Back in the day, then-House Appropriations Chair Charlie Capps, D-Cleveland, was seldom seen without his cigar.
Smoking was much more permissible, and even in areas where it was not allowed, it was not uncommon for the snowy-haired Delta lawmaker to be chomping on an unlit cigar.
Capps was doing just that in the mid 1990s in a committee hearing when he warned then-Attorney General Mike Moore that he had better not spend any state funds on the cockamamie lawsuit he filed against the tobacco companies to recoup government funds spent treating smoking-related illnesses.
Moore, of course, heeded the words of the powerful House Appropriations chair and used private attorneys who were compensated – at a sizable rate – when the state won the historic lawsuit. If the state had not prevailed, the private attorneys, led by now disbarred attorney Richard Scruggs of Oxford, would have lost the literally millions of dollars they invested in the lawsuit.
Of course, they did not lose. Moore settled with the tobacco companies for more than $4 billion over a 25-year period. And the state is scheduled to continue to receive funds from the cigarette makers (around $100 million per year) as long as they are in business.
Legislators who have followed Capps have had no qualms spending those funds and the money garnered by similar lawsuits filed by Moore and his successor, current Attorney General Jim Hood of Houston.
But a proposal is under consideration this session of the Mississippi Legislature that most assuredly would have prevented Moore from suing the tobacco companies if it had been law in the 1990s. The bill has passed the House by a narrow margin and is pending in the Senate.
The bill would require the attorney general to garner permission of a majority of a panel consisting of the governor, lieutenant governor and secretary of state before pursuing such lawsuits.
Now there is a strong case to be made that the bill, should it become law, is unconstitutional. But, if such a law existed in the 1990s and was not ruled unconstitutional by the courts, there would have been no tobacco lawsuit filed by Mississippi.
As sure as night follows day, then-Gov. Kirk Fordice would have stopped the lawsuit. Fordice, the state’s first Republican governor since the 1800s, filed an unsuccessful lawsuit to try to get the Supreme Court to stop Moore from pursuing the lawsuit. Then Lt. Gov. Eddie Briggs, incidentally the state’s first Republican in that office since the 1800s, would have voted with Fordice to prevent the lawsuit.
No doubt, if the panel contemplated in legislation this year had been in effect in the 1990s there would have been no tobacco lawsuit led by Mississippi and more than likely many of the successful lawsuits in recent years pursued by the attorney general would have been blocked by the panel. Since 2004, the AG’s office has garnered $3.26 billion in lawsuit settlement funds for the state.
Now, for defenders of the tobacco companies and of other major corporations, that does not mean they would have escaped litigation. Scruggs and the other attorney would have gone to other states with their plan to sue the tobacco companies to recoup public funds spent treating smoking-related illnesses.
But in the 1990s, Mississippi got the best settlement with the tobacco companies because it filed the first lawsuit. If the aforementioned legislation had been in effect, some other state would have received the additional funds for being the first to file the lawsuit.
In other words, the bill pending in the Mississippi Legislature will not stop lawsuits by states against big corporations accused of wrongdoing, it will just prevent Mississippi from benefiting from the lawsuits.
Bobby Harrison is the Daily Journal’s Capitol correspondent. Readers can contact him at (601) 946-9939.