Year 2016 is the year of constitutional ballot initiative movements in Florida. I suspect the heightened participation in this citizen lawmaking option is the result of the unprecedented public awareness, fueled by high profile attorney John Morgan of what was commonly known as “Amendment 2” in 2014 – a proposed constitutional amendment to legalize access to medical marijuana for children and adults seeking treatment for debilitating medical conditions.
Despite Attorney Morgan’s vast resources of competent legal counsel on staff within his law firm, he engaged the legal services of the prominent constitutional law professor and Dean Emeritus of the Levin College of Law at the University of Florida, Gainesville, Director of the Center for Governmental Responsibility, former House Speaker, Jon L. Mills, Esquire, to draft the petition that would become known as Amendment 2 in 2014’s general election.
In 2013 Professor Mills “worked on ballot wording for months so it [would] pass Florida Supreme Court scrutiny,” said Ben Pollara, Director of United for Care, the organization that managed the rollout of Amendment 2 in 2014, and continues to do so for the 2016 general election. After a few minor revisions, the ballot is now entitled Ballot Initiative 15-01, sponsored by People United for Medical Marijuana, titled, “Use of Marijuana for Debilitating Medical Conditions.”
Notwithstanding the diligence and brilliance of Professor Mills, Amendment 2 barely passed Florida Supreme Court review after a full day’s hearing of legal arguments presented by United for Care and trial counsel for Florida Attorney General Pam Bondi, in November 2013. By a narrow 4-3 ruling issued on January 27, 2014, the Florida Supreme Court rendered a 44-page majority opinion, plus concurring and dissenting opinions (84-pages overall) on its review of Professor Mills’ legal writing. Eighty-four pages! Eighty-four pages expressed by our state’s most learned legal minds. This stuff is not easy, despite the two-bit rhetoric of loudmouth critics who armchair-quarterback the legal profession.
Aside from People United for Medical Marijuana’s renewed (and so far very successful) second attempt to create access to cannabinoid therapy for Floridians of all ages who endure debilitating medical conditions, there are several new ballot initiatives aiming to get on the 2016 general election ballot. Each seek to allow access to marijuana for adults age 21 and up, without requirement to show a medical need. Two ballot petition initiatives in particular are competing for the same two limited resources: financial backing and boots on the ground to gather signatures.
Rather than unite their efforts to reach a common goal, likeminded people embarked on two different paths. One presents a comprehensive plan introduced by “Regulate Florida,” a team of 7 professionals behind Sensible Florida, Inc.’s “Regulate Marijuana Like Alcohol” ballot initiative. The other initiative titled, the “Right of Adults to Cannabis,” is sponsored by a political action committee called Floridians For Freedom, associated with a longtime marijuana advocacy group, Florida Cannabis Action Network; chair, Jodi James. While the Regulate Florida ballot initiative is written on 4 pages in an 8.5 font, the “Right of Adults to Cannabis” ballot initiative is barely written; it is a mere 4 sentences long.
“Regulate Marijuana Like Alcohol” creates a rock solid plan that forces the legislature to act, does not violate the strict rules applicable to constitutional amendment language, creates minimum guarantees to access and possession, establishes 4 types of commercial licensing, and permits indoor home growing of six plants per adult household member, as of right now. The legislature can increase these mandates, but not go below them.
Regulate Florida modeled its initiative petition after Colorado’s Amendment 64. The success of Colorado’s Amendment 64 resulted in unprecedented reductions in crime, reduction in arrests, reduction in marijuana use by minors, created over 1,000 jobs, and generated $40 (forty) million in recreational marijuana taxes in 2014. Based on Florida’s demographics, those results have the potential to be tripled here.
The Florida Attorney General is charged with the duty under section 16.061, Florida Statutes, to petition the Supreme Court for an advisory opinion regarding the compliance of the text of the proposed amendment or revision with s. 3, Art. XI of the State Constitution and the compliance of the proposed ballot title and substance with s. 101.161, if the petition obtains 10% of the needed number of signatures. In so doing, the Attorney General will articulate a legal argument regarding any specific factual issues that the Attorney General believes would require a judicial determination. As a former and potential future candidate for the office of Attorney General, I publically express my legal opinions from time to time, because I think that is expected of persons who hold or have held themselves out for public office. The expression of relevant opinions provides a record upon which the qualifications of such citizen can be judged. I express my opinion below.
