Legal Issue

Whether a Montana law barring smoke-free prohibitions in business establishments with permits for video gambling machines is valid under the Montana Constitution.


In 2003,the Montana legislature passed a bill allowing “an establishment with video gambling machines on the premises [to be] exempt from any local government ordinance which is more restrictive than” the Montana Clean Indoor Air Act.  Several nonprofit organizations, including the Montana Medical Association, asked the Montana Supreme Court to declare the state law unconstitutional under provisions of the Montana Constitution, which states that all persons have the inalienable right to “a clean and healthful environment,” and that the state is to maintain and improve the environment.  The state of Montana asked whether this exemption expressly prohibited the ordinances passed by local government and argued that the Bill preempted city ordinances covering state licensed video gambling machines.

On December 3, 2003, the Tobacco Control Legal Consortium filed an amicus brief in support of the American Cancer Society, opposing the state law prohibiting smoke-free ordinances.  We argued that smoke-free ordinances are important to the health of the public and that tobacco control is most effective at the local level because it avoids state level politics and closely reflects community attitudes.    


The Montana Supreme Court, in a split decision, held that the state law did not violate the local government sovereignty provision of the Montana Constitution.  The court ruled that the statute does not preempt self-governing entities’ no-smoking ordinances because the meaning of ‘exempt’ is not the same as ‘prohibit.’  “An exemption is an exception to, not a denial of the power to act.”

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