Opposition Brief — Steele v. Beltrami County (No. 07-334)

A ee FILED

| SUPREME COOMT ES

In The

Supreme Court of the United States

4

ADAM STEELE; DONNIS SOLBERG d/b/a THE OTHER

PLACE; TURTLE CREEK SALOON, INC.; and JAMES

NESS d/b/a HILLCREST SUPPER CLUB,

Petitioners,

Vv.

BELTRAMI COUNTY and SHERIFF KEITH WINGER,

Respondents.

*®

On Petition For Writ Of Certiorari

To The United States Court Of

For The Eighth Circuit

*

BRIEF IN OPPOSITION

®

RATWIK, RoszAK & MALONEY, P.A.

ScotrT T. ANDERSON

ERIC J. QUIRING

Counsel of Record

300 U.S. Trust Building

730 Second Avenue South

Minneapolis, MN 55402

(612) 339-0060

COCELE LAW BALKY PRINTING CO. (600) 375-4504

OR CALL COLLACT (408) 342-7881

i

QUESTIONS PRESENTED

Whether the Eighth Circuit correctly affirmed

the District Court’s grant of summary judgment

on Petitioners’ claims because there is no consti-

tutional right to smoke at any time in any place?

Whether the Eighth Circuit correctly upheld the

Beltrami County Smoke Free Ordinance for In-

door Public Places and Places of Work as a rea-

sonable protection of public health and safety?

Whether the dismissal of the claims of Petition-

ers Solberg and Ness were properly affirmed by

the Eighth Circuit?

Whether Petitioners’ claims have been rendered

moot by the enactment of the Minnesota Free-

dom to Breathe Act of 2007?

li

TABLE OF CONTENTS

Page

SORE FI ceicnsccccisncnsrseseunresecniecconesusiincatl i

Ee E dinececttecsescnenerreatpdiinineibantitiaiiiaumeds ii

Fe A ncisitininicindinntiietinseiaipiliiiliiabictiiiininsl ili

Constitutional Provisions and Ordinances In-

UN iaitanaceaisleiiineiininihecintsneast iia an ia diaie eas 1

Statement of the Case and the Facts..................... 1

Reasons for Denying the Petition................cccceeeeee 4

1. THE EIGHTH CIRCUIT CORRECTLY

HELD THAT THERE IS NO CONSTITU-

TIONAL RIGHT TO SMOKE AT ANY

TE SOE TD FRA vnciteedcnnsivigiccionmniemeenis

THE EIGHTH CIRCUIT'S DECISION COR-

RECTLY UPHELD BELTRAMI COUNTY'S

ORDINANCE AS A REASONABLE PRO-

TECTION OF PUBLIC HEALTH AND

THE DISMISSAL OF THE CLAIMS OF

PETITIONERS SOLBERG AND NESS

WAS AFFIRMED BY THE EIGHTH CIR-

CUTE GIN TEER BER IRE EO cecccoscvesvccoccsecesocoveors

PETITIONERS’ CLAIMS HAVE BEEN

RENDERED MOOT BY THE ENACT-

MENT OF THE MINNESOTA FREEDOM

TO BREATHE ACT OF 2007 .................s0000

UN i

iii

TABLE OF AUTHORITIES

CASES

Beatie v. City of New York, 123 F.3d 707 (2nd

5 5 RRR cre ei We Bese ee SRN ROD

City of North Miami v. Kurtz, 653 So.2d 1025

Oe

D.A.B.E. Inc. v. City of Toledo, 393 F.3d 692

8s | CREE eal Sesser anette eae eo rena

Grusendorf v. City of Oklahoma City, 816 F.2d

ee Ce a. IT Pilichntinstatsbdanenichiasthaidettanianianisenees

Jourdan v. Jabe, 951 F.2d 109 (6th Cir. 1991).....

Loving v. Virginia, 388 U.S. 1 (1967) ...............008

N.W. Enterprises, Inc. v. City of Houston, 27

F.Supp.2d 754 (S.D. Tex. 1998) ..............cccssseeees

Operation Badlaw, Inc. v. Licking General

Health District Board of Health, et al., 866

F.Supp. 1059 (S.D. Ohio 1992) 0.0.0... cece eee eee

Palko v. Connecticut, 302 U.S. 319 (1937)............

