PROF. JOHN BANZHAF'S BACKGROUND IN ANTISMOKING
EXCERPT FROM MOTION SEEKING LEAVE TO FILE A BRIEF AMICUS CURIAE


I. MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE

        John F. Banzhaf III, Executive Director of Action on Smoking and Health (ASH) respectfully files this motion for leave to file a brief amicus curiae, together with the attached Brief Amicus Curiae, all in the strongest possible support for the proposed settlement.
        This motion for leave to file a brief amicus curiae will first provide the court with basic biographical information about the Movant, especially with regard to many other public interest areas of law in which he has been active and served without compensation.  It will then provide more detail about his 30 years of experience and contribution to the war on smoking generally, and then to the novel aspect which he and his organization originated: the battle to protect the rights of nonsmokers, especially on airplanes.

A. BASIC BIOGRAPHICAL BACKGROUND — NOT RELATED TO SMOKING

        John F. Banzhaf III received his B.S.E.E. degree from the Massachusetts Institute of Technology (M.I.T.) in 1962.  He has two U.S. patents, and has authored almost a dozen technical papers.  He received his Juris Doctor degree magna cum laude from Columbia Law School in 1965 where he was an editor of the Columbia Law Review.
        While still at the law school he became the first person to demonstrate the viability of using copyright law to protect computer programs by successfully registering two copyrights on computer programs he wrote.  This in turn also led to a prize-winning law review article, see Banzhaf, Copyright Protection for Computer Programs, 64 Colum. L. Rev. 1274 (1964).  Thereafter he successfully asked Congress to amend the copyright law to deal expressly with data processing, and published one of the first articles on the legal problems created by computers.  Banzhaf, When a Computer Needs a Lawyer, 71 Dick. L. Rev. 240 (1967).
        Also while still in law school, Prof. Banzhaf developed a new mathematical methodology -- now generally known as the "Banzhaf index" -- to measure voting power under systems of weighted voting, and then persuaded New York State's highest court to adopt it as a requirement for approving so-called weighted voting reapportionment plans, Iannucci v. Board of Supervisors, 229 N.E. 2d 195 (1967).  See generally, Banzhaf, Weighted Voting Doesn't Work: A Mathematical Analysis, 19 Rutgers L. Rev. 317 (1965).  Subsequently this technique of mathematical analysis was extended, and applied to the Electoral College (for electing the president), multi-member districting, and other voting systems. See Banzhaf, 3.312 Votes, A  Mathematical Analysis of the Electoral College, 13 Villanova L. Rev. 303 (1968); Banzhaf, Multi-Member Electoral Districts -- Do They Violate the "One Man, One Vote" Principle?, 75 Yale L. J. 1309 (1966); Banzhaf, One Man, ? Votes: Mathematical Analysis of Voting Power and Effective Representation, 36 Geo. W. L. Rev. 808 (1968).  In the intervening years Prof. Banzhaf has also used his background and abilities to assist in the analysis of other legal problems, including discrimination.
        In short, Prof. Banzhaf's educational background and experience provides him with special insights into problems of proof involving epidemiological matters; e.g., the problems of causation in situations involving  secondhand tobacco smoke,
        For more than 25 years Banzhaf has served as a Professor of Law at George Washington University, teaching courses in torts (including product liability), administrative law, law and the disabled (a category he opened up to sensitive nonsmokers), and public interest law.  Some of his major accomplishments in this latter area include:
    ■ Established legal "standing" for individuals and organizations to challenge harmful environmental actions which affect many or all individuals, and expanded the reach of the National Environmental Policy Act (NEPA) to reach governmental actions only indirectly affecting the environment.  United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973).
    ■ Brought legal actions to persuade the Federal Trade Commission to adopt the new remedy of "corrective advertising," under which a manufacturer found guilty of deceptive advertising may be required to confess his deception to the public in future ads, and to persuade the agency to provide funding for public interest participation.  See Campbell Soup Co., 77 F.T.C. 664 (1970); Firestone Tire & Rubber Co., 81 F.T.C. 398 (1971).
    ■ Helped obtain a Special Prosecutor (now called "Independent Counsel") to investigate former president Richard Nixon and Attorney General Edwin Meese, and almost obtained one to investigate "Debategate," Banzhaf v. Smith, 588 F. Supp. 1489 & 1498, rev'd on other grounds, 737 F.2d 1167 (DC Cir. 1984).     
    ■ Initiated the unprecedented law suit in which citizens, over the objection of the state, successfully sued former Governor and former Vice President Spiro Agnew to recover the money he unlawfully received in bribes. Agnew v. State of Maryland, 446 A.2d 425 (1982).
        For many years Prof. Banzhaf has been listed in "Who's Who," "Who's Who in American Law," and other biographical publications, and he has lectured and/or been quoted on a wide variety of legal topics both in the United States and around the world.
        In short, he has been an active participant in many different areas of public interest law, and his abilities have been widely recognized.

