The Capitol Fax Blog » Pick around the edges, maybe, but the entire law should be safe

Pick around the edges, maybe, but the entire law should be safe

Tuesday, Mar 4, 2008

* This article claims there’s some weird severability language in the state’s new smoking ban law. Usually, bills state that if part of the law is overturned, the rest of the law remains intact.

The Peoria Journal Star article claims that the smoking ban law stated just the opposite. If even one part is overturned then the whole law is tossed out.

But I checked the actual law and the law appears to have the standard severability claim. So, even though opponents are starting to attack the law bit by bit, the entire law is probably safe from being overturned unless a judge specifically does so…

A Bureau County judge today will begin untangling a case that could potentially snuff out Illinois’ 2-month-old ban on smoking in public places. […]

But Carrington’s lawyer, Peoria attorney Dan O’Day, claims in several motions filed late last week that multiple provisions of the Smoke-Free Illinois Act - from the signage requirements to the likelihood of illegal invasions of privacy and fines - are unenforceable at best, or even unconstitutional. […]

And among several other challenges to the minutia of the law, Carrington’s case also questions the constitutionality of the state’s requirement for businesses to post no smoking signs at entrances and exits - some with the name of Gov. Rod Blagojevich, the insignia of the American Lung Association or other logos. The constitutionality of mandated ash tray removal also is challenged.

* Here’s the article’s passage on severability…

O’Day said the severability clause in the Smoke-Free Illinois Act contains a peculiarity that appears to do the opposite: invalidate the entire statute if one of its provisions becomes a courtroom casualty.

* Here’s the severability language in the law…

Section 60. Severability. If any provision, clause or paragraph of this Act shall be held invalid by a court of competent jurisdiction, such validity shall not affect the other provisions of this Act.

That’s pretty much the standard language. Am I missing something here?

* More…

* Saturday, business owner Jon Hemminghaus held what he calls a “smoke-in”. He invited anyone to stand inside or within 15 feet of the front door of his business and smoke to protest the Smoke-Free Illinois Act.

* County officials still unsure how to enforce smoking ban

* Residents use ban as incentive to quit smoking

- posted by Rich Miller

27 Comments

- LindaB - Tuesday, Mar 4, 08 @ 8:44 am:
“If any provision, clause or paragraph of this Act shall be held invalid by a court of competent jurisdiction, such validity shall not affect the other provisions of this Act.” — It would have helped if it had read “such INvalidity shall not affect.” But, I agree, the intent is quite clear.

- Ghost - Tuesday, Mar 4, 08 @ 9:12 am:
Based on his interpretation of the severability language, I think the law is safe from his assualt. Unfortunetly I can not say the same for common sense, a definite casualty of this attack.

- wordslinger - Tuesday, Mar 4, 08 @ 9:33 am:
Regardless, the train’s left the station. Smoking ain’t coming back. In the public interest, I’ve made a tour of the last-of-the-great dives in Chicago and the Western Suburbs. Some discreet violations of the law, but no open defiance. But I’ll keep searching.

- Anonymous - Tuesday, Mar 4, 08 @ 9:49 am:
After the kitchen closes (around 10 or 11) several bars will let regular patrons smoke in the kitchen. Sometimes there are more people in the kitchen than in the bar. The law is already a dead letter if you go to the right places in Chicago.

- VanillaMan - Tuesday, Mar 4, 08 @ 10:28 am:
Once again we have group of aggrieved individuals refusing to enforce a law. This is nothing new.

We are living in an age where everyone wants to play the victim. It is a pitiful way to empower people. All this whining and crying doesn’t undo the facts before us, does it? Pity isn’t a justification for overturning our laws.

Grow up!

- Mr. Wizard - Tuesday, Mar 4, 08 @ 10:54 am:
When laws become goofy and contrary to common sense, citizens increasingly stop obeying them. The veneer of “civilization” is thinner than many think…

- Dead Head - Tuesday, Mar 4, 08 @ 11:04 am:
You would think with the financial mess the State is in, we’d think about selling smoking licenses. Casinos, bars, etc. could buy a license and post signs informing people that their establishment allowed smoking. If they don’t like it, theyy could go somewhere else.

- Dem Dems - Tuesday, Mar 4, 08 @ 11:44 am:
Dead Head…the battle is over…it’s about peoples right for clean air in the workplace…there is no going back! It’s like saying that United is going to offer smoking only flights…it’s never going to happen…Big Tobacco lost this fight and there is no going back! Get over it and move on!

