Tuesday, February 11, 2014

Indiana Supreme Court Strikes Down Evansville Smoking Ban; Indianapolis Ban Likely to Fall Within Days

Today, the Indiana Supreme Court ruled that the Evansville smoking ban which prohibits bars and taverns from permitting smoking violates the Indiana Constitution because the ordinance exempts riverboat casinos.  In particular, the court focused on the state equal privileges and immunities clause, Indiana's version of the federal equal protection clause. But as the Court demonstrated today, Indiana's equal privileges and immunities clause has considerable more bite than its federal cousin.

In the 3-2 ruling, the Court concluded:
We hold that the Amending Ordinance, on its face, violates the Equal Privileges and Immunities Clause of the Indiana Constitution because the disparate treatment—exempting floating casinos with "riverboat" statutory gambling authorization but not land-based bars and clubs, including those with gambling authorization from other statutory sources—is not reasonably related to the inherent differences between the divergently-treated classes.
Following the oral argument on the Evansville case which appeared to be very favorable to the bar owners, Attorney Mark Small drafted a complaint on behalf of Indianapolis bar owners that tracked the Evansville complaint.  That complaint has sat idle pending the outcome of the Evansville case. Today, Small filed for an emergency injunction against the Indianapolis ban based on the Evansville case.

Although smoking ban plaintiffs lost in the federal court system, those courts shied away from addressing the issue of Indiana's Constitution, namely the state equal privileges and immunities clause.  State supreme courts have absolute authority when it comes to interpreting their own state constitutions.

Indianapolis' smoking ban has a gambling facilities exception like Evansville, i.e. an exception that applies to the downtown Indianapolis off-track betting facility owned by Churchill Downs. But the exceptions in the Indianapolis ban actually go further than Evansville.  Cigar and hookah bars are exempted from the Indianapolis ban and veteran's halls can also takes steps to be exempted.  The same legal principle that led to the Evansville smoking ban being struck down is also present in the Indianapolis.  The supposed health dangers of secondhand smoke in a bar and tavern is no different than in an OTB cigar bar, hookah bar or veteran's hall.   As such, Indianapolis smoking ban also runs afoul of Indiana's equal privileges and immunities clause.

It would appear that the only choice the Indianapolis City-County Council has to try to preserve the ban is to pass a new ordinance that bans smoking at all 21 and over establishments that serve alcohol.  Last time there wasn't enough votes for such a comprehensive ban.


Cedar said...

Wow, I read this news from the Evansville Courier-Press earlier today, but I had no idea that the decision would have an effect here in Indianapolis. I haven't smoked in several years; however, I do remain interested in this issue.

Cedar said...

By the way and totally off topic, what's Sheila Suess Kennedy's problem with Indianapolis? Does she ever have a positive view of anything within the City or within Indiana?

Pete Boggs said...

Constitutional equity is at odds with tyrannies of privilege or exception; "elite" monarchal notions of picking winners & therefore losers.

There's either a right to associate or not. There's either a right to enjoy legal use of property or there isn't. Rights are exercised in place (real estate).

Paul K. Ogden said...

Apparently the other side is claiming that a severability clause in Indianapolis' ordinance somehow operates to absolve the law of its constitutional defect. A severability clause means that if part of the law is determined to be unconstitutional then the rest of it remains in place.So in this case that argument would mean Indianapolis exceptions are deemed invalid and thus the bar smoking ban would be comprehensive, applying to the OTB, veterans halls and putting cigar and hookah bars out of business. That certainly was not the intent of the council or the mayor who only passed it and signed it because it had exceptions to the law.