May 25 2011

IN THE SUPREME COURT OF THE STATE OF MONTANA No. OP 11-0150

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STATE OF MONTANA, Petitioner,

V. CLEPK

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MONTANA FIRST JUDICIAL DISTRICT COURT, LEWIS AND CLARK COUNTY, THE HONORABLE JEFFREY M. SHERLOCK, DISTRICT JUDGE, Respondent.

The State of Montana (State) has filed a petition asking us to exercise supervisory control over the First Judicial District Court in relation to that court's Cause No. BDV-1997306, now pending in the District Court for Lewis and Clark County. The case relates to a 1998 settlement, known as the Master Settlement Agreement (MSA), between a number of tobacco manufacturers (the participating manufacturers, or "PMs") and
52 states and

territories, including Montana. The MSA requires the PMs to make annual payments to the states and territories according to a formula that is contingent in part upon the states' "diligent enforcement" of a "qualifying statute" under the agreement. The State filed a declaratory judgment action in 2006 that sought to adjudicate the issue of whether the State diligently has enforced its qualifying statute. The court's resolution of this issue likely would bear upon whether the PMs should be entitled to an adjustment in their payments to Montana pursuant to the MSA. The District Court compelled arbitration of the diligent enforcement issue. We reversed. We determined that the State of Montana had not agreed to arbitrate the question of whether it diligently had enforced its
qualifying statute. State ex rel. Bullock v. Philip Morris, Inc., 2009 MT 261, 352 Mont. 30,

217 P.3d 475.

The District Court granted the PMs' motion on remand to stay the proceedings, however, pending the outcome of the nationwide arbitration. The State now asks us to direct the District Court to vacate its January 28, 2011, order that stays the Montana judicial proceedings until after the completion of the nationwide arbitration of other states' diligent enforcement cases. The defendants in Lewis and Clark County Cause No. BDV-1997-306 have filed a response objecting to the petition for a writ. Supervisory control constitutes an extraordinary remedy that sometimes is justified when urgency or emergency factors exist that make the normal appeal process inadequate. The case generally must involve purely legal questions. Finally, in a civil case such as the one at issue here, the petitioners must demonstrate that the other court is proceeding under a mistake of law and causing a gross injustice or that constitutional issues of state-wide importance are involved. M. R. App. P. 14(3); Lamb v. Fourth Jud. Dist. Ct., 2010 MT 141, 10, 356 Mont. 534, 234 P.3d 893. We have exercised supervisory control when a district court enters a stay order of indeterminate duration. Lamb, 11. Stay orders do not constitute appealable orders. Id.; M. R. App. P. 6(3). The stay we reversed in Lamb effectively could have lasted for a lifetime. Id. The District Court here ordered the stay pending the resolution of the nationwide arbitration. The court added that it would entertain a motion to lift the stay if the nationwide arbitration did not proceed within a reasonable time frame. The court's stay carries similar risks caused by delay and the susceptibility to dilatory tactics as the lifetime stay in Lamb. We note that the present litigation began over 13 years ago. The State filed this declaratory judgment action in 2006. We already have heard an appeal in Philip Morris and issued an opinion on August 5, 2009. The PMs appealed our decision to the United States Supreme Court, which denied the PMs' petition on June 1, 2010. R. I Reynolds Tobacco Co. v. Mont. ex rel. Bullock, 130 S. Ct. 3354 (2010). The PMs opposed the State's motion to set a scheduling conference on remand in District Court. The PMs moved to stay litigation pending arbitration on June 18, 2010. 2

