The Indiana Supreme Court will decide whether the city of Evansville gets to exempt the only casino in town from a law that bans smoking nearly everywhere else.
At issue in part is whether one business or industry can make enough money to be exempted from rules that apply to all others.
An attorney representing Evansville bars and private clubs - which are subject to the smoking ban - told the Supreme Court on Thursday that the Evansville ordinance violates the Indiana Constitution's equal privileges clause, which limits opportunities for one group that aren't extended to others.
"Our quarrel - if I can use that word - is that the city of Evansville overreached" by classifying the bars and clubs differently than the Tropicana casino - and in ways that are not realistic, said attorney Charles Berger.
But Keith Vonderahe, an attorney representing the Evansville City Council, said the Indiana Supreme Court has allowed legislative bodies to carve out special rules and exceptions when the types of business affected are inherently different.
And in this case, he said, the casino qualifies because its tax structure, customer base, regulation and relationship to the city make it substantially different than bars and private clubs, including veterans and social organizations.
"Clearly if there was another casino in town, they would have to be treated the same," Vonderahe told the Supreme Court justices.
He said extending the smoking ban to the casino floor would cut its business by roughly 30 percent, which would lead to a $4.3 million annual loss to the city's capital improvement fund. That impact differentiates the casino from other businesses, he said.
But Justice Mark Massa said that argument means essentially the casino has "purchased special treatment." That's just the thing the state's constitution was trying to prevent, said Chief Justice Brent Dickson.
And Justice Robert Rucker said that Evansville is unlikely to lose that money because if the court strikes down the ordinance, the city council could amend it to exempt bars and clubs as well. "Isn't that the more likely scenario?" he asked Vonderahe.
The attorney called that the "probable outcome" but he said he couldn't know what the city council would actually do.
Rucker said it's obvious that casinos differ from bars in the way they're regulated and the way they pay taxes. But he asked what that had to do with the smoking ban. "What is it about casinos and private clubs that make the smoking ban different?" he asked.
Vonderahe said the casino's demographics are unique. He said that about 87 percent of gamblers come from outside Evansville, while most bar patrons are local. He said the city council has an interest in protecting its own residents from second-hand smoke, something that would be less effective at the casino.
He said the casino has also invested heavily in an air circulation system that helps to minimize the affects of smoking.
But Dickson said such investments have "nothing to do with any inherent differences" that would qualify the casino for special rules under a 1994 Supreme Court decision that allows for some differentiation between groups.
That decision said courts should give substantial discretion to legislative bodies and set high standards that must be overcome before a court can declare a state or local ordinance unconstitutional. The decision also said that someone challenging a law or ordinance "bears the burden to negate every conceivable basis" for the law.
"No matter how unwise or how unsound the legislation is, it's still given that substantial deference," Vonderahe said.
But on Thursday, Dickson asked whether that deference should be narrowed. He said "that word 'conceivable' is scary."
"It's broad," he told Berger, the attorney for the clubs and bars. "Your burden is to negate every conceivable basis. How do you get over that?"
Berger told the court that he believed his clients had indeed shown that the city had no reason for differentiating the casino from the bars and clubs.
"They're being treated differently because they give less to the community from a financial standpoint," he said.
The Indiana Supreme Court did not rule immediately. A decision is expected in the next several months.
Lesley Weidenbener is executive editor of TheStatehouseFile.com, a news service powered by Franklin College journalism students and faculty.