South Dakota - smoking ban, judge won't let ACS call witnesses - as trial nears..

November 3, 2009 - PIERRE - The state judge in charge of deciding whether South Dakota's new smoking ban can be referred to a statewide vote ordered Monday that the American Cancer Society can't call witnesses to testify on the effects of second-hand tobacco smoke. On Tuesday, October 6th the judge agreed the American Cancer Society (ACS) can join the case. The organization argues that the smoking ban should be in effect now and not put to a vote because of the immediate health benefits. (South Dakota - statewide smoking ban trial date moved to mid-November..)

Circuit Judge Kathleen Trandahl agreed with arguments presented on behalf of four businessmen who led the petition drive last spring to put the ban on the November 2010 ballot. (The four businessmen who sponsored the petition drive are Mike Trucano of Deadwood, Don Rose and Pete Thompson of Sioux Falls and Mark O'Neill of Henry.)

The cancer society is attempting to show that the ban passed by the Legislature is necessary for the preservation of public health and therefore can't be subject to referendum under a provision of the South Dakota Constitution. “It is undisputed that the South Dakota Legislature passed HB 1240 without an emergency clause and did not declare HB 1240 to be necessary for the immediate preservation of the public health,” Judge Trandahl said in her order released Monday.

The judge plans to hear the cancer society's arguments on the public-health issue and the petition sponsors' rebuttals on Nov. 12.

Her decision on whether the ban can be referred will determine in turn whether a trial should proceed on the validity of hundreds of signatures on the referral petitions. The trial would then start later that same day.

The ban would prohibit smoking in bars, casinos and restaurants with alcohol licenses. Secretary of State Chris Nelson ruled that the petitions lacked sufficient signatures. His latest affidavit in the case shows the petitions had 16,715 valid signatures, 61 short of the legal minimum. Nelson found 8,685 signatures invalid.

The cancer society and its South Dakota director of government affairs, Jennifer Stalley, pushed for the Legislature's passage of the ban. The secretary of state originally ruled after a standard spot check that they had sufficient signatures. Stalley challenged that ruling and persuaded Nelson to reverse himself.

The businessmen then filed a lawsuit seeking a court order directing Nelson to put the referendum on the 2010 ballot.

Reference: Second-hand smoke testimony banned from fight by BOB MERCER, American News Correspondent -, 11/3/2009.

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