Almost two years have passed since we decided that "the State of Montana did not agree to arbitrate the question of whether it diligently enforced a Qualifying Statute." Philip Morris, 27. The State's efforts to prosecute its rights could continue to be delayed indefinitely under the stay. The stay essentially nullifies our decision in Philip Morris by forcing the State to postpone its judicial action until after the completion of the nationwide arbitration. We reject the PMs' argument that no urgency or emergency exists, however, because the disputed funds now held in escrow cannot be released to the states before completion of the nationwide arbitration. The court's stay has halted all proceedings. The State may not engage in discovery. The State may not file any new motions or pleadings. The District Court's stay, in effect, has ended any other steps toward resolution. This outcome has put the State at a significant disadvantage in pursuing its rights. Lamb, 11 (citing State ex rel. Burlington N. R.R. v. Eighth Jud. Dist. Ct., 239 Mont. 207, 211-12, 779 P.2d 885, 888-89 (1989)). The State must be able to conduct discovery, preserve its claims, and pursue its action pursuant to our ruling in Philip Morris. Sufficient urgency exists to justify the exercise of supervisory control. As to the second supervisory control factor, the issue of whether the court should grant a stay presents a purely legal question. The decision to stay these proceedings did not involve factual disputes that would preclude supervisory control. The many factual disputes that remain to be resolved by the nationwide arbitration do not involve the court's decision to stay the State's prosecution of its declaratory judgment action. As to the third supervisory control factor, the State asserts that, by issuing a stay in the matter until after the completion of other states' diligent enforcement cases, the District Court is acting inconsistently with this Court's decision in Philip Morris and depriving the State of the benefits of that decision during the stay, and possibly permanently. We generally review district court orders related to trial administration matters, such as a motion to stay, for an abuse of discretion. Lamb, 14. We conduct plenary review to the extent that the district court bases its discretionary ruling on a conclusion of law. Id. A court determines 3

whether to grant a stay by balancing competing interests and considering whether the public welfare or convenience will be benefitted by a stay. Henry v. Seventeenth Jud. Dist. Ct., 198 Mont. 8, 13, 645 P.2d 1350, 1353 (1982). The State sought a declaratory ruling "(1) whether the State 'diligently enforced' its Qualifying Statute and (2) whether certain 2003 settlement agreements waived any claim by the 'OPM' Defendants based on enforcement actions Montana might have taken in 2003 regarding cigarette sales that had occurred in 2002." Pl.'s Resp. Defs.' Mot. Stay Procs., 5 (July 2, 2010). The District Court acknowledged that we had reversed the compelled arbitration on the first issue in Philip Morris. The District Court expressed its uncertainty regarding whether the State was entitled to proceed on the second issue. The District Court opted to resolve this uncertainty by granting the stay order rather than determining whether the State could proceed on the second issue raised by the State. The Court explained (1) that the State would not be entitled to access the escrow money even if it prevailed on the diligent enforcement issue, (2) that the court could gain some guidance from the nationwide arbitration, and (3) that the court would conserve resources for the parties and the court by staying the proceedings. We disagree. Regardless of whether the State can collect on its share of the money held in escrow, the State should be allowed to conduct discovery and litigate the issues consistent with Philip Morris. We concluded that "the question of whether Montana diligently enforced its Qualifying Statute does not depend, in any way, on what the other Settling States have or have not done." Philip Morris, 25. We disagree that the nationwide arbitration will provide the court with valuable guidance. As we stated in Philip Morris, "[i]f Montana diligently enforced a Qualifying Statute, the NPM Adjustment does not apply to it; whether the other Settling States did the same is immaterial." Id. We already have determined that the State did not agree to arbitrate the question of whether it diligently enforced a qualifying statute. Id. at 27. We agree that the District Court's stay order operates under a mistake of law and causes a gross injustice to the State.

THEREFORE, IT IS ORDERED that the petition for writ of supervisory control is GRANTED. IT IS FURTHER ORDERED that the District Court's January 28, 2011, Order On Motion to Stay Proceedings in cause number DV-1997-306 granting a motion to stay proceedings is REVERSED. IT IS FURTHER ORDERED that this case is REMANDED to the District Court for further proceedings consistent with this Order. The Clerk is directed to provide copies of this Order to all counsel of record and to the Honorable Jeffrey M. Sherlock, Presiding Judge. DATED this qday of May, 2011.

