Commercial traffic in deadly mind-, soul-, and body-destroying drugs is beyond doubt one of the greatest evils of our time.
So prevention is crucial, by dealing with the starter drug, its delivery agent, cigarettes. Banning cigarettes, as per Michigan's cigarette control law, like a 'controlled substances act,' = banning them all! as per the medical fact that eliminating the cause = eliminating the effects; here, eliminating the gateway drug = eliminating the post-gateway drugs. Ban the starter = the post-starter. Ban cigarettes = eliminate cancer.
There is a significant drug abuse $$$ cost to the nation, says the government at http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5114a2.htm, $144 billion.
Drug abuse has another aspect, the money trail. The money trail involves a cycle starting typically from smokers, the population base of drug abusers. It proceeds through local to higher drug dealers, and on sequentially all the way to initial growers, in foreign nations such as Afghanistan, and can end up with indigenous terrorist groups. See background data by Rachel Ehrenfeld, Ph.D., Director (http://public-integrity.org) NYC Center for the Study of Corruption & the Rule of Law, Narco-Terrorism (NY: Basic Books, 1990) and Evil Money (NY: HarperCollins, 1992).
"It cripples intellects, dwarfs bodies, paralyzes the progress of a substantial segment of our society, and frequently makes hopeless and sometimes violent and murderous criminals of persons of all ages who become its victims.
"Such consequences call for the most vigorous laws to suppress the traffic as well as the most powerful efforts to put these vigorous laws into effect." Turner v U.S., 396 US 398, 426-427; 90 S Ct 642; 24 L Ed 2d 610 (20 Jan 1969).
Memorandum for Investigator on Right to Pure Air
32 CFR 203 (1977); AR 1-8 (1977), and the USACARA Report (25 Jan 1980) won by Pletten, were all based on the long-standing right to fresh and pure air. The Departments of Defense and Army institutionalized that already existing right. The right is a common law right, developing since at least the year 1306. (Note EEOC reference 23 Feb 1982, Docket Nos. 01800273 et al, p 2).
This right has a long record of judicial recognition. See Rex v White and Ward, 1 Burr 333 (KB, 1757) and Rex v Neil, 2 Carr & Payne 485 (Eng, 1826) ("It is not necessary that a public nuisance should be injurious to health; if there be smells offensive to the senses, that is enough, as the neighborhood has a right to fresh and pure air").
"Any bad smell in the air shows that there is something in it which ought not to be there. It is a sign of danger," p 104. "It is not good to breathe in a room full of . . . smoke," p 105. William T. Smith, Ph.D., Primer of Physiology and Hygiene (New York: Ivison, Blakeman & Co, 1885).
There is "no . . . right to pollute the air," Meta Lander, The Tobacco Problem (Boston: Lee and Shepard, 1882), pp 264-265. Why? because it "is certainly morally wrong," says Herbert H. Tidswell, M.D., The Tobacco Habit (London: J. & A. Churchill, 1912), pp 70-71.
"The body needs food, clothing, sunshine, bathing, and drink, but none of these wants are so pressing as pure air. Other wants may be met by occasional supply, but air must be furnished every moment or we die." Theodore F. Frech and Luther H. Higley, The Evils of Tobacco and Cigarettes (Butler, Indiana: The Higley Printing Co, 1916), p 31.
"The greatest care should be taken by those who have buildings in charge to insure their absolute freedom from all . . . harmful, and sometimes fatal, impurities of the air. . . .When a room is properly ventilated, the air should seem odorless to one coming in from out of doors." Winfred S. Hall, Ph.D., M.D., Elementary Anatomy, Physiology and Hygiene for Higher Grammar Grades (New York: American Book Co, 1900), p 187.
It violates "common justice [to] poison the atmosphere my neighbor is compelled to breathe," says Reuben D. Mussey, M.D., LL.D., Health: Its Friends and Its Foes (Boston: Gould & Lincoln, 1862), p 114.
