CRIME

Kansas Supreme Court hears arguments in Topeka tobacco case

Katie Moore
katie.moore@cjonline.com
Mary Feighny, deputy attorney for the city of Topeka, presented arguments before the Kansas Supreme Court in support of an ordinance banning tobacco sales to those under 21. [Katie Moore/The Capital-Journal]

LAWRENCE — The Kansas Supreme Court heard oral arguments Monday on a Topeka ordinance blocking the sale of tobacco products to those under age 21.

The court held the special evening session at the Lied Center. It was the first time cases were presented in Lawrence.

In December 2017, the city of Topeka approved a measure prohibiting the sale of tobacco to people under 21. The ban was overturned in Shawnee County District Court, but the city of Topeka appealed the decision.

The case tests the limits of home rule and the balance of power between the state and municipalities.  

Justice Eric Rosen asked Mary Feighny, deputy attorney for the city of Topeka, how far the city could go in its ban. Could it ban sales to customers under 30 or 50 or pass a complete ban, he asked.

The city could have gone farther, Feighny said, though she didn't know where the tipping point was. However a complete ban wouldn't work because selling tobacco was a legal business, she said.

While the Kansas Cigarette and Tobacco Products Act prohibits tobacco sales to minors, it is silent on adults, Feighny argued. It doesn't enshrine the right to sell tobacco products to those over 18, she said.

Attorney Robert Duncan II said the tobacco act's intent was to regulate sales throughout the state of Kansas.

The court should consider the impact of their decision as cities "get bolder" in ordinance activity, he argued.

Additionally, Topeka's ordinance was problematic because it still allowed those under 21 to smoke, Duncan said, and differing state and city laws cause difficulties for retailers.

Feighny said 18 other cities in the state have enacted similar tobacco laws, making the Topeka appeal an important home rule case. The home rule statute says it shall be liberally construed, she added.

The court also heard an appeal on a Wyandotte County murder case.