January 13, 2005
By JOHN HARRINGTON
IR Staff Writer
A bill that would clean up a possible problem with Helena’s shelved smoking ordinance almost made it through a House committee hearing Wednesday without the word “smoking” being spoken.
House Bill 33, sponsored by Rep. Dave Gallik, D-Helena, would allow a person charged with a municipal infraction to request a jury trial. In 2002, City Court Judge Myron Pitch threw out tickets written against the Montana Nugget Casino for allowing smoking, because there was no specific provision for a jury trial. It was that decision that initially mothballed Helena’s voter-approved ordinance.
Gallik introduced the bill, and the only other person to speak on the bill was Helena City Attorney David Nielsen, who was in favor. Several questions from commitee members to both dealt with the cost of additional juries and the background of municipal infractions, but nobody asked about tobacco.
But after 25 minutes of debate, House Judiciary Chairwoman Rep. Diane Rice, R-Harrison, acknowledged the elephant in the room, asking Nielsen, “The Helena smoking ban ordinance would fall under this, would it not?”
The notion of a municipal infraction was added to Montana Code in 1999, giving localities the option of making certain violations civil rather than criminal infractions. The code doesn’t explicitly permit or forbid a jury trial.
“It has been my position that a jury trial could be allowed, but there are judges that disagree with my philosophy,” Nielsen said.
Gallik said that if municipal infractions really don’t allow for jury trials, then anyone charged with a municipal infraction could simply ask for a trial by jury and expect to have the charge thrown out.
“Certainly it would be more expeditious to not have to select a jury and have a jury trial; however, it’s in conflict with what the Constitution grants us as a right,” he said.
After the Montana Supreme Court ruled last month that the Legislature’s 2003 attempt to exempt casinos from any local smoking control was ineffective, attention turned to the City of Helena’s district court appeal of the Pitch decision. Nielsen said after Wednesday’s hearing that the appeal is tentatively scheduled to be argued before Judge Thomas Honzel on March 9.
Rice, the committee chairwoman who brought up the smoking connection in Wednesday’s hearing, voted for House Bill 758 in 2003, the bill aimed at exempting casinos from local smoking laws. Of the 10 other Judiciary Committee members who were in the House in 2003, five voted for the bill and five voted against.
The committee took no action on Gallik’s bill on Wednesday.
John Harrington can be reached at 447-4080 or firstname.lastname@example.org.