The undersigned blogger cautions all who consider donating time or money to the “Right of Adults to Cannabis” ballot initiative that while its brevity generates a feel-good moment, in this blogger’s opinion it stands no chance of surviving Florida Supreme Court scrutiny. At the end of the day the petition sponsored by Floridians For Freedom will not be on the ballot because it is a fatally flawed document. The undersigned blogger further cautions all who read the following opinion, that it is somewhat biased, as its author is also the primary author of the ballot initiative being advanced by Regulate Florida.
What is wrong with the ballot initiative petition sponsored by Floridians For Freedom (FFF)?
Part I: BALLOT TITLE: “RIGHT OF ADULTS TO CANNABIS”
Part II: ARTICLE AND SECTION BEING CREATED OR AMENDED: “Article I, Section 28” Article I of the Florida Constitution preserves our most sacred rights as a free people. Article I enumerates the “Declaration of Rights” that “We, the people of the State of Florida, being grateful to Almighty God” … “do ordain and establish.” Among these rights are those of the highest order of self-preservation and manner of governance. For example, the titles of the 27 rights protected in Article I are Political Power, Basic Rights, Religious Freedom, Freedom of Speech and Press, Right to Assemble, Right to Work, Military Power, Right to Bear Arms, Due Process, Prohibited Laws, Imprisonment for Debt, Searches and Seizures, Habeas Corpus, Bail, Prosecution for Crime; Offenses Committed by Children, Rights of Accused, Excessive Punishments, Administrative Penalties, Costs, Treason, Trial by Jury, Right of Privacy, Access to Public Records and Meetings, Taxpayers’ Bill of Rights, Claimant’s Right to Fair Compensation, and Marriage Defined1 . The mere titles of these sections of Article I speak for themselves as being Floridians’ inalienable rights.
FFF’s proposed “Right of Adults to Cannabis” is not of the same class as the other Article I enumerated rights and therefore does not belong in Article I. Floridians do not have a constitutional right to grow corn, soybeans, or tomatoes; nor to harvest citrus; nor raise tropical plants. Floridians do not have an inalienable right to cultivate any crop, nor to possess or use any product. Cannabis is no exception to this basic fact.
The Right of Adults to Cannabis does not belong in Article I, and such placement will reflect adversely when interpreting the intent of the drafter of FFF’s proposed amendment. For this improper designation alone, it may fail Supreme Court review.
Part III: FULL TEXT OF THE PROPOSED CONSTITUTIONAL AMENDMENT:
The First Paragraph: “All people in the State of Florida twenty-one years of age and older shall have the right under state laws to possession, use, and cultivation of cannabis. This right shall not be infringed except that the transfer of cannabis by purchase or sale may be regulated as necessary to ensure health and safety.”
The Second Paragraph: “‘Cannabis’ in this section is defined as all parts of any plant of the genus Cannabis, whether growing or not, and the seeds thereof.”
The Third Paragraph: “The provisions of this section are severable and if any clause or sentence of this measure, or an application thereof, is adjudged invalid by a court of competent jurisdiction, other provisions shall continue to be in effect to the fullest extent possible.” The Third Paragraph presents a boilerplate severability clause. It is proper to include such and this one reads well. However, it must be clearly understood that this severance would only apply after the proposed amendment becomes law. The text of the ballot initiative cannot be cured by severance. Any change to an approved ballot initiative would result in voiding all votes obtained prior to the change and starting the petition initiation process over.
It informs the voters about marijuana for adult use, but does not disclose its hidden agenda to create an industrial hemp industry. Our case law on petition initiatives refers to this as “hiding the ball.”
It creates a right to use cannabis, but fails to define “use.” This will result in denial under the constitutional review doctrine known as “void for vagueness.”
It fails to disclose the collateral effects it would have on other aspects of Florida law. Indeed, it completely fails to mention what affect the amendment would have on any existing law whatsoever, resulting in an absolute constitutional bar against medicinal use of cannabis by persons under 21 (twenty-one) years of age.
