2024
Florida Supreme Court Approves Ballot Initiative to Legalize Recreational Use of Marijuana
In Advisory Opinion to the Attorney General Re: Adult Personal Use of Marijuana, the Florida Supreme Court considered the validity of a ballot initiative to legalize the recreational use of marijuana under Florida law.[1] The court, in a 5-2 decision authored by Justice Jamie Grosshans, held that the initiative conforms to the constitutionally mandated single-subject requirement, meets the statutory standard for clarity, and is not facially invalid under the federal Constitution. Florida voters will therefore weigh in on the issue in the upcoming general election.
Florida citizens have a right to propose amendments to the Florida Constitution through an initiative petition process.[2] This process requires the petition to be signed by eight percent of voters in at least half of the state’s congressional districts. The state attorney general is to request the Florida Supreme Court justices’ opinion as to the validity of the initiative.[3] If the initiative qualifies for placement on the ballot, it must receive 60% of the vote to pass.[4]
The initiative in this case proposes to modify article X, section 29 of the Florida Constitution to legalize personal use of marijuana by adults under state law.[5] The ballot summary describes this amendment as allowing adults 21 years or older to possess, purchase, or use marijuana products and marijuana accessories for non-medical personal consumption and allowing certain state-licensed entities to “acquire, cultivate, process, manufacture, sell, and distribute” such products and accessories.[6]
The court first addressed whether the amendment proposed by the initiative “embrace[s] but one subject and matter directly connected therewith,” as required by article XI, section 3 of the Florida Constitution.[7] Rejecting an opponent’s argument that the proposed amendment violates the single-subject requirement because it both decriminalizes and commercializes recreational marijuana, the court reasoned that “selling and possessing marijuana appear, for better or worse, directly connected, and we cannot say that an amendment addressing both components violates the single-subject requirement.”[8] The court concluded the proposed amendment complies with the single-subject requirement of the Florida Constitution.
Next, the court addressed whether the ballot summary meets the requirements of section 101.161(1) of the Florida Statutes.[9] The summary must be limited to 75 words, “printed in clear and unambiguous language on the ballot,” and include an “explanatory statement . . . of the chief purpose of the measure.”[10] The court stated it “must consider two questions: ‘(1) whether the ballot title and summary . . . fairly inform the voter of the chief purpose of the amendment; and (2) whether the language of the title and the summary, as written, misleads the public.’”[11] Opponents argued the ballot summary is misleading because it states the amendment “allows” other entities to enter the market, when the reality is that the legislature must authorize them to do so.[12] The court rejected this argument because “[t]he most natural reading of the word ‘allow’ suggests that other entities will be permitted to enter the market, subject to a state-licensing process,” and voters are unlikely to find the summary confusing because they are familiar with the concept of obtaining various licenses from the state.[13] Further, the court found that a reasonable voter would not believe other entities are already in existence and licensed to distribute personal-use marijuana, since this activity is currently illegal.[14] The court concluded that the summary is not misleading because it adequately warns the amendment only covers Florida law—and not federal law—and it doesn’t fail to state the amendment’s chief purpose of legalizing adult personal possession and use of marijuana as a matter of Florida law.[15] The court also noted that the Department of Health and the legislature maintain the authority to regulate medical marijuana treatment centers and any state-licensed entities, so there will not be a gap in time when these entities would be unregulated.[16] Therefore, the court found that the summary is not misleading and meets the statutory clarity standards.
Third, the court addressed “whether the proposed amendment is facially invalid under the United States Constitution”; a recent amendment to section 16.061, requires the attorney general’s request for an advisory opinion to include this question.[17] The court acknowledged one opponent’s argument that the proposed amendment is preempted by the federal Controlled Substances Act and that therefore, under the Supremacy Clause, the proposal is facially invalid.[18] However, the court rejected this argument because in order for a facial challenge to succeed, the court must find that a law would be unconstitutional in all of its applications—an analysis that would be beyond the scope of this advisory opinion under the Florida Constitution.[19]
Chief Justice Carlos Muñiz concurred fully with the majority opinion.[20] However, he wrote to address the recent amendment to section 16.061 regarding “whether the proposed amendment is facially invalid under the United States Constitution.”[21] Chief Justice Muñiz wrote that, “[i]n a future case, our Court would benefit from briefing by interested parties on the meaning and legal effects of this provision.”[22] Chief Justice Muñiz listed questions interested parties should consider when briefing, stating that “[e]ventually a case will come along where the answers to these questions could affect the outcome.”[23] Justice Charles Canady concurred.
Justice Meredith Sasso dissented, agreeing with the majority’s conclusion that the initiative “does not violate the single-subject requirement based on our existing precedent,” but arguing that the sponsor failed to provide a ballot summary in “clear and unambiguous language” as required by section 101.161.[24] Justice Sasso addressed the use of the word “allows” in the summary, and concluded it is misleading in context because the amendment itself does not “allow” “other state licensed entities” to sell marijuana due to the need for the legislature to provide for the licensure of “other” entities first.[25] This is because Medical Marijuana Treatment Centers (“MMTCs”) are currently the only entities legally entitled to cultivate and distribute marijuana, unless the legislature chooses to provide for licensure of entities that are not MMTCs.[26] Therefore, regardless of whether the initiative passes, there may never be “other state licensed entities.”[27] Justice Sasso wrote it is also misleading because it says the amendment “[a]llows adults 21 years or older to . . . use marijuana products . . . for non-medical personal consumption.”[28] Citing the Supremacy Clause, Justice Sasso contended that this statement is false because states lack power to authorize their residents to participate in conduct that would constitute a federal crime.[29]
Justice Renatha Francis also dissented.[30] She wrote that she agreed with Justice Sasso’s dissenting opinion regarding the misleading nature of the ballot summary, but that she also believed the initiative violates the single-subject requirement.[31] Justice Francis said that while the court’s precedents had adopted a broad reading of the single-subject requirement, article XI, section 3’s requirements of “but one subject and matter directly connected therewith” requires a narrow reading.[32] Justice Francis questioned the definitions of “one,” “matter,” and “directly,” and she expressed her support for applying specific “contextually informed” definitions.[33] Justice Francis argued that the court should reject “oneness of purpose” analysis, which it has relied on since 1978.[34] Justice Francis asserted that such analyses “not only have no support in the constitutional text, their use has also rendered the actual words—‘directly’—as mere surplusage.”[35] The dissent concluded that the initiative violates the single-subject requirement by providing for personal use and commercialization of marijuana, which Justice Francis maintained are different subjects, reasoning that “using marijuana as an individual and growing it for commercial sale and consumption implicate different criminal and regulatory schemes.”[36]
In addition to authoring the majority opinion for the court, Justice Grosshans wrote separately to respond to Justice Francis’s dissent.[37] Justice Grosshans acknowledged that she has “some misgivings about the phrasing of one of [the court’s] tests to determine single-subject compliance,” but she maintained that the opponent of the jurisprudence has not demonstrated clear error, which is a requirