American Cancer Society v. State

No. 03-453

IN THE SUPREME COURT OF THE STATE OF MONTANA

2004 MT 376

AMERICAN CANCER SOCIETY, AMERICAN LUNG
ASSOCIATION OF THE NORTHERN ROCKIES, AMERICAN
HEART ASSOCIATION, MONTANA MEDICAL ASSOCIATION,
PROTECTMONTANAKIDS.ORG., MONTANA SENIOR CITIZENS
ASSOCIATION, HELENA HEALTH CARE ASSOCIATES,
CITIZENS FOR A SMOKE FREE BOZEMAN, CITIZENS IN
SUPPORT OF HELENA’S SECOND-HAND SMOKE ORDINANCE,
UNITED TOBACCO FREE COALITION, CITIZENS FOR A
HEALTHY HELENA, JERI LOU DOMME, MARK SANZ,
M.D., BARBARA SUMMERS, TERRY CUREY, ALEXANDRA
PHILLIPS, DAVID B. KING, M.D., EDWARD G. ALLEN, M.D.,
CRYSTAL BRIDGES, ERNESTO RANDOLFI, RON BONE,
PATRICK COBB, M.D., and DONNA WHITMAN,

Petitioners,

v.

STATE OF MONTANA,

Respondent.

ORIGINAL PROCEEDING

COUNSEL OF RECORD:

For Petitioners:

James Reynolds (argued) and David Wilson, Reynolds, Motl
and Sherwood, Helena, Montana

For Respondent:

Honorable Mike McGrath, Attorney General; Sara Bond (argued),
Assistant Attorney General, Helena, Montana

For Amici Curiae:

Laurance Waldoch and Thomas Pursell, Lindquist & Vennum, P.L.L.P.,
St. Paul, Minnesota (American Medical Association et al.)
 Paul J. Luwe, City Attorney, Bozeman, Montana (Montana League
of Cities & Towns)

Mark Staples, Staples Law Firm, Helena, Montana (Montana Tavern
Association)

Chris J. Gallus, Attorney at Law, Helena, Montana (Representative
Devlin and Senator Tropila)

Arthur V. Wittich, Wittich Law Firm, Bozeman, Montana (Montana
Restaurant Association)

Milton Datsopoulos, Datsopoulos, MacDonald, & Lind, Missoula,
Montana (Local 427, International Union, AFL-CIO)

Argued: April 29, 2004

Submitted: October 19, 2004

Decided: December 28, 2004

Filed:

__________________________________________
Clerk

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Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Petitioners requested this Court to accept original jurisdiction over their petition for

declaratory judgment and declare House Bill 758 (HB 758), enacted by the 2003 Montana

Legislature unconstitutional. Act approved Apr. 23, 2003, ch. 471, 2003 Mont. Laws 1797

(codified at § 7-1-120, MCA). By order dated October 22, 2003, we accepted original

jurisdiction of the following four issues:

¶2 1. Whether HB 758 enacted in violation of Article V, Section 11(3), of the

Constitution of Montana;

¶3 2. Whether HB 758 unconstitutionally deprives local governments and the people of

the right of self-government in violation of Article XI, Section 6, of the Constitution of

Montana;

¶4 3. Whether HB 758 unconstitutionally infringes on either (or both) the right of

popular sovereignty (Article II, Section 1, of the Constitution of Montana) or the right of

self-government (Article II, Section 2, of the Constitution of Montana); and

¶5 4. Whether Petitioners are entitled to their reasonable attorney fees under the Private

Attorney General doctrine.

¶6 Following briefing by the parties and various amici curiae, as well as oral argument,

we determine that § 7-1-120, MCA, does not constitute a prohibition of self-governing

powers under Article XI, Section 6, of the Montana Constitution. Accordingly, we need not

address the other constitutional challenges.

