The Kansas Supreme Court today reversed a lower court decision that temporarily exempted some private clubs from the statewide public smoking ban.
The decision reverses a Shawnee County District Court decision that had permitted smoking in 31 class A and B private clubs in the state while a lawsuit challenging the constitutionality of the smoking ban was considered.
When legislators first drafted the smoking ban bill in 2009, they exempted private clubs licensed before Jan. 1, 2009. But the ban didn’t become law until July 2010. Clubs licensed after the 2009 grandfather date but before the new law became effective cried foul, saying they were being treated unfairly.
In June 2010, District Court Judge Franklin Theis issued a temporary injunction in favor of the clubs granted licenses between the grandfather date and the new law's effective date. Steve Six, attorney general at the time, appealed that ruling in August 2010.
In his ruling, Theis said that the grandfather date was "at best, an unintended consequence" and "wholly arbitrary" — that is, there was no rational basis for it.
The Supreme Court, however, reversed the injunction, returning the case to the district court. In the ruling, Chief Justice Lawton R. Nuss disagreed that the cutoff date was arbitrary. He wrote that it was conceivable the Legislature selected the grandfather date to prevent bars — once they caught wind of the legislation — from rushing to get private club licenses and thereby get around the coming smoking ban:
"If the 2009 legislature conceivably chose the January 1, 2009, date as a cut-off — which would eliminate any incentive [for a mere ‘drinking establishment’] to rush to Class B club status during the pendency of the 2009 legislation — then it is exceedingly difficult, if not impossible, to conclude that the 2010 legislature could not conceivably have retained that same cut-off date for the same reason during its own session."
The ruling today likely will put an end to the lawsuit challenging the ban's constitutionality. During oral arguments in December, attorney Michael Merriam, representing the clubs, predicted that if the court were to rule as it did today, his client's suit would be "dead in the water."
"If this court says there is a rational basis (for the injunction), that Judge Theis got it wrong as you posit it, I don't see where we would go with that, frankly. ... We can't just litigate for the sake of litigating."
Chris Masoner, of the American Cancer Society's Kansas chapter, said he doesn't anticipate further challenges to the law.
"I do think as far as legal challenges, this ought to put everything else to rest," Masoner said. No state has overturned a public smoking ban, he said. "There have been legal challenges in the past and in every case it's been upheld as a legitimate state function."
A bill to widen exemptions to the smoking ban is before the Legislature, but doesn't seem to be going anywhere. A similar bill was considered last year and failed to pass.
In addition to certain private clubs exempted by the ban's grandfather clause, the current law exempts gaming floors of state-licensed casinos, smoke shops, a certain percentage of hotel rooms and designated spaces in nursing homes.session."