Pierce v. Society of Sisters, 268 U.S. 510 (1925)...

Players, Inc. v. City of New York, 371 F.Supp.2d

ee I i, Pa sects itiei sa steinesnasasenidnineuvis

Preiser v. Newkirk, 422 U.S. 395 (1975)...............

Roe v. Wade, 410 U.S. 113 (1973)... cesses

Threesome Entertainment v. Strittmather,

4 F. Supp.2d 710 (N.D. Ohio 1998) ..............

eeoeees

eeettee

iv

TABLE OF AUTHORITIES — Continued

Page

STATUTES

Minnesota Clean Indoor Act, Minn. Stat.

Seen ere ee Ate cae, ETC Le 8, 10, 11

1

CONSTITUTIONAL PROVISIONS

AND ORDINANCES INVOLVED

The Fourth, Fifth, Ninth, and Fourteenth

Amendments to the United States Constitution,

United States Code Title 42, Sections 1981, 1983, and

1988, and the Beltrami County Smoke Free Ordi-

nance for Indoor Public Places and Places of Work.

See Pet. at 8.’

\

+

STATEMENT OF THE CASE AND THE FACTS

After approximately a year and a half of study

and debate, Beltrami County passed the Smoke-Free

Ordinance for Indoor Public Places and Places of

Work (“Ordinance”) on August 17, 2004. Pets.’ App.,

pp. 25-33. As clearly stated in the Ordinance, the

County found that the detrimental health effects of

tobacco smoke were well documented, citing a num-

ber of medical and scientific authorities. Id. The

County further found that eliminating public smok-

ing has no material economic impact on a community,

as shown from studies conducted in states where

smoking bans have been adopted. Jd. The stated

purpose of the Ordinance is to protect public health

and welfare. Jd., pp. 25-27.

' Citations in the form “Pet.” are to Petitioners’ Petition.

Citations in the form “Pets.’ App.” are to the Appendix to the

Petition.

2

The Ordinance provides that “smoking is prohib-

ited in public places and places of work.” Id., p. 29.

“Public places” and “place of work” are defined

phrases. Jd., p. 28. A public place is defined to include

all restaurants and bars. Id. The Ordinance specifi-

cally excludes all private residences, motor vehicles

and outdoor spaces. Id., p. 29. The smoking prohibi-

tion for bars and restaurants was phased in over

time. Instead of starting on January 1, 2005, which is

the effective date of the Ordinance, for the most part,

the smoking ban for bars and restaurants did not

begin until two years later, on January 1, 2007. Id.,

pp. 30, 33. Thus, during the peak customer hours of

8:00 p.m. until 3:00 a.m., bars and restaurants were

able to continue to allow smoking for an additional

two years. Furthermore, the Ordinance allowed bars

and restaurants to have smoking areas as long as

they were separate, enclosed and separately venti-

lated from the rest of the bar or restaurant. Jd., p. 30.

Adam Steele, Donnis Solberg d/b/a The Other

Place, Turtle Creek Saloon, Inc., and James Ness d/b/a

Hillcrest Supper Club (hereinafter collectively referred

to as “Petitioners”)’ initiated this action against

Beltrami County and Sheriff Keith Winger (hereinaf-

ter collectively referred to as “Respondents”) alleging

that their constitutional rights were violated by the

enactment of the County’s Ordinance. Specifically,

Petitioners claimed violations of their constitutional

* Original Plaintiffs Corner Bar of Bemidji, Inc. and Tobacco

Super Store, Inc. do not join in this Petition.

3

rights under the Fourth, Fifth, and Ninth Amend-

ments to the United States Constitution.

Although the Ordinance was adopted on August

17, 2004, Petitioners initiated this action by seeking a

temporary restraining order just days before the

Ordinance took effect on January 1, 2005. When the

temporary restraining order was denied by the

United States District Court for the District of Min-

nesota, Petitioners sought a preliminary injunction,

which was also denied at hearing on March 7, 2005.

Respondents then moved the District Court for sum-

mary judgment, which was granted on counts 1-4 and

7 at hearing on June 27, 2005. The remaining state

law claims were dismissed without prejudice. Peti-

tioners then appealed to the Court of Appeals for the

Eighth Circuit with respect to counts 1, 4, and 7. The

Eighth Circuit affirmed the District Court’s grant of

summary judgment in favor of the Respondents on

June 7, 2007.

