The state jumped the gun in appealing a lower court ruling that found parts of Nebraska's statewide public smoking ban unconstitutional, the Nebraska Supreme Court said in a Friday opinion dismissing the appeal.
The dismissal means the matter will likely spend more time winding its way through the courts.
The state had appealed Lancaster County District Judge Jodi Nelson's decision last year siding with an Omaha pool hall in its challenge of a 2009 state law banning smoking in all public buildings and private businesses, including bars and restaurants. The law includes exceptions for cigar bars, some hotel rooms, tobacco-only retailers and facilities that research the health effects of smoking.
Nelson said only the exception for research facilities is enforceable. The other exceptions, she found, provide special treatment for certain businesses, which is unconstitutional.
The state Supreme Court said Nelson's decision was not a final order that could be appealed because it only dealt with one of the claims in Big John's Billiards' lawsuit.
The state had claimed in its appeal that it is immune from lawsuits like the one brought by Big John's Billiards, and that for that reason, the lower court didn't have authority in the matter.
The Nebraska Attorney General's Office also argued that Nelson was wrong in determining the three exceptions were special legislation and, therefore, unconstitutional. The exception for tobacco retail outlets was based on the idea that customers of those establishments needed to sample tobacco products before buying them, and the exception for cigar bars was based on evidence that the bars were being forced out of business by smoking bans, the attorney general's office said.
Ted Boecker Jr., an Omaha attorney for Big John's Billiards, said Friday he and his client will continue to argue before the lower court that "every business should have the right to decide for itself whether to allow smoking" on its premises. Boecker could not say when the case might resume before the lower court, as the state has a number of options to consider, such as whether it will ask the state's high court for a rehearing on its appeal.
A message left Friday by The Associated Press for the Nebraska Attorney General's office seeking comment was not immediately returned.
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