Smokers, Red Light Runners Unite

Two high-profile court decisions pave the way for novel class action suits

The walls in Marshall Tanick's downtown Minneapolis law office are plastered floor to ceiling with plaques, diplomas, and certificates of appreciation. The honors come courtesy of a wide array of organizations--the University of Minnesota Journalism School, the Hennepin County Bar Association, the American Dog Owners Association. But if Tanick's latest legal gambits bear fruit, it's not inconceivable that his office walls might be adorned with certificates from some yet-to-be founded entities: the Minnesota Association of Nicotine Aficionados, maybe, or the Red Light Runners Club of Minneapolis.

Why would Minnesota cigarette smokers and Minneapolis traffic violators want to pay homage to Tanick? Short answer: money. Longer answer: money and principle.

Attorney Marshall Tanick to government: Give the people their money back (and please leave me a cut)
Mike Mosedale
Attorney Marshall Tanick to government: Give the people their money back (and please leave me a cut)

In two separate but theoretically similar cases, Tanick is seeking to have members of both groups--the smokers and red light runners--certified as legal classes. The aim, he explains, is to recoup money the government collected under two laws that Minnesota judges subsequently deemed illegal.

In the first case, currently pending in Ramsey County District Court, Tanick has his sights set on Governor Tim Pawlenty's 75-cent "health impact fee" on cigarettes. The HIF, you may recall, was enacted last July as both a budgetary and political fix. In the short run, it was successful. Without violating the letter of his no-new-taxes pledge, the governor managed to generate a staggering amount of revenue--roughly $20 million a month--by imposing the "health impact fee" on cigs.

But in December, the future of the peculiar revenue collection scheme was thrown into question. That's when Ramsey County Judge Michael Fetsch ruled that the fee structure violated the terms of Minnesota's landmark 1998 settlement with Big Tobacco. To make matters worse (from Tanick's perspective, at least), Fetsch also ruled that the money collected should be returned to the tobacco companies and distributors.

So Tanick rounded up three plaintiffs and filed suit. "There is going to be a multi-party tug of war over this money," Tanick says. "The state may take the position that 'We want to hold on to it.' The manufacturers may want it. And the wholesalers and retailers may want it. Our position is that money ought to go back to the pockets of the people who paid."

That sentiment sits well with lead plaintiff Bridget Brown of Stillwater. A social worker and self-described "shameful smoker," Brown decided to join the suit mainly out of indignation. "The governor basically said 'Let's tax people and call it a fee, because I've signed a no new taxes pledge,'" Brown says dismissively. "It's just nonsense. And I can't say I've ever been thrilled by sin taxes."

According to Tanick, it is unlikely that the Ramsey County court will certify his clients for a class action suit until the State Supreme Court makes a final ruling on the legality of the health impact fee. That probably will happen sometime in April.

Tanick's other class action gambit--which he expects to file in Hennepin County District Court next week--involves Minneapolis's controversial photo-cop "Stop on Red" program. Under its auspices, the city installed cameras at 12 high-traffic intersections and, in July, commenced issuing tickets to the registered owners of any vehicle photographed running a red light. In December, the American Civil Liberties Union of Minnesota sued on behalf of Daniel Kuhlman, a Minneapolis man who said he was wrongly ticketed. On March 14, Hennepin County Judge Mark Wernick ruled that the city's photo-cop ordinance was not permissible under existing state law and ordered the program halted.

That was all well and good for Kuhlman, who never paid his $142 fine. But it ticked off Will Shapira, a Minneapolis retiree who was caught running a light at the intersection of East Hennepin Avenue and 35W back in September. Not realizing he had much in the way of legal options--and willing to admit that he did run the light--Shapira coughed up the fine. But now that the photo cop ordinance has been invalidated, Shapira would like a refund. "If others don't have to pay, why should I?" he asks. "I want all of us to get off."

The total amount of money at stake in the photo cop controversy is a pittance compared to the tobacco lawsuit. But as Tanick sees it, there are still important similarities between the two cases--including an apparent absence of foresight on the part of policymakers. "These were very significant undertakings that must have been accompanied by some very high-level planning," Tanick notes. "In both cases, they seem to have been predicated on wishful thinking--you know, like [the search for Iraqi] weapons of mass destruction."

Asked whether he himself might qualify for certification in either of his two actions, the normally loquacious Tanick turns circumspect. "I'll have to plead the Fifth on that," he says.

 
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