This appeal involves state constitutional challenges raised by plaintiffs, a labor union and an anti-smoking advocacy group of Atlantic City casino employees, to the casino exemption within the New Jersey Smoke-Free Air Act, N.J.S.A. 26:3D-59(e). The Act generally prohibits smoking in indoor public places and workplaces in New Jersey but expressly excludes, among a few other places, certain designated areas within casinos and casino simulcasting facilities. The Legislature has repeatedly considered, but not enacted, amendments to eliminate the casino exemption.
Representing thousands of New Jersey casino workers exposed to secondhand smoke, plaintiffs brought suit in the Chancery Division, seeking injunctive and declaratory relief on the grounds that the exemption (1) violates a state constitutional "right to safety," (2) comprises unconstitutional "special legislation," and (3) denies equal protection under the New Jersey Constitution. They emphasized the documented science and the legislative findings in the Smoke-Free Air Act confirming that sustained exposure to secondhand smoke can produce severe, and at times fatal, adverse health consequences.
Joined by intervenors from the casino industry and certain other labor unions, the State defendants argued the casino smoking exemption is constitutional as a valid legislative policy choice grounded in an irrefutable rational basis. They principally contend the imposition of a ban will drastically reduce the number of casino patrons in Atlantic City and thereby cause a massive loss of casino revenues, jobs, and State tax proceeds. To support that contention, respondents presented to the motion judge a 2021 industry-funded study projecting such drastic losses of patronage and revenues. Plaintiffs contend the industry study and its dire predictions of revenue loss are greatly exaggerated and unreliable. They have presented a competing 2022 study that sharply critiques the industry study and makes its own contrary predictions.
The motion judge considered these clashing assertions based solely on written submissions, without hearing any testimony and apparently without the benefit of any discovery. The judge denied both preliminary and permanent injunctive relief and dismissed all of plaintiffs' claims with prejudice. The judge did find that plaintiffs, in their arguments for a preliminary injunction, had shown irreparable harm may be caused to the employees through their continued exposure to secondhand smoke in their workplace. Nevertheless, the judge ruled their constitutional arguments unavailing.
This court affirms the judge's denial of plaintiffs' request for a preliminary injunction, on the record as presented in the order to show cause. The Supreme Court has yet to hold that right to pursue and obtain health and safety is a fundamental standalone right. The court also affirms the judge's denial of preliminary injunctive relief on plaintiffs' "special legislation" claim.
However, in the distinctive circumstances presented here, this court vacates the premature disposition of the permanent injunction request and the dismissal of the lawsuit. After discerning no fundamental right is at stake, the judge applied a mistaken "rational basis" approach to plaintiffs' state equal protection challenge without conducting a fulsome balancing of the competing interests under the three-factor test prescribed by our State Supreme Court. The judge also improvidently accepted at face value respondents disputed economic contentions and the untested premise that ending the smoking exemption will inexorably result in drastic revenue and job losses. The case is accordingly remanded to develop the record, make appropriate findings, and perform the required constitutional balancing.