WASHINGTON -- The Supreme Court, deeply split over the right of smokers or their families to sue tobacco companies for harm done by lung cancer, indicated yesterday that new Justice Clarence Thomas may have to cast the deciding vote in that dispute.
After talking over in private a major case it heard two weeks ago, the court told lawyers they would have to argue it all over again in January.
The justices issued that order and others in their last public session before Justice-designate Thomas joins the court. He is to take his final oath to become a justice Nov. 1.
Other actions by the court yesterday expanded the immunity of state and local judges to civil-rights damage lawsuits and set the stage for a ruling next year on the rights of accused people who may be too mentally ill to stand trial.
As is the court's custom when it issues such an order, the order calling for a new hearing in the smoking case was not explained. Usually, that indicates that the court is having trouble deciding a case, and a common reason for that is a close division of the justices.
The outcome of the case will be of major significance not only to smokers but also to the tobacco industry, which faces scores of lawsuits by smokers or their families seeking damages for injuries or deaths allegedly resulting from years of smoking.
The court acted in the case of Cipollone vs. Liggett Group (No. 90-1038), which involves a claim for damages against four cigarette manufacturers by Thomas Cipollone of Little Ferry, N.J., whose mother, Rose, died last year after 41 years of smoking the companies' products.
The key issue in the case is whether Congress' specifying health warning labels on cigarette packages and in advertising barred all lawsuits in state courts that are keyed to tobacco companies' advertising or promotion of their cigarettes.
A lower federal court blocked the Cipollone lawsuit, saying that the federal warning law shields the industry.
But that ruling conflicts directly with a New Jersey Supreme Court ruling last year allowing some state court claims to go ahead. The Supreme Court agreed to review the federal case, apparently to settle the conflict.
With the new hearing before the justices set for January, a final ruling is not expected until late spring or early summer.
In other significant actions yesterday, the court:
* Ruled, 5-3, that judges are immune from civil rights damage claims even if they authorize police to use excessive force in bringing a lawyer into court to deal with a case pending before that judge.
Because the force used by the officers, at the judge's command, is a part of the judicial action of compelling the lawyer's appearance in court, the judge is shielded by traditional immunity for actions on the bench, the court ruled in an unsigned opinion.
That ruling blocked a civil rights claim by a Los Angeles public defender, Howard Waco, against Superior Court Judge Raymond Mireles of Los Angeles.
Mr. Waco was handling a case elsewhere in the courthouse in November 1989, when Judge Mireles ordered police to get the lawyer for a hearing pending before him at the same time.
The officers did so, using what Mr. Waco claimed was physical force and vulgar language. Mr. Waco then sued the judge and the police. A lower federal court ruled that the claim could go forward, since Judge Mireles was out of bounds in authorizing excessive force. The Supreme Court overturned that result yesterday in Mireles vs. Waco (No. 91-311) without even holding a hearing on the case.
* The court also agreed to decide a long-standing dispute over who has to convince the jury in a criminal case when the accused person's mental competence is in doubt. The issue is whether the prosecutors must prove the person to be competent to stand trial or whether defense lawyers must prove the accused to be incompetent.
The California Supreme Court ruled in November that there was no constitutional problem when the state required the defense lawyers to bear the burden of proof. That decision came in a case involving Teofilo Medina Jr., who has been sentenced to death for murdering three people during a three-week crime spree in Orange County, Calif., in the fall of 1984.
A final ruling by the Supreme Court in the case of Medina vs. California (No. 90-8370) is expected before summer.