American Cancer Society joins smoking ban lawsuit

PIERRE, S.D. (AP) — The American Cancer Society can take part in a lawsuit that will determine whether a smoking ban approved by the South Dakota Legislature will be referred to a public vote, a judge ruled Tuesday.

The society can intervene because the other parties, the state and opponents of the ban, will not adequately represent its interests, Circuit Judge Kathleen Trandahl said in her ruling. The ruling means the American Cancer Society can pursue its argument that the smoking ban cannot be referred to a public vote because it is necessary for the immediate preservation of public health.

Bars and casinos that oppose the ban collected signatures to force a public vote in the November 2010 election, but Secretary of State Chris Nelson eventually rejected the petitions, ruling too few valid signatures were collected.

The ban's opponents then asked the circuit judge to order Nelson to reinstate some signatures and put the referendum on the ballot.

A trial in the lawsuit had been set for Oct. 26-27, but Trandahl delayed it until Nov. 12-13 because a child of one of the lawyers is having surgery next week.

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

Bars and casinos argue the ban would drive away customers and interfere with business owners' rights. They submitted 25,400 petition signatures seeking a public vote, which would delay the ban from taking effect pending the outcome of the 2010 election.

After the American Cancer Society challenged thousands of the signatures, Nelson ruled more than 8,000 were invalid. Nelson said Tuesday he believes opponents of the ban have 54 fewer signatures than the 16,776 needed to put the measure on the ballot.

One of the main reasons some signatures were rejected was that some notary publics who witnessed signatures by petition circulators put down the wrong expiration dates for their notary commissions. Ban opponents argue those technical errors were not substantial enough to invalidate signatures.

Richard Casey of Sioux Falls, a lawyer for the American Cancer Society, said the organization needs to take part in the lawsuit so it can challenge about 1,000 additional signatures Nelson has accepted. It also needs a chance to argue the state constitution prevents a public vote on the smoking ban because it is required to preserve the public health, he said.

If the American Cancer Society had not been allowed to join the lawsuit, it would have had to file a second lawsuit to pursue its claims, Casey said.

Sara Frankenstein of Rapid City, a lawyer for the ban's opponents, argued the American Cancer Society should not be allowed into the lawsuit because the ban was sponsored by legislators, not the society.

Only the Legislature could decide whether the ban was needed for the immediate protection of public health, and lawmakers did not do that, Frankenstein said.

``This case is about election law, not about health and science,' Frankenstein said.

Trandahl ruled the American Cancer Society has met the legal requirements for intervening in the case because it helped write the ban and get it passed by the Legislature. The society would wind up filing another lawsuit if it is not allowed into the current legal battle, she said.

``If they are not allowed to intervene, it would just delay this action further,' the judge said.

The judge said the court session on Nov. 12 will start with a hearing on whether the measure is needed for preservation of the public health. If it cannot be legally referred to a public vote, then the case is over, she said.

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