It commingles multiple subjects, namely: (1) legalizing human consumption of cannabis; (2) creating an industrial hemp industry; and (3) nullifying current laws that allow medicinal use of cannabis by minors under physician care, in violation of the single-subject requirement contained in article XI, Section 3.
It further violates the single-subject rule in that the following statement is facially overbroad: “All people in the State of Florida 21 (twenty-one) years of age and older shall have the right under state laws to possession, use, and cultivation of cannabis.” When such over breadth exists, the single-subject rule is deemed to be violated as a matter of law.
It is facially ambiguous in that it permits possession and use, but does not permit sale and purchase. This violates the requirement that the substance of a public measure be printed in clear and unambiguous language under FS 101.161(1).
Its regulation provision is non-sequitur in that it merely asks the legislature to regulate cannabis, but they already do so. We have a low-THC law, a university research law, and a law allowing synthetic cannabis in pill-form called Marinol.
It does not give a start date or provide any implementation mechanism.
It amends Article I (Declaration of Rights) but is not of the same class as our other Article I enumerated rights. Article I preserves the highest order of self-preservation and manner of governance (e.g., due process, treason, military power, trial by jury). Floridians do not have an inalienable right to cultivate any crop, nor to possess or use any product. Cannabis is no exception to this basic fact.
It requires the legislature to regulate health and safety, but not the third element of the general welfare clause, i.e., to legislate for the well-being of the people (known as police power) resulting in a restrictive application of lawmaking for the public good, adverse to the federal general welfare clause. (Note: state constitutions must comply with the federal constitution.)
The Single-Subject Rule requirement contained in Article XI, section 3 of the Florida Constitution states that any . . . revision or amendment shall embrace but one subject and matter directly connected therewith. Ray v. Mortham, 742 So. 2d 1276, 1277 (Fla. 1999). The Ray court recognized that what may appear as a single-subject to one voter may appear as more than one to another. Id. at 1277. “‘Oneness,’ like beauty, is in the eye of the beholder.” Id. The Ray court concludes that “[t]he obvious and unmistakable purpose underlying Article XI, section 3, is to reserve to the voters the prerogative to separately decide discrete issues. On how to apply the single-subject rule.
“Therefore, one way of deciding the question before us today is to determine whether the proposed initiative contains more than one separate issue about which voters might differ. In other words, is there at least one discrete, severable portion of the ballot language that reasonable voters might reject if given the choice, even while accepting the remainder of the ballot language? If the answer is yes, then this Court must find that the initiative contains more than one subject and lacks ‘oneness.’” Accord Evans v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984) (quoted in Ray v. Mortham, 742 So. 2d at 1288).
“The policy underlying this requirement is self-evident. Where reasonable voters may differ, then the voters should not be placed in the position of accepting an all-or-nothing grab-bag initiative. Each discrete issue should be placed separately on the ballot so that voters can exercise their franchise in a meaningful way. No person should be required to vote for something repugnant simply because it is attached to something desirable. Nor should any interest group be given the power to ‘sweeten the pot’ by obscuring a divisive issue behind separate matters about which there is widespread agreement.” Accord Evans v. Firestone (quoted in Ray v. Mortham, 742 So. 2d at 1288).
The Florida Supreme Court will readily recognize the potential voter confusion as to what the “chief purpose” of FFF’s proposed amendment is, as it is three-fold2 . By letting the people grow and introduce cannabis onto and into the human body, they are also giving carte blanche to cultivate hemp for industrial application. As a practical matter I know that some Florida voters would approve the advent of a hemp industry but not vote in favor of legalizing pot. Vice-versa, some Florida voters understand the need to regulate adult access to cannabis to, among other things, lower the incineration rate. But that same voter will ask him or herself, “When was the last time a Floridian went to jail for growing industrial hemp?” If at all, it was probably shortly after WW II. These voters would not see hemp as a pressing constitutional issue and might vote against that oneness of it, while other voters would vote for or against the oneness of its human consumption but against the advent of an industrial hemp industry. FFF managed to violate the single-subject rule with four sentences (under 200 words). Regulate Florida managed to avoid violating the single-subject rule despite its use of four pages containing 4,251 words.