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 BACKGROUND

¶7 The parties agree that, in the recent past, four charter government cities with self-

governing powers (Helena, Missoula, Bozeman, and Great Falls) have adopted local

ordinances limiting–or prohibiting altogether–the smoking of tobacco products in buildings

open to the public. Only one, Helena, has adopted an ordinance that applies, without

limitation, to premises with state licenses for the operation of video gambling machines

(VGMs). In response to these ordinances, the Legislature enacted HB 758 that imposes a

surcharge fee on VGMs and exempts establishments that have VGMs on the premises from

local government smoking ordinances that are more stringent than the Montana Clean Indoor

Air Act of 1979 (MCIAA), §§ 50-40-101 to 109, MCA. Petitioners brought this action to

request that we declare HB 758 unconstitutional under various provisions of the Montana

Constitution.

¶8 We address the constitutional issues before us pursuant to well-established principles.

We presume a legislative enactment to be constitutional. Powder River County v. State, 2002

MT 259, ¶ 73, 312 Mont. 198, ¶ 73, 60 P.3d 357, ¶ 73. “The question of constitutionality

is not whether it is possible to condemn, but whether it is possible to uphold the legislative

action . . . .” Powder River County, ¶ 73. Thus, a legislative enactment will not be declared

invalid unless it conflicts with the constitution beyond a reasonable doubt. Powder River

County, ¶ 73. “The party challenging a statute bears the burden of proving that it is

unconstitutional beyond a reasonable doubt and, if any doubt exists, it must be resolved in

favor of the statute.” Powder River County, ¶ 74.

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 DISCUSSION

¶9 Under the 1972 Montana Constitution, then-existing local governing units retained

the same powers they had under the 1889 Montana Constitution (i.e. those powers

specifically provided by law), although the 1972 Montana Constitution, Article XI, Section

4(2), mandated that such powers be liberally construed. The 1972 Montana Constitution

then created a new category of local government by allowing local governing units to adopt

self-governing charters. In contrast to local governing units without self-governing powers,

which are creatures of the state that have only those powers conferred by law, a local

governing unit with a self-governing charter can exercise any power not prohibited by the

constitution, law, or charter. Montana Constitution, Article XI, Section 6, provides:

Section 6. Self-government powers. A local government unit
adopting a self-government charter may exercise any power not prohibited by
this constitution, law, or charter. This grant of self-government powers may
be extended to other local government units through optional forms of
government provided for in section 3.

(Emphasis added.) Significantly, “the ‘shared powers’ concept does not leave the local unit

free from state control; it does, however, change the basic assumption concerning the power

of local government. At present, that [sic] assumption is that local government lacks power

unless it has been specifically granted. Under the shared powers concept, the assumption

is that local government possesses the power, unless it has been specifically denied.”

Montana Constitutional Convention, Comments on Committee Proposal, Feb. 19, 1972, p.

797.

¶10 To maintain the presumption that the locality retains all powers the Legislature does

not prohibit, the Legislature must expressly–and not impliedly–delineate those prohibitions.

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As we previously decided, “[t]he only way the doctrine of pre-emption by the state can co-

exist with self-government powers of a municipality is if there is an express prohibition by

statute which forbids local governments with self-government powers from acting in a certain

area. The doctrine of implied pre-emption, by definition, cannot apply to local governments

with self-government powers.” D & F Sanitation Serv. v. City of Billings (1986), 219 Mont.

437, 445, 713 P.2d 977, 982. All prohibitions must be explicit. D & F Sanitation Serv., 219

Mont. at 445, 713 P.2d at 982.

¶11 In the case sub judice, the Legislature has exempted VGM establishments from local

ordinances that are more restrictive than the MCIAA.

Section 1. Premises with video gambling machines–local smoking
ordinance no more restrictive than state law. An establishment that has been
granted a permit under Title 23, chapter 5, part 6, for the placement of video
gambling machines on the premises is exempt from any local government
ordinance that is more restrictive than the provisions of Title 50, chapter 40,
part 1.

Section 7-1-120, MCA (emphasis added).

¶12 The question we must address is whether this exemption constitutes an express

prohibition that forbids local governments with self-government powers from acting in a

certain area. D & F Sanitation Serv., 219 Mont. at 445, 713 P.2d at 982. See Gregory v.

Ashcroft (1991), 501 U.S. 452, 111 S.Ct. 2395, 115 L.Ed.2d 410 (discussing the need for

unmistakable clarity when Congress intends to preempt powers of the states).

