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TOPEKA — The Kansas Supreme Court today heard oral arguments in the appeal of a Shawnee County District Court ruling that temporarily exempted some private clubs from the statewide public smoking ban.

When legislators first drafted the smoking ban bill in 2009, they exempted private clubs licensed before Jan. 1, 2009. But the ban didn’t become law until July 2010, and clubs licensed after the 2009 grandfather date but before the new law became effective cried foul, saying they were being treated unfairly.

In June 2010, District Court Judge Franklin Theis issued a temporary injunction in favor of 31 class A and B private clubs that were granted licenses after the grandfather date. Steve Six, state attorney general at the time, appealed that ruling in August 2010.

In his ruling, Theis said that the grandfather date was "at best, an unintended consequence" and "wholly arbitrary" — that is, there was no rational basis for it.

Today, Assistant Attorney General Kimberly Lynch argued that the date set by the Legislature was rational and supported by a 1976 U.S. Supreme Court decision in the case of New Orleans v. Dukes.

"The state may take incremental steps toward banning a perceived evil," Lynch said. "In this instance, the State of Kansas is choosing to ban smoking. They outright banned smoking in public places, and they chose to take incremental steps when it comes to private Class A and Class B clubs. What (New Orleans v.) Dukes represents is that incremental process is entirely rational."

Justice Dan Biles asked Lynch: "If we can look at (the law) and say there's a rational basis for that (exemption) cut-off and so Judge Theis was wrong ... then ballgame's over?"

Lynch agreed.

Biles also posed this question: Suppose the grandfather date was selected to prevent bars — once they caught wind of the legislation — from rushing to get private club licenses and thereby get around the coming smoking ban.

"If it's reasonable that the Legislature wanted to use that date to head that off, seems to me the deal's done," he said, meaning that the law's exemption date would be valid.

Chief Justice Lawton Nuss told Michael Merriam — the attorney for Downtown Bar & Grill, whose owners filed the lawsuit — that the burden was on him to demonstrate that there was no rational basis for the grandfather date included in the law.

"You have to prove to us as the plaintiff seeking relief that there is none," Nuss said. "You have a pretty weighty burden here. If we can fathom some rational basis, then we're done."

"Yes, I agree," Merriam responded.

If the court were to overturn the temporary injunction and return the case to the district court, Nuss asked Merriam, "What would you do with that ruling?"

"As a practical matter, Mr. Chief Justice, I think we'd be dead in the water," Merriam said. "If this court says there is a rational basis (for the injunction), that Judge Theis got it wrong as you posit it, I don't see where we would go with that, frankly. ... We can't just litigate for the sake of litigating."

Mary Jayne Hellebust of the Tobacco Free Kansas Coalition was one of about a dozen people in the audience during the hearing. She said she wouldn't guess how the court would rule, but said she was pleased with the state's arguments.

"The smoking ban — for tobacco control advocates — doesn't go as far as we want it to go, but it was a very, very good start. Hopefully we can chip away at the remaining exemptions, so we can be a truly smoke-free state," she said.

It typically takes four to six weeks for the court to rule on a case, although Assistant Attorney General Lynch said it could take longer.