Remarks Made to St. Louis County Council Committe on Smoke Free Ordinance

Let me first state that you may detect some anger in the words that I use, the voice inflections that I use, and from the general tone of my remarks.

Yes I am angry. I am very angry and I am furious that I have had to spend many hours of my time in order to prepare this presentation to come in here and demand, not beg, that my rights and rights of my fellow citizens are not to be denied, disparage, or diminished by the enactment of a “smoke free” ordinance prohibiting the use of a legal product on private property by the members of the county council.

A couple of weeks ago I picked my copy of the Webster-Kirkwood Times lying on my driveway and opened it up to the front page and read the following two paragraphs: “St. Louis County Councilman Kurt Odenwald, R-Shrewsbury, plans to bring a "smoke-free" bill before the county council "in the very near future."

Just last week, the Kirkwood City Council decided not to take up the issue, noting instead that it should be taken up at the county or state level. The council was presented with a petition signed by 360 residents. The petition called for a smoke-free ordinance that would eliminate smoking in all bars, restaurants and other buildings.”

Later in the same article, there was the following sentence attributed to Kurt Odenwald , R-Shrewsbury: “First and foremost, it (second hand cigarette smoke) is a public health issue," Odenwald said.”

My immediate thought after reading that passage was, “here we go again. Public officials acting like they are the “masters” of the plantation and the “serfs and servants” will have to obey what the great masters dictate is best for the “serfs and servants” health and not to obey the “masters” dictates would be at “serfs and servants” peril.

How many property titles of “bars, restaurants and other buildings,” indicate that the citizens of St. Louis County are co-owners of that property and thus have the “natural right” to determine how a legal product is going to used and/or consumed on that property?

Where did Kurt Odenwald find the constitutional jurisdiction to bestow and grant privileges and immunities of one group of citizens, non-owner, non-smoking citizens, to dictate to other citizens, private property owners and smoking citizens that they cannot consume a legal product on their premises?

Well, today, right now, is going to be the beginning of a change in the direction of the constitutional winds here in St. Louis County.

Today we are going to mark the return to the fresh and strong wind of liberty and freedom that will begin to blow over St. Louis County because of the exertion of our natural rights of property ownership and personal liberty guaranteed and protected by both our state and federal constitutions.

The so called “masters” of the plantation are now going to be reminded that they are not the “masters” of a plantation that they think they are and will now be held personally financially accountable for their egregious behavior.

With the all of that being said I am going to say cordially and respectfully, but unambiguously and forcefully, this announced and proposed “smoke free” ordinance is blatantly and unabashedly, repugnant to both the Missouri State Constitution and the U.S. Federal Constitution and thus repugnant to freedom and liberty our ancestors have died and fought for over the last 200 plus years.

And because the proposed “smoke free ordinance” is repugnant in particular to U.S. Constitution, there are serious personal financial risks that each member of the Council needs to consider, as well as any County official enforcing the ordinance or any individual in this room advocating such an ordinance.

We do not live in a democracy (sometime rightly called “mobocracy). Our forms of government are constitutional republics. (Art IV, Sec 4 - The United States shall guarantee to every state in this union, a republican form of government,)

The short reason why our founding fathers created a republic instead of a democracy is that a republic is designed to protect the individuals personal rights and the individuals private property rights from controlled by the tyranny of the majority through government entities.

As you should already know, the hierarchy of the “rule of law” in our state and in our union known as the United States, is the “constitutions” are superior and supreme to any enacted law, statute or ordinance. The “constitutions” are the supreme and superior law that have been written down and ratified by our ancestors, for posterity, to protect and enhance our natural rights both enumerated and unenumerated from denial and disparagement by the generations that follow after their ratifications.

The constitutions are written laws and directives limiting the power of government entities to encroach on the liberty of the citizens.

So, with that being said, here is a “brief” constitutional explanation of why the proposed smoke free ordinance is grossly unconstitutional:

Section 2. That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.

Section 26. That private property shall not be taken or damaged for public use without just compensation.

Section 13. That no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.

Do you understand the theme that is prevalent in these three sections of the Missouri Bill of Rights: that ownership of private property, the liberty to pursue happiness and enjoyment of the gains inherent in owning property, that property cannot be taken away for public use without compensation, and the state cannot interfere with the obligations of private contracts or grant special privileges or immunities to certain groups citizens are “natural rights” that no law can abridge, deny, disparage, or diminish?

