Florida justices seem skeptical of the state’s arguments against a recreational cannabis amendment

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Marijuana. By Hillsborough County Sheriff's Office, May 2011.
Marijuana. By Hillsborough County Sheriff's Office, May 2011.

By Dara Kam ©2023 The News Service of Florida

TALLAHASSEE — Peppering lawyers for the state and the Florida Chamber of Commerce with questions, some Florida Supreme Court justices appeared skeptical Wednesday of arguments that the court should reject a proposed constitutional amendment that would allow recreational use of marijuana by people 21 or older.

Justices have until April 1 to decide whether the proposal — bankrolled by the state’s largest medical marijuana operator, Trulieve — should go before voters in November 2024.

The case also could have broader implications for attempts to change the Florida Constitution, Wednesday’s arguments indicated.

Lawyers for Attorney General Ashley Moody’s office and the Florida Chamber of Commerce argued that the proposed marijuana amendment would be misleading to voters and fails to address a single subject as required under state law.

But an attorney representing Smart & Safe Florida, a political committee backing the proposal, said the court’s own “roadmap” was used to draft the measure.

Jeffrey DeSousa, chief deputy solicitor general in Moody’s office, said Florida law requires proposed amendments to be “clear and unambiguous.”

“The attorney general opposes ballot placement because we think, in several ways, this ballot summary is misleading,” DeSousa told the justices.

DeSousa pointed to a part of the proposal that says the state’s currently licensed operators, known as medical marijuana treatment centers, “and other state licensed entities” would be allowed to participate in the industry.

The summary doesn’t explain that the Legislature would have to create a process for more “entities” to join the market, he argued.

“What’s really going on here is that the ballot summary is playing on a desire of voters to see greater competition in the marketplace. There have been public complaints that the market is monopolized and thereby raising prices,” DeSousa said.

But Chief Justice Carlos Muniz pressed him on the issue.

“If you read it literally, what it’s telling people is that there might be two entities licensed in the state other than these medical marijuana treatment centers. … Is that really relative to the competitive landscape?” Muniz asked.

He asked DeSousa to “walk through the thought process” of a voter.

“I’m in there and I think the idea of allowing recreational use is good, but I would vote no because the Legislature might not authorize entities other than MMTCs (medical marijuana treatment centers) to sell? I mean, who are you trying to protect?” Muniz asked.

DeSousa said “some subset of voters” who are “apathetic about recreational marijuana use” would “like to see more competition in the marketplace … and so they’ll support it under the idea that this will lower prices there.”

The state lawyer also focused on part of the ballot summary that says the proposal “applies to Florida law; does not change, or immunize violations of, federal law.” DeSousa argued that is misleading because it doesn’t specify that marijuana remains illegal under federal law.

“I think that it is a very easy circumstance for voters to be confused about this,” DeSousa said.

But Justice John Couriel pushed back.

“Help me understand what this does to inject confusion,” he said.

“Because it uses the word ‘allows’…’” DeSousa began..

“Come on. It says it applies to Florida law,” the justice interrupted. “We can’t not read the context of the whole statement. … I mean, come on. Where’s the hidden ball? It says on the face of this that it applies to Florida law.”

DeSousa said “there is at least ambiguity” in the ballot summary.

Justice Charles Canady also weighed in.

“I don’t know how a voter, when it says, ‘does not immunize violations of federal law,’ how a voter could be confused by that. I’m baffled by the argument,” Canady said.

Samuel Salario, an attorney for the Florida Chamber, also faced questions. The business group has a long history of opposing proposed ballot initiatives and has backed efforts making it more difficult to amend the Constitution.

“The Constitution is not the place for impulsive policy change. Legislation on tough questions is the constitutional province of the Legislature,” Salario said.

He said the proposal violates a requirement that amendments address only a single subject because it would both “immunize sanctions” for marijuana use and give the state’s current medical marijuana operators “effective regulatory capture” over the cannabis market. But the argument drew pushback.

“If a measure is to have a oneness of purpose under our case law, does that mean that it can never, with one change to the organic law of the state, both permit something or remove penalties for something without speaking to the market implications of that?” Couriel asked.

“I’m not suggesting that,” Salario conceded.

Canady probed further.

“Your fundamental position here is that this is just not a proper subject for the initiative process … There’s really no way that the citizens could act in this arena through the initiative process, effectively,” Canady said. “Say their primary purpose is to have the commercial sale of marijuana for personal use … Is there any way they could accomplish that effectively in your view?”

“I think that if you are talking about an amendment that would combine the decriminalization or legalization …,” Salario began.

“So they couldn’t,” Canady interrupted.

“They are distinct ideas that are not connected,” Salario said.

“It seems like this is turning the single-subject requirement into not anything other than a straightjacket,” Canady responded.

John Bash, an attorney who represents the Smart & Safe political committee, told the justices that “commercial sales go hand-in-hand with possession.”

The amendment’s sponsors “did a conscientious job” of relying on the court’s own “roadmap” in recent marijuana-related rulings, Bash argued, noting that the court has been reluctant to strike ballot initiatives over the years.

“If there was ever a case not to do it, it’s the one where the ballot sponsor looked at the court’s precedents, tried to follow them scrupulously and even adopted the language that this court said is the roadmap,” Bash said.

He also said voters will have an understanding of what the proposed amendment would do and know that the “federal proscription on marijuana is not at issue here.”

The questions from the conservative court — which includes five justices appointed by Gov. Ron DeSantis, who opposes the proposal — appeared to buoy proponents of the measure.

“It appears that at least some members of the court believe the analysis advanced by the Attorney General’s Office and the Florida Chamber of Commerce constrain the citizens’ amendment process to the point that no proposal could ever reach the ballot,” attorney John Lockwood, who represents cannabis companies but is not involved in the Supreme Court case, told The News Service of Florida in an email.

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