Ballot Language must be Clear and Unambiguous; must not “hide the ball”. Section 101.161(1), Fla. Stat. (2012) requires that the substance of a public measure be printed in clear and unambiguous language on the ballot. The purpose of this requirement is to provide the voter with fair notice of the content of the proposed measure so that he or she will not be misled as to its purpose and may intelligently cast his or her vote. Matheson v. Miami-Dade Cnty., 40 Fla. L. Weekly D1267 (Fla. 3d DCA May 27, 2015). In Matheson, the appellant cites Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000), in support of his position that the ballot language is misleading by “hiding the ball” and “flying under false colors.”
The Florida Supreme Court disagreed and stated that the ballot in Wadhams had the same problem as the ballot in Askew. Wadhams, 567 So. 2d at 416. The Court stated that the “chief purpose” of the referendum was not communicated to the voters:
By failing to contain an “explanatory statement” of the amendment, however, the ballot failed to inform the public that there was presently no restriction on meetings and that the “chief purpose” of the amendment was to curtail the Charter Review Board’s right to meet. Similar to the ballot summary at issue in Askew, the present ballot “is deceptive, because although it contains an absolutely true statement, it omits to state a material fact necessary in order to make the statement made not misleading.” Askew, 421 So. 2d at 158 (Ehrlich, J., concurring). The only way a voter would know what changes were being effected by an affirmative vote on the ballot would be to know what section 2.11 of the county charter provided prior to amendment. Asthen Judge Grimes noted in his dissent below: “[T]here was nothing on the ballot to inform the voter of the change to be accomplished by the amendment, which is the very reason why section 101.161(1) requires an explanatory statement.” 501 So. 2d at 124 (Grimes, J., dissenting). See also Kobrin v. Leahy, 528 So. 2d 392 (Fla. 3d DCA)(placement on ballot of proposition to provide that the board of county commissioners shall be the governing board of the fire and rescue service district, but making no mention of the elimination of the existing governing body of the Fire and Rescue District, was misleading to voters and violated section 101.161(1), especially in light of simultaneously conducted election of persons to the existing governing board), review denied, 523 So. 2d 577 (Fla. 1988).
Id. at 416-17 (emphasis in original).
Again, the ballot question in Wadhams was misleading because it failed to include the explanatory statement required by section 101.161(1), Florida Statutes, and thus failed to inform the voters of the “chief purpose” of the measure. FFF’s ballot question suffers the same defect. It purports to inform the voters about marijuana for adult use, but fails to define use. And by hiding the hemp ball, the proposed amendment fails to inform voters of its chief purpose.
In Wadhams v. Board of County Commissioners, 567 So. 2d 414 (Fla. 1990), the Board of County Commissioners of Sarasota County (the “Commissioners”) sought to amend a provision of the county charter governing the Charter Review Board (the “Board”), which is charged with reviewing the charter on a regular basis and recommending changes directly to the people. The text of the proposed amendment was printed in full on the ballot and provided inter alia that the Board would meet every four years. The Commissioners, however, neglected to mention on the ballot that the amendment would supersede an existing charter provision that allowed the Board to conduct unlimited meetings-i.e., the proposal was intended to curtail the Board’s right to meet. Armstrong v. Harris, 773 So. 2d 7, 19 (Fla. 2000). Both the trial and district courts approved the amendment; this Court quashed the district court decision. Id.
“Deception of the voting public is intolerable and should not be countenanced.” The purpose of section 101.161(1), Florida Statutes, is to assure that that electorate is advised of the meaning and ramifications of the proposed amendment. Because the ballot at issue failed to comply with . . . 101.161(1) the proposed amendments must be stricken.
Wadhams, 567 So. 2d at 417-18 (emphasis added).
Like the ballot language in Wadhams, the ballot language in the present case is defective for what it does not say: It does not tell voters the “chief purpose” of the amendment. Armstrong v. Harris, 773 So. 2d at 21.
Written by:
Bill Wohlsifer, Esquire
Tallahassee, Florida
1 Marriage defined is likely to be repealed due to subsequent U.S. Supreme Court holdings.
2 Aside from mixing human consumption of cannabis with its industrial uses, the third “chief purpose” of FFF’s proposed amendment is the nullification of medicinal access to cannabis by minors under physician care. This is likely an unintended consequence of the petition’s drafter’s failure to inform the voters of other laws that would be affected by the constitutional prohibition of cannabis use by persons under age 21.