Misleading or paternalistic? FL Supreme Court blocks adult-use of pot initiative

By: - April 22, 2021 2:58 pm
marijuana plant

Marijuana plant

The Florida Supreme Court has blocked a proposed state constitutional amendment to allow recreational use of marijuana by adults from appearing on the ballot.

Voting 5-2, the court majority concluded that the summary of the proposal that would greet voters in their polling places would be “affirmatively misleading” because it doesn’t make clear that pot would remain forbidden under federal law.

Attorney General Ashley Moody had asked the court to invalidate the proposed amendment. The court heard arguments in the case almost one year ago.

“We thank the Florida Supreme Court for their time and attention to this issue and respect their ruling. Floridians must fully understand what they are voting on when they go to the ballot box,” Moody press aide Lauren Cassedy said in a written statement.

Nick Hansen, chairman of Make It Legal Florida, which sponsored the amendment, has yet to respond to a request for comment. The group had hoped to place the matter on the 2022 ballot.

Mark Wilson, president of the Florida Chamber of Commerce, which filed a brief opposing the initiative, welcomed the ruling.

“The Florida Chamber will fight in any venue — legislative, legal or the court of public opinion — to keep Florida, Florida, and ensure efforts to utilize ballot initiatives to circumvent the appropriate legislative process are unsuccessful,” Wilson said in a written statement.

The GOP-dominated Florida Legislature has consistently resisted marijuana liberalization and this year considered limiting the potency of medical marijuana, which the voters forced upon lawmakers.

Commissioner of Agriculture and Consumer Services Nikki Fried, a leading proponent of marijuana reform, called the ruling “another infringement on the will of Floridians.”

“Florida’s voters are smart and they understand the federal status of adult-use marijuana. They also understand that states all over the country are working to overcome this, with residents getting what they’ve been asking for all along. Florida voters have taken this into their own hands because the Florida Legislature failed to do right by the people in taking legislative action on legalization,” she said in a written statement.

The unsigned majority opinion concedes that the court has never expressly required initiative sponsors to inform voters about the state of federal law. It cited rulings in 2014 and 2015 OK-ing medical marijuana initiatives. The first failed; the second was approved in 2016 by the necessary supermajority of voters.

Since then, Gov. Ron DeSantis has shifted the court’s balance by appointing conservative justices.

Medical marijuana activist Ben Pollara said on his Twitter feed that it made the difference. “This is the @GovRonDeSantis Supreme Court, folks,” he wrote.

Nothwithstanding those earlier rulings, “we have certainly never concluded — or suggested—that a summary may affirmatively mislead voters regarding the interplay between the proposed amendment and federal law. The summary here does precisely that,” the opinion says.

Justice Alan Lawson. Credit: Florida Supreme Court

Chief Justice Charles Canady and justices Ricky Polston, Carlos Muñiz, John Couriel, and Jamie Grosshans voted in the majority. Justices Jorge Labarga and Alan Lawson dissented, with Lawson writing that the majority took a paternalistic attitude to the voters.

“We take a nonpaternalistic approach to our review, expecting voters to educate themselves regarding the details of a proposed amendment before voting and advising that the ballot summary need not educate voters on collateral implications of a proposed amendment’s effects,” Lawson wrote.

“Our review similarly presumes that voters possess a rudimentary knowledge of their government’s structure and of the laws governing their conduct. …  Citizens are also presumed to know what constitutes a federal crime,” he added.

“Finally, it is one of the most fundamental and elementary principles of our constitutional republic that no state law — not even a state constitution — can override federal law.”

Here is what the ballot summary says:

“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.”

Court precedent allows the justices to block proposed amendments if their ballot summaries “clearly and conclusively” would mislead voters, according to the majority opinion.

“The summary’s unqualified use of the word ‘permits’ strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida,” they said.

The initiative language itself makes the distinction clear, but “a ballot summary suggesting otherwise is affirmatively misleading,” the justices said.

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Michael Moline
Michael Moline

Michael Moline has covered politics and the legal system for more than 30 years. He is a former managing editor of the San Francisco Daily Journal and former assistant managing editor of The National Law Journal.