One day after Ohio voters said yes to legal cannabis at the ballot box, Florida’s top court heard arguments on Wednesday from those in favor and opposed to a measure that would allow the state’s voters to do the same.
Florida Attorney General Ashley Moody turned to the state Supreme Court in May to challenge an initiative, backed by a group called Smart & Safe Florida, that would legalize cannabis for adult use in the state. The group has collected enough signatures to appear on the 2024 ballot—that is, if the top court disagrees with Moody’s argument that the language of the ballot initiative is misleading. And, on Wednesday, several of them did.
Ahead of Wednesday’s oral hearing, the Drug Free America Foundation and the Florida Chamber of Commerce filed briefs against the initiative, while the American Civil Liberties Union of Florida, the Medical Marijuana Business Association of Florida, and The Cato Institute filed briefs in support.
On Wednesday, the only person that spoke aside from the lawyers representing Moody and Smart & Safe Florida was Samuel Salario Jr., representing the Florida Chamber of Commerce.
At the heart of the day’s hearing was the 75-word summary of the measure: “Allows adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption by smoking, ingestion, or otherwise; allows Medical Marijuana Treatment Centers, and other state licensed entities, to acquire, cultivate, process, manufacture, sell, and distribute such products and accessories. Applies to Florida law; does not change, or immunize violations of, federal law. Establishes possession limits for personal use. Allows consistent legislation. Defines terms. Provides effective date.”
Jeffrey DeSousa, representing Moody, spoke first.
“The attorney general opposes ballot placement because we think, in several ways, this ballot summary is misleading,” said DeSousa.
“What is the promise that you say the voter is misled by?” asked Justice John Couriel.
Their exchange focused on the language in the ballot summary around “other state licensed entities” that would be allowed to sell cannabis for adult use.
“The ballot summary is preying on a desire of voters to see greater competition in this marketplace because there have been public complaints that the marketplace is monopolized and thereby raising prices. And so voters, at least some voters, may well find it to be significant that there will now be an availability of other licenses, when in fact, we know that that’s really not what will happen,” DeSousa said.
Justice Carlos Muñiz flagged that, without the language about other licensees, even if the legislature would be responsible for allowing them, someone could argue later that no one but existing medical cannabis license holders could sell cannabis for the adult use market.
“It seems like it wasn’t an unreasonable choice to put that in the substantive part of this itself. And so to then expect the sponsors to go into this kind of convoluted explanation in the summary,” Muñiz said, “I don’t know how reasonable that is.”
Then, Muñiz expanded on Couriel’s question. “Who are you trying to protect?” Muñiz asked.
“I do think probably there is some subset of voters that’s sort of apathetic about recreational marijuana use, has no interest in using it themselves, but they would like to see more competition in the marketplace and so they’ll support it under the idea that this will lower prices. You know, they oppose monopolies and so they want more competition in the market,” DeSousa said.
The conversation then turned to the attorney general’s second argument, which is focused on federal law.
“The sponsor has injected uncertainty and confusion about the interplay between the proposed amendment and federal law,” DeSousa said.
“Is that an injection or is that just reality? There is, in fact, confusion. I mean, the federal government has done itself, I would say, very little to clarify its position, right?” Couriel said.
Shortly thereafter, Couriel prompted DeSousa: “Help me understand what this does to inject confusion.”
“Because it uses a word, ‘allows,’” DeSousa said.
“Yeah. But, come on. It also says ‘applies to Florida law.’ I mean, like, we can’t not read the context of the whole statement,” Couriel said.
Justice Charles Canady agreed, saying he was “baffled” by the argument that a voter wouldn’t understand that the initiative doesn’t change federal law.
“What language is appropriate?” Justice Jamie Grosshans asked DeSousa.
“What they should probably have said is that the amendment eliminates state law, penalties and liability for certain uses of marijuana. That’s far more accurate. Now, they don’t want to do that because, well, it’s just less sexy or less appealing to voters,” DeSousa said.
Salario, representing the Chamber of Commerce, spoke next. He argued that the state Constitution is “not the place for impulsive policy change, that legislation on tough questions is the constitutional province of the legislature,” and that “citizen initiatives are reserved for singular changes.” The initiative, he further argued, “makes two fundamental changes” by legalizing and also allowing for sales.
“I want to understand under this argument what a oneness of purpose means,” Couriel asked, referencing the single-subject requirement. “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 it?” Couriel asked.
“I’m not suggesting that,” Salario said.
Later, he expanded on his argument that decriminalization could happen without allowing for sales.
“They are distinct ideas that are not connected by direct inference that voters feel very differently about, and that are bounded by different policy and analytical considerations,” Salario said.
“It seems like this is turning the single subject requirement not into anything other than a straitjacket on the people,” Canady said.
Next up was John Bash, representing Smart & Safe Florida, who began by responding to Salario’s argument.
“What if the chief purpose was the right to sell it? Could you then say, ‘nobody has the right to possess it?’ It wouldn’t make sense because as soon as you do the sale, it would be illegal. I think they’re two sides of the same coin, which is a phrase this court has used in describing the single-subject requirement. So, I don’t see how it could violate single subject to say if you can possess, you can purchase. And I think that would be in considerable tension with many of this court’s precedents,” Bash said.
Justice Meredith Sasso pushed back.
“But it’s more than just: you can purchase. It’s where you can purchase. And when certain entities may be licensed with the ability to sell,” Sasso said.
“For the most part, it leaves those determinations to legislative judgment,” Bash responded.
Bash then turned to an argument he returned to repeatedly for the remainder of his time, which is that Smart & Safe Florida relied on the court’s previous arguments in similar cases, including prior efforts to get adult use on the ballot.
“Putting aside any other consideration, how could it be that language the seven members of this court unanimously said was a roadmap two years ago is now so unclear as to be affirmatively misleading?” Bash asked.
“Why the word ‘allow,’ though? When that clearly doesn’t paint the whole picture,” Sasso asked.
“One, that was part of the roadmap language this court told us to use. Two, ‘allow’ in isolation I agree would not paint the whole picture. But then you get into, ‘applies to Florida law, does not change or immunize violations of federal law.’ And in that context, reading the word ‘allows’ is limited to Florida law because it says so explicitly,” Bash said.
The entire conversation ran less than one hour.
If the initiative is allowed to appear on the ballot in 2024, it will be the most well-funded adult use measure to qualify for any state ballot. Trulieve, which is the most powerful medical cannabis company in Florida, and one of the largest in the U.S., has put more than $40 million into the campaign, as Cannabis Wire has reported. For comparison, the campaign behind the measure in California, the most populous state in the country, raised roughly $23 million.