Brief in Support of the Petition for
Enforcement of Michigan's Cigarette Control Law

          In the Michigan Attorney General litigation to recover some of the taxpayers' money spent on smokers' health care costs, there was a petition to seek enforcement of Michigan's cigarette control law. (A brief is an elaboration of points made in a petition.) Below is the brief in support of that 1998 petition.

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ex rel., STATE OF MICHIGAN, Case No. 96-84281-CZ
Plaintiff, Judge Lawrence Glazer
v. 30th Circuit Court
333 South Capitol, #C

Brief in Support of Citizen Petition

          Pursuant to the U.S. Constitution, Amendment I, the undersigned has petitioned for enforcement of MCL § 750.27, MSA § 28.216, and supports the Petition as follows:

          1. Attorney General Frank J. Kelley filed suit against Defendants herein for relief described in the Complaint, relating to cigarette-caused damages, the underlying factor of which is the illegal manufacture, give away, and/or sale of cigarettes.

          2. Michigan has a cigarette control law, MCL § 750.27, MSA § 28.216, that forbids "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 . . . ." (1939 ed.). All cigarettes are deleterious. Austin v State, 101 Tenn 563, 566-7; 48 SW 305, 306; 70 Am St Rep 703 (1898) aff'd 179 US 343 (1900). The warning label itself establishes the deleteriousness. Grusendorf v City of Oklahoma City, 816 F2d 539, 543 (CA 10, 1987).

          3. Had Defendants obeyed that law, originally dating from 1909, such obedience would have prevented the damages the Complaint describes.

          4. Our 1909 ancestors (thus, Defendants) were on detailed notice of cigarette dangers, i.e., had a context in which they passed the 1909 law—the danger of outdoor smoking, Commonwealth v Thompson, 53 Mass (12 Metc) 231 (1847); addiction, Carver v State, 69 Ind 61; 35 Am Rep 205 (1879); Mueller v State, 76 Ind 310; 40 Am Rep 245 (1881); State v Ohmer, 34 Mo App 115 (1889); the inherent deleteriousness of cigarettes and thus the danger to smokers themselves, Austin v State, 101 Tenn 563; 48 SW 305; supra; and the danger to nonsmokers, State v Heidenhain, 42 La Ann 483; 7 So 621; 21 Am St Rep 388 (1890).

          5. Our 1909 ancestors believed, with respect to the cigarette danger, in dealing with causes vs. effects. Data already existed showing cigarettes' role in mass injuries and deaths. Austin v State, 101 Tenn 563, supra. Our 1909 ancestors knew what seems to be forgotten now, that tobacco is a Confederate product, and that Confederates are people with an intense, fanatical, continuing, protracted hatred of the United States, so fanatical that they called themselves a foreign country, made war against America, and mass slaughtered hundreds of thousands of Americans without qualms.

          6. In that War, the Confederates fought for the right to torture and kill. That right, which underlay slavery, was upheld in court cases in the South during the slavery era, e.g., Commonwealth v Turner, 26 Va 678 (1827); State v Mann, 13 NC 263 (1829); Neal v Farmer, 9 Ga 555 (1851); and Commonwealth v Souther, 48 VA 673 (1851). Some abolitionists thus diagnosed pre-Confederates as atheists. Abolitionists such as Harriet Beecher Stowe and Senator Charles Sumner widely circulated the "right to torture" cases in the North, intending to stop the Confederates' mass torture epidemic that they were perpetrating on a daily basis, on a scale so vast and protracted that Hitler is a saint by comparison. Hitler killed only 6-10,000,000 people throughout the world; whereas cigarettes are killing 37,000,000 people in the U.S. alone (see para 13 below).

          7. The 1909 generation, so soon after the Civil War, knew the Confederate mind-set. They knew that data on how to poison people was widely circulated prior to the Civil War. Tobacco's power as a poison was also well-established in that era.

          8. The 1909 generation still knew that after the Confederates' so-called "surrender," Confederates immediately murdered Pres. Abraham Lincoln, as a first step in their enraged, vengeful orgy epidemic of continuing mass murder, lynchings and poisonings. The very year of the 1865 "surrender," Confederates were seizing Yankees or Yankee supporters and poisoning them. This fact was reported to Pres. Andrew Johnson by Senator/Maj. Gen. Carl Schurz, in ["Condition of the South"], Senate Executive Documents, No 2, 39th Cong., 1st Sess., especially pages 7-44.

          9. Mass murders, including poisonings by Confederates, were so widespread that America had to send large numbers of federal troops into tobacco country, the Confederacy, to try to restore some semblance of order. There is even a name for that lawless era—Reconstruction. Tobacco producers had no respect for law and morality then, and they still don't.

          10. Our 1909 ancestors were closer to the fact that the Confederate Army went into tobacco production with a vengeance. The Confederates' chemical warfare department altered the pre-Civil War tobacco formula to add rat poison (coumarin) from Trilisa odoratissima plants. In 1884, Dr. Laurence Johnson issued a warning about their doing so, in A Manual of the Medical Botany of North America (NY: William Wood & Co, 1884), pages 170-171. The Confederates, tobacco farmers, had fought the Civil War for the "states' right" to torture and kill, and now they are exercising it en masse, this time aimed at both blacks and the hated Yankees.