“[I]f Congress intends to alter the ‘usual constitutional balance between the
States and the Federal Government,’ it must make its intention to do so
‘unmistakably clear in the language of the statute.’ Atascadero State Hospital
v. Scanlon, 473 U.S. 234, 242 (1985); see also Pennhurst State School and
Hospital v. Halderman, 465 U.S. 89, 99 (1984). Atascadero was an Eleventh

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 Amendment case, but a similar approach is applied in other contests.
Congress should make its intention ‘clear and manifest’ if it intends to pre-
empt the historic powers of the States. Rice v. Santa Fe Elevator Corp., 331
U.S. 218, 230 (1947). . . . ‘In traditionally sensitive areas, such as legislation
affecting the federal balance, the requirement of clear statement assures that
the legislature has in fact faced, and intended to bring into issue, the critical
matters involved in the judicial decision.’ United States v. Bass, 404 U.S. 336,
349 (1971).” Will v. Michigan Dept. of State Police, 491 U.S. 58, 65 (1989).

Gregory, 501 U.S. at 460-61, 111 S.Ct. at 2401, 115 L.Ed.2d at 424 (alterations in original).

¶13 We analyze this question by determining, first, whether an exemption is the same as

a prohibition and, second, whether the city ordinances regulating smoking in buildings open

to the public constitute the regulation of gambling.

¶14 The Legislature can effect a prohibition under Article XI, Section 6, through express

prohibitory language. See § 7-1-111, MCA (“A local government unit with self-government

powers is prohibited from exercising the following: . . .”). Alternatively, a legislative

prohibition can arise through a direct inconsistency between a state legislative act and the

legislation of a self-governing unit. For example, the City of Billings could not supersede

the state statutory requirement that charges against a suspended firefighter must be presented

to the city council for a hearing. Billings Firefighters Local 521 v. City of Billings, 1999 MT

6, ¶¶ 10-25, 293 Mont. 41, ¶¶ 10-25, 973 P.2d 222, ¶¶ 10-25.

¶15 On the question whether § 7-1-120, MCA, contains express prohibitory language, the

State argues that, although the legislature did not use the word “prohibited,” the exemption

created by the statute is tantamount to a prohibition. We disagree. To exempt is not to

prohibit. A prohibition cuts off the power to act in the first instance. See Ortiz v.

Pennsylvania (Pa. 1996), 681 A.2d 152, wherein the home-rule municipalities of

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Philadelphia and Pittsburgh adopted ordinances banning assault weapons. The Pennsylvania

Supreme Court declared the ordinances banning assault weapons were invalidated by a

subsequent state law specifically denying municipalities any power to “in any manner

regulate” the lawful ownership of firearms. Ortiz, 681 A.2d at 155. In contrast to such an

express “prohibition,” an “exemption” assumes that there is authority or power to act and

grants freedom or immunity from that power. The American Heritage Dictionary 1046

(William Morris, ed., 1969) (defining prohibit as “1. To forbid by authority. 2. To prevent

or debar.”); The American Heritage Dictionary 622 (4th ed., 2000) (defining the adjective

exempt as “1. Freed from an obligation, a duty, or a liability to which others are subject;

excused: persons exempt from jury duty; income exempt from taxation; a beauty somehow

exempt from the aging process.”). In other words, an exemption is an exception to, not a

denial of the power to act. See Town Pump, Inc. v. Bd. of Adjustment of Red Lodge, 1998

MT 294, ¶ 41, 292 Mont. 6, ¶ 41, 971 P.2d 349, ¶ 41 (“We conclude that Montana has not

specifically denied Red Lodge’s power to regulate the sale of alcohol.” (emphasis added)).

¶16 The Legislature has very clearly delineated fourteen powers that self-governing

municipalities are “prohibited” from exercising. Section 7-1-111, MCA. It has also set forth

five specific powers that local governments with self-government powers are “prohibited”

from exercising “unless the power is specifically delegated by law . . . .” Section 7-1-112,

MCA. Together, these two statutes constitute prohibition through express statutory language.

The power to regulate indoor smoke, however, is not listed in either of these prohibitory

8
statutes. See §§ 7-1-111 to 112, MCA. We hold that, in passing § 7-1-120, MCA, the

Legislature did not effect an express prohibition of self-governing powers.