"No one has a right to have his property burn, if thereby the property of others is endangered. The right to extinguish fires . . . is a part of the police power. . . . It may be exercised not only without the consent of the owner of the property on fire, but against his will." Wamsutta Mills v Old Colony Steamboat Co, 137 Mass 471, 473; 50 Am Rep 325, 326-327 (5 Sep 1884). See also Surocco v Geary, 3 Cal 69; 58 Am Dec 385 (Jan 1853) for references, e.g., City Fire Ins Co v Corlies, 21 Wendell 367; 34 Am Dec 258 (NY, July 1839); Stone v Mayor of N. Y., 25 Wend 157, 173; 14 Common Law Rep 802 (1840); Russell v Mayor, etc., of N. Y., 2 Den 461, 475; 17 Common Law Rep 192, 197 (1845) (cases involving the 1835 New York fire wherein the Mayor had buildings blown up ahead of the advancing flames, for a fire-break to head off the fire, and was upheld in such fire-halting actions; the pertinent public safety principle covers not only fires, but also "pestilential diseases, or any other threatened and blighting evil").
Toxic Tobacco Smoke (TTS, also referred to as ETS) of course is a matter of smokers burning property, with a "natural and probable consequence" being injuries to, and deaths of, others, a part of the tobacco holocaust.
Bowditch v Boston, 101 US 16, 18; 25 L Ed 980 (5 April 1880) said: "At the common law everyone had the right to detroy real and personal property, in cases of actual necessity, to prevent the spreading of a fire, and there was no responsibility on the part of the destroyer, and no remedy for the owner. . . . There are many other cases besides that of fire, some of them involving the destruction of life itself, where the same rule is applied. 'The rights of necessity are a part of the law.' Respublica v. Sparhawk, 1 Dall., 357, 362 [1 L Ed 174, 177 (Pa, 1788)]; see also Mouse's Case, 12 Rep. (Coke), 63 [81 Eng Rep 341 (1675)]; 15 Vin., tit. Necessity, sec. 8; Cast Plate Co. v. Meredith, 4 T.R., 794; Am. Print W. v. Lawrence, 1 Zab., 248; 3 Zab., 591 [57 Am Dec 420 (NJ, 1851)]; Stone v. Mayor of N. Y., 25 Wend., 173 [14 Common Law Rep 802 (1840)]; Russell v. Mayor, etc., of N. Y., 2 Den., 461 [17 Common Law Rep 192 (1845)]."
Fire-setting is of course, of the essence in smoking. (Unlit cigarettes are not what the problem is about!)
In the United States, these ancient common law rights (fresh and pure air, stopping fires) are for everyone, protected by the U.S. Constitution's Ninth Amendment ("The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people"). The most basic right is the right to life! It cannot be taken, except via 'due process of law.' Government can neither violate that right, nor allow private citizens to do so. Government aiding and abetting private individuals in violating a right is unconstitutional, i.e., when ". . . States have made available to [private] individuals the full coercive power of government to deny" other individuals their rights.--
Shelley v Kraemer, McGhee v Sipes, 334 US 1, 19; 68 S Ct 836; 92 L Ed 1161 (1948).
These rights (to pure air, to put out fires, etc.) are part of the "common law." The "common law" is mandated recognition by the Seventh Amendment in the Bill of Rights of the U.S. Constitution.
Tobacco smoke contains and emits large quantities of toxic chemicals, is poisonous, and is therefore "odious," i.e., "hurtful." The first U.S. Surgeon General, Dr. Benjamin Rush (1746-1813) said tobacco "is generally offensive to people who do not use it."
Therefore, the "right to fresh and pure air" has been regularly upheld for everyone. A case list and analysis is found Annotation: Nuisance Resulting from Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920), examples below.
The "right to pure and fresh air" has been applied on TTS. Such cases began as long ago as State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890), detailed below. A recent example is the case of Shimp v New Jersey Bell Telephone Co, 145 N J Super 516, 531; 368 A2d 408, 416 (1976) (a court order banning on-the-job smoking, thus rendering plaintiff "able to breathe the air in its clear and natural state").
Pertinent legal terms and concepts include smoke or smoking as a nuisance; as trespassing; as garbage; as ultrahazardous conduct in motion coming to the injured person; and the "pesthouse" concept due to its transmitting/causing disease.
This is the same common law right as protects us and our property from others' discomforting noise, disease-causing plants, and dangerous or mad dogs. These common law rights to life are of course, also protected by the Constitution's Ninth Amendment (and the Eighth Amendment too, banning 'cruel and unusual punishment' which TTS inherently is, killing people without due process of law).