- jw - Tuesday, Mar 4, 08 @ 12:36 pm:
It is unbelievable that there is talk about aspects of the smokefree law being unconstitutional. Our law was written by lawyers who are experts in these laws and the “disputed” languahe in our law is identical to laws passed in other states - 22 to be exact. So can we just grow up in Illinois, stop whining and accept this important public health measure. It is embarrassing that Illinois is sounding like some ignorant petulant child. Workers need protection from toxic chemicals as do patrons - we now have it.

Pingback Local: Is the smoking ban law valid or not? : Peoria Pundit - Tuesday, Mar 4, 08 @ 12:55 pm:
[…] Columnist and blogger Rich Miller finds the claim to be suspect: Here’s the severability language in the law… Section 60. Severability. If any provision, clause or paragraph of this Act shall be held invalid by a court of competent jurisdiction, such validity shall not affect the other provisions of this Act. […]

- Lefty Lefty - Tuesday, Mar 4, 08 @ 1:43 pm:
Time to start buying stock in companies that make bus stop shelters and plastic cigarette butt containers (weighted stand-up ashtrays, basically). Those smokers need amenities!

- Dead Head - Tuesday, Mar 4, 08 @ 2:34 pm:
Dem Dems - Your comment “it’s about peoples right for clean air in the workplace…” What if the employees smoke? They would not mind a bit. “United is going to offer smoking only flights,” well I’ve got news for you. In a capitalist society, if enough people want it and are willing to pay for it, it’s probably going to happen. And lastly, you say, “there is no going back!,” I’ll bet the same was said of other laws that were later overturned on Constitutional issues. And, by the way, I am also a Dem.

- central illinois - Tuesday, Mar 4, 08 @ 3:03 pm:
Remember the prohibition on alcohol - smoking is safer than Drunk Driving

- montrose - Tuesday, Mar 4, 08 @ 3:35 pm:
–Remember the prohibition on alcohol - smoking is safer than Drunk Driving–

1) There is no prohibition on smoking. There is a prohibition on smoking in particular places.

2) Drunk driving is very illegal in Illinois.

- Anonymous - Tuesday, Mar 4, 08 @ 4:07 pm:
The documents filed in this case are available for your reading pleasure at the Journal Star website. They are extensive, and with that many potential arguments against the smoking ban it seems evident to me this law was poorly written at best and unconstitutional at worst.

Pingback A Chicago Blog » Challenge the Smoking Ban - Wednesday, Mar 5, 08 @ 8:53 am:
[…] Rich Miller is linking to news that Illinois’ smoking ban is now being challenged as unenforceable and unconstitutional. This will be interesting to watch, though I don’t expect the courts to be sympathetic. After all, black robes seem to be highly correlated with paternalism. […]

- valleygal - Thursday, Mar 6, 08 @ 8:40 am:
A tale of two taverns, both side by side.
Tavern A opened as a family-oriented place with a nice menu, local memorabilia and they opened as a non-smoking establishment.

Tavern B is next door and offers a similar theme with a limited menu. They chose to allow smoking prior to the ban.

As a person that occasionally likes fried chicken and a beer, I was invited to make my choice. I chose the non-smoking tavern.

I know second-hand smoke is a health issue, but it really bothers me when we are no longer capable of making these choices as to where we eat, drink or even what type of business we want to run.

- Danno - Thursday, Mar 6, 08 @ 4:59 pm:
Hundreds of severability clauses specify “if any provision in this act if found to be invalid by a court of competent jurisdiction, such INVALIDITY shall not affect the other provisions of this act.” In only two statutes — the old Illinoic Clean Indoor Air Act and the new Smoke Free Illinois Act — the opposite word (VALIDITY) is specified. So the argument goes, this makes the clause have the OPPOSITE meaning of the hundreds of severability clauses which use the word “VALIDITY”.

- Danno - Thursday, Mar 6, 08 @ 4:59 pm:
My last word should have been “INVALIDITY”

- Rich Miller - Thursday, Mar 6, 08 @ 5:09 pm:
Good luck with that. Sounds like a long walk to me.