The record evidence shows that no material

issues of fact exist, and that the District Court cor-

rectly granted summary judgment in favor of Re-

spondents. The Petitioners’ entire argument revolves

around the misguided notion that the Constitution

somehow guarantees the right to smoke in a bar or

restaurant. The proposition that there is a constitu-

tional right to smoke in public places is simply not

supported in law and should not be adopted by this

Court.

4

REASONS FOR DENYING THE PETITION

The Eighth Circuit’s decision upholding the

validity of Beltrami County’s Smoke-Free Ordinance

for Indoor Public Places and Places of Work does not

conflict with a decision of this Court nor any Court of

Appeals. To the contrary, the Eighth Circuit’s decision

is consistent with the decisions of all other courts

that have addressed similar claims. There is simply

no authority supporting Petitioners’ claimed constitu-

tional right to smoke or to control smoking on prem-

ises they have opened to the public. Accordingly,

Petitioners have not carried their burden of demon-

strating any “compelling reasons” for the Petition to

be granted. See Sup. Ct. R. 10. Moreover, Petitioners’

claims are rendered moot by the enactment of the

Minnesota Freedom to Breathe Act of 2007, which

took effect on October 1, 2007 and imposes statewide

smoking restrictions similar to the restrictions of the

Beltrami County Ordinance.

1. THE EIGHTH CIRCUIT CORRECTLY HELD

THAT THERE IS NO CONSTITUTIONAL

RIGHT TO SMOKE AT ANY TIME IN ANY

PLACE.

Despite Petitioners’ assertion that their claims

are not an attempt to create any rights not already

enumerated in the United States Constitution, accept-

ing Petitioners’ claims would require the Court to

recognize a new constitutional right to smoke. Peti-

tioners broadly allege that the Beltrami County Ordi-

nance violates their constitutional right to privacy, as

5

guaranteed by the Fourth, Fifth, and Ninth Amend-

ments. Specifically, Petitioners allege that their right

to smoke, and to permit smoking, in any place at any

time, stems from alleged existing rights to privacy

within one’s private business, the right of a business

owner to regulate lawful conduct, the right of a

business owner to contract with customers, and the

right of a business owner to not have goodwill dimin-

ished by government regulation. Pet., at 13. Because

Petitioners can point to no law supporting such

assertions, the District Court and Eighth Circuit

properly found that the Respondents were entitled to

judgment as a matter of law.

The Eighth Circuit held that Petitioners failed to

provide any sound legal argument or authorities

supporting their claimed constitutional rights to

smoke or to control smoking on premises they have

opened to the public. See Pets.’ App., p. 19. In fact,

several state and municipal smoking regulations

have survived similar challenges. See, e.g., D.A.B.E.

Inc. v. City of Toledo, 393 F.3d 692, 696 (6th Cir.

2005); Grusendorf v. City of Oklahoma City, 816 F.2d

539, 542-43 (10th Cir. 1987); Players, Inc. v. City of

New York, 371 F.Supp.2d 522, 540-43 (S.D.N.Y. 2005).

Petitioners have provided no legal support for

their contention that smoking should be recognized as

one of the limited situations invoking a constitutional

right to privacy. See Roe v. Wade, 410 U.S. 113 (1973)

rehearing denied on February 26, 1973 (recognizing a

privacy right regarding making a decision to termi-

nate a pregnancy), Loving v. Virginia, 388 U.S. 1, 12

6

(1967) (recognizing a privacy right regarding mar-

riage), Pierce v. Society of Sisters, 268 U.S. 510, 535

(1925) (recognizing a privacy right in child rearing

and education.) Only personal rights that are deter-

mined to be “fundamental” or “implicit in the concept

of ordered liberty” are protected under the penumbra

of constitutional privacy rights. Palko v. Connecticut,

302 U.S. 319 (1937).

Contrary to Petitioners’ assertions, smoking in a

public place is not a fundamental right that would

give rise to a constitutional privacy interest. City of

North Miami v. Kurtz, 653 So.2d 1025, 1028 (Fla.