These Eighth and Ninth Amendment rights make sense. "When you can't breath, nothing else matters" the American Lung Association slogan. It takes the "right to life" to have the other rights! Here are two quotations from the common law: "Sic utere tuo ut alienum non lædas" (everyone must so use his own property as not to injure that of his neighbor); and, "salus populi suprema lex" (the safety of the people is the supreme law).
Some Case Law Precedents Listed in Annotation: Nuisance Resulting from
Smoke Alone as Subject for Injunctive Relief, 6 ALR 1574 (1920)
Sampson v Smith, 8 Sim 272; 59 Eng Rep 108; 7 L J Ch N S 260; 2 Jur 563 (England, 1838) (case framed to cite "particular damage and injury to the Plaintiff's property, and to his health and comfort . . .")
Cartwright v Gray, 12 Grant, Ch (UC) 400 (Canada, 1866) ("a much quoted case" saying that "I consider it to be established by numerous decisions that smoke unaccompanied with noise or noxious vapor, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property; that if they do so, substantial damages may be recovered at law, and that this court, if applied to, will restrain the continuance of the nuisance by injunction in all cases where substantial damages could be recovered at law.")
Crump v Lambert, L R 3 Eq 409; 15 Weekly Rep 417 (England, 1867) ("With respect to the question of law, I consider it to be established, by numerous decisions, that smoke unaccompanied by noise or noxious vapors, that noise alone, that offensive vapors alone, although not injurious to health, may severally constitute a nuisance to the owner of adjoining or neighboring property . . . this court . . . will restrain the continuance of the nuisance by injunction. . . .")
Galbraith v Oliver, 3 Pittsb 78, 79; 14 PLJ 565 (Pennsylvania, 1867) (banned smoke and soot moving onto plaintiff's premises)
Ross v Butler, 19 NJ Eq 294, 302; 97 Am Dec 654, 660-661 (New Jersey, 1868) ("The law . . . must be regarded as settled, that when the prosecution of a business, of itself lawful, in the neighborhood of a dwelling-house, renders the enjoyment of it materially uncomfortable, by the smoke and cinders, or noise or offensive odors produced by such business, although not in any degree injurious to health, and it will be restrained by injunction. . . . This court will not determine that a family shall have their dwelling house made uncomfortable to live in for twelve hours, once in two weeks . . . It is surely no justification to a wrong doer, that he takes away only one-twenty-eighth of his neighbor's property, comfort, or life."
Bareham v Hall, 22 LTNS 116 (Eng, 1870) (ban smoke movement injuring complainant's house)
Saville v Kilner, 26 LTNS 277 (Eng, 1872) (banned smoke entering complainant's property)
Hyatt v Myers, 71 NC 271 (NC, 1874) (banned constant recurrence)
Hutchins v Smith, 63 Barb Sup Ct Rep 252 (NY, 1872) (banned smoke causing discoloration of property and nausea and other deleterious effects on people, violating right to enjoy one's premises free from such smoke)
Daniels v Keokuk Waterworks, 61 Iowa 549; 16 NW 705 (Iowa, 1883) (ban the activity unless using a device "to prevent smoke, soot, etc., from escaping therefrom")
Rouse v Martin, 75 Alabama 510; 51 Am Rep 463 (Ala, 1883) (smoke may "constitute a nuisance so imperiling the comfort of one's existence, his health, or the safety of his property, as to call for injunctive relief at the hands of a court of equity" in a case involving added issues including increased fire hazard, noise, and cotton lint particles causing impure and unwholesome air)
Beir v Cooke, 44 NY Sup Ct Rep (37 Hun) 38 (NY, June 1885) (banning soot and dust coming into the yard, onto windows and entering rooms in the house)
McKinney v McCullough, 17 Phila 395; 42 Phila Leg Int 414 (Pa, 1885) (banned filling plaintiff's room with smoke and heat)
Cogswell v New York, N. H. & H. R. Co, 103 NY 10; 8 NE 537; 57 Am Rep 701 (NY, 1886) ("smoke, soot, cinders, injuring the furniture and clothing therein, rendering the air offensive and unwholesome, and the house uncomfortable and unhealthy" constituting "a taking of the plaintiff's property within the Constitution" [which bans doing that].)