¶17 The State contends that it has pre-empted the area of state licensed VGMs and that

the city ordinances are inconsistent with that pre-emption. The Legislature has provided

through express statutory language that local governments with self-government powers are

“prohibited” “the power to regulate any form of gambling, lotteries, or gift enterprises.”

Section 7-1-112(5), MCA. The question is, have the cities, in passing clean air ordinances,

attempted to regulate a “form of gambling” in contravention of the express prohibition? The

answer is no. The cities did not regulate gambling or video gaming in any sense of the word.

They regulated clean indoor air. If the regulation of clean indoor air incidentally impacts

VGM establishments, that does not mean that they have been regulated qua VGM

establishments. Rather, they have been regulated as buildings open to the public. The city

ordinances have incidental impacts on all buildings open to the public. This includes

buildings housing state regulated and licensed enterprises, for example drug stores,

chiropractic offices, and law offices. In prohibiting indoor smoking, the cities have not

infringed upon the state regulation of pharmacists and chiropractors or upon this Court’s

regulation of attorneys. Were a city ordinance to require that owners of buildings (including

VGM establishments) keep their sidewalks clear of snow, we would not conclude that the

cities have regulated gambling.

¶18 In conclusion, we hold that the challenged statute, § 7-1-120, MCA, does not set forth

a prohibition of self-governing powers under Article XI, Section 6, of the Montana

9
Constitution. Accordingly, it does not preempt any no-smoking ordinances adopted by any

self-governing entity. Since § 7-1-120, MCA, has no force and effect, we need not address

the other constitutional challenges under Montana Constitution Article V, Section 11(3) and

Article II, Sections 1 and 2.

¶19 In concluding that the Helena ordinance is more restrictive than the MCIAA, Justice

Warner’s dissent depicts the MCIAA as protecting the “right” or privilege of proprietors to

designate areas as smoking. This analysis ignores the fact that the MCIAA was enacted to

advance the Legislature’s “constitutional obligations under Article II, section 3 . . .” (right

to a clean and healthy environment) and “Article XI of the Montana Constitution . . . .”

Section 50-40-102, MCA. Contrary to the dissent’s characterization, the MCIAA does not

confer any rights or privileges on proprietors. Rather, it requires that proprietors place

appropriate signs in designated areas. That this requirement is merely a means to an end

(separating nonsmokers from smokers), rather than a right or a privilege, is illustrated by the

fact that a proprietor who fails to comply is subject to criminal sanctions. Section 50-40-

109, MCA. It would be ironic indeed if the MCIAA, designed to promote a clean and

healthy environment, was interpreted as a declaration of rights for proprietors of VGM

establishments.

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Attorney Fees

¶20 Petitioners have requested an award of attorney fees under the private attorney general

doctrine enunciated in Montanans for the Responsible Use of the Sch. Trust v. State ex rel.

Bd. of Land Comm’rs, 1999 MT 263, 296 Mont. 402, 989 P.2d 800 (Montrust). In setting

forth the private attorney general theory in Montrust, we adopted the following three factors:

“(1) the strength or societal importance of the public policy vindicated by the litigation, (2)

the necessity for private enforcement and the magnitude of the resultant burden on the

plaintiff, [and] (3) the number of people standing to benefit from the decision.” Montrust,

¶ 66 (quoting Serrano v. Priest (Cal. 1977), 569 P.2d 1303, 1314).

¶21 In Montrust we acknowledged the danger that the first prong could “‘thrust [courts]

into the role of making assessments of the relative strength or weakness of public policies

furthered by their decisions and of determining at the same time which public policy should

be encouraged by an award of fees, and which not–a role closely approaching that of the

legislative function.’” ¶ 66 (quoting Serrano, 569 P.2d at 1314). Accordingly, we adopted

the California Supreme Court’s rationale in awarding private attorney general fees only in

litigation vindicating constitutional interests. Montrust, ¶ 66. Our holding in the present

case amounts to a declaration that § 7-1-120, MCA, is ineffectual rather than unconstitu-

tional; therefore, without the vindication of a constitutional interest, this case does not

warrant private attorney general fees.