Continuing, the Missouri Constitution then subjugates all Missouri government entities to the jurisdiction of the U.S. Constitution. Please note and pay close attention to this subjugation because it will be quite significant in relation remarks I will be making later in this presentation.

Section 4. That Missouri is a free and independent state, subject only to the Constitution of the United States.

With that being said let’s now take a moment and review relevant sections of the U.S. Constitution that are going to be applicable to proving the unconstitutionality of a “smoke free ordinance,” at the federal level.

Clause 1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, law impairing the obligation of contracts, or grant any title of nobility.

…nor shall private property be taken for public use without just compensation.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others (rights) retained by the people.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.

So, it is abundantly clear, at the federal level as well, that the natural rights of liberty and the sanctity of property ownership for U.S. citizens is considered inalienable and thus protected by the enumeration of these rights in a constitution, whose covenants cannot be deemed superfluous by any law, statute, or ordinance.

Just so we are clear on the meaning of certain words and phrases, let me now offer the following definitions for “natural rights” and for “liberty.”

“Natural rights define the boundary or space within which people are at liberty to do as they please provided their actions do not interfere with the rightful actions of others operating within their own boundaries or spaces.” (Lockean theory of police power)

The definition of “liberty:” The right and power to act, believe, or express oneself in a manner of one’s own choosing. Freedom from unjust or undue governmental control. A right and power to engage in certain actions without control or interference.”

A private property owner inviting or allowing individuals to consume a legal product on their property is without a doubt a natural right “retained by the people,” as stated in Amendment IX.

It is unquestionably a” natural right of liberty, the pursuit of happiness and the enjoyment of the gains of their own industry” as described in the Missouri Constitution, for the private property owner to allow for the consumption of a legal product on their property.

So, are natural rights of property ownership and liberty absolute? Yes, as long as the exertion of those rights do not infringe or conflict with the natural rights of fellow citizens.

When that confliction occurs then very limited government intervention to regulate, not necessarily prohibit the exertion of natural rights, is necessary and then must be constitutionally proper to preserve the natural rights of both or all citizens that may be in conflict.

The most evident reason for government regulation of natural rights is when the exertion of natural rights creates an imminent danger to other citizens. For example, a citizen can and should be strictly regulated if not prohibited from storing radioactive material on their property because the radiation exposure would be well outside the boundaries of their property causing an imminent danger to other citizens.

However, the non-owners of private property have no constitutional basis for making a claim of a natural right to “smoke free air” when they are on the premises of a private property owner, unless there is clear and imminent danger to other citizens.

The non-owners of private property have the natural right not to enter the premises of a private property owner who allows for the consumption of legal product within the boundaries of their private property.

The Missouri Constitution specifically prohibits any Missouri government entity from “making any irrevocable grant of special privileges or immunities,” for one citizen over another citizen.

And that is exactly what would happen with the enactment of the “smoke free ordinance.”

The St. Louis County Council will be granting a special privilege or immunity to a non-owner of private property over the natural rights of a private property owner.

Let’s now look at what the Supreme Court has said about what criteria that have to be met in order for a government entity to properly regulate or prohibit the exertion of natural rights.

In a 1993 United States Supreme Court decision, Helling v. McKinney, the court stated in a case in which a prisoner, Mckinney, was claiming an Eighth Amendment violation of cruel and unusual punishment because his cell mate smoked cigarettes and he had been exposed to second hand cigarette smoke everyday for 5 years.

“…the District Court (is) to provide an opportunity for McKinney to prove his allegations, which will require him to prove both the subjective and objective elements necessary to prove an Eighth Amendment violation. The District Court will have the usual authority to control the order of proof, and if there is a failure of proof on the first element that it chooses to consider, it would not be an abuse of(judicial) discretion to give judgment for petitioners without taking further evidence. McKinney must also prove that he is entitled to the remedy of an injunction.”

And so, we find “proof” is necessary when constitutional guarantees are brought into question, and this applies to folks in government who attempt to legislate in an area affecting individual liberty and those rights associated with property ownership and claim such legislation is necessary because the “health and safety“ of the people is at risk.

In addition, back as early as Lochner v. New York 198 U.S. 45 (1905), the court stated:

“It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext,- become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty….”

What better way to describe the nature of a “smoke free ordinance.” It is an “unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty.”

