Cancer society wins

Group will be part of smoking ban court case in November

PIERRE – The American Cancer Society won another battle Tuesday in its campaign to reduce the number of places where people can legally smokediscount cigarettes in South Dakota.

The cancer society and its South Dakota governmental affairs director, Jennifer Stalley, will get to take part in the court fight over whether there is a statewide vote next year on South Dakota’s new law banning smoking in bars, casinos and restaurants with alcohol licenses.

State Circuit Judge Kathleen Trandahl ruled in their favor on Tuesday afternoon, over the opposing arguments from the attorney for the four businessmen who are seeking the vote.

The judge also reset the trial for Nov. 12-13, three weeks later than it had been previously scheduled. She also put off further arguments on motions until the first morning of the trial.

Trandahl described the cancer society and Stalley as the “parents” of the ban, which was passed by the Legislature in its 2009 session.

The businessmen sponsored a petition drive to refer the law to a public vote.

Still undecided is whether the judge will allow the cancer society to present an expert witness to testify on the level of danger presented by second-hand smoke.

“This case is about election law and not health or science,” said Sara Frankenstein, the Rapid City attorney representing the businessmen.

Also yet to be argued is whether the law can be referred to a vote.

The legislation that was passed didn’t contain what’s generally known as an emergency clause, where the Legislature declares that a law should take effect immediately because it is necessary for “the immediate preservation of the public peace, health, or safety, or for the support of the county government and its existing public institutions.”

Trandahl said she wants that point settled first, before anything else is done on the opening day of the trial. The cancer society’s lawyer, Richard Casey of Sioux Falls, has filed court papers claiming the smoking ban on its face is necessary for the preservation of public health and, therefore, can’t be referred to a vote.

“If the court finds it is not referable, then it’s a done deal,” Judge Trandahl said.

Secretary of State Chris Nelson, whose office oversees South Dakota elections, initially ruled the petition sponsors collected enough valid signatures to put the ban on the November 2010 ballot.

Stalley challenged Nelson’s findings. He ultimately agreed with her in enough instances that there no longer were sufficient valid signatures to qualify for the ballot.

In turn the businessmen – Mike Trucano of Deadwood, Don Rose and Pete Thompson of Sioux Falls and Mark O’Neill of Henry – filed a lawsuit seeking a judge’s order that Nelson put the referendum on the ballot.

They needed 16,776 signatures that meet all requirements. According to statements made in court Tuesday, they currently are short by 54.

The number has steadily dwindled in recent months as Nelson and the attorneys continued to review signatures’ validity.

Letting the cancer society and Stalley into the case potentially changes the equation. Their attorney Casey said they want to challenge in court more than 900 signatures that Nelson found valid.

Various references were made Tuesday to the potential for the case to be appealed to the state Supreme Court.

Scott Swier, one of the state government lawyers representing Nelson, told the judge that the secretary of state must have a final decision no later than the second Tuesday of August 2010.

That is the deadline for putting it on the ballot for printing and distribution in advance of the November 2010 election.

Reporter Bob Mercer is blogging about South Dakota politics and government. Find his blog, Pure Pierre Politics (also known as P3), at under the blog tab or under “best blogs.”


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