Justices

Justice James C. Nelson, concurring. I concur in and have signed the Court's Order for the reasons stated therein. However, the stay imposed by the District Court was premised on certain misconceptions involving the nationwide arbitration and this Court's decision in State ex rel. Bullock v. Philip Morris, Inc., 2009 MT 261, 352 Mont. 30, 217 P.3d 475. These misconceptions demonstrate, in the first instance, that a stay of proceedings never should have been a consideration. I address that aspect of the case below. Background For purposes of this discussion, four original Participating Manufacturers and a number of subsequent Participating Manufacturers (collectively, PMs) entered into the 1998 Master Settlement Agreement (MSA) with 46 states, the District of Columbia, and five territories (collectively, Settling States), including Montana. In exchange for the Settling States' release of all claims, the PMs agreed to make annual payments to the Settling States for the implementation of tobacco-related public health measures. Philip Morris, J 2-3. The PMs do not make payments directly to individual Settling States, however. Rather, each PM makes a single, nationwide payment into an escrow account, and the amounts are then allocated among the Settling States. Each PM's individual contribution to the account is based on its market share. Likewise, each Settling State receives an allocable share of the sum of all payments made by the PMs in a given year. Montana's allocable share is 0.4247591 percent. Philip Morris, 3. Furthermore, in calculating the PMs' annual payments, the Independent Auditor (PricewaterhouseCoopers) takes the base amount owed by the PMs for the calendar year and then applies a series of adjustments, reductions, and offsets. One of the adjustments is the Non-Participating Manufacturer Adjustment (NPM Adjustment), which reduces the PMs' annual payment obligations if it is determined that (1) the PMs collectively lost more than two percent of their pre-MSA aggregate market share to non-participating manufacturers during the year in question and (2) the disadvantages experienced as a result of the provisions of the MSA were a significant factor contributing to that loss. on

Philip Morris, 4. In 2003, the PMs lost the requisite market share to non-participating manufacturers, and the disadvantages imposed by the MSA were a significant factor contributing to that loss. Thus, the PMs asked the Independent Auditor to offset their 2006 payments by the amount of the 2003 NPM Adjustment. Philip Morris, 6. The NPM Adjustment typically applies to the allocated payment received by each Settling State. A Settling State can avoid the NPM Adjustment, however, if it diligently enforced a Qualifying Statute during the year in question. A "Qualifying Statute" is a statute, regulation, law, or rule that "effectively and fully neutralizes the cost disadvantages that the Participating Manufacturers experience vis--vis Non-Participating Manufacturers within such Settling State as a result of the provisions of [the MSA]." Philip Morris, 5. Importantly, if a Settling State demonstrates diligent enforcement of a Qualifying Statute, "then the NPM Adjustment is inapplicable to that Settling State and is reallocated among the other Settling States on a pro rata basis." Philip Morris, 5 (emphasis added). Consequently, as the PMs stated in their brief on appeal in Philip Morris, "the diligent enforcement determination as to any one State has a direct impact on the annual payments received by every other State." When the PMs asked the Independent Auditor to offset their 2006 payments by the 2003 NPM Adjustment, the Settling States responded that they had each diligently enforced a Qualifying Statute that year. The Independent Auditor refused to decide this issue, however, noting that it was "not charged with the responsibility under the MSA of making a determination regarding this issue" and, for that matter, was "not qualified to make the legal determination as to whether any particular Settling State has 'diligently enforced' its Qualifying Statute." Philip Morris, 7. Theoretically, the "diligent enforcement" question could be resolved by having each Settling State go to its own state court and obtain a declaratory judgment stating that it did (or did not) diligently enforce a Qualifying Statute during the year in question. The Settling State could then submit this judgment to the Independent Auditor who, after receiving all such judgments from all Settling States, could calculate how much money each state is entitled to based on which states are exempt from the NPM Adjustment. 7

This, in fact, was the procedure which most of the Settling States attempted to pursue in relation to the 2003 NPM Adjustment. Montana, in particular, commenced the instant action on May 8, 2006, alleging: that it had enacted a Qualifying Statute ( 16-11-401 to -404, MCA) in 1999; that these provisions were continuously in full force and effect during 2003; and that the State had diligently enforced them during that year. The State asked the District Court to enter a declaratory order to this effect. Alternatively, the State asked the District Court to determine that the PMs "have released, waived, or are estopped to assert any claim that Montana did not diligently enforce the Model Statute with regard to the 2003 escrow payment." Philip Morris, 9. In response, the PMs argued that "the diligent enforcement determination as to any one State affects every other State pursuant to [the MSA's] 'reallocation' provision, which makes it particularly critical that the States' diligent enforcement defense be resolved in a single, nationwide proceeding."' The PMs further argued that litigating diligent enforcement in state courts across the country "ignores the efficiencies of applying one uniform set of standards in a nationwide proceeding in which all parties can participate and are subject to final and binding determinations." Many of the state courts, to which these policy arguments were made, agreed with them. This Court, however, did not. We observed that "our decision must be based on Montana law and the plain language of the arbitration provision, not on the PMs' policy arguments. If the PMs intended for the 'diligent enforcement' question to be arbitrated pursuant to 'one clearly articulated set of rules' and with all Settling States present in one nationwide forum, the PMs certainly were capable of negotiating for this requirement in the MSA. As it is, no such language and no such rules appear in the MSA." Morris, 25. If this approach were so "critical" to protect each Settling State's interests, as the PMs claim, then one would expect all of the Settling States to be in favor of resolving the "diligent enforcement" question together in a single forum, rather than having to run around to 52 state courts objecting to each other's claims of diligent enforcement. And yet, that is not the case. It is the PMs who want to force all of the Settling States into one forum. 8
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Philip

