A coalition of casino workers asked the New Jersey Supreme Court to weigh constitutional questions underpinning their challenge to a legal exemption that allows smoking on Atlantic City casino floors.
The filing from the United Auto Workers union argues that lower courts erred in finding the state’s constitution does not grant a right to safety and that the casinos exemption in the 2006 Smoke-Free Air Act is not unconstitutional special legislation.
“I’m really hoping that they take this seriously and quickly because every single day is dangerous for my clients,” said Nancy Erika Smith, an attorney representing the workers.
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The filing also challenges lower courts’ deference to a casino-backed report that claims barring smoking inside gaming houses would cost them revenue. The workers say those findings are contrary to those of other industry groups.
UAW and Casino Employees Against Smoking Effects, an advocacy group more often called CEASE, have for years attempted to end the carveout that allows smoking on casino floors, arguing workers there are forced to bear the health impacts of secondhand smoke.
In their Supreme Court appeal, the groups argue a trial court judge who ruled there is no right to safety in New Jersey’s constitution got it wrong, noting the document begins by saying all people “have certain natural and unalienable rights among which are those … of pursuing and obtaining safety and happiness.”
An appeals court that in January ordered the judge to rehear the case declined to take up workers’ claims on the right to safety, saying that matter is best left to the state’s court of last resort.
“I want the court to say, ‘Yes, the statement in the first sentence of the New Jersey constitution isn’t meaningless,’ that no words in the constitution are meaningless, that there is a right to safety,” Smith said.
If the high court finds the right exists, it would weigh against economic arguments casinos have made to keep the carveout in law. Gaming houses and unions representing other casino workers have said barring smoking inside casinos would push gamblers to institutions in neighboring states where indoor smoking is permitted.
An attorney for the Casino Association of New Jersey declined to comment.
The workers also want the carveout to be declared unconstitutional special legislation — law that improperly favors one person or group over others similarly situated.
The trial court judge declined to impose that classification because portions of the state’s constitution specifically refer to Atlantic City and grant it the ability to host casinos and gambling.
The UAW also asked the Supreme Court to find lower courts erred in their equal protection analysis by excluding the safety of workers.
If the Supreme Court takes up the appeal — it must take up appeals it agrees pose unsettled constitutional questions — a ruling in the UAW’s favor could immediately end the carveout or leave the fate of the carveout to the state Superior Court.
Parties in the lower court case are now jockeying over discovery ahead of a July evidentiary hearing that will test the two sides’ economic claims. The trial court ruled on the parties’ competing economic arguments without a hearing before the appellate panel kicked the case back down.
The fight over casino smoking has worn on for years.
Early in the pandemic, workers attempted to lobby the Legislature to end the exemption, but those efforts were unsuccessful despite the bill winning sponsorships from a majority of lawmakers in both chambers (some lawmakers later withdrew their sponsorships).
In 2024, they sued, alleging the carveout violates their constitutional rights. Smith said she always expected the workers’ constitutional claims would be answered by the state’s Supreme Court.
“I think it’s the endgame here. I really do,” Smith said. “I feel very optimistic that we are going to stop poisoning these workers as a result of this case.”
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