/S/ W. WILLIAM LEAPHART

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We concur:

/S/ JAMES C. NELSON

/S/ JIM REGNIER

Justice W. William Leaphart specially concurring.

¶22 In the Court’s opinion we conclude that § 7-1-120, MCA, does not expressly

“prohibit” the cities from exercising self-governing powers. I write this special concurrence

to point out that, in addition, § 7-1-120, MCA, does not, by its terms, have any effect on the

anti-smoking ordinances in question. In briefing this matter, the parties and various amici

have all assumed that the ordinances in question are “more restrictive” than the provisions

of the Montana Clean Indoor Air Act, §§ 50-40-101 to 109, MCA (MCIAA), in that the

ordinances deny access to smokers who would otherwise be guaranteed access to “some

public places,” including VGM establishments. Denial of this supposedly guaranteed

smoker access to VGM establishments resulted in a loss of revenue from VGMs. To protect

that source of revenue, the Legislature passed § 7-1-120, MCA. Upon close examination,

12
it is apparent that the Legislature’s assumption that the MCIAA guarantees access to

smokers is entirely unfounded.

¶23 Section 7-1-120, MCA, exempts VGM establishments from any city ordinances that

are “more restrictive” than the provisions of the MCIAA. In order to analyze whether the

Helena nonsmoking ordinance is “more restrictive” than the MCIAA, the ordinances must

be interpreted in the context of the purposes and provisions of the MCIAA. As the State

clearly explains in its brief on appeal, when Helena adopted the ordinance in question, VGM

licensees reported immediate and significant decreases in revenues. Operators reported that

their customers use tobacco products at a higher rate than the general population, and, when

Helena applied its ordinance, their smoking patrons went elsewhere.

¶24 VGMs are heavily regulated and taxed by the State. Title 23 part 5, Montana Code

Annotated. The tax revenue is calculated as a share of the net profits of the machines and

distributed primarily to local governments. Under § 15-1-121(9), MCA, local governments’

base year entitlement includes tax revenues from VGMs so that, to the extent the VGM

contribution is reduced by actions of local governments, the State’s funding obligation

increases. In response, the 2003 Legislature adopted HB 758 to exempt VGM establish-

ments from local ordinances “more restrictive” than the MCIAA, which purports to “provide

for reserved areas in some public places for those who choose to smoke.” Section 50-40-

102, MCA. The question becomes thus: Is the Helena ordinance “more restrictive” than

the MCIAA as far as guaranteeing the designation of smoking areas in some public places

and thereby ensuring greater tax revenue to the State?

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¶25 What are the “restrictions” of the MCIAA?

¶26 The intent and purpose of the MCIAA is set forth in § 50-40-102, MCA, as follows:

The legislature, mindful of its constitutional obligations under Article
II, section 3, and Article IX of the Montana constitution, has enacted the
Montana Clean Indoor Air Act of 1979. It is the legislature’s intent that the
requirements of this part provide adequate remedies for the protection of the
environmental life support system. The purpose of this part is to protect the
health of nonsmokers in public places and to provide for reserved areas in
some public places for those who choose to smoke.

¶27 The purpose of the Act is clear from the face of the statute. That is, the legislature

sought to protect the health of nonsmokers in public places and “to provide for reserved

areas in some public places for those who choose to smoke.” Clearly, the purpose was not

only to protect the health of nonsmokers, but also to enact certain restrictions establishing

a minimum floor whereby smokers would be guaranteed the designation of smoking areas

in “some public places.”

¶28 Significantly, the MCIAA is completely “non-restrictive” as to bars and taverns where

meals are not served since such establishments are exempt from the MCIAA. Section 50-

40-107(2), MCA. Since the MCIAA does not apply to such establishments, it does not

“restrict” their activities. If the MCIAA does not restrict their activities, logic dictates that

the Helena ordinance cannot, as to them, be “more restrictive” than the MCIAA. Thus, bars

and taverns where food is not served do not benefit from the exemption set forth in § 7-1-

120, MCA. As to establishments, including bars and taverns where meals are served, the

specific requirements of the MCIAA are contained in § 50-40-104, MCA, which provides

as follows:

14
 (1) The proprietor or manager of an enclosed public place shall:
(a) designate nonsmoking areas with easily readable signs;
(b) reserve a part of the public place for nonsmokers and post easily
readable signs designating a smoking area;
(c) designate the entire area as a smoking area by posting a sign that is
clearly visible to the public stating this designation; or
(d) designate and reserve the entire area as a nonsmoking area.

