In an advisory opinion issued Thursday, the Florida Supreme Court tossed a proposed ballot measure that would have added a state constitutional amendment legalizing some types of recreational marijuana use. Critics attacked the court’s ruling as a thinly-veiled effort to legislate from the bench.
In a 5-2 decision, Florida’s conservative high court came down against the proposal and struck it from the 2022 ballot on the premise that the initiative’s summary language lacked clarity.
According to the opinion, the ballot initiative’s summary would have read as follows:
Permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason. Permits Medical Marijuana Treatment Centers to sell, distribute, or dispense marijuana and marijuana accessories if clearly labeled and in childproof packaging to adults. Prohibits advertising or marketing targeted to persons under 21. Prohibits marijuana use in defined public places. Maintains limitations on marijuana use in defined circumstances.
According to the court, the summary’s “unqualified” use of the word “[p]ermits” is misleading because the federal government still considers marijuana a Schedule 1 controlled substance under the Controlled Substances Act of 1970. Therefore, the court reasoned, the ballot language summary “strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida.”
That is, of course, not what the actual amendment says — which the conservative justices tersely acknowledged. The actual proposed amendment made it clear that the ballot measure would have amended only state law by amending only the state constitution. For example, the proposed amendment contains this passage (italics added by Law&Crime for emphasis):
(b) Public policy.
(1) An adult is permitted to possess, use, display, purchase, or transport marijuana or marijuana accessories for personal use for any reason in compliance with this section and Department regulations and is not subject to criminal or civil liability or sanctions under Florida law.
(2) A Medical Marijuana Treatment Center is permitted to sell, distribute or dispense marijuana or marijuana
accessories to an adult for personal use for any reason in compliance with this section and Department regulations and is not subject to criminal or civil liability or sanctions under Florida law.
The state high court’s opinion explains its reasoning as follows:
The proposed amendment . . . explains that the conduct will only be free of criminal or civil liability “under Florida law.” The proposed amendment includes that language, of course, because a recreational marijuana user or distributor will remain exposed to potential prosecution under federal law — no small matter. A constitutional amendment cannot unequivocally “permit” or authorize conduct that is criminalized under federal law. And a ballot summary suggesting otherwise is affirmatively misleading.
Slate legal author Mark Joseph Stern savaged the court’s reasoning as “so bizarre and illogical that it is pretty clearly the result of five justices’ hostility to marijuana legalization (and self-governance) rather than any plausible reflection of the law.”
“This is very obviously a policy decision by an extremely conservative court that is hostile to cannabis reform,” he said via Twitter.
In the opinion, the court takes the amendment’s sponsor to task for not “following the roadmap [the Florida Supreme] Court unanimously approved” in a case regarding a similar 2016 summary attached to a measure to legalize medical marijuana in Florida. That summary stated that the core provision “[did] not immunize violations of federal law.” The court considered that summary language necessary:
This Court unanimously approved the initiative petition for placement on the ballot, concluding that among other things “the ballot title and summary fairly inform[ed] voters of the purpose of the proposed amendment — the state authorization of medical marijuana for patients with debilitating medical conditions.” The amendment was ultimately approved by the voters and added article X, section 29 to the Florida Constitution.
Make it Legal Florida, the newly jettisoned ballot initiative’s sponsor, offered various arguments why it should prevail against the nine groups who argued the new measure’s summary was misleading.
The court’s responses to some of those arguments are particularly notable.
“The Sponsor contends that because the summary here is silent as to the amendment’s effect on federal law, there is no possibility voters could be left with the mistaken belief that the amendment is consistent with federal law,” the court notes. “According to the Sponsor, the opponents’ arguments amount to nothing more than incorrect assertions that the summary is required to describe the amendment’s relationship to federal law or include information that is not contained within the amendment.”
In a similar vein, Make it Legal Florida also argued that voters have “a certain amount of common understanding and knowledge,” or, at least enough to understand that the state constitution has nothing to do with federal law.
The court decisively rejected that line of thought and characterized the summary in question as “affirmatively misleading” — even though it said nothing about federal law:
The Sponsor continues that it is an elementary principle of civics that federal law cannot be changed through a state constitution. We reject this line of reasoning. The taint of an affirmatively misleading statement in a ballot summary is not removed simply because some voters will wisely question the accuracy of the statement. The point is that a summary should not contain language that is affirmatively misleading and creates a risk that voters will be confused.
The dissent by Justice Allen Lawson directly addresses his colleagues’ estimation of how the public might read the rubbished proposal.
“Today’s decision underestimates Florida voters and adds hurdles to the citizen-initiative process that are not supported by the plain language of the governing law or our precedent,” he wrote.
Lawson went on to assail “the majority’s illogical conclusion that this ballot summary’s explanation of the proposed Florida constitutional change is misleading for failing to explain either (1) that the proposed changes in Florida law would not change federal law, or (2) how Florida law would differ from the federal Controlled Substances Act (assuming that it is not changed) if the Florida ballot measure were to pass.”
Read the court’s full opinion below:
Florida Recreational Marijuana Advisory Opinion by Law&Crime on Scribd
[image via Bruce Bennett/Getty Images]
