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Anti-Drug Group Says Montana's Pot Law Unconstitutional

By Sam Reisman · November 6, 2020, 6:55 PM EST

The day after Montanans voted through a ballot initiative to allow recreational marijuana, an anti-legalization group filed suit in state court seeking to have the entire referendum struck down as unconstitutional.

The group, Wrong for Montana, alleged in a complaint filed Wednesday that the adult-use question violated the state's constitution because it contains provisions directing where tax revenue generated through cannabis sales can be spent.

Wrong for Montana, which describes itself as "coalition of grassroots Montanans concerned about the public health and safety of our state," said this makes the entire referendum unenforceable since the state's constitution does not allow voters to enact laws regarding appropriations via the ballot.

The adult-use question, Initiative No. 190, passed with 57% of the vote. The initiative established a 20% tax on marijuana sales and earmarked the revenue to fund a host of programs, particularly wildlife conservation and the preservation of public lands in Big Sky Country.

The suit names Montana Attorney General Tim Fox and Secretary of State Corey Stapleton as defendants in their official capacities.

This is not the group's first attempt to defeat the legalization question via the courts. A few weeks before the election, Wrong for Montana and its treasurer Steve Zabawa, a Montana anti-drug activist and car salesman, sued unsuccessfully to strike I-190 from the ballot.

The Montana Supreme Court rebuffed their challenge in a unanimous decision on Oct. 21, saying the group couldn't circumvent the trial courts even if the election was imminent.

"WFM's claim does not present an appropriate basis on which to invoke this court's original jurisdiction," the justices said. "Even if it did, WFM has wholly failed to establish that urgency or emergency factors make litigation in the trial courts and the normal appeal process inadequate."

Montana was one of four states states to legalize recreational cannabis through ballot initiatives on Election Day. Majorities of voters in Arizona, New Jersey and South Dakota also voted to create a system to tax and regulate the drug. Fifteen states plus the District of Columbia have legalized adult-use cannabis.

Mississippi voters also approved an initiative to create a medical marijuana program, making it the 36th state to do so.

Counsel for Wrong for Montana did not immediately respond to a request for comment Friday. A spokesperson for the Montana Attorney General's Office did not immediately respond to a request for comment.

Wrong for Montana and Zabawa are represented by Brian P. Thompson, Kasey R. Kimball and Chad E. Adams of Browning Kaleczyc Berry & Hoven PC.

Counsel information for the state of Montana was not immediately available Friday.

The case is Wrong for Montana et al. v. The State of Montana et al., case number BDV-2020-1854, in Montana First Judicial Court, Lewis and Clark County.

--Additional reporting by Jack Queen. Editing by Stephen Berg.

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