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The Kansas Supreme Court issued a decision Friday upholding Newton’s smoking ban.
The Whitesell-Finnel Post No. 971 Veterans of Foreign Wards and Wayne G. Austin American Legion Post No. 2, both of Newton, filed a lawsuit Dec. 20, 2007, against the city’s smoking ban.
The two fraternal organizations argued the law was unconstitutional under the Fourth and 14th amendments. They also alleged they should be exempt from the ordinance as private clubs.
The lower court issued a summary judgment in favor of the city, saying the ordinance did not violate the constitutional rights of the VFW or American Legion and their members. The lower court also ruled the lawsuit was preemptive in that neither organization had been cited under the ordinance.
The ordinance was passed on Nov. 13, 2007.
It banned smoking in all public places and all enclosed places of employment in Newton. The VFW’s lawsuit was filed by Gary Loyd on Dec. 20, 2007. Loyd was later taken off the case and the VFW and American Legion added.
The Supreme Court, in its decision Friday, said the ordinance did not violate the organizations’ members’ rights to due process under the 14th Amendment or the right to privacy under the Fourth Amendment as asserted by the VFW and American Legion.
“Plaintiffs’ argument is apparently based on the simplistic notion that a private organization with a private clubhouse has a constitutional right to privacy,” the court said in its judgment. ... “Upon the merits of the argument, the city pointed out that a right to privacy action requires the existence of a fundamental privacy interest and that no court, to date, had recognized the smoking of tobacco as a fundamental right.”
In summary, the court noted the city acknowledged some of the VFW and American Legion’s premises might not fall within the ordinance’s definitions of public places or public places of employment.
“However, as appellants themselves have related, a portion of their buildings are occasionally open to the public and operated by paid employees, i.e., would be covered by the ordinance,” the judgment said.
Don Typer, VFW commander, had not read the judgment as of Friday and said he did not want to comment until he had a chance to talk to the post’s attorney.
Bob Myers, city attorney was unable to be reached as of press time.
The Kansas Supreme Court issued a decision Friday upholding Newton’s smoking ban.
The Whitesell-Finnel Post No. 971 Veterans of Foreign Wards and Wayne G. Austin American Legion Post No. 2, both of Newton, filed a lawsuit Dec. 20, 2007, against the city’s smoking ban.The two fraternal organizations argued the law was unconstitutional under the Fourth and 14th amendments. They also alleged they should be exempt from the ordinance as private clubs.The lower court issued a summary judgment in favor of the city, saying the ordinance did not violate the constitutional rights of the VFW or American Legion and their members. The lower court also ruled the lawsuit was preemptive in that neither organization had been cited under the ordinance.The ordinance was passed on Nov. 13, 2007.It banned smoking in all public places and all enclosed places of employment in Newton. The VFW’s lawsuit was filed by Gary Loyd on Dec. 20, 2007. Loyd was later taken off the case and the VFW and American Legion added.The Supreme Court, in its decision Friday, said the ordinance did not violate the organizations’ members’ rights to due process under the 14th Amendment or the right to privacy under the Fourth Amendment as asserted by the VFW and American Legion.“Plaintiffs’ argument is apparently based on the simplistic notion that a private organization with a private clubhouse has a constitutional right to privacy,” the court said in its judgment. ... “Upon the merits of the argument, the city pointed out that a right to privacy action requires the existence of a fundamental privacy interest and that no court, to date, had recognized the smoking of tobacco as a fundamental right.”In summary, the court noted the city acknowledged some of the VFW and American Legion’s premises might not fall within the ordinance’s definitions of public places or public places of employment.“However, as appellants themselves have related, a portion of their buildings are occasionally open to the public and operated by paid employees, i.e., would be covered by the ordinance,” the judgment said.Don Typer, VFW commander, had not read the judgment as of Friday and said he did not want to comment until he had a chance to talk to the post’s attorney.Bob Myers, city attorney was unable to be reached as of press time.