¶29 In terms of reserving or designating an area as smoking or nonsmoking, the four

subparts of § 50-40-104(1), MCA, are stated in the disjunctive “or.” That is, the proprietor

or manager must designate either the whole establishment as smoking or nonsmoking, or

reserve some areas for each group by posting appropriate signs. Significantly, however, the

MCIAA does not require a proprietor to reserve or to designate any or all of the establish-

ment as a smoking area. Thus, despite the stated purpose of “providing for reserved areas

in some public places for those who choose to smoke,” the restrictions imposed by the

MCIAA leave the existence of such smoking areas entirely up to the discretion of the

individual proprietor. For example, pursuant to § 50-40-104(1)(d), MCA, all the managers

or proprietors in the City of Helena could choose to designate their respective establishments

as “nonsmoking.” In other words, the MCIAA does not require that any of the managers

or proprietors in question reserve any areas for smoking. Likewise, the managers and

proprietors could all choose to designate their establishments as smoking areas, § 50-40-

104(1)(c), MCA, thereby defeating the stated purpose of protecting the health of nonsmokers

in public places.

¶30 Section 7-1-120, MCA, seeks to protect smoker access and state revenue by

exempting VGM establishments from any local ordinances that are “more restrictive” than

15
the provisions of the MCIAA. It assumes, as the MCIAA so states in its purpose clause, that

the MCIAA requires that “smoking areas” be reserved in some public places for those who

choose to smoke. However, the substantive provisions of the MCIAA are permissive rather

than mandatory and do not actually require that managers or proprietors reserve any areas

for smokers. Since the MCIAA does not restrict managers or proprietors to guaranteeing

smoking areas, the Helena ordinance is not “more restrictive.” An ordinance cannot be

deemed more restrictive than legislation which is not restrictive.

¶31 “Every reasonable doubt as to the existence of a local government power or authority

shall be resolved in favor of the existence of that power or authority.” Section 7-1-106,

MCA. Accordingly, although § 7-1-120, MCA, exempts VGM establishments from

ordinances that are “more restrictive” than the MCIAA, that exemption has no application

to the ordinances in question. Since § 7-1-120, MCA, does not interfere with the

enforcement of the ordinances adopted by the self-governing units, it does not implicate

Article XI, Section 6, or Article II, Sections 1 or 2, of the Montana Constitution.

/S/ W. WILLIAM LEAPHART

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Justice Patricia O. Cotter concurs.

¶32 I concur in the Court’s Opinion. I write separately to offer the following.

¶33 As the Court points out at ¶ 10 of its Opinion, DNF Sanitation stands for the

proposition that the State may preempt action of local governments with self-government

powers only “if there is an express prohibition by statute which forbids local governments

with self-government powers from acting in a certain area.” DNF Sanitation, 219 Mont. at

445, 713 P.2d at 982. Clearly, HB 758 by its terms does not expressly prohibit cities with

self-governing powers from regulating smoking in public establishments. To the contrary,

we can conclude from the specificity of HB 758 that the Legislature had no intention of

prohibiting these cities from regulating smoking in most public buildings. The sole concern

of the Legislature was with buildings containing video gaming machines. Thus, if anything,

HB 758 reflects the Legislature’s tacit agreement that self-governing cities may exercise the

power to regulate smoking in most local facilities.

¶34 Nothing in the Constitution or the laws of this state gives the Legislature the authority

to at once allow the exercise of a power by a self-governing city, while declaring that certain

entities or establishments shall be exempt from the operation of that otherwise valid--that is,

unprohibited--exercise of self-government power. If anything, in granting a special privilege

to the video gaming industry by exempting it from the operation of a local smoking

ordinance which by its terms is applicable to all local public buildings, the Legislature has

arguably violated Article II, Section 31 of the Montana Constitution which prohibits any law

which makes an irrevocable grant of special privileges, franchises, or immunities. For this

17
reason, in addition to those set forth in the Court’s Opinion, I concur in the result reached

by the Court.