With all of that being said about the need for government to provide proof before exerting valid police power over a citizen and/or citizen’s private property, I can state and prove that there is no credible scientific evidence that has been scientifically replicated to prove that exposure to second hand cigarette smoke (ETS) is a danger to human beings over the long term, much less in the short term, creating a situation of imminent danger requiring government intervention for the safety of it’s citizens.

Here is sampling of the numerous reports discrediting the danger of second hand smoke exposure or sometimes called ETS (environmental tobacco smoke)

1- Dr. Steven Stotesbury, a scientist from Imperial Tobacco, in Scotland states: "Any objective assessment of the evidence must conclude that if there is an increased risk of chronic diseases, such as lung cancer and heart disease, from exposure to ETS, it is small and hard to measure with any certainty." He went on: "However, when it comes to ETS, the evidence is not assessed objectively or by the same criteria as are applied to other potential sources of risk to health. Levels of relative risk, which have been officially described as too low to prove a causal effect(1), are used to substantiate the opposite in the case of ETS and therefore to justify extreme public smoking measures. Even more misleadingly, risk estimates that are based on a mathematical combination of different studies, many of which are weak or inconclusive, are extrapolated into headline claims about specific numbers of deaths 'due to passive smoking'. In other words, the science and the statistics have been exaggerated to fit the anti-smoking case".

It now turns out that the influential 1993 EPA report "Respiratory Health Effects of Passive Smoking: Lung Cancer and Other Disorders" was as phony as a three-dollar bill. State officials and private businesses that believed that ETS was a public health danger (and not just a nuisance) were completely misled by the EPA. And, of course, so was main street American public opinion.

Are those the views of a vast right-wing conspiracy? Hardly. They are the sober conclusions of a gutsy federal district court judge in North Carolina named William Osteen, whose recent ruling invalidated the very foundation of the EPA report. Judge Osteen's views coincide with a Congressional Research Service analysis released in late 1995 that had serious reservations about the EPA report.

Judge Osteen determined that the EPA had "cherry picked" its data and had grossly manipulated "scientific procedure and scientific norms" in order to rationalize the agency's own preconceived conclusion that passive smoking caused 3,000 lung cancer deaths a year. In addition, Osteen ruled that the EPA had violated the Radon Act, which was the agency's authority for disseminating its "de facto regulatory scheme" that intended to prohibit passive smoking. The agency responded, embarrassingly, with an ad hominem attack on the judge, not on the cold logic of his arguments.

As a result of the EPA report, many bans on smoking in public places have been introduced. One would think that any such ban would be based solidly on scientific studies of ETS exposure in public places. In fact, the EPA did not even evaluate the studies on smoking in public places. Instead, the EPA's analysis was based on 11 U.S. studies that examined the risks of contracting lung cancer to nonsmoking spouses married to smokers, a different matter altogether. Yet none of the studies in the original sample reported a strong relative cancer risk associated with ETS.

And the sordid tale gets worse. The EPA chose to omit entirely from its analysis two recent U.S. ETS studies that had determined that passive smoking was NOT a statistically significant health risk. Worse for the EPA, including those studies with the "cherry-picked" 11 produces a result that shows no statistically significant health risks associated with passive smoking, even at reduced confidence levels. In short, even employing the EPA's own corrupt methodology, ETS was simply not a "Group A Carcinogen," as the agency had boldly asserted.

And then we have the anecdotal evidence that ETS is of no imminent danger much less a long term danger from the simple fact of the two following cases:

I am the oldest of 5 children. Each one of brothers and I were exposed to second hand cigarette smoke almost from the moment of birth until the age of at least 18 years of age from both parents who smoked up to 2 packs of cigarettes a day.

None of my siblings or myself had experienced any imminent danger from that ETS exposure much less any long term physical ill effects from that same exposure.

Then there is the fact that not one civil damages case has been adjudicated in St. Louis County where a plaintiff, contending ETS exposure, has proven injury from such exposure and been awarded compensation for damages incurred from exposure to ETS or second hand smoke. Not one.

What does that tell you about the reliability and accuracy of the scientific data that is quoted to support of the danger of ETS exposure?

It says that the data is very weak. So weak that it cannot be even admitted as evidence in a court of law.

If the evidence was strong and irrefutable, law firms such as Brown and Cruppen would be advertising for clients in order to gain financially from damage claim awards they would be seeking and winning for their clients who have suffered physical ill effects from exposure to ETS.

