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Tuesday, February 11, 2014

Ind. Decisions - Supreme Court strikes down, 3-2, Evansville smoking ordinance amendment

In Paul Stieler Enterprises, Inc., d/b/a Harbor Bay, et al. v. City of Evansville and Evansville Common Council; VFW Post 2953, et al. v. City of Evansville and Evansville Common Council, the two cases challenging the Evansville smoking ordinance amendment, Chief Justice Dickson writes in an 18-page, 3-2 opinion:

The Equal Privileges and Immunities Clause, Article 1, Section 23 of the Indiana Consti-tution, prohibits the "grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens." Today we hold that this clause invalidates an Evansville ordinance expanding the city's smoking ban to bars and restaurants but exempting its only riverboat casino ("the Casino"). * * *

Standing alone and without its exemption for riverboat casinos, the Amending Ordinance could be given legal effect; however, the evidence indicates that the City and its Council did not intend for the 2012 Amending Ordinance to stand without such exemption. The 2006 Smoking Ban contains a severability clause; but the 2012 Amending Ordinance does not, thus raising the presumption that the Council intended the latter to be effective in its entirety or not at all. Further, other evidence suggests that the invalid part of the Amending Ordinance was the inducing cause for its enactment. The City admits that the Amending Ordinance would likely not have passed without the riverboat casino exemption: "[t]he [2012 Amending Ordinance] would likely not have passed without the Casino exemption . . . ." Appellees' Brief at 12–13. This statement is bolstered by comments made by at least four (of nine) Council members at the meeting to amend the 2006 Smoking Ban, stating that they believed the Amending Ordinance would not pass without the riverboat casino exemption. Common Council of the City of Evansville, G-2012-1 Smoking Ordinance Comm. Meeting Minutes (Feb. 13, 2012) (Joint Exhibit No. 2) at 44–46. We conclude that the 2012 Amending Ordinance is not internally severable and is thus invalidated as a whole as unconstitutional. The 2006 Smoking Ban is therefore restored as it existed before the 2012 amendment.

We reverse the judgment of the trial court and hold that the 2012 Amending Ordinance violates Article 1, Section 23 of the Indiana Constitution and must be stricken in its entirety.

David and Massa, JJ., concur.
Rush, J., dissents with separate opinion in which Rucker, J., concurs.

Rush, J., dissenting. [beginning at p. 14]

I respectfully dissent from the majority opinion and would uphold the constitutionality of Evansville’s riverboat exemption under the Equal Privileges and Immunities Clause of the Indi-ana Constitution. Expanding a smoking ban to cover bars, taverns, and private clubs, but exempt-ing a riverboat, is reasonably related to a riverboat’s inherent characteristics—fiscal impact on the local economy and tax revenues, and out-of-town clientele that other local businesses lack. The Indiana Constitution does not require treating bars as equivalent to riverboats merely be-cause they both serve alcohol. Ever since Collins v. Day, we have consistently held that plaintiffs who allege unconstitutional privilege must negate “every conceivable basis which might have supported the classification.” The City’s Amended Ordinance passes under this standard because the Petitioners present no substantial reason to overturn an ordinance tailored to fit local prefer-ences. * * *

Local governments that consider the fiscal impact that public health legislation will have on landmark attractions like the Riverboat aren’t playing favorites—they’re acting responsibly by facing economic reality.1 “[T]he courts owe deference to legislative line-drawing that has fis-cal implications.” Mahowald v. State, 719 N.E.2d 421, 425–26 (Ind. Ct. App. 1999) (holding that fiscal considerations allow the General Assembly to provide better retirement benefits to some, but not all, state legislators who have served for at least ten years). Local governments cannot protect the public health in a vacuum, and city councils don’t have unlimited resources—which is why we have always given “considerable deference to the manner in which the legislature has balanced the competing interests involved.” Collins, 664 N.E.2d at 79–80 (citing Johnson, 273 Ind. at 404–05, 404 N.E.2d at 604). The fiscal impact of the Riverboat is an inherent characteris-tic that distinguishes it from other venues the City didn’t exempt. * * *

In conclusion, Evansville’s only riverboat is inherently distinct from bars, taverns, and private clubs, and not just because it floats. It significantly impacts the local economy and at-tracts mostly out-of-town visitors—visitors who are not the primary focus of the City’s effort to expand its public health law protecting its residents from second-hand smoke. The City’s exemp-tion of the Riverboat from its public smoking ban does not violate the Equal Privileges and Im-munities Clause because the exemption is reasonably related to those inherent characteristics. Holding otherwise would prevent cities like Evansville from acting incrementally to protect the public health and would unnecessarily encroach upon legislative prerogative. For these reasons, I respectfully dissent from the majority opinion.

Posted by Marcia Oddi on February 11, 2014 10:26 AM
Posted to Ind. Sup.Ct. Decisions