State defends altering city's smoking law

HELENA - Advocates of a sweeping smoking ban in Helena said Thursday the Legislature overstepped its constitutional bounds in passing a law that exempts casinos from local smoking restrictions.

Lawmakers had authority to prohibit such a ban from being enacted, but could not legally target the ordinance by merely exempting certain businesses, a lawyer told the Montana Supreme Court.

That mistake requires the high court to overturn the law, said Jim Reynolds, attorney for a group of health organizations and individuals wanting the smoking ban left intact.

But the state argued the Legislature acted properly in limiting the scope of the smoking ban and that local ordinances cannot be immune from legislative tinkering.

"The state of Montana is a state, not a loose confederation of local governments," said Assistant Attorney General Sarah Bond. "They cannot secede from the state. They are still subject to the authority of the state."

The court is not expected to issue a decision for some months, although several of the justices seemed to disagree with the state's position that the Legislature's actions were constitutional.

The arguments before all seven justices focused on the competing powers of the state and local governments, rather than on the familiar health issues surrounding smoking and exposure to secondhand smoke.

The ordinance that sparked the legal dispute was passed by the Helena City Commission and then approved by 62 percent of city residents when put on the June 2002 ballot. It outlawed smoking in all public buildings, but has been on hold while several legal challenges were mounted.

The 2003 Legislature responded by passing House Bill 758, which exempts businesses with gambling machines from that ordinance and any other local laws that are more strict than the state's indoor air laws.

Backers of the smoking ban, including 11 state and national health organizations, sued to overturn the law excluding casinos.

Rather than go through the usual process of a District Court trial, they asked the Supreme Court to take the case and the justices last fall agreed to the rare request.

The suit claimed HB758, by increasing the permit fee on video gambling machines and exempting certain businesses from the smoking ban, violates the constitutional prohibition on bills containing more than one subject.

The complaint also said the legislation trespasses on the self-governing powers of cities such as Helena - a point that was the focus of the 90-minute court session.

Reynolds urged the court to find that the constitution's treatment of cities and counties with self-governing power demands that any limit on that power by the Legislature be done through a clear prohibition on some local government action.

That did not occur in HB758, when the Legislature just told casinos they did not have to abide by the smoking ban, he said.

Bond said that action does amount to lawmakers forbidding local governments to apply smoking bans in a particular way, a constitutional exercise of their power to set public policy even at the local level.

She also disputed the claim that HB758 improperly included two unrelated subjects. Increasing the fee on video poker and keno machines, and excluding casinos from the smoking ban, both deal with gambling, which is the exclusive province of the Legislature, Bond said.

Justices Patricia Cotter, James Nelson, Jim Regnier and John Warner raised the most questions about the state's position regarding local government powers and whether the Legislature acted appropriately.

Bond acknowledged lawmakers might have been able to do a better job in restricting local smoking bans, but said that doesn't mean HB758 is unconstitutional.

Reynolds told the court that, if his clients lose this argument, they probably will challenge the law on grounds that its limit on smoking bans violates Montanans' constitutional right to a clean and healthful environment.

Copyright © 2009 Missoulian