--there are both Missouri and federal constitutional protections and guarantees to protect the sanctity and the liberty of owning and using private property for the pursuit of happiness and enjoyment of the gains of their industry resulting from the ownership of that property.

--a government entity cannot grant special immunities and privileges to one citizen over those of another citizen, for example, granting the immunities and privileges of non-owners of private property over those of the property owner by dictating how, when, and why, through their government, a legal product will be consumed.

--there is no credible, replicatable scientific evidence to support an imminent danger from ETS exposure warranting the proper use of municipal or state police power to protect fellow citizens.

--the use of governmental power to regulate or prohibit the exertion of liberties has to be proven by the government before constitutionally protected natural rights can be abridged, denied, disparaged, or diminished.

--the proposed “ smoke free ordinance” unambiguously violates the U.S. Constitution, including Amendment XIV.

It is time for all of the members of the Council to pay extra special attention to my next set of remarks.

It is also very important for those individuals in the audience who have taken this podium before me and who may take the podium after me, to advocate support and passage of smoke free ordinance, to listen very closely to what I am about to say.

Your personal financial resources are legally available as compensation to fellow citizens who have been financially injured or damaged by the enactment and enforcement of unconstitutional laws.

Referring to the U.S. Supreme Court case, HAFER v. MELO, 502 U.S. 21 (1991), the court was asked for judicial review of the federal statute 42 U.S.C. 1983.

Quoting from the majority opinion written by Justice Sandra Day O’Conner, federal statute 42 U.S.C. 1983, states:

""Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. . . ."

"We hold that state officials, sued in their individual capacities, are "persons" within the meaning of 1983.

The Eleventh Amendment does not bar such suits, nor are state officers absolutely immune from personal liability under 1983 solely by virtue of the "official" nature of their acts. The judgment of the Court of Appeals is Affirmed."

You see, today, right at this moment, you have all been put on legal notice that this is the first part of a federal law suit I will file against each individual of the Council who votes to enact a smoke free ordinance, any individual of the county government who attempts to enforce such an ordinance, and any individual in this audience and previous audiences prior to my remarks and after my remarks who advocate the enactment of such an ordinance.

Everyone of you will be held personally liable for damages that I have incurred and the damages of other property owners in the St. Louis County that have been incurred.

I can easily support with proper documentation that I have already been damaged to the amount of $60,000.

That amount will grow, so to speak, as each hour passes shepherding the promised federal lawsuits through the federal courts.

I am sure that private property owners such as Harrah’s Casino will be able to easily document the damages they will incur from the enactment of a smoke free ordinance from the loss of their smoking customers to the Ameristar Casino located a short mile across the St. Louis County line in St. Charles County.

I think we can safely assume those losses will be in the tens of thousands of dollars.

So, if all of the parties I have listed above wish to risk their personal finances, their savings, their pensions, their children’s college educations, their equity in their owns, their future wages, to enact and support a blatantly unconstitutional ordinance, then as they say, “I will see you in court.”

And if you do not think that one citizen can exert the covenants of the federal constitution effectively at the county or municipal level and even be accorded judicial review of their case all the way to the U.S. Supreme Court, let me remind you of the case of Gilleo v City of Ladue. That is in City of Ladue, MO, here in St. Louis County.

Margaret Gilleo won her Amendment I constitutional challenge to Ladue ordinance in 1994.

The City of Ladue had prohibited political signage from being erected on private property.

Margaret Gilleo wanted to protest the 1990 Gulf War and the Bush Administration with a sign placed in her front yard. After her sign was removed and she was cited for violating a city ordinance, she decided to defend her “natural rights” of free speech from being denied, disparaged, and diminished by a local ordinance.

I will guess that the legal fees incurred by the citizens of Ladue for their defense attorney’s fees were staggering, since it took almost 4 years to be decided.

Fortunately, for the members of the Ladue city council, Margaret Gilleo was satisfied only with the favorable decision of her constitutional challenge and did not sue the council members and enforcement personnel under federal law 42 U.S.C. 1983, as she was entitled to do.

Such a suit would have probably been financially disastrous to several city employees of Ladue.

Now, there is one more obligation I have to fulfill in preparation for the federal lawsuits I have just mentioned.

The first question the trial judge is going to ask me in the law suits I have alluded to above, is did I give the defendants the opportunity or suggestion on how to accomplish their stated goal with an alternate plan.