Abendroth v Manhattan R Co, 19 Abb N C 247; 7 NYSR 43 (1887) aff'd 122 NY 1; 25 NE 496; 19 Am St Rep 461; 11 LRA 634 (NY, 1890) (banned RR smoke, cinders, and soot entering plaintiff's premises causing great injury)
Catlin v Patterson, 10 NYSR 724 (NY, 1887) (banned smoke entering store corrupting the atmosphere and depositing soot on property)
Sullivan v Royer, 72 Cal 248; 1 Am St Rep 51; 13 P 655 (Cal, 1887) (banned smoke entering through windows of house causing disturbance, annoyance, and damage)
McMorran v Fitzgerald, 106 Mich 649, 651-653; 64 NW 569-570; 58 Am St Rep 511, 512 (1895) (affirming injunction banning "smoke, laden with cinders, soot, and disagreeable odors, which penetrated the houses, rendering them unclean, uncomfortable, and to a material extent unwholesome [which] destroyed the comfortable, peaceful, and quiet occupation of the complainants' homesteads." Everyone "must so use his property as not to cause injury to the property or rights of [others]." People are generally "entitled to freedom from smoke, soot, noise, and noxious odors in his home . . . . Authorities are numerous in support of this doctrine.")
McClung v North Bend Coal & Coke Co, 9 Ohio CC 259; 6 Ohio C D 243 (Ohio, 1895) ("the health of the plaintiff herself has been seriously and injuriously affected, and the comfort and enjoyment . . . have been greatly lessened and interfered with by the smoke and noxious gases")
McCarty v Natural Carbonic Gas Co, 189 NY 40, 50; 81 NE 549, 551; 12 Ann Cas 840, 842; 13 LRA (NS) 465, 469 (NY, 4 June 1907) ("smoke . . . so unusual and excessive as to materially interfere with the ordinary comforts of human existence")
Melvin v E. B. & A. L. Stone Co, 7 Cal App 327; 94 P 390 (Cal App, 1908) (banned continuous smoke making plaintiff's home untenantable)
Judson v Los Angeles Suburban Gas Co, 157 Cal 168; 106 P 581; 21 Ann Cas 1247; 26 LRA (NS) 183 (Cal, 1910) (ban defendant "from conducting and operating the gas works and manufactory . . . in such a manner as to cause or permit smoke, gases, or offensive smells or fumes to be emitted therefore, or to be precipitated therefrom onto the property of the plaintiff" pursuant to the ancient rule sic utere tuo ut alienum non lædas")
Bourne v Wilson-Case Lumber Co, 58 Oregon 48; 113 P 52; Ann Cas 1913A, 245 (Or, 1911) (banned smoke, ashes, and cinders being deposited on plaintiff's property, house, fruit and shade trees, continually obstructing enjoyment of one's property)
Lavner v Independent Light & Water Co, 74 Wash 373; 133 P 592 (Wash, 1913) (banned smoke, soot, and lamp black entering complainant's property, entering his house, destroying use for occupancy)
Face v Cherry, 117 Va 41; 84 SE 10; Ann Cas 1917E, 418 (Va, 1915) (banned causing dense smoke and soot falling on plaintiff's property, and use of any other than smokeless fuel)
Holman v Athens Empire Laundry, 149 Ga 345; 100 SE 207, 214; 6 ALR 1564, 1574-5 (Ga, 1919) ("Neither the opposite party nor the public has the right, legal or equitable, to invade the clear legal rights of another.")
Other Cases Against Smoke
Rex v White and Ward, 1 Burr 333 (KB, 1757) (indictment for causing "a noisome, offensive, and stinking smoke," "rendering the property of other persons incommodious and uncomfortable to them," punishable for that alone, as Judge William Murray, Lord Mansfield explained, "it is not necessary that the smell should be unwholesome; it is enough, if it renders the enjoyment of life and property uncomfortable," though in this case "the smell was not only intolerably offensive, but also noxious and hurtful, and made many persons sick, and gave them head-aches." The solution included a fine and "the nuisance was absolutely removed; (the works being demolished, and the materials, utensils, and instruments, all sold and parted with" a good solution for disposing of tobacco farms, factories, and stores!)
Catlin v Valentine, 9 Paige 575, 576; 4 N Y Chancery Rep 821, 822; 38 Am Dec 567 (NY, May 1842) ("To constitute a nuisance it is not necessary that the noxious trade or business should endanger the health of the neighborhood. It is sufficient if it produces that which is offensive to the senses, and which renders the enjoyment of life and property uncomfortable: Rex v Neil, 2 Car & P. 485 ; Rex v White, 1 Burr [333,] 337 ."
