As we look forward to today’s oral arguments before the Supreme Court of the United States in the Williams case, it is important to note how Philip Morris has effectively admitted that a fundamental premise in its March 2008 Petition for a Writ of Certiorari was, in fact, a misrepresentation. 

            Specifically, under “Questions Presented,” Philip Morris told the U.S. Supreme Court in March that the first question is: “Whether, after this Court has adjudicated the merits of a party’s federal claim and remanded the case to state court with instructions to ‘apply’ the correct constitutional standard, the state court may interpose – for the first time in the litigation – a state-law procedural bar that is neither firmly established nor regularly followed.” (emphasis added).  

            However, in its August 2008 Brief for the Petitioner, Philip Morris described the question presented as follows: “Whether, after this Court has adjudicated the merits of a party’s federal constitutional claim and remanded the case to state court with instructions to ‘apply’ the correct constitutional standard, the state court may instead hold the federal claim forfeited by interposing a state-law procedural rule in a way that serves no legitimate state interest and is neither firmly established nor regularly followed.”  

            In March, Philip Morris referred to the Oregon Supreme Court’s consideration of the long-standing rule against proposed jury instructions that are not clear and correct in all respects as if the rule were being raised for the first time only after the U.S. Supreme Court’s second remand of the case.   That is not true.  Philip Morris unjustifiably bolstered its contention that the Oregon Supreme Court’s January 2008 opinion had relied on that rule as a “pretext” for its “refusal to protect Philip Morris’s due process rights.”   In August, two months after its petition for a writ of certiorari had been granted, the phrase “for the first time in the litigation” was absent from Philip Morris’s “Question Presented.”

            As attorneys for Mayola Williams correctly stated in their April 23, 2008 Brief in Opposition, at page 11: “Philip Morris has seriously misrepresented the decision below, as it has the decision of the trial judge.”   Hopefully, Philip Morris will not ultimately benefit from its misrepresentation of the record in the Williams case.

-- 30 --