Vaping products confiscated from students at Skyview High School in Billings, Montana (Photo by Darrell Ehrlick of the Daily Montanan).
A federal judge dismissed a Montana lawmaker’s suit against large tobacco companies, alleging that not only were the companies violating a decades-long settlement with the state, but that Montana’s top attorney, Austin Knudsen, was not doing his job because of a cozy relationship with the companies.
Rep. Ron Marshall, R-Hamilton, said that large tobacco manufacturers, including R.J. Reynolds and Altria Group are illegally lobbying against a bill he is carrying, House Bill 149, which he said protects vape shop owners and other retailers from being forced into selling only the vaping products manufactured and sold by the larger companies, effectively creating a monopoly.
However, U.S. District Court Judge Dana L. Christensen said that Marshall lacks standing to bring a lawsuit, and tried to use a legal concept known as the “private attorney general doctrine” incorrectly.
Christensen said in his decision on Wednesday he was dismissing the lawsuit, not ruling on any of the concerns Marshall brought up, because the representative lacked standing — the right to bring the lawsuit.
“In Montana, ‘a stranger to a contract lacks standing to sue for breach of contract unless he is the intended third-party beneficiary of the contract,’” Christensen said, quoting from previous court decisions.
According to the Tobacco Master Settlement Agreement in November 1998 and involving states and large tobacco companies, only the state can sue the companies for violating the agreement. Furthermore, Marshall couldn’t show that his bill, which he claimed previously was being sabotaged by the tobacco companies’ lobbying efforts, would not pass.
Christensen rejected that Marshall suffered a concrete injury, or that he was about to suffer injury.
“(Marshall) himself admitted that there is a chance HB 149 will pass. Petitioner’s conjectural and hypothetical injuries are insufficient to establish standing or obtain an injunction,” Christensen said.
Christensen also said that private attorney general doctrine under Montana law means that a private resident can sue to vindicate only constitutional rights that the state is not otherwise challenging. Christensen said that Marshall tried to use the theory as justification to bring the lawsuit, but that no constitutional rights were implicated.
Instead, Christensen said that the claims that Marshall was bringing up in the lawsuit were more properly a breach of contract, and as such, the lawmaker was not a party to the contract, and he wasn’t a beneficiary of any of its terms, so he lacked standing to do so.
Meanwhile, Marshall had argued because some of the same parties had made campaign contributions to Knudsen and he appeared favorable to the companies, that Knudsen was not doing his job because of a conflict of interest. The federal court declined to to consider that argument as well.
“(Marshall) does not explain whose responsibility it is to determine whether Attorney General Knudsen has a conflict of interest, nor does (he) convince the court that — as a legislator — (he) is the appropriate individual to make that determination,” Christensen said. “Nevertheless, the court has reviewed the private attorney general doctrine and determined that is inapplicable here.”
Marshall had also claimed the tobacco companies were not properly reporting their lobbying activities and expenses with the State of Montana, something he said contradicted the master settlement.
Marshall declined to speak to the Daily Montanan when contacted on Wednesday, but indicated that it may not be the end of his fight against the tobacco companies.
“(Marshall) asks this court to assert its federal judicial powers to not only expand Montana state law by allowing petitioner to take on the enforcement roles of the state executive branch, but also, to halt certain ongoing activities at the Montana State Legislature,” Christensen said. “The court — at risk of understatement — does not take this request lightly and — out of respect for the separation of powers — declines the invitation.”