Ultimately, this Court held that (1) Montana never agreed to submit the question of its "diligent enforcement" of 16-11-401 to -404, MCA, to nationwide arbitration and (2) resolution of whether Montana diligently enforced its statutes does not depend on the outcome of the nationwide arbitration. Philip Morris, J 25, 27. These holdings set our decision apart from the decisions of other Settling State courts on this issue. Those courts ruled that their respective states had agreed to submit the "diligent enforcement" question to nationwide arbitration, while this Court ruled that Montana had not agreed to do so and that Montana's diligent enforcement is to be decided in state court. As a result, following our decision, the PMs filed a Petition for Rehearing in which they asserted that "[c]ourts in 47 States . . . have unanimously reached the opposite conclusion from this Court and compelled arbitration of the entire 2003 NPM Adjustment dispute, including individual States' diligent enforcement" (emphasis added). The PMs then proceeded to rehash their argument that "the only construction that gives effect to the MSA's plain language is one that requires arbitration of diligent enforcement." While we again rejected this argument, see Or. at 2-3, DA 07-0299 (Sept. 9, 2009), 352 Mont. at 45a-45b, 217 P.3d at 486-87, the key point here is that the "diligent enforcement" efforts of the other Settling States is going to be decided in the nationwide arbitration, while Montana's diligent enforcement is supposed to be decided simultaneously in Montana District Court, as contemplated by our Philip Morris decision. The PMs' filed a Petition for Writ of Certiorari, which the Supreme Court denied. RJ. Reynolds Tobacco Co. v. Montana ex rel. Bullock, 130 S. Ct. 3354 (June 1, 2010).

Accordingly, upon return to the District Court, this case should have proceeded forthwith into a determination whether the State diligently enforced the aforementioned statutes. The PMs, however, sought to delay these proceedings. More to the point, they essentially sought to circumvent our Philip Morris decision. To that end, they objected to the State's request for a scheduling conference and instead moved the District Court to stay the proceedings while they fully litigated their claims against the other Settling States in the nationwide arbitration. In considering this motion, the District Court acknowledged that "[c]learly, under the decision rendered by the supreme court, the State could proceed with

the issue of diligent enforcement." Nevertheless, the court concluded "that a stay would be equitable and fair to all parties." I disagree and conclude that granting the stay under the circumstances here was erroneous as a matter of law.
Limited Discretion

At the outset, while trial administration is ordinarily a matter within the court's discretion, this is not a run-of-the-mill "stay" case. By the time the District Court imposed the stay, this case had already been to this Court on appeal, and law of the case had been established with our decision. Thus, while this Court ordinarily reviews stay orders for abuse of discretion, Lamb v. Fourth Jud. Dist. Ct., 2010 MT 141, 14, 356 Mont. 534, 234 P.3d 893, the District Court's discretion here was exercised following remand and, therefore, had to be exercised within the bounds of our decision. As noted, this Court held in Philip Morris that Montana did not agree to arbitrate the question of its diligent enforcement of a Qualifying Statute, and resolution of this question does not depend on the outcome of the nationwide arbitration. 2 Thus, while a district court should otherwise be afforded broad discretion in managing the proceedings before it, the District Court here was not at liberty to impose a stay which contravenes the law of the case established by our Philip Morris decision and which hands the PMs, through the back door, the victory they were unable to obtain in the appeal.
"Damage to the State"

