Montanans will vote on a recreational marijuana legalization effort this year, but if it passes (and polls show it is expected to) will it ever be implemented? If the Wrong For Montana (“WFM”) campaign has its way, the initiative will be tossed aside before it ever gets under way. WFM filed a lawsuit that claims the initiative is illegal because it involves appropriating funds in violation of Montana’s statute on citizen initiatives. That statute says the state “may enact laws by initiative on all matters except appropriations of money and local or special laws,” and the cannabis initiative does allocate cannabis tax revenue to certain state programs, including environmental conservation programs. Thus, it appears the initiative may violate the applicable Montana statute. However, prior measures that have appeared on Montana ballots have also allocated funds in this way. Regardless, the initiative has cleared its first legal challenge.

Earlier this week the Montana Supreme Court rejected a lawsuit seeking to invalidate the legalization initiative. The court punted on the merits of the challenge and instead determined that it was not the proper venue for the challenge because it lacked jurisdiction. According to the opinion, WFM failed to demonstrate “urgency or emergency factors” justifying circumventing the traditional route through a trial court and appeals court before reaching the supreme court. The court stated that it “express[ed] no opinion on the merits of WFM’s constitutional challenge, or to its right to pursue this challenge in district court,” but the “claim does not present an appropriate basis on which to invoke this Court’s original jurisdiction.” This is certainly a win for cannabis proponents, but it sounds like this challenge is far from over. The attorney representing WFM stated that WFM now intends to pursue their claims in district court, although it has not settled on an exact timeline yet.

It should also be noted that even if WFM were successful in its challenge, that will not necessarily invalidate the entire initiative. It is possible that the Montanan courts could simply direct the funds be deposited into the state’s general fund and not allocated to the programs currently designated.

Montana is one of five states with cannabis related initiatives on its ballot, so November is yet again expected to be a big month for the industry. We will be following all of the election action and our blog will provide updates after election results are confirmed.