In the Supreme Court case, U.S. v Playboy Entertainment Group (2000) it was decided:

“If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative. A particular restriction on liberty is unnecessary if there is some other means of accomplishing the proper purpose that is less restrictive or does not restrict liberty at all. When a plausible, less restrictive alternative is offered to…a restriction, it is the Government’s obligation to prove that the alternative will be ineffective to achieve its goals. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

So, with that being said I now would like to change the tone of this presentation to a more positive tone and make the following suggestion to the Council on how to not run afoul of the covenants U.S. Constitution and the Missouri Constitution and alert fellow citizens to the so-called danger of second hand smoke or ETS.

At the sole expense of the county taxpayers, the Council could have “smoke free” and “smoking allowed” signs to be made and then distributed to all of the private property owners in the county.

This signage would properly informed citizens who may wish to enter the private property, that the private property owner’s position on the use and consumption of legal product on their private property is either a yea or a nay.

Each citizen then can make the free person decision whether to enter the premises or not.

Implementing this suggestion would preserve the natural rights of all citizens involved in this transaction: the private property owner’s rights, the smoker’s rights, the non-smoker’s rights.

And as Article I, Section 2 of the Missouri Constitution states: to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.

And as was stated in the Playboy decision: “What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.”

As a final note, within the week, I will be presenting my research of the personal financial liability of public officials for damages they cause by their “official” actions to several business owners in the City of Ballwin.

After that, I hope to see a federal law suit filed seeking payment for damages incurred by the “smoke free ordinance” enacted in Ballwin.

Councilman Kurt Oldenwald's, Republican, email reply to me:

Dear Mr. Glennon:

Thank you for sending your written comments. You can be assured that I will read them and consider them as we move forward with this process. You will note that I brought my proposal before the Justice and Health Committee—not the full Council, so that we could have the opportunity to take evidence and information regarding the public health concerns. I have my beliefs based upon the research I have done, but I also understand that any decision, if one is reached, will be the result of consensus and agreement, not one person’s individual opinion and belief. The hearings the Committee has conducted have that very purpose, i.e., to receive and review information. I expect the Committee will make a recommendation after having reviewed the information presented to it over the past several weeks, as well as the individual observations of Council members as we move forward. Everyone has the right to his or her beliefs, even if a person happens to be an elected official. I can assure you that any action taken by me will not be based upon personal preference or opinion, but on the information that if before the Council. While there may be a disagreement among persons as to what constitutes a public health risk, but there can be no disagreement that within St. Louis County, County Government has the authority and indeed the obligation to address public health issues.

Please be assured that your complete statement will be included as part of the record before the Justice and Health Committee. I will consider your statement along with the other testimony and information presented to the committee. Thank you for taking the time to share your thoughts.

Kurt Odenwald

Councilman, Fifth District

but there can be no disagreement that within St. Louis County, County Government has the authority and indeed the obligation to address public health issues.

This is the legal argument that was used to justify the Counties passing an ordinance banning smoking in the Twin Cities of Minnesota. Amazing how these same legal arguments have been shared between Counties.

The ability to hold the members of the County personally and legally liable for damages, is outstanding.

Three years ago, my local city passed an ordinance that required every home be inspected for a sump pump.

If the city government could present me with a search warrant, then they are more than welcome inside of my home. Until then, I refused to allow them into my home.

Other than protesting, until I had a personal loss, I did not have a "just cause" to file a legal challenge. The day that I had to pay a $100 (per month) fine for not allowing them into my home, was the day that I danced with joy.

I was so happy about paying that fine, that I kissed the city clerk on the cheek. I then had her make several photo-copies of my check for the amount of $100.

Sometime, you need to stand up and simply say: NO!

P.S. The city refunded all of my money....

As long as 25% of the population is afraid to stand up and say no, you are correct.

This citizen is standing up, and absolutely refuses to obey these ordinances. I simply smoke anywhere that I wish now days, and ignore the "no smoking" signs posted in public (privately owned) businesses.

Please, fine me for being in violation, since I need "legal cause" to bring it to court.

Jack is a man after my own heart. I have often wondered when someone would stand up and say that the government has no right to tell a property owner whether they can allow someone to consume a legal product.

They'll be happy to collect billions in taxes, then instead of thanking you for paying more than your fair share in taxes, the send you out into the cold, into the rain, into the snow. I don't know about you, but if smokers weren't paying so much in taxes, we would all be paying more....Thank you smokers, and I feel sorry for you.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.