Yesterday's Court Case Write Up

Subject: Yesterday's Court Case Write Up
It’s a beautiful spring morning in Shakopee and District Court Judge Jerome Abrams strides briskly to his seat promptly at 9:00 a.m. in Courtroom 3 of the Scott County Courthouse. Twelve weeks and two days after our first Theater Night at Barnacles, the court will finally examine the legality of our movement.
The state was represented by Assistant Attorney General Kristen Olsen; the defense by Patrick O’Neill. Judge Abrams asked if they wanted to combine the proceedings to address a temporary and permanent injunction against Bullseye Saloon. Neither side, however, had discussed the possibility of proceeding with live testimony and for that reason the arguments were limited by the facts presented in the sworn affidavits.
At 9:05, Ms. Olsen addressed the court and argued that Robert Ripley’s theatrical production of “The Unconstitutional Ban” was little more than a pretext for smoking indoors. Judge Abrams interrupts and asks if Mr. O’Neill isn’t correct in asserting that the Department of Health is trying to define “theater” and wonders openly whether or not theater has always been a form of comment or protest about culture, politics and so on. Ms. Olsen repeats that this is all a pretext, not a protest.
She asks the judge to look at the legislative intent of the Act. Judge Abrams responds that he read the transcript of the conference committee (where the “theatrical productions” exception was inserted with little public debate) and saw that one legislator suggested that any bar owner could become a director. Judge Abrams then states that this legislator was greeted by laughter and no discussion took place.
Judge Abrams then asks both attorneys to discuss the First Amendment aspects of the case, that is, whether or not this form of protest might be protected speech under the Constitution. Ms. Olsen responds by saying that there is no audience at Bullseye and that smoking is not expressive conduct. She finishes her argument at 9:17.
Mr. O’Neill starts out by boldly asking why are we here? Where’s the violation of law? He states that no citations have been issued by the Scott County Attorney. He says that Mr. Ripley called a lawyer and contacted the city council before beginning Theater Nights on March 2nd. He instructed his employees to direct any non-actors to put our their cigarettes or go outside. And he provided posters and playbills that notified the public that there would be smoking during his performances. Mr. O’Neill makes it clear that Mr. Ripley was trying to follow the law. Mr. O’Neill finished his argument at 9:52.
The judge then said that he wanted more evidence in the form of testimony and that a trial should be scheduled in June. He said he would rule on the state’s request for a temporary injunction in the next ten days.
I watched all of the proceedings and I was very impressed with Judge Abrams. It was clear that he had read the court filings and reviewed the law. He had many questions for both attorneys. It was a fair hearing in the sense that the judge had not yet made up his mind.
It appeared to me that Judge Abrams was focusing quite a bit on the content of the performance at Bullseye. I’m not sure that the case will hang on this. But it is worth noting that the U.S. Supreme Court ruled in 1989 that burning the national flag was protected by the First Amendment, even though 48 states had laws against flag desecration. So if flag burning is protected speech, shouldn’t tobacco burning be protected as well? Just a thought.
I have high hopes for the legality of Theater Night. The fact that a distinguished jurist like Judge Abrams was taking the time to wrestle with the issues in this case indicate that our position is legally viable. If it was open and shut (as the Department of Health would have us all believe) then the judge would have ruled right away.
So stay tuned! And our show goes on.
-- Mark Benjamin