B. GENERAL BACKGROUND RELATED TO SMOKING

        Just after graduating from law school, John Banzhaf filed a petition with the Federal Communications Commission (FCC) regarding smoking.  As a result, the agency ruled that all radio and TV stations broadcasting cigarette commercials must devote a significant amount of time -- free of charge -- to so-called anti-smoking messages. The ruling made it possible, for the first time, for such anti-smoking messages to be broadcast on radio and TV, and resulted in an estimated $200 million dollars worth of broadcast time for them.  He then successfully defended that decision, Banzhaf v. FCC, 405 F.2d 1082 (D.C. Cir. 1968).
        The ruling in turn led several years later to a total ban on all cigarette commercials, causing Reader's Digest to profile him as "The Man Behind the Ban on Cigarette Commercials."  When the constitutionality of that law was challenged, he was asked by the Court to serve as amicus curiae, and in this capacity was successful in defending the legislation, see Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971), aff'd 405 U.S. 1000 (1972).
        In 1967 Prof. Banzhaf founded a non-profit tax-exempt scientific and educational organization known as Action on Smoking and Health (ASH).  The purpose of ASH -- one which was unique at the time -- was to use the tremendous but largely untapped power of legal action against a major social problem: smoking.  As a result, for more than 30 years, ASH under Prof. Banzhaf has served as the legal-action arm of the antismoking movement: bringing, assisting in, and encouraging legal actions directed against the many problems of smoking.
        Below is a partial list of some of the major victories he and ASH have achieved in the war on smoking generally -- NOTE that this section does NOT include many successful actions aimed at secondhand tobacco smoke and nonsmokers' rights:
    ■ 1968: ASH files a complaint with the FTC charging the Tobacco Institute with ghost writing and deceptively promoting pro-smoking articles in True and
National Enquirer. FTC upholds complaint, and urges a ban on cigarette
commercials.
    ■ 1972: ASH files a petition with the Department of Justice charging that television ads for "Winchester," a so-called "little cigar," violates the ban on cigarette advertising. The ads are eventually discontinued in February 1973.
    ■ 1974: ASH legal action forces the long-delayed release of HEW's report on smoking and health.
    ■ 1975: An ASH petition sparks an investigation by the National Institutes of Health into the dangers of carbon monoxide in cigarette smoke.
    ■ 1975: The FTC, in response to ASH's petition, sues the six major cigarette manufacturers concerning their billboard ads.
    ■ 1972 ASH assists a worker to obtain the first injunction ever issued against smoking in a workplace, Shimp v. New Jersey Bell Telephone Company, 368 A.2d 408 (1976);
    ■ 1976: Responding to an ASH petition, the FTC announces the beginning of a probe into the tobacco industry. The probe eventually results in the release of secret tobacco industry surveys.
    ■ 1977: An ASH petition results in strong warnings about the dangers of smoking while taking birth control pills.
    ■ 1981: An ASH-inspired lawsuit brought by the FTC against the six major cigarette manufacturers was settled with the companies agreeing to increase the size of warning notices on cigarette billboards.
    ■ 1983: ASH petitions the Federal Aviation Administration (FAA) to require smoke detectors in airplane lavatories. The rule is eventually adopted in 1985.
    ■ 1984: ASH helps persuade the National Association of Insurance Commissioners (NAIC) to call for higher health insurance premiums for smokers, a move which eventually results in this change by several companies.
    ■ 1989: ASH helps to defeat a "smokers' rights" bill in Maryland, a bill seen as the first step in a new tobacco industry strategy to give smokers the right
to sue on the basis of alleged discrimination.
    ■ 1989: ASH assists Congressman Tom Luken in documenting how tobacco companies pay producers to feature cigarettes and smoking in movies.
    ■ 1994: ASH used legal action to force the U.S. Park Service to discontinue permitting cigarette promotions in U.S. parks, see ASH v. Lujan, Civ. Aer. No. 91-0357 JGP (D.D.C. 1991).
        Of more recent interest, the Food and Drug Administration based its decision to regulate cigarettes primarily upon a new legal principle established in Action on Smoking and Health v. Harris, 655 F.2d 236 (D.C. Cir. 1980).  Moreover, the tobacco industry's unsuccessful complaint against the FDA in court charges that ASH's "threats," "pressure," and "a carefully orchestrated public relations campaign" were behind the agency's action.
        Prof. Banzhaf has lectured and been widely quoted on topics related to smoking.  Several months ago he presented -- at the special request of the 10th World Conference on Tobacco OR Health in Beijing -- a paper on the topic of litigation against the tobacco industry.  He also presented four other papers -- a conference record.
        Professor Banzhaf was selected to serve on the so-called Koop-Kessler Committee on Tobacco Policy and Public Health, and fully participated in their proceedings.  He was especially active on the subcommittee concerned with Environmental Tobacco Smoke, and helped to fashion the Committee's position on that issue.   In short, for more than 30 years, Prof. Banzhaf and ASH have been active and successful in the war on smoking, and are thus very familiar with many of the problems relating to that fight.