Fish v Dodge, 38 N Y Common Law Rep (4 Denio) 311, 316; 47 Am Dec 254, 255 (NY, May 1847) ("It is a rule of the common law that a man should so so use his own as not to hurt another. . . . There are many cases in the books where this doctrine has been applied . . . It is not necessary . . . that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable," citing with approval, Rex v White, 1 Burr 333, 337 [KB, 1757]).
Peck v Elder, 5 NYSCR (3 Sandf) 126 (Sep 1849) (no need to wait until discomfort occurs; one can file in advance to have anticipated action banned).
Howard v Lee, 5 NYSCR (3 Sandf) 281, 282-3 (Oct 1849) ("this business is not only noisome and offensive to the neighborhood, making the enjoyment of life and property uncomfortable; but is also injurious to health. . . . The jurisdiction [authority] . . . has long been established . . . to restrain the continuance of nuisances. . . . This is on the principle of law, that every man must so use his own property as not to injure the rights of his neighbors. It is well settled . . . that it is not necessary a trade should be so injurious to health as to constitute a public nuisance, in order to have it restrained. Although not injurious to health, and merely offensive to the senses, making the enjoyment of life uncomfortable, it might destroy a vast amount of property in its neighborhood. No man can exercise his own rights of property, to the injury of others. We have no hesitation in
saying that the [prohibitory] injunction must be sustained.")
Walter v Selfe, 4 De Gex & Smale 315 (Eng, Chancery, 1851) (people are entitled to have an unpolluted and untainted atmosphere, "meaning by 'unpolluted' and 'untainted,' not necessarily air as fresh, free, and pure as at the time of building his house the atmosphere then was, but air not rendered to an important degree less comfortable, or at least not rendered incompatible with the physical comfort of human existence")
Davidson v Isham, 9 NJ Eq (1 Stockt) 186, 188-190 (NJ, Oct 1852) (Don't "endanger life, or render its enjoyment uncomfortable to those who reside in [the] neighborhood." "'It is not necessary that the smell should be unwholesome; it is enough that it renders the enjoyment of life and property uncomfortable;' and this rule has, by modern case, been adopted with much uniformity. . . . A man cannot destroy the comfort of another man's dwelling . . . so near to his premises as to annoy him by the smoke and stench. The court has frequently protected a man in such cases, in the enjoyment of his property, and will enforce the maxim sic utere tuo ut alienum non lædas . . . . The authorities are abundant to sustain the position that an individual cannot . . . render living in the neighborhood uncomfortable, either on account of . . . noise . . . or of [his] smoke and offensive smells")
Wolcott v Melick, 11 NJ Eq (3 Stockt) 207; 66 Am Dec 790 (NJ, May 1856) ("the court will interpose to prevent the prosecution of a legal trade where it is carried on in such a manner as to injure an adjoining tenant, or to affect the air with noisome smells, gases, or smokes, injurious to health, or rendering the enjoyment of life within a neighboring dwelling-house uncomfortable," case cited with approval in Ross v Butler, 19 NJ Eq 294, 301; 97 Am Dec 654, 660 (NJ, 1868)
Bamford v Turnley, 3 Best & Smith 65-86 (QB, 12 July 1862) (offensive smoke from lime kiln, causing diminuition in comfortable enjoyment of adjoining premises; p 84 says follow the norm in law not exception)
Barnes v Hathorn, 54 Me 124, 125; 7 Am Law Reg (NS) 81 (Maine, 1866) (citing the "well-established and exceedingly comprehensive rule of the common law 'sic utere tuo, ut alienum non lædas' which is the legal application of the gospel rule of doing unto others as we would that they should do unto us.")
Wesson v The Washburn Iron Co, 95 Mass (13 Allen) 95, 104; 90 Am Dec 181, 186-187 (Oct 1866) ("The rule of law is well-settled and familiar that every man is bound to use his own property in such manner as not to injure the property [or person] of another, or the reasonable and proper enjoyment of it; and that the carrying on of an offensive trade or business, which creates noisome smells and noxious vapors, or causes great and disturbing noises, or which otherwise renders the occupation of property in the vicinity inconvenient and uncomfortable, is a nuisance. . . .")