          11. When the Confederate Army, tobacco farmers and producers, did rise again and changed the tobacco formula to include coumarin, their intent was, and remains, to cause the "natural and probable consequence," suffering, torture, and death en masse. They intend vengeance on Yankees for ending slavery and winning the Civil War, and perceive themselves, their own Southern smokers, as martyrs in the continuing War.

          12. Trilisa farmers/producers continue to this very day. When vast quantities of Trilisa odoratissima continue to be produced, harvested, pro-cessed, en masse, into tobacco products, intent to mass murder via same is clear. See the definitions of "murder" and "natural and probable consequence" in Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), pages 1019 and 1026. Deaths from cigarettes' toxic chemicals such as carbon monoxide and hydrogen cyanide occur so frequently as to be expected to happen again and again, hence meet the definitions. Poisoning as practiced by Confederate tobacco companies and their accessories in tobacco and trilisa farming and production, continues the Confederate war on America, continues Confederates' exercise of their "states' rights," the right to torture upheld by their state courts—precedents still on the shelf at any major law library.

          13. "Over 37 million people (one of every six Americans alive today) will die from cigarette smoking years before they otherwise would." Source: Department of Health, Education, and Welfare, Research on Smoking Behavior, Research Monograph 17, Publication ADM 78-581, page v (Dec 1977). Such deaths are "natural and probable consequences." As such, occurring so frequently as to be expected to happen again, they are intentional (it's not, oops, 37,000,000 "accidents"). Accordingly, to deal with the mass casualties, the perpetrators and their accessories must be criminally prosecuted, and MCL § 750.27, MSA § 28.216, enforced.

          14. An order directing enforcement fits comfortably within established Michigan law, which already bans murdering people, e.g., MCL § 750.316, MSA § 28.584 (first degree murder); MCL § 750.317, MSA § 28.549 (second degree murder); MCL § 750.321, MSA § 28.553 (man-slaughter); and MCL § 408.1011(11)(A), MSA § 17.50(11)(A) (on-the-job killings). Since cigarette sales are already illegal pursuant to MCL § 750.27, MSA § 28.216, cigarette-caused deaths constitute felony murder (killing during the course of some other offense) pursuant to MCL § 750.316, MSA § 28.548 and People v Aaron, 409 Mich 672; 290 NW2d 304 (1980). Preventing such foreseeable killings is, in essence, prevention of irreparable harm—Michigan's share of the 37,000,000 deaths defendants foreseeably cause and plan to continue to cause unless restrained by injunction. Smith v Western Elec Co, 643 SW2d 10 (Mo App, 1982).

          15. Tobacco's fatal effects are "natural and probable consequences"—events happening so frequently as to be expected to happen again, events Defendants intend by their rampant wrongdoing, mass violation of MCL § 750.27, MSA § 28.216. See Black's Law Dictionary, 6th ed, supra, pages 789-790, for the pertinent phrase in odium spoliatoris omnia præsumuntur; every presumption is made against a wrongdoer.

          16. It is a "natural and probable consequence" that Defendants' mass protracted refusal to obey the 1909 law, MCL § 750.27, MSA § 28.216, banning deleterious and adulterated cigarettes, leads to the results described in the Complaint.

          17. It cannot be overemphasized that Michigan foresaw, and tried to prevent, the cigarette effects described in the Complaint from starting, by passing MCL § 750.27, MSA § 28.216, which serves as a "Cigarette Effects Prevention Act," but it is never obeyed. Defendants lack clean hands as they have done, and still do, nothing to obey it.

          18. MCL § 750.27, MSA § 28.216, had they been obeyed, would have prevented the cigarette effects described in the Complaint. Glus v Eastern District Terminal, 359 US 231, 232; 79 S Ct 760, 762; 3 L Ed 2d 770, 772 (1959), makes clear that a party cannot rely on its own wrongdoing as a defense, in essence, an argument that, 'we sold cigarettes in violation of the law; now we want to be exempted from paying for the effects, and not even be enjoined from continuing to violate the law.'

          19. A party cannot have the benefit of provisions of law, if any, favorable to its side, while ignoring its conditions which it is to perform or obey. Precedents show that no court should aid such a misconduct-committing party, e.g., Baltimore Trust Co v Norton Coal Mining Co, 25 F Supp 968, 973 (Ky, 1938); and Buckman v Hill Military Academy, 190 Or 154; 223 P2d 172, 175 (1950). "No one may take advantage of his own wrong," Stephenson v Golden, 279 Mich 710, 737; 276 NW 848 (1938).

          20. Re the occurrence of cigarette effects, including the 37,000,000 deaths being caused as a "natural and probable consequence" of cigarettes' inherent deleteriousness, Defendants have been on notice since at least the paragraph 4 cases, supra, or at least since the 1897 law upheld in Austin v State, 101 Tenn 563 (1898), supra, or certainly since at least 1909, to take action to prevent same from occurring, i.e., halting the manufacture, give away, and/or sale of deleterious and adulterated cigarettes.

          WHEREFORE, to enforce MCL § 750.27, MSA § 28.216, please issue an injunction directing all Defendants herein to obey it, specifically, to discontinue manufacture, give away, and sale of cigarettes.







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          If you would like to join the letter writing campaign to get the law MCL § 750.27, MSA § 28.216, enforced, here is a sample letter to Gov. John Engler and a sample letter to Attorney General Jennifer M. Granholm.

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Copyright © 1998, 1999 Leroy J. Pletten