SD judge refuses secondhand smoke testimony

The American Cancer Society cannot present witnesses to testify on the dangers of secondhand smoke in a trial that will determine whether South Dakota's smoking ban will be referred to a statewide vote, a circuit judge has ruled.

The group argues that the new law, which would ban smoking in bars and casinos, cannot be referred to a public vote because it is necessary for the immediate preservation of public health. The South Dakota Constitution bars referendum votes on measures needed for the immediate preservation of the public health, peace or safety.

Circuit Judge Kathleen Trandahl of Winner said Monday that prior rulings by the South Dakota Supreme Court have established that courts decide whether a measure is necessary for the preservation of health, peace or safety based on the measure itself and other facts, not on evidence from witnesses or other documents.

Trandahl will hold a trial in the case Nov. 12-13.

The 2009 Legislature passed a law to ban smoking in bars, video lottery establishments and the casinos in Deadwood. The measure, which would extend a ban that has outlawed smoking in most workplaces and public areas since 2002, was to have taken effect July 1.

But bar and casino owners who contend the ban would drive away customers and interfere with business owners' rights collected signatures to force a public vote in the November 2010 election. Secretary of State Chris Nelson eventually rejected the petitions, ruling that too few valid signatures were collected.

The ban's opponents then asked the judge to order Nelson to reinstate some signatures and put the referendum on the ballot. The American Cancer Society has been allowed to intervene in the opponents' lawsuit against Nelson.

The bar and casino owners submitted 25,400 petition signatures seeking a public vote, which would delay the ban from taking effect pending the 2010 election outcome.

After the American Cancer Society challenged thousands of signatures, Nelson eventually ruled that more than 8,800 were invalid. In a document filed in court Monday, Nelson said further checking has led him to conclude that opponents of the ban have 61 fewer signatures than the 16,776 needed to put the measure on the ballot.

At next week's trial, Trandahl first will hear arguments on whether the ban is necessary for the immediate preservation of public health. If the state constitution prevents it from being put to a public vote, the lawsuit will be concluded, the judge said.

If she rules the measure can be referred because it is not necessary for the preservation of public health, Trandahl then will hear evidence on the validity of a number of challenged signatures.