Judge had tobacco interests, L.A. paper says

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Associated Press, Monday, September 9, 2002

Los Angeles — A federal judge who helped hand the tobacco industry one of its biggest legal victories in recent years represented a tobacco company as a private lawyer, a newspaper reported Monday.

The 2-1 ruling last October by the 2nd U.S. Circuit Court of Appeals derailed Canada's billion-dollar cigarette smuggling case against R.J. Reynolds Tobacco Holdings Inc., leading to the dismissal of similar suits against cigarette makers by the European Union and Colombia.

Internal documents disclosed in tobacco litigation show that U.S. District Judge Lewis A. Kaplan participated in high-level meetings discussing how to prevent government action on tobacco smuggling when he was an attorney for Brown & Williamson Tobacco Corp. in the 1970s and '80s, the Los Angeles Times reported.

Legal experts said Kaplan, 57, was not required to disclose his former ties or disqualify himself from hearing the case. The experts noted that years had passed since Mr. Kaplan's involvement with the industry, and that he had not represented R.J. Reynolds.

However, anti-smoking advocates said they were dismayed.

"We're very upset about what appears to be a failure of a judge to disqualify himself in a decision as important as this," said Gar Mahood, executive director of the Non-Smokers' Rights Association of Canada.

Mr. Kaplan, a judge for the Southern District of New York, was sitting as a visiting judge with the 2nd Circuit in the tobacco smuggling case.

The court ruled that the suit was barred by common-law doctrine forbidding the use of U.S. courts to collect taxes for a foreign government.

Mr. Kaplan did not return calls seeking comment, the Times said.

Lawyers representing Canada in the case said they didn't believe Kaplan's history affected the court's ruling.

The Supreme Court has yet to decide whether to hear Canada's appeal. In May, the court asked the Justice Department's solicitor general for advice on whether to take the appeal.

Solicitor Gen. Theodore B. Olsen has recused himself because he supported R.J. Reynolds' position in a friend-of-the-court brief. Career employees at the Office of Solicitor General have taken over the framing of a response to the Supreme Court, the Times reported.

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