In granting the stay, the District Court observed that even if Montana wins the "diligent enforcement" issue, the State will not be able to receive any of the proceeds in escrow until the nationwide arbitration is completed. Thus, the court reasoned that "there is no damage shown to the State if this matter is stayed" and, further, that "the State gains [no] advantage by proceeding to litigate the diligent enforcement issue" now. These observations are incorrect. As explained above, the final calculation of funds to which each Settling State is entitled depends on how many Settling States are exempt from the NPM Adjustment; and Indeed, as I explain below, a decision as to Montana's diligent enforcement is actually a prerequisite to concluding the nationwide arbitration on the 2003 NPM Adjustment. 10
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that, in turn, depends on determinations, as to each and every Settling State, whether a Qualifying Statute was diligently enforced in that statesince diligent enforcement of a Qualifying Statute in one state results in reallocation of the NPM Adjustment among the other Settling States on a pro rata basis. Philip Morris, 5. Necessarily, then, the final calculation of each Settling State's share of the PMs' 2006 annual payments cannot be made until it has been determined whether Montana diligently enforced its Qualifying Statute in 2003. The District Court, however, stayed the proceedings on this question "pending the resolution of the nationwide arbitration on the NPM adjustment." Yet, as just noted, resolution of the NPM Adjustment cannot occur until a determination has been made whether Montana diligently enforced its Qualifying Statute. The court's stay, therefore, will theoretically last in perpetuity. Moreover, the stay is premised on the occurrence of an implausible series of events: first, the arbitration panel (three former Article III federal judges) will decide the diligent enforcement efforts of the other Settling States; next, the nationwide proceedings will be stayed so that Montana, at last, can litigate its diligent enforcement in state court; and finally, after that determination is made and the inevitable appeal to this Court is decided, the nationwide proceedings will resume and the final determination as to the applicability of the 2003 NPM Adjustment will be made. It is highly doubtful, however, that the arbitration panel and the other the Settling States will delay disbursement of the moneys just so that "diligent enforcement" litigation can proceed in Montana. Rather, it is far more likely that Montana's diligent enforcement will effectively be decided in the nationwide arbitrationand in Montana's absence, no less. Indeed, the PMs state in their brief in the present proceedings that each Settling State has "the right to [contest Montana's diligence]" in the nationwide arbitration. And, according to the PMs' brief on appeal in Philip Morris, the Settling States have an incentive to do so because "the granting of an exemption by one settling state will automatically lead to the reallocation of its allocated portion of the NPM Adjustment to all other nonexempt settling states, [and thus] each governmental signatory has its own self-interest at stake in the outcome of this issue, which is necessarily in conflict with 11

every other state." See New York v. Philip Morris Inc., 813 N.Y.S.2d 71, 76 (App. Div. 1St Dept. 2006). Consequently, in their Petition for Rehearing, the PMs pointed out that while the parties are bound by this Court's ruling in Philip Morris, "it cannot bind the 47 other States that are MSA parties. Any one of those States would remain free to challenge Montana's diligent enforcement in the nationwide arbitration. Should that occur, it will result in a decision the Auditor is bound to follow" (emphasis added). By the PMs' own account, therefore, the question of Montana's diligent enforcement could be raised and decided, to Montana's detriment, in the nationwide arbitrationin which Montana is not participating. Meanwhile, as a result of the stay, Montana has been left to sit idly by and await the arbitration panel's decision. Montana is entitled under our Philip Morris decision to have its 2003 diligent enforcement promptly adjudicated in Montana state court and then to submit the District Court's judgment to the Independent Auditor or the arbitrators so that they may use it to calculate the NPM Adjustment in light of which states are exempt and which states are not. But instead, under the District Court's stay order, once the "diligent enforcement" efforts of the other Settling States (and possibly Montana) are decided by the arbitration panel, the PMs will return to Montana and ask the District Court to lift the stay and either (1) accept whatever decision has been reached in the nationwide arbitration regarding Montana's diligent enforcement or (2) defer to whatever approach was used in those proceedings. Effectively, the District Court proceedings will serve no purpose other than to rubber-stamp what the arbitration panel has already determined. In fact, the court has indicated it intends to defer to the panel's approach vis--vis the other Settling States' diligent enforcement, and the PMs have indicated they intend to import the panel's "diligent enforcement" analysis into Montana. This undermines the central point of our Philip Morris decision, which is that Montana is entitled to obtain a decision on its "diligent enforcement" in a Montana court based on Montana law. Even if the issue is not effectively decided by the federal arbitrators in Montana's absence, Montana's ability to litigate fairly its diligent enforcement is being seriously undermined by the stay. The Attorney General needs to present witnesses and evidence 12

