Attorneys for the City of Helena and the Montana Nugget Casino were back in district court Wednesday, resurrecting their arguments about whether the city's smoking ordinance is enforceable.

At issue is the question of whether people accused of a municipal infraction, such as violating the smoking ban, are entitled to a jury trial. City Court Judge Myron Pitch ruled that they were not in December 2003 prompting the city's appeal to district court.

That appeal was shelved when the 2003 Legislature exempted casinos from local smoking laws. When that exemption was tossed last December by the Supreme Court, the appeal heard Tuesday before District Court Judge Thomas Honzel was dusted off.

Helena City Attorney David Nielsen told Honzel Wednesday that nothing in the city code explicitly allows for a jury trial, and that the city relies "heavily or even exclusively" on state law for guidance.

"This is analagous to holding unconstitutional some criminal procedure in state statute, and saying that voids all Helena ordinances because they rely on state code," he said.

The municipal infraction category of offense was added to the Montana Code by the Legislature in 1999 as an option for cities that fall somewhere between civil and criminal offenses.

Representing the casino and manager Greg Straw, Helena attorney Tom Budewitz said the right to a jury trial dates all the way back to the Magna Carta, written in 1215.

"That's how long that right has been in existence," he said.

Budewitz said the fact that the city is the "victim of bad bill-writing" by the Legislature in creating the municipal infraction category of offense doesn't mean the city can "read something into this" and enforce the ban unconstitutionally.

Helena lawyer Jim Reynolds, representing the ballot committee that pushed the Helena ordinance, conceded that municipal infractions don't in fact allow for a jury trial, but argued there are several other types of cases that don't, either.

"Many other regulations provide for a hearing in court without a jury," he said, so the fact that there is no explicit allowance for a jury trial shouldn't invalidate Helena's law.

The Montana Nugget and Straw were each ticketed several times in the fall of 2002 for allowing smoking in the casino and failing to post no-smoking signs. Helena's ordinance, which went into effect days after a June vote affirming the law, was shelved six months later after the Pitch decision.

Both sides now await a ruling from Honzel.

Meanwhile, a bill that would again prohibit cities from regulating smoking in casinos, rewritten with language the Supreme Court said was necessary, is awaiting assignment to a Senate committee.

The bill passed the House last month, but not before an amendment was added to the Montana Clean Indoor Air Act that would prohibit anyone 18 or under from being in the same area of a business where smoking is allowed and gambling machines are present.

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