C. INVOLVEMENT WITH THE PROBLEMS OF SECONDHAND SMOKE

        In 1969 Prof. Banzhaf began what has now become known as the nonsmokers' rights movement -- especially as it pertains to airlines -- by petitioning the Civil Aeronautics Board (CAB) to provide separate no-smoking sections on aircraft.  These efforts and other public pressures persuaded the major airlines to provide such sections even before the ASH-inspired CAB rule requiring them went into effect.
        Very shortly thereafter ASH followed up this initial success by obtaining nonsmokers' rights laws in the states of Arizona and South Dakota.  Since that time Prof. Banzhaf and ASH have continued to lead the fight to protect the rights of nonsmokers -- especially in airplanes -- as the following list of principal successes indicates:
    ■ 1971: Responding to a request from ASH, United Airlines becomes the first carrier to institute smoking and no-smoking sections.
    ■ 1971: ASH publishes Tobacco and the Nonsmoker: Hazards of Smoke in the Air, the first major report on the hazards of ambient tobacco smoke. The first such report by HEW is issued by the Surgeon General in January 1972.
    ■ 1971: Secretary Elliott Richardson of the HEW accepts ASH's proposals to adopt the first restrictions on smoking in federal buildings.
    ■ 1972: The US Supreme Court agrees with ASH's brief and affirms that the law banning cigarette commercials is constitutional.
    ■ 1972: Led by ASH Trustee Betty Carnes, Arizona becomes the first state to pass a comprehensive law protecting nonsmokers.
    ■ 1972: ASH's John Banzhaf defends the Interstate Commerce Commission's (ICC) rule restricting smoking on buses before the US District Court. The rule is upheld in January 1974.
    ■ 1975: An ASH petition sparks an investigation by the National Institutes of Health into the dangers of carbon monoxide in cigarette smoke.
    ■ 1975: ASH reports to the Third World Conference on Smoking and Health that major antismoking organizations permit smoking in their own offices and meetings. The body condemns the practice.
    ■ 1976: With help from ASH, Donna Shimp, an office worker allergic to smoke, gets an injunction prohibiting smoking in her office.
    ■ 1976: Allegheny Airlines agrees to pay an $8,000 penalty and changes its no-smoking policy to settle complaints filed by ASH with the CAB.
    ■ 1976: The ICC responds to an ASH petition by strengthening its rules restricting smoking on trains by banning smoking entirely in dining cars and designated no-smoking cars.
    ■ 1977: An ASH request results in a ban on smoking aboard mobile lounges at Dulles International Airport.
    ■ 1978: ASH attorneys successfully assist in the defense of a Dade County, Florida no-smoking statute. The court says its constitutional.
    ■ 1979: Responding to a petition by ASH, the CAB requires special segregation for pipe and cigar smokers on planes. Shortly thereafter, many airlines ban pipe and cigar smoking entirely.
    ■ 1979: ASH negotiates settlement whereby TWA and Eastern Airlines are forced to pay large fines and provide more protection for nonsmokers. ASH complaints at the CAB yield additional settlements with three more airlines, bringing total fines to over $24,000.
