Judge dismisses five of the six counts in a lawsuit filed by casinos.

Score the next round in the ongoing legal battle over Helena's smoking ordinance for the city, as District Court Judge Jeffrey Sherlock on Tuesday dismissed five of six counts in a lawsuit filed by several casinos.

The only count of the lawsuit Sherlock left in place was a claim that the ordinance constitutes a taking of plaintiffs' property without compensation, leaving open the possibility of a trial to determine economic damage.

He tossed three counts that said the ordinance was pre-empted by the state's Clean Indoor Air Act and that it was beyond what the city was authorized to do.

"This Court concludes that the Ordinance was properly authorized, is a valid exercise of the powers of the city of Helena and does not impermissibly conflict with state law," Sherlock wrote.

Sherlock also dismissed counts claiming the plaintiffs were denied due process and that several rights under the U.S. Constitution were violated.

Sherlock's decision is unrelated to the ruling last month by City Judge Myron Pitch that the ordinance is technically unconstitutional because it doesn't allow for a jury trial. The city's appeal of the Pitch decision is in the hands of District Court Judge Thomas Honzel. Thus, it's unlikely the city will resume enforcement of the ordinance until Honzel rules.

Still, City Attorney David Nielsen was happy with Sherlock's ruling.

"(The casino owners') theories of pre-emption, which they've hammered on since day one, have been KO'd," he said. "Getting those claims dismissed at this level is a really strong indication that this is not a viable theory for them."

Bozeman attorney Art Wittich, who represents the casinos and individuals named as plaintiffs, said he would discuss a possible appeal of the dismissed counts with his clients, but that he fully expects to move forward with the takings claim.

"At this point the case is all about money, and recovering money from the city and the taxpayers of Helena for the losses the ordinance has caused businesses," Wittich said.

In its motion to dismiss, the city claimed that since the ordinance didn't represent a taking of all economic use of the casino owners' property, the takings claim was invalid.

Sherlock wasn't persuaded: "The Court does not agree that such a pleading requirement is a condition precedent to the filing of a taking action."

Nielsen was quick to note that "just because (Sherlock) didn't dismiss the takings claim does not mean they're going to win on it."

Sherlock also dismissed Lewis and Clark County and the City/County Board of Health as defendants, along with Helena Mayor Jim Smith.

The Montana Clean Indoor Air Act allows businesses to make part or all of their establishments smoking, as long as the areas are properly signed.

In addressing the issue of pre-emption, Sherlock noted that "cities with self-governing powers (like Helena) can impose stricter regulations than those imposed by the state," and that the standards imposed by Helena's ordinance -- no smoking in any building open to the public -- are more stringent than those imposed by state law.

Reporter John Harrington can be reached at 447-4080, or john.harrington@helenair.com.