/S/ PATRICIA O. COTTER

Justice James C. Nelson joins in the concurrence of Justice Patricia O. Cotter.

/S/ JAMES C. NELSON

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Chief Justice Gray concurring in part and dissenting in part.

¶35 I concur in the Court’s determination that Section 1 of HB 758, codified at § 7-1-120,

MCA, does not create a prohibition on the power of self-governing local governments to

enact local ordinances regulating smoking in buildings open to the public. As the Court

explains, applying the plain meaning of “exemption” and “prohibition” clarifies that an

exemption is not equivalent to a prohibition. Consequently, I agree that Section 1 of HB 758

does not create an express statutory prohibition on the powers granted to local governments

with self-government charters under Article XI, Section 6 of the Montana Constitution, as

required by our case law interpreting that constitutional provision. In other words, the

“exemption” language contained in § 7-1-120, MCA, simply has no effect for Article XI,

Section 6 purposes as that issue is presented by the Petitioners.

¶36 I also agree with the Court’s conclusion that it is unnecessary to address the

Petitioners’ remaining arguments regarding the constitutional validity of HB 758. Finally,

I agree that Petitioners are not entitled to attorneys’ fees pursuant to the private attorney

general doctrine.

¶37 I dissent, however, from the Court’s decision to address whether the ordinances

enacted by these self-governing local governments are valid vis-a-vis the express prohibition

on the exercise of the power to regulate a form of gambling contained in § 7-1-112(5), MCA,

and its conclusion that they are. The Court’s determination that Section 1 of HB 758 does

not constitute an express prohibition on the powers of self-governing local governments is

dispositive of the issues regarding the constitutional validity of the legislative enactment--HB

19
758--over which we accepted jurisdiction. As a result, the Court’s discussion of whether the

local ordinances regulate a form of gambling in violation of § 7-1-112(5), MCA, is obiter

dictum in its entirety.

¶38 Furthermore, I observe that the issues over which this Court accepted original

jurisdiction are limited--with the exception of the attorneys’ fees issue--to issues relating to

whether the Legislature’s passage of HB 758 is constitutional. None of the issues accepted

by the Court involves the validity of the local ordinances themselves. We are all aware that

several legal actions pending in at least one district court directly challenge the validity of

the local indoor smoking ordinances on various grounds. It is entirely possible that the issue

of whether the local ordinances violate § 7-1-112(5), MCA, has been raised in at least one

of these district court actions. In my opinion, the Court’s discussion, in dicta, of whether the

local ordinances constitute the regulation of a form of gambling could potentially foreclose

the ability of the parties in those actions to raise and thoroughly present the merits of this

issue which is beyond the scope of this proceeding. The fact that the State raises an issue

qualitatively different from the issues we accepted does not require that we respond to it.

I believe the more correct route is to leave this discussion until such time, if any, as parties

in a trial court proceeding have raised this issue, have presented a district court with evidence

and legal arguments, a district court has resolved it and the issue is properly appealed to this

Court.

¶39 For these reasons, I concur in the Court’s opinion on the issues properly before us.

I dissent from the Court’s discussion and conclusion on the validity of the local ordinances.

/S/ KARLA M. GRAY

20
Justice John Warner dissents.

¶40 I think I can understand what the result of the Court’s decision is, including the

special concurrences. That is: Helena casino operators cannot allow smoking in their gaming

rooms, in spite of § 7-1-120, MCA. Thus, the Petitioners are successful in this part of the

litigation. However, I must confess I am not sure why.

¶41 First, the Court’s Opinion. This case does not present a smoking versus non-smoking

question. It is a case of a city versus the Legislature. It is the law that in a power struggle

between the Legislature and a self-governing municipality, the Legislature wins. Mont.

Const., Art. XI, § 6. It seems the Court agrees the Legislature has the power to prohibit

Helena from banning smoking in casinos–it just did it wrong. It had to “prohibit,” not

“exempt.”

¶42 I agree with the Court’s Opinion to the point where Billings Firefighters Local 521

is cited for the correct proposition that a legislative prohibition can arise through a direct

inconsistency between a state legislative act and the legislative act of a self-governing unit.

