Judge to determine smoking ban’s fate

The state ban on smoking in public places that has been delayed by a legal fight is going to get its day in court this week.

A trial is set for today and Friday in Pierre over Secretary of State Chris Nelson’s decision to invalidate 8,845 petition signatures, which denied opponents of the state smoking ban the chance to put a referendum on the 2010 ballot and let voters decide whether the prohibition should stand.

The smoking ban was approved by the Legislature and signed into law by Gov. Mike Rounds in March. However, Deadwood gaming interests, the Music and Vending Association, video lottery establishments and the Licensed Beverage Dealers of South Dakota quickly launched a petition drive to get a referendum on the ballot. The American Cancer Society challenged the results of the drive, and after examining more than 10,000 signatures called into question, Nelson invalidated more than two-thirds. That left petitioners about 200 short of the referendum threshold.

As this issue has unfolded, the ban that was to take effect in July has not yet been enforced.

Before Circuit Judge Kathleen Trandahl hears arguments whether Nelson properly excluded signatures, she will be asked by proponents of the ban for a ruling that the public health benefits of eliminating smoking discount cigarettes in public places are so compelling that the issue is not one that should be reviewed by voters. That would make the rest of the case moot and set the stage for the ban to be enforced.

If she does not grant such a ruling, opponents of the ban will ask her to decide that 2,500 of the signatures Nelson struck were done so for minor reasons and should be restored. That would give smoking ban opponents enough signatures to clear the threshold of 16,776 signatures to put a referendum on the ballot. This also would make the rest of the case moot.

If the judge declines the request for summary judgment, though, she will proceed to hear arguments on the propriety of Nelson’s decisions, for a variety of reasons, to remove signatures from the petition.

Jennifer Stalley, government relations director for the American Cancer Society in South Dakota, says when the group goes to court this week, it is prepared to battle it out signature by signature if necessary but would like to hit a game-winning home run before that.

“Our argument is given the immediate public health impact, this puts the smoking ban into the category of preserving the imminent public health of the state and is not subject to referendum,” she says.

During the legislative session, the House rejected an amendment to delay enforcement of the ban, Stalley notes. She adds, “We also know there are laws on the books that show the Legislature retains the ability to regulate tobacco solely to itself.”

Those facts, coupled with the testimony and legislative history of the bill, led to the conclusion “the Legislature wants this done sooner rather than later,” Stalley says of the smoking ban.

Hardly, counters Larry Mann, spokesman for the coalition that wants to put the ban to a referendum.

“It seems pretty clear to me the Legislature did not determine it was an emergency, otherwise there would have been an emergency clause on it,” Mann says of the smoking ban.

The public health argument probably will be bolstered by a new report from the Institute of Medicine, according to Darrin Smith, senior director of the American Heart Association of South Dakota. The Heart Association is not party to the litigation but is an interested bystander, Smith said.

The Institute of Medicine is associated with the National Academy of Sciences, and after a comprehensive review of data on the relationship between second-hand smoke and heart problems, it decided smoking bans improve public health.

Other frequently cited data on the benefit of smoking bans are statistics on hospital admissions from Helena, Mont., that showed heart attacks immediately declined 40 percent when a smoking ban went into effect there and immediately rose that same 40 percent when the ban was rescinded, Smith says.

The useful lesson from Helena, Mann says, is that businesses that allowed smoking there saw a 25 percent drop in clientele after the ban, a statistic in keeping with results from other states, such as Illinois, that passed smoking bans and tracked the economic effects, he says.

“Once that drop occurs,” adds Mann, “it takes two years to recover. In South Dakota, a lot of smaller places cannot survive a 25 to 30 percent drop in business. They will be gone and won’t have the opportunity to recover.”

No matter how Trandahl rules, proponents of the smoking ban, opponents or the state could appeal. Nelson has said it is crucial any appeals be resolved by mid-August, so he knows whether the secretary of state’s office will have to prepare a referendum.

As the months have passed since the smoking ban was passed, the issue has receded into the background for at least one group that would be affected by it.

Bill Leiferman, manager of the VFW Lounge in Sioux Falls, says patrons there are not making the court case much of a topic of conversation.

“I’ve not really heard any talk about it,” he says.

Smokers and nonsmokers alike have a philosophical attitude about what they think is the fate of the smoking ban, Leiferman says.

“We’re waiting for it. We assume it’s going to happen.”

source: www.argusleader.com

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