Jon Ralston on how ambiguities in the Clean Indoor Air Act have both sides blowing smoke about its constitutionality

Sunday, Dec. 10, 2006 | 7:44 a.m.

This fight seems simple, the white and black hats easy to discern.

The Nevada Cancer Society and its do-gooder allies want to ban smoking in most places - their Question 5 proposal is even called the Clean Indoor Air Act. Who could not want their indoors clean? On. Nov. 7 more than 310,000 Nevadans said they did. Their opponents, mostly bar owners and slot route operators, ran a competing Question 4 campaign that was a right-to-smoke initiative disingenuously disguised as a child-protection imperative. Those backroom pols lambasted in their commercials were, in fact, them.

When Question 5 defeated Question 4, both sides were surprised - polling had shown an opposite result. But no one thought evil would simply submit to good. Thus a lawsuit was filed and a temporary restraining order granted Thursday. Evil lived to fight another two weeks.

But is it really this simple - the will of the people subverted by juicemeisters (probably cigar-smoking juicemeisters!) whose political influence is unstoppable?

Not so fast. This is hardly Jeffrey Wigand vs. Big Tobacco, folks. There are no heroes here, no purists on either side.

This is a simple battle of emotion vs. economics, with, ironically, much smoke wafting from both sides, and many real legal issues that lawyers say raise serious questions about the implementation of the new law, even if District Judge Douglas Herndon (and any appellate courts that could become involved) deem it constitutional.

The Question 5 folks are entitled to their opinion that secondhand smoke is unhealthful - and they have science to back it up. But if this is their true position, then it should be banned everywhere, including casinos.

To clumsily carve out these exemptions and then employ the cheap tactic of saying it is all about children - kids are always used for emotional impact whether the battle is over smoking or teacher raises - banishes the Question 5 folks from any moral high ground.

The Question 4 folks also are entitled to their opinion that their businesses would suffer under a smoking ban - and we assume if they spent hundreds of thousands of dollars to push their proposal that they figure they would lose many millions under a more comprehensive smoking ban. But if that is their true position, then they should have simply said that instead of trying to fool enough of the people to get a majority (they didn't).

The legal issues, and the potential regulatory nightmare that could ensue, also are much less black and white than the smoking banners would have us believe. Despite the Question 5 folks claiming that the Supreme Court already resolved the legal issues, that is a canard and they know it. "Attacks based on the alleged unconstitutionality of the measure, if it were passed, are not appropriate for pre-election review," read the September state Supreme Court opinion that kept the issue on the ballot.

So the equal protection/due process arguments in the pending lawsuit have yet to be vetted by any court. But even if the measure is deemed constitutional, the language of the initiative, because it tried to carve out so many exemptions and because of the disparate nature of the Las Vegas bar and tavern scene, remains problematic.

Consider two large law firms that prepared memos after Question 5 passed.

"In sum, the new smoking prohibition is extremely broad and is based, at least in part, on laws that provide little guidance to business owners," a MacDonald Carano Wilson opinion concludes.

That comes after six pages of analysis that raise questions about whether hotel and motel rooms are actually exempt and about exactly where in casinos smoking is banned.

A Hale Lane memo raises similar questions and concludes "there are still considerable ambiguities in the law. Furthermore, the individual circumstances of each business will vary. Business owners and operators are encouraged to seek legal counsel in evaluating how their particular establishment may be affected."

Yes, a field day for lawyers this battle will continue to be. The Question 5 folks are hoping the court will uphold their initiative. Even if it does, the Question 4 folks will try to sway a much more receptive audience than the Nevada electorate - those 63 pliable politicians who bivouac in Carson City for four months every two years.

If you wonder whether good usually triumphs over evil in that process, have I got some stories to tell you.

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