Judge: SD smoking ban can be referred to voters

AP News
Posted: Nov 12, 2009 4:27 PM

The smoking ban passed by the South Dakota Legislature is eligible to be referred to voters, so the court system must determine whether opponents collected enough valid signatures to put it on next year's ballot, a judge ruled Thursday.

Circuit Judge Kathleen Trandahl of Winner rejected requests by opposing lawyers to make legal rulings that would have settled the case. Instead, she started hearing testimony on 26 categories of challenged signatures on the petitions that were submitted by those who seek a public vote.

Trandahl said the case has to be handled quickly but properly so a final decision is made before next year's election. Her eventual decision is certain to be appealed to the South Dakota Supreme Court.

"We only have time to do this case right once," the judge told lawyers.

The trial is expected to last at least until sometime Friday.

The 2009 Legislature passed a law to ban smoking in bars, video lottery establishments and the casinos in Deadwood. The measure, which would extend a ban that has outlawed smoking in most workplaces and public areas since 2002, was to have taken effect July 1.

But bar and casino owners who contend the ban would drive away customers and interfere with business owners' rights collected signatures to force a public vote in the November 2010 election. Secretary of State Chris Nelson eventually rejected the petitions, ruling that too few valid signatures were collected.

The ban's opponents then asked the judge to order Nelson to reinstate some signatures and put the referendum on the ballot.

The bar and casino owners submitted about 25,400 petition signatures seeking a public vote, which would delay the ban from taking effect pending the 2010 election outcome.

The American Cancer Society, which was allowed to intervene in the lawsuit, challenged thousands of signatures, and Nelson eventually ruled that more than 8,800 were invalid. In testimony Monday, Nelson said further checking has led him to conclude that ban opponents are only 18 valid signatures short of the 16,776 needed to put it on the ballot.

The American Cancer Society had argued that the new law could not be referred to voters under the state's constitution because it is needed for the immediate preservation of public health. A delay in preventing smoking in bars and casinos could harm some people because even brief exposure to secondhand smoke can cause serious heart and lung illnesses, said Richard Casey, a lawyer for the society.

But Sara Frankenstein, a lawyer representing the bar and casinos owners, said the Legislature did not declare the smoking ban to be an emergency, which would have prevented its referral to a public vote.

Trandahl said the state Supreme Court has ruled that only the Legislature can decide if a law is an emergency measure needed to preserve health, peace and safety. That made the smoking ban eligible to go to a public vote if enough signatures were gathered, she said.

The judge said she wants to look at all the evidence on all the categories of challenged signatures before deciding the case.