1995) (finding that the penumbra of fundamental

privacy rights does not include the “right to smoke”),

Operation Badlaw, Inc. v. Licking General Health

District Board of Health, et al., 866 F.Supp. 1059,

1064 (S.D. Ohio 1992). The fact that the ability to

smoke or to permit smoking is not constitutionally

protected is exemplified by the heavy regulation of

tobacco products. These regulations reflect the collec-

tive conscience of the citizens of the United States

that there is no fundamental right to smoke or to

permit smoking at any place and any time.

For all of the reasons discussed above, the Eighth

Circuit’s decision upholding the Ordinance was

entirely consistent with the decisions of all other

courts that have addressed similar claims, and thus,

this Court should deny the petition for writ of

certiorari.

7

2. THE EIGHTH CIRCUIT’S DECISION COR-

RECTLY UPHELD BELTRAMI COUNTY’S

ORDINANCE AS A REASONABLE PROTEC-

TION OF PUBLIC HEALTH AND SAFETY.

Petitioners claim that the County’s Ordinance is

unreasonable because there is no conclusive proof

that second-hand smoke is dangerous, exposure to

smoke is voluntary for customers and employees, and

the regulation of smoking is not a valid public pur-

pose. Such arguments are without merit and do not

warrant this Court’s review. As determined by the

District Court and Eighth Circuit, the Ordinance

represents a valid exercise of County authority.

The Beltrami County Board has the authority to

act in furtherance of the public health and welfare. In

enacting the Ordinance at issue here, the County

clearly expressed a public interest in prohibiting

smoking in public places. In the preamble to its

Ordinance, Beltrami County asserted an important

interest in safeguarding the health of its citizens and

patrons of establishments located in the County from

the ill and serious effects of second hand smoke.

Despite Petitioners’ opinions to the contrary, these

risks are well-documented and commonly recognized.

See Beatie v. City of New York, 123 F.3d 707, 709-10

(2nd Cir. 1997) (chronicling the dangers of second

hand smoke). The public interest in avoiding the

significant health threats posed by involuntary

second hand smoke is substantial and indisputable.

8

Petitioners ignore the great weight of scientific

evidence that second hand smoke is dangerous, and

instead, rely exclusively on the Enstrom/Kabat Re-

port for their position that the health effects of sec-

ond-hand smoke are merely public conjecture.

However, the County has the authority to weigh the

credibility of competing information in determining

the merits of legislating in the public interest. See

N.W. Enterprises, Inc. v. City of Houston, 27 F.Supp.2d

754 (S.D. Tex. 1998) reversed in part on other

grounds. The judiciary is “not a super-legislature

wherein judges sit to ‘apprise the wisdom’ of a mu-

nicipalitys discretion.” Threesome Entertainment uv.

Strittmather, 4 F.Supp.2d 710, 719 (N.D. Ohio 1998)

(citations omitted). A municipality's choice of whether it

should rely upon one report over another is fully within

its legislative discretion and courts need only conclude

that a reasonable legislature would have enacted the

challenged ordinance. /d. (citations omitted).

Furthermore, people who choose to smoke may

still do so in their private residences, motor vehicles

or in certain outdoor spaces. They are only prohibited

from smoking in public places where their personal

habit infringes and affects the general health and

welfare of other citizens. The same public interest in

prohibiting smoking in public places has been duly

recognized and declared by the Minnesota legislature

through the Minnesota Clean Indoor Air Act and the

recent enactment of the Freedom to Breathe Act of

2007. Minn. Stat. §§ 144.411-17. The County clearly

has a significant interest in the health and safety of

9

its residents. In order to promote those interests, the

County must be able to promulgate reasonable regu-

lations such as the Ordinance at issue here.

The District Court and Eighth Circuit appropri-

ately upheld the Ordinance as a valid exercise of the

County’s authority. Petitioners have provided no

reason to overturn those decisions, and thus, this

Court should deny the Petition.

3. THE DISMISSAL OF THE CLAIMS OF

PETITIONERS SOLBERG AND NESS WAS

AFFIRMED BY THE EIGHTH CIRCUIT ON

THE MERITS.

