As the state begins the process of drafting rules and regulations for the Montana Marijuana Regulation and Taxation Act, which will go into effect no later than Oct. 1, 2021, Montanans who are excited about smoking the “electric lettuce” may find themselves stymied by a lawsuit whose resolution seems as unlikely and bleak as a Trump comeback, but not outside fo the realm of possibility.
With Montana passing initiatives 190 and 118 by double-digit margins during the recent election, ( 57-43% and 58-42%, respectively) they join 15 other states who have legalized cannabis in order to shore up their state coffers and give the people what they want, with plans well on their way to begin capitalizing on the windfall that will result from taxing it.
The plan is simple. Tax it at 20% and half goes to the government general fund, and the other 10% is dedicated to “accounts for conservation programs, substance abuse treatment, veterans’ services, health care costs, and localities where marijuana is sold.”
While such a move has fiscal hawks licking their chops, one group believes that such a plan is unconstitutional and that they have the wherewithal to stop it.
Steve Zabawa filed a lawsuit in Lewis and Clark County the day after the election on behalf of Wrong for Montana (WFM) a grass-roots (no pun intended) organization opposed to the legalization of cannabis. According to the Marijuana Moment:
“The plaintiffs argue that the voter-approved statutory proposal unlawfully appropriates funds, violating a portion of the state Constitution that prohibits such activity from being included in a citizen initiative. The state Supreme Court declined to take the case last month, but it did not rule on the merits. Instead, it said the filers failed to establish the urgency needed to skip the lower court adjudication process.”
Specifically, WFM claims that Initiative 190 is little more than an appropriation by an initiative, resulting in a violation of the Montana state constitution. They appeal to Article 3 Section 4 that reads, “The people may enact laws by initiative on all matters except appropriations of money and local or special laws” and call for it to be declared void, unenforceable, and unconstitutional.
Legal experts and supporters of the initiative, however, say that WFM and Zabawa have it all wrong because of the very careful way the law was written, making it designed to bypass such restrictions. “The initiative itself does not appropriate the funds” said Anthony Johnstone, Professor of Law at the University of Montana “But rather it allocates money for the legislature to then fund. What courts have said in the past, is that those initiatives don’t appropriate money, they raise money for the legislature to appropriate.”