- Smoking Fiasco - Thursday, Mar 6, 08 @ 5:10 pm:
The Illinois Supreme Court struck a smoking ban in City of Zion v. Behrens, because the court said it was an attempt to influence the private choices of citizens to smoke. The court said it would uphold a ban that was limited to criwded, confined areas, such as theaters and street cars. The case has never been questioned or overruled.

- Rich Miller - Thursday, Mar 6, 08 @ 5:12 pm:
Maybe, but that was about municipal police powers. The state would have broader authority since it can limit or expand municipal police powers.

- Danno - Thursday, Mar 6, 08 @ 5:21 pm:
In City of Zion v. Behrens, the Illinois Supreme Court found that a smoking ban was an “unreasonable interference with the private rights of the citizen” and the Court held that the smoking ban “must be held void.” (262 Ill. at 513, 104 N.E. at 838.) This holding of Illinois’ highest court in 1914 has never been overruled and, for that matter, it has never been criticized or questioned by an Illinois court. A Circuit Court is bound to follow the decision in City of Zion v. Behrens. “Under the doctrine of stare decisis, when the Illinois Supreme Court has declared law on any point, only it can modify or overrule its previous opinion, and lower courts are bound by such decision.” People v. Nitz, 353 Ill. App. 3d 978, 1001 (5th Dist. 2004).

1. As shown by the Constitutional Commentary, the Illinois Constitution of 1970 expands upon the individual rights that were recognized under the Illinois Constitution of 1870. A.G. Edwards, Inc. v. Secretary of State, 331 Ill. App. 3d 1101, 1109-1110 (5th Dist. 2002)

4. The Supreme Court recognized that the police power would permit some intrusions upon the privacy and personal liberty of smokers. The court also recognized that smoking is offensive or harmful to others. Nevertheless, the court held that smoking cannot be banned under all circumstances when it can only be harmful to others under certain conditions

8. Nothing has changed since the holding in City of Zion v. Behrens. Second-hand smoke is still offensive to many persons and harmful to some. As stated by the court in City of Zion v. Behrens, in quoting a court in Louisiana: “[Second-hand smoke] is distasteful and offensive, sometimes hurtful, to those who are compelled to breathe the atmosphere impregnated with tobacco in close and confined places.” That decision was rendered in 1914. The court struck a balance between non-smokers and smokers by recognizing that the police power would permit regulation in close and confined places, while preserving the private rights of smoking citizens to be free from unreasonable interference.

- Danno - Thursday, Mar 6, 08 @ 5:32 pm:
Hey Rich, while we disagree, you have a terrific blog!

- Rich Miller - Thursday, Mar 6, 08 @ 5:35 pm:
I never, ever hold mere disagreements against anybody. Should be fun to watch.

- Danno - Thursday, Mar 6, 08 @ 7:59 pm:
In the Bureau County case a bartender has been charged with violating the Smoke Free Illinois Act for allegedly “permitting patron(s) to smoke”. The defense has filed motions challenging the prosecution and the new statute.

The Peoria newspaper (Journal Star) has made the pleadings in the case available for downloading. The link is http://www2.pjstar.com/index.php?/documents/article/smoking_challenge/

- Danno - Friday, Mar 7, 08 @ 7:47 am:
The statute and rules setting up enforcing agencies under the new Act are totally screwed up. Section 40 says the Department of Public Health, local health departments, and local law enforcement agencies, enforce the Act.

Local law enforcement agencies mean local police departments, right? Not necessarily. They also include the Illinois Attorney General, according to the Department’s proposed regulations, as well as a “member” of the State Police. So the Governor’s Dept thinks it can hand out assignments to AG Lisa, and she has to report back to Big Rod’s Dept about the results of her smoking investigations. Separation of powers much?

JCAR blocked the rules because the rules didn’t provide for due process if someone contests a proposed finding of and fine for an alleged violation.

Local PD’s are set up to provide due process for cops subject to discipline. They aren’t set up to adjudicate whether or not a citizen committed a violation and to assess a fine if the citizen is found guilty after a fair hearing. There are one-person PD’s and massive PD’s in Illinois like the Chicago PD. Under the agency’s own rules a lone member of the State Police is an agency. How will the Dept ever set up a hearing process that could (a) apply across-the-board for each agency or (b) provide for various forms of hearings depending on whether the PD is small or large or (c) set up fair hearings when there is only one officer in the agency?

JCAR should continue to block the rules until these insolvable problems are solved.

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