to show that Montana diligently enforced in 2003 a statute, regulation, law, or rule that "effectively and fully neutralizes the cost disadvantages that the Participating Manufacturers experience vis--vis Non-Participating Manufacturers within such Settling State as a result of the provisions of [the MSA]." Philip Morris, 5. The problem with any litigation is that the further away in time one gets from the act, the harder it is to prove. Witnesses may become unavailable; evidence may be lost or degraded; the claim becomes stale. Forcing Montana to await the resolution of the nationwide arbitration in another two to three years inherently prejudices the State from an evidentiary standpoint. For these reasons, the District Court's "no damage" rationale is erroneous. "Guidance from the Arbitrators" Next, in granting the stay, the District Court opined that it might "gain some guidance from the nationwide arbitration." The court reasoned that it might find "the standard set forth by the panel of arbitrators to be persuasive." This approach, however, is contrary to Philip Morris, J 25-26, where we rejected the notion that Montana's diligent enforcement should be decided pursuant to a national standard. Such a standard (which is being developed in the nationwide arbitration without Montana's input) is not required by the MSA, which instead contemplates that such issues "shall be governed by the laws of the relevant Settling State." Indeed, applying a national standard to Montana would be impractical in any event. What constitutes "diligent enforcement" in states like Illinois, New York, and Massachusetts is not necessarily equivalent to, or even insightful of, what constitutes "diligent enforcement" in Montana. Montana's specific population density, land area, and budgetary resources present unique considerations on the question of whether it enforced its Qualifying Statute "diligently." The District Court's proposal to await a national standard is, therefore, misplaced. Again, Montana's diligent enforcement is to be decided based on Montana law. 3 Philip Morris, 26. According to the PMs, the supposed "guidance" that the nationwide arbitration will provide includes "the procedures for resolving diligent enforcement claims, the types of evidence that might be relevant, and the factual records in other states as to what measures were generally available and could be employed to enforce the Qualifying Statutes." Montana courts, however, are capable of applying Montana procedural rules and determining relevance according to 13

"Mootness"

The District Court also reasoned that the stay would conserve resources for the parties and the court because if the arbitrators ruled that the PMs had waived their claim to a 2003 NPM Adjustment, then the question of Montana's diligent enforcement would be mooted. This reasoning assumes, however, that the waiver issue (vis--vis Montana) is to be arbitrated in the nationwide forum, rather than addressed on the merits by the District Courta dubious assumption under the reasoning of Philip Morris. In any event, as the State points out in its brief, the arbitration panel has already ruled (nine days prior to the District Court's stay order) that the PMs did not waive their claim to the 2003 NPM Adjustment. Thus, the court's mootness rationale does not justify the stay.
Conclusion

Montana has the right and obligation under Philip Morris to litigate its 2003 diligent enforcement in state court nowsimultaneously with the litigation of the other Settling States' diligent enforcement in the nationwide arbitration. Montana is being denied that right by virtue of the stay. Moreover, Montana is being put at a disadvantage in having to await the completion of the nationwide arbitration because (1) Montana's 2003 diligent enforcement may well be raised in the nationwide forum and decided, for all intents and purposes, by the federal arbitrators in Montana's absence, (2) the standard ultimately imposed on Montana may be developed without input from Montana and may not reflect the unique characteristics of Montana, and (3) Montana will be placed at an evidentiary disadvantage, assuming it is even given a genuine opportunity to prove diligent enforcement in the District Court at some future date. The defendant tobacco manufacturers' historicaland ongoingapproach to this litigation has been to prevaricate, dissemble, and delay, and that is exactly what they have done here. Contrary to the PMs' arguments, resolution of the "diligent enforcement" question in Montana does not depend on the outcome of the nationwide arbitrationas we held in Philip Morris. The State is entitled to the benefit of our decision. With its
Montana law. Also, as we stated in Philip Morris, 25, what other states have done simply has no bearing on Montana's diligent enforcement efforts. 14

stay order, however, the District Court has effectively abdicated its responsibility to decide this question, leaving it to the arbitration panel to determine Montana's diligent enforcementexactly what the PMs sought, and exactly what our Philip Morris decision said should not happen. Indeed, litigation to determine whether Montana has diligently enforced its Qualifying Statute is long overdue. The State is entitled to have its day in court now. The District Court should refuse to countenance any further tactics from the PMs to derail this litigation and our Philip Morris decision. The District Court's current approach is contrary to the law of the case and erroneous as a matter of law. I accordingly
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