    ■ 1980: Both TWA and Pan Am adopt new seating configurations to provide substantially increased protection for nonsmoking passengers, an action
triggered by complaints filed by ASH
    ■ 1981: ASH asks major air carriers to protect nonsmoking passengers from exposure to tobacco smoke while in airports. All the major carriers, except Eastern, eventually comply.
    ■ 1981:  The Merit Systems Promotions Board of the Civil Service and the Dept. of Labor rule, in a proceeding in which ASH provided legal assistance, that employers must make reasonable accommodations to persons sensitive to tobacco smoke, see Pletten v. Department of the Army, U.S. Merit Systems Protection Board Nos. CH0 7528010099, CHO 1520 2901 (1981).
    ■ 1981: ASH takes the CAB to court to challenge the new rules which reduce the protection provided for nonsmoking passengers.
    ■ 1983: The US Court of Appeals unanimously rules in ASH's favor and orders the CAB to reinstate three previously effective anti-smoking regulations it rescinded in  1981, see ASH v. CAB, 699 F.2d 1209 (D.C. Cir. 1983);
    ■ 1985: ASH assists the Indian Health Service in creating a nationwide smokefree environment in their facilities.
    ■ 1985: ASH holds First World Conference on Nonsmokers' Rights in Washington, DC.
    ■ 1986: ASH attorneys assist Florida in successfully defending the
constitutionality of the Florida Clean Indoor Air Act.
    ■ 1987: ASH joins the American Public Health Association and the Public Citizen Health Research Group in asking the Occupational Safety and Health
Administration (OSHA) to ban smoking in common workplaces.
    ■ 1988: ASH helps defeat a law suit against the Metropolitan Transit Authority (MTA) in New York for eliminating all smoking cars.
    ■ 1989: ASH plays a major role in persuading Congress to ban smoking on domestic airline flights. The ban goes into effect in 1990.
    ■ 1990: The ICC, in response to an ASH petition, votes unanimously to ban smoking on all regular and special routes of interstate buses.
    ■ 1991: ASH Freedom of Information Act request forces EPA to release the technical compendium to its ETS report, a document which includes an estimate that ETS kills more than 50,000 Americans each year.
    ■ 1992: ASH attorneys provide new information and documents to the National Institute for Occupational Safety and Health (NIOSH). In its finalized report NIOSH concluded that ETS meets the criteria of OSHA for classification as a potential occupational carcinogen.
    ■ 1993: As a direct result of ASH pressure, several fast-food restaurant chains either experiment with or completely ban smoking in their outlets.
    ■ 1994: As the result of a rule-making proceeding initiated by ASH, and a law suit against the agency also filed by ASH, OSHA formally proposes a rule to ban smoking in the workplace.  ASH was also instrumental in obtaining adoption of such a rule in Maryland.
        In short, Prof. Banzhaf and ASH have been the major leaders in all aspects of the nonsmokers' movement for more than 25 years, and have worked to develop many of the major legal theories to protect the rights on nonsmokers.  Prof. Banzhaf has frequently been asked to testify, make speeches, appear in broadcast news features, and debate on the issue of nonsmokers' rights.