Robinson v Baugh, 31 Mich 290, 294-295 (29 Jan 1875) (The nuisance creator said others were doing the same. The court answered: "[he] specifies several . . . in the vicinity . . . claimed to be as detrimental. . . . But this, if true, cannot aid him. If others . . . are maintaining nuisances . . . it is no reason for refusing to stop one maintained by him. . . . When nuisances . . . exist in separate hands, they must be proceeded against separately, and it is a matter of no legal moment which is taken first. . . . The general principle is that every person must so use his own as not to cause injury to his neighbors.")
State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (21 April 1890). This TTS case was in New Orleans, due to second-hand smoke effects (being then complained of), banned smoking on street-cars (by Ordinance No. 4). ("Whereas the custom of permitting in the street-cars of this city is a most vile and objectionable one to the majority of our citizens . . . and whereas, this alone, of all the cities of the Union, allows such a discomfort to those of its citizens who ride in the public cars: Be it resolved that . . . smoking in any street-car of this city is hereby prohibited . . . and any one so offending . . . shall be fined . . . or imprisoned not less than five days, or more than thirty days. A smoker challenged the ban. The appeals court upheld it, using classic pure air terminology: "A nuisance belongs to 'that class of wrongs that arise from the unreasonable, unwarrantable, or unlawful use by a person of his own property . . . or from his own improper, indecent, or unlawful personal conduct, working an obstruction of or injury to a right of another, or of the public, and producing such material annoyance, inconvenience, discomfort, or hurt that the law will presume a consequent damage' . . . . There is no doubt that smoking . . . caused to a great majority of the people . . . material annoyance, inconvenience, and discomfort. . . . There is not only discomfort, but positive danger to health, from the contaminated air . . . ." "The city council . . . had authority . . . to provide for the public health. It can therefore require . . . that there shall be ventilation for a supply of fresh air . . . and, in pursuance of the same power, it can, in order to preserve pure and fresh air . . . prohibit smoking . . . It is essential to health and to comfort to have pure air . . . .")
State v C. C. Taft Co, 183 Iowa 548; 167 NW 467; 9 ALR 390 (7 May 1918) app dism 252 US 569; 40 S Ct 345; 64 L Ed 720 (15 March 1920) (upholding seizure of illegal cigarettes of many brands, Camels, Omars, Murads, etc., pursuant to Iowa law institutionalizing the right to fresh and pure air via an 1897 cigarette ban)
Amico's Inc v Thomas Mattos, 789 A2d 899 (RI, 15 Feb 2002) (upholding city restaurant smoking ban as per cities' and towns' broad powers to protect the "health, safety and welfare" of restaurant patrons)
Johnita M.D. v. David D.D. (Case No. D-37432, Utica, NY, Judge Robert F. Julian, March 2002) (parental smoking case)
Julie Anne [Case No. 97-PR-755; 2 Ohio Misc 2d 1; 2002 Ohio 4489] (Ohio Judge William Chinnock, 13 Sep 2002) (child protection case)
"As early as 1306 a royal proclamation was issued, forbidding the use of coal in London, followed by a commission to punish miscreants 'for the first offence with great fines and ransoms, and upon the second offence to destroy their furnaces.'" Margaret White Fishenden, Mechanical Engineering Dep't, Imperial College of Science and Technology, Univ of London, "Smoke and Smoke Prevention," Encyclopædia Britannica, Vol 20, pp 840-842 (Law §, p 841) (1963).
"The first person recorded to have suffered from medieval pollution was a Queen of England, Eleanor, who was driven from Nottingham Castle in 1257 by the unpleasant fumes of the sea coal burned in the industrial city below." "By the last decades of the thirteenth century, London had the sad privilege of becoming the first city in the world to suffer man-made atmospheric pollution. In 1285 and 1288 complaints were recorded concerning the infection and corruption of the city's air by coal fumes from the limekilns. Commissioners of Inquiry were appointed, and in 1307 a royal proclamation was made in Southwark, Wapping, and Easth Smithfield forbidding the use of sea coal in kilns under pain of heavy forfeiture." Jean Gimpel, The Medieval Machine (New York: Holt, Rinehart & Winston, 1976), p 82.
The 'right to pure air' is a derivative/corollary of the English Magna Carta, our right to not be killed except after due process (charges, jury trial, appeal, etc.). As the U.S. colonies were under England, our system of law derived from England, and in the Constitution, retains many of our old English-inheritance rights. One of these ancient rights, is the 'right to pure air.'