Florida marijuana debate goes to Supreme Court

mcaputo@MiamiHerald.comDecember 5, 2013 

Tallahassee's political establishment has repeatedly blocked legislative votes on medical marijuana and Thursday will ask the Florida Supreme Court to follow suit and keep the issue away from state voters in 2014.

Led by Florida Attorney General Pam Bondi, opponents have raised objections to the proposed state constitutional amendment, which they say could lead to de facto "unfettered" marijuana legalization under the guise of compassionate medicine.

"The proposal hides the fact that the Amendment would make Florida one of the most lenient medical-marijuana states," read Bondi's initial court brief.

Amendment backers, People United for Medical Marijuana, say opponents are twisting the truth and preventing the sick from legally obtaining help.

"Any statement that the initiative would allow unfettered use of medical marijuana would itself be misleading to voters," wrote People United's lawyer Jon Mills.

Mills accused Bondi and others of dressing up inaccurate campaign-trail talking points as technical legal arguments to keep Florida from being the 21st state to decriminalize marijuana for medical and other reasons.

For the past three years, medical-marijuana bills have died in the Florida Legislature, where leaders wouldn't even schedule a vote.

People United, a political committee, said it's acting because the Legislature failed to do so. People United formed as a nonpartisan group but partisan lines are forming behind the scenes.

Amendment opponents are mostly Republicans who back incumbent Gov. Rick Scott, an opponent.

Backers are Democrats who support Charlie Crist,

a proponent of the amendment.

One early polling analysis suggested medical marijuana -- which enjoys bipartisan support and garnered 82 percent approval in a recent Florida poll -- could affect the 2014 governor's race, but pollsters from both parties suggest its impact would be minimal.

Even if the Supreme Court allows the proposal to proceed to the November ballot, amendment sponsors will still need to gather 683,149 voter signatures by Feb. 1. People United says it has about 500,000 signed petitions, fewer than half of which have been verified.

To pass, an amendment needs 60 percent voter support, a significant challenge.

During oral arguments Thursday, the state Supreme Court justices will focus on whether the proposed amendment limits itself to one subject, is clear and whether its ballot title or 75-word ballot summary are misleading.

The ballot summary has drawn the most criticism. It says medical marijuana would be reserved for those who suffer from "debilitating diseases."

But the language is open to wide interpretation, according to Bondi's court briefs, which are echoed by filings from state House and Senate leaders, an anti-drug group, and powerful lobbies that include the Florida Chamber of Commerce, the Florida Medical Association, and the associations representing police chiefs and sheriffs.

"The summary uses language to prey on voters' understandable sympathies for Florida's most vulnerable patients -- those suffering 'debilitating diseases,'" one filing says. "If voters are asked to open Florida to expansive marijuana use, they deserve to know it."

People United's filings say opponents are misrepresenting the plain language and intent of the amendment, which lists "a series of specific conditions that must be met for a patient to receive medical marijuana."

The amendment text indicates a physician must first conduct a physical examination of patients, assess their medical history, and then use his or her "professional opinion" to then decide if "a patient suffers from a debilitating medical condition."

The physician is also supposed to determine whether marijuana use would be more beneficial then harmful, the period of time it should be used, and then write a prescription-like certification.

Opponents point out the ballot summary says medical marijuana is reserved for "debilitating diseases" while the actual text only talks about "debilitating medical conditions." So voters could be confused.

People United rejects the argument.

Including cancer, AIDS, and multiple sclerosis, nine "debilitating" conditions are specifically listed in the amendment text.

The text also says cannabis could be certified for "other conditions for which a physician believes the medical use of marijuana would likely outweigh the potential health risks for a patient."

What are these "other conditions"?

People United court filings indicate the amendment "leaves open the use of medical marijuana for other conditions as the practice of medicine evolves," but the unspecified maladies are not "trivial and minor conditions," as opponents have claimed.

The group also cites a legal doctrine, "ejusdem generis," that notes "when a general phrase follows a list of specifics, the general phrase will be interpreted to include only items of the same type as those listed."

Opponents say more clarity is needed. And they complain the ballot title says "certain" ailments will be covered, but the amendment doesn't guarantee certainty.

"There is no qualifier in the catch-all phrase that requires that such 'other conditions' be similar in nature or severity to the preceding list of nine specific conditions," the opponents, led by the Florida Chamber, wrote in a filing.

"A voter who agrees with the medical use of marijuana for the nine listed conditions might not want to authorize its use for less serious conditions or diseases."

The opponents say by combining a potentially desirable outcome with a potentially undesirable one, the amendment is impermissibly "logrolling" the issues together.

Also, opponents say, the proposal logrolls, misleads voters, or violates constitutional protections or issues by:

• Giving physicians, patients, and some caregivers immunity from criminal and civil actions in some cases. People United says it's needed to prevent harassment.

• Allowing all types of physicians, including podiatrists and chiropractors, to recommend marijuana. People United says the Legislature can limit the scope to just medical doctors.

•Granting legal standing for any citizen to sue the government if it doesn't comply with the amendment. People United says that's not a single-subject violation and it doesn't substantially affect the government's operations.

•Directing the Department of Health to enforce medical-marijuana rules, which should be the purview of the Legislature. People United says the law would be a "minimal addition" to the department duties.

•Creating a new public-records exemption for patient identities. People United says this, too, is a minimal issue and within the amendment's scope.

•Misleading people into believing the amendment would make medical marijuana illegal under federal law. People United says the court has to assume voters aren't that ignorant.

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