Petitioners Solberg and Ness claim that the

District Court erred in dismissing their claims for

failure to prosecute. The District Court granted

summary judgment against Petitioners Solberg and

Ness for failing to appear at hearing to oppose sum-

mary judgment. Because the Eighth Circuit affirmed

the dismissal of the Petitioners’ claims on the merits,

it did not reach this issue. Accordingly, the claims of

Petitioners Solberg and Ness regarding the dismissal

of their claims for failure to prosecute need not be

reviewed by this Court.

By not appearing at the summary judgment hear-

ing, Petitioners Solberg and Ness failed to prosecute

their claims. They are entitled to no special considera-

tions because they appeared pro se. See Jourdan uv.

Jabe, 951 F.2d 109 (6th Cir. 1991) (prisoner suing pro

se was not entitled to any special consideration in

10

determining whether to dismiss his complaint for

failure to prosecute). Despite the District Court’s

dismissal of the claims of Petitioners Solberg and

Ness for failure to prosecute, the Eighth Circuit

addressed (and affirmed the dismissal of) their claims

on the merits. As a result, it would be improper for

this Court to review the claims raised by Petitioners

Solberg and Ness regarding failure to prosecute.

4. PETITIONERS’ CLAIMS HAVE BEEN REN-

DERED MOOT BY THE ENACTMENT OF

THE MINNESOTA FREEDOM TO BREATHE

ACT OF 2007.

During its 2007 Regular Session, the Minnesota

legislature adopted the Freedom to Breathe Act of

2007, which amended the Minnesota Clean Indoor Air

Act by eliminating smoking in all public places,

places of employment, public transportation, and at

public meetings. Minn. Stat. §144.411-17. The

amendments took effect on October 1, 2007. The

Freedom to Breathe Act of 2007 imposes statewide

restrictions on smoking similar to those imposed by

the Beltrami County Ordinance. Even if Petitioners

could prevail on their alleged claims against the

County, Minnesota law would still prohibit smoking

in public places. As a result, the Petition should be

denied as moot.

The Freedom to Breathe Act prohibits smoking in

all public places, which are defined as “any enclosed,

indoor area used by the general public, including, but

11

not limited to, restaurants; bars; any other food or

liquor establishment; retail stores and other commer-

cial establishments; educational facilities other than

public schools ... ; hospitals; nursing homes; audito-

riums; arenas; meeting rooms; and common areas of

rental apartment buildings.” Minn. Stat. § 144.412,

subd. 2. “Places of employment” are defined by the

Act as “any indoor area at which two or more indi-

viduals perform any type of a service for considera-

tion of payment under any type of contractual

relationship” or where two or more individuals gra-

tuitously perform services for which individuals are

ordinarily paid. Jd., subd. 1b. The Act clearly imposes

the same smoking prohibition on the same types of

places as the Beltrami County Ordinance, including

the businesses owned by Petitioners.

Article III of the Constitution limits federal

courts to the adjudication of actual, ongoing contro-

versies between litigants. Preiser v. Newkirk, 422

U.S. 395, 401 (1975). Following the enactment of the

state-wide smoking ban, there is no actual contro-

versy between the Petitioners and Respondents. Even

if Petitioners were to prevail on their alleged claims,

the Court would be unable to effectively order the

requested relief because the Minnesota Freedom to

Breathe Act of 2007 prohibits Petitioners from smok-

ing, or allowing smoking, in public places and places

of employment.

Despite Petitioners erroneous conclusory asser-

tion that this matter is not rendered moot by the

Minnesota Freedom to Breathe Act of 2007, there is

12

no reason for this Court to waste limited judicial

resources on a case challenging a county ordinance

where the state has acted to impose the same regula-

tion. As stated above, Petitioners have failed to

demonstrate any legal support for a reversal of the

Eighth Circuit’s decision. However, even if they had,

the Petition should be denied because this matter has

been rendered moot by the enactment of the Minne-

sota Freedom to Breathe Act of 2007.

:

Vv

CONCLUSION

For the foregoing reasons, the Petition should be

denied.

Respectfully submitted,

RATWIK, Roszak & MALONEY, P.A.

Scott T. ANDERSON

ERIc J. QUIRING

Counsel of Record

300 U.S. Trust Building

730 Second Avenue South

Minneapolis, MN 55402

(612) 339-0060

Attorneys for Respondents County of

Beltrami and Sheriff Keith Winger

Dated: October 12, 2007