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Government Lawyers NewsletterThe newsletter of the ISBA’s Standing Committee on Government Lawyers

December 2008, vol. 10, no. 2

Will the courts snuff out the Smoke Free Illinois Act?

Introduction

A vast majority of new laws quietly take effect without much fanfare or notice from the general public. One notable exception was the new Smoke Free Illinois Act (the Act)1 that took effect on January 1, 2008. Getting the law passed last year was no easy task. Keeping it on the books may be just as difficult. Less than two months after becoming law, the Illinois House of Representatives proposed four bills that would have exempted private clubs, veterans’ organizations, allowed local authorities to issue smoking licenses, and in the most extreme case, would have repealed the entire law. All four proposals were defeated handily. The biggest threat to Illinois’ comprehensive indoor smoking ban, however, may not come from the legislature, but from the courts.

As background, in the March 2008 edition of this newsletter, I wrote that the current law had major flaws that needed to be addressed, namely how does a violator under the act appeal or challenge a citation? The Department of Public Health’s attempt to clarify the statutory ambiguities failed when the Joint Committee on Administrative Rules (JCAR) in January 2008 voted 9-1 to object to the Department’s proposed rulemaking and prohibit its filing with the Secretary of State. The JCAR found that the adoption of the rulemaking would constitute a serious threat to the public interest and welfare because it lacked any process by which an accused violator can argue that no violation occurred, appeal a finding of a violation, or appeal the amount of the imposed fine. An alleged violator’s only options are to pay the fine or challenge enforcement action through the circuit court.2

The court challenge

On September 30, 2008, Bureau County Associate Judge Cornelius Hollerich essentially made the law unenforceable by ruling that circuit courts have no jurisdiction to handle violations of the Act. The case involved an individual who was ticketed for allegedly lighting up in a city tavern in February 2008.

The defendant bar patron admitted that he smoked, but he claimed it was beyond the statute’s required 15 feet zone. The defendant’s counsel asked the court to dismiss the action on two grounds: (1) that the new law can not be enforced in a criminal prosecution filed in circuit court; and (2) that the Act is unconstitutional. Counsel found support for these arguments in the Act’s language and an old Illinois Supreme Court decision.3 In 1914, our State’s high court heard a case involving a local ordinance that had banned tobacco of any kind in any public place within the City of Zion. City officials argued the ordinance was valid as part of the police power granted municipalities.

The court examined precedent from four different jurisdictions where smoking bans had been enacted and challenged. The court rejected a Massachusetts case that upheld a broad ordinance outlawing smoking and the possession of a lighted pipe or cigar in the streets of Boston, and instead, found a Kentucky case more persuasive. While acknowledging that tobacco can be prohibited in “certain public places, such as street cars, theaters, and like places where large number of persons are crowded together in a small space,”4 the supreme court held that it is quite another matter to ban “smoking on the open streets and in the parks of a city, where the conditions would counteract any harmful results. The personal liberty of the citizen cannot be interfered with unless the restraint is reasonably necessary to promote the public welfare.”5

In the end, the court threw out the ordinance stating “it is apparently an attempt on the part of the municipality to regulate and control the habits and practices of the citizen without any reasonable basis for so doing.”6 The court found the private rights of the citizen are paramount and that only an ordinance reasonably necessary to promote the public welfare can be sustained.7

The Zion case, which is nearly 100 years old, held that smoking can be banned in some public indoor places where a person’s movement is confined or limited, like in a theater or in public transportation. But, what about a bar? How far will a court extend “private rights” when it comes to smoking?

The Bureau County circuit court never reached this thorny issue. Instead, Judge Hollerich granted the defendant’s first motion to dismiss finding that cases brought under the law should be handled administratively by the Department and not by the courts. “It does appear to the court, based on the filings here, that the Legislature intended for the assessment of the fines to be imposed by an administrative agency. The statute itself does not contain the type of language one would normally find in the criminal code * * * or motor vehicle code.”8 Counsel’s second motion challenging the constitutionality of the Act was therefore moot, at least for now. The Bureau County State’s Attorney decided not to appeal the order.

The future of the law

A recent poll conducted by the Illinois Coalition Against Tobacco found that Illinois voters overwhelmingly support the Act. Unless the law is amended or rules are promulgated to correct apparent deficiencies in the current language, the courts will be asked to decide whether employees and patrons of any public indoor place deserve protection from the health dangers of secondhand smoke.

__________

The author is the Assistant General Counsel of the Illinois Department of Revenue and Secretary of the ISBA’s Standing Committee on Government Lawyers. The opinions expressed herein are solely his and not those of the Department.

1. Public Act 95-017, effective January 1, 2008, now codified at 410 ILCS 82/1 et seq.

2. 32 Ill. Reg. 1169 (Statement of Objection and Filing Prohibition to Proposed Rule making, January 25, 2008).

3. City of Zion v. Behrens, 262 Ill. 510, 104 N.E. 836 (1914).

4. City of Zion, 262 Ill. 512.

5. Id.

6. City of Zion, 262 Ill. at 513.

7. Id.

8. People v. Alexander, Docket No. 08-CM-000058 (Circuit Court, Bureau County) (see record of Sept. 30, 2008).


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