A judge has dismissed the lawsuit filed by the local Veterans of Foreign Wars and American Legion regarding the city of Newton clean air ordinance, almost exactly a year after it was filed.


This story first appeared in the Dec. 23 edition of the Kansan.

A judge has dismissed the lawsuit filed by the local Veterans of Foreign Wars and American Legion regarding the city of Newton clean air ordinance, almost exactly a year after it was filed.

District Judge Carl Anderson ruled Monday in favor of the city, which was the defendant in the case. Anderson granted the city’s motion for summary judgment and dismissed the lawsuit, which was filed Dec. 20, 2007.

According to Anderson’s opinion, the plaintiffs’ argument the clean-air ordinance is in conflict with Kansas law “has no merit.” The judge also ruled against the argument the law violated the Fourth and 14th Amendments.

“Suffice it to say, I have done extensive research on this point, and I have been unable to find any case anywhere that holds that a prohibition against smoking violates anybody’s right of privacy,” Anderson said in the opinion.

The Newton City Commission unanimously approved the clean air ordinance in November 2007, with the ban going into effect Jan. 1 of this year. The ban prohibits smoking in all enclosed public places, as well as 20 feet from a public entrance.

Prior to the passage of the ordinance, the commission had discussed allowing smoking at lodging establishments and fraternal organizations and clubs, but those establishments were included in the ban.

The legal challenge was begun by Gary Loyd, the commanding officer of American Legion Post No. 2, as an individual. The Whitesell-Finnel Post No. 971, Veterans of Foreign Wars, asked to join the lawsuit, and Loyd was dropped as a plaintiff. The American Legion Post No. 2 later joined as a co-plaintiff.

The VFW and Legion also had argued since they are private organizations, they are not subject to the ordinance, a position the judge disagreed with.

Bob Myers, city attorney, said the plaintiffs wanted the matter to go to trial, but Myers filed a motion asking for summary judgment. Myers said summary judgment is employed when the arguments are strictly over legal issues and there are not any factual issues to be disputed.

Myers said the lawsuit originally contained more constitutional challenges but said the plaintiffs abandoned many of them during the course of the lawsuit. Myers said he “couldn’t find any case law support for their claims.”

“Obviously, we’re pleased with the outcome,” Myers said.

Myers said the plaintiffs would have 30 days to appeal from the formal journalizing of the decision.

No representatives for the plaintiffs could be reached for comment.