South Dakota - opponents of smoking ban gain a delay..

July 29, 2009 - South Dakota's statewide ban on smoking is headed to a courtroom - probably within a month - as bar and gaming facility owners successfully won a stay Monday in Hughes County Circuit Court.

The delay means smokers can continue to light up in bars, restaurants, Deadwood casinos and video gaming establishments. Ban opponents say the public should get to vote on the issue.

Circuit Judge Mark Barnett of Pierre on Monday, July 26th delayed enforcement of the smoking ban until the lawsuit is decided. The Legislature passed the law earlier this year to ban smoking in bars, Deadwood casinos and video lottery establishments.

Last Thursday, July 23rd Secretary of State Chris Nelson said 8,845 signatures on petitions to put the issue to a statewide vote were invalid. It meant the measure fell 221 signatures short of the number needed to put the issue on the November 2010 ballot. Ban supporters challenged almost 10,000 signatures.

But a decision in circuit court probably won't end the fight to enact the contentious legislation. "I would suspect that whoever loses will take the case on up to the Supreme Court," state Attorney General Larry Long said. "Judge Barnett will not be the last word on this."

Nelson discounted 2,552 signatures because of errors made by notaries. In many cases, the notaries failed to put a correct expiration date of their commissions on petitions they notarized, said Larry Mann, a spokesman for the smoking-ban coalition that includes Deadwood gaming, the Music and Vending Association, the Licensed Beverage Dealers of South Dakota and video lottery establishments. Mann said the coalition hopes the judge will rule that notary errors should not disqualify otherwise valid signatures.

Had the petition effort not taken place, the law would have gone into effect July 1.

APPLICATION FOR WRIT OF MANDAMUS STATE OF SOUTH DAKOTA CIRCUIT COURT HUGHES CO. (filed 7/27/2009) The South Dakota Supreme Court has held that an application for writ of mandamus (may be a command to do an administrative action or not to take a particular action), is the appropriate method of review of the Secretary of State's decision not to validate signatures on the petition sheets and to compel the Secretary to place referred measures on the election ballot.

Reference: Opponents of smoking ban gain a delay Attorney general predicts hearing within weeks after stay issued, THOM GABRUKIEWICZ •,, 7/28/2009; Smoking ban fight heats up Petition backer says notaries in good standing by BOB MERCER, American News Correspondent, Aberdeen News, 7/29/2009.

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Published on Wednesday, July 29, 2009