By BOB ANEZ/Associated Press Writer
HELENA - The Montana Supreme Court has agreed to decide whether a new state law that restricts local smoking bans is constitutional.
In a 5-2 decision Wednesday, the court said it will consider four of six issues presented by opponents of the law because the points are ''purely constitutional questions of major statewide importance.''
The procedural order, unusual in allowing a dispute to bypass a trial in District Court, could lead to a ruling that resolves the case. Should the high court conclude the law is unconstitutional, pending lawsuits in the lower court would be moot.
However, if the justices uphold the law, foes could pursue their fight on other grounds in District Court.
Jim Reynolds, a Helena attorney for a coalition of health groups that are fighting the law, said the court order is not surprising. The questions the justices agreed to answer don't require a fact-finding trial first, and the lingering dispute over the validity of the law demands a ''quick and clear answer'' from the court, he said.
''There's an emergency because it (the law) has created a lot of confusion in local communities over enforcement of their local ordinances,'' Reynolds said.
Assistant Attorney General Sarah Bond said the Justice Department hopes that the ruling doesn't encourage other people in lawsuits to try circumventing lower courts in similar fashion.
While disappointed in the decision, Bond said the state was pleased by the position taken by the two dissenting justices, that the case is not ripe for the appeals court.
''Both dissenting opinions basically agreed with what we argued, that accepting jurisdiction in this kind of case is not conducive to the orderly administration of justice,'' she said.
The heart of the case is House Bill 758, passed by the 2003 Legislature in response to a new voter-approved Helena ordinance that outlawed smoking in all public places. HB758 exempts businesses with gambling machines from that ordinance and from any other local laws that are more strict than the state's indoor air laws.
With lawsuits over the Helena ban already pending in District Court, critics of the state law asked the Supreme Court to step in. They said the law was enacted in violation of the Montana Constitution and legislative rules. They claimed the law violates the constitution's guarantee of a clean and healthful environment, and usurps self-governing powers of cities.
The state argued that a trial was needed to sort out the facts surrounding the claims and that no emergency exists to justify Supreme Court intervention.
The court agreed to decide whether HB758 unconstitutionally deprives local governments and citizens of their rights to self government and popular sovereignty, and if the bill was passed in violation of constitutional requirements for legislation.
But the court declined to determine if the law, by limiting smoking bans, infringes on the guarantee of a healthy environment. It said more facts are needed to make that judgment and to decide if passage of the law ran afoul of the Legislature's rules.
The court agreed to let several national anti-tobacco organizations get involved in the case, as well as the American Medical Association and Montana League of Cities and Towns.
In his dissent, Justice John Warner - a former district judge - said that the case belongs in lower court and that no emergency exists to avoid that normal process.
''What petitioners really have accomplished is an end run around the District Court so as to secure a decision on a few of their claims, holding in reserve their remaining claims so that they can be presented to the District Court if they are unsuccessful here,'' he wrote.
Chief Justice Karla Gray, in a separate dissent, predicted the decision will lead to ''procedural snarls'' if those challenging the law lose before the high court.
''The court is simply, and unwisely, inserting itself into cases pending in the District Court without benefit of decisions by those courts or any factual record on these important issues, and without the necessary showing by petitioners or urgent or emergency factors,'' she said.
Justices James Nelson, Jim Regnier, Patricia Cotter, Bill Leaphart and Jim Rice signed the court order.