Beyond that point, while I stand in awe of the Court’s ability to weave words toward a result,

I must disagree.

¶43 Helena’s ordinance prohibits smoking in casinos in the city– no exceptions. House

Bill 758, codified as § 7-1-120, MCA, states that casinos are exempt from all city ordinances

that are more strict than the Clean Indoor Air Act, Title 50, chapter 40, part 1. The Clean

Indoor Air Act allows a proprietor to designate his casino as a place where smoking is

allowed. Section 50-40-104(1)(c), MCA. Ergo: even though Helena’s ordinance states there

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will be no smoking within the city’s casinos, the Legislature says a proprietor may allow

smoking in his Helena casino. To me, this is a direct inconsistency between a state

legislative act and the legislative act of a self-governing unit. The Legislature trumps

Helena–that’s the law.

¶44 I think what Justice Leaphart’s special concurrence says is: since the MCIAA does

not prohibit smoking in casinos, but only requires designation of smoking and non-smoking

areas, § 7-1-120, MCA, is not more restrictive than the MCIAA. This is so because § 7-1-

120, MCA, does not state that smoking is allowed but only states that an ordinance cannot

be more restrictive than the MCIAA. Thus, the reasoning goes, even though § 7-1-120,

MCA, may be valid; it is meaningless.

¶45 Again, I am forced to disagree. The proprietor of a casino is clearly allowed to

designate a portion, or all, of his establishment as “Smoking Allowed,” at his option.

Section 50-40-104(1)(c), MCA. Helena’s ordinance states that the proprietor does not have

such option; his premises is “No Smoking” by law. I offer the following to illustrate the

obvious:

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¶46 The casino depicted in Figure 1 is more restricted than the one in Figure 2. Ergo:

Helena’s ordinance, which states “No Smoking” is more restrictive than the MCIAA, which

states “Smoking Optional.” Section 7-1-120, MCA, is not meaningless. It has the very real

effect of exempting the proprietor of a casino from the restriction of Helena’s ordinance.

Under the statute, a proprietor can exercise his right to post a sign that says smoking is

allowed, and smoking is then allowed.

¶47 Justice Cotter’s special concurrence would conclude that § 7-1-120, MCA, is special

legislation in violation of Article XI, Section 31, of the Montana Constitution, because it

grants a special privilege, franchise, or immunity to tavern owners with gaming machines,

and denies such to other businesses without gambling. To reach this conclusion, the

concurrence states, without citation of authority, that nothing in the Constitution or the

statutes gives the Legislature the power to allow self-governing cities to ban smoking in

establishments without gaming licenses, and to deny this authority to such cities in regard

to establishments with gaming licenses. I must disagree yet again.

¶48 Article III, Section 9, of the Montana Constitution gives the Legislature the authority

to allow gambling by law; it has done so. The regulation of gambling is a matter of state-

wide concern. DeLong v. Downes (1977), 175 Mont. 152, 156, 573 P.2d 160, 162. There

is no disagreement in this case that the State of Montana has the authority to regulate

gambling and that it has done so. Title 23, Chapter 5, MCA. The statute in question here

applies only to gaming premises, and is a part of the regulation of those premises. I would

conclude that the power to regulate gambling includes the power to regulate the premises

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wherein it is conducted. The decision whether to allow smoking where gambling is allowed

is within the power of the State.

¶49 The evidence that smoking, and second-hand smoke, is detrimental to health appears

to be overwhelming. However, we do not have before us the question of whether smoking

is or is not bad for health; the answer to which question seems obvious. Still, the citizens

of Montana have the right to be foolish, and some choose to exercise that privilege. What

we do have before us is whether the Legislature’s power to regulate gambling can be usurped

by Helena. It cannot. Whether the Legislature has unwisely exercised its power in this area

is a matter of policy for it alone to decide; and the citizens of Helena, this Court, and the rest

of Montana’s citizens, must live with its decision or get it to change the law. Of course,

none of us are required to patronize establishments that allow smoking.

¶50 I dissent.

/S/ JOHN WARNER

Justice Jim Rice joins in the foregoing dissent.

/S/ JIM RICE

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