Friday, June 20, 2008

Choking on Smoking

First I was disappointed in the Nebraska Supreme Court. Turns out the City Council's confused rationale is to blame.

It happened while I was gallivanting around Disneyland and other points in Southern California, so I confess that I missed the court's nullification of the exemptions in the Omaha smoking ban. I noticed it now that the ban is back in the news as it takes effect.

I was disappointed because I worked as a research assistant for one of the justices, know several of them, and have defended that court from charges of judicial activism, most recently on its ruling that under the state constitution, electrocution is unconstitutionally cruel and unusual punishment.

What in the world, I thought, was the court doing sticking its nose into the issue of where smoking should be allowed in Omaha? There's nothing constitutional about that. The state constitution is silent on this issue. It's a classic case of close-in, hand-to-hand, political brawling in the arena of majority rule. Certain interests managed to convince a majority of the legitimate policy makers -- in this case, members of the City Council -- to exempt them temporarily.

Please understand that in concept I agree with the plaintiff, the owner of a midtown bar that does not qualify for an exemption. Numerous owners of bars, restaurants, and establishments that serve as both have told me that if there is a smoking ban, it should be absolute so everyone competes under the same circumstances. It's a competitive advantage to allow smoking.

But that argument did not prevail in the arena of majority rule, the City Council. The legitimate policy makers saw fit to grant exemptions.

The mistake of the City Council was to dress it up as a measure to protect the "right" of citizens to patronize, and employees to work in, smoke-free environments. There is no such right. The citizen has a right to patronize a smoke-free establishment. The worker has a right to find a job in a smoke-free establishment.

And the person who puts the money and sweat equity into an establishment has the right to decide whether to permit smoke in that environment. But that's a broader issue.

At issue were the exemptions. The Supreme Court latched onto to the City Council's overall justification for the ban -- protecting citizens and workers from smoke-filled environments -- and said: If that's your purpose, then it doesn't hold up legally to subject citizens and workers to smoke at some establishments. If you're defining a smoke-free environment at a business as a civil right, then you can't say it's OK for some establishments to deny that civil right.

Maybe the conservatives on the City Council will take charge and say we are the public policy makers for the City of Omaha, it's a matter of public policy where smoking should be allowed, and we decide by majority rule that this is how it's going to be.

In a concurring opinion to the main opinion, the court warned the City Council that even if the "right to smoke-free air" justification is abandoned, exemptions might be subject to a challenge based on the constitutional provision against "special" legislation to economically benefit certain parties.

That's a closer call, and that is a principle in the state constitution that the court is bound to apply. But at least it would be the right argument for the right reason.

1 comment:

OmaSteak said...

Nothing like arguing the finer points of the implementation of big nanny-state government. Now all the talk is about Omaha police having to take time from patrol to write tickets for smoking ban violations. I wonder how long it will be before Mark Welsh and his GASP buddies will be lobbying the city council for a contract to provide enforcement services/monitoring??? Think that's a joke??? Such contracts are Mark's means of income besides the money GASP collects. I wonder how Mike Fahey feels about being as popular as Mark Welsh in Omaha right now...LOL!!! Here's one for "Jim"...do you think Fahey's letter to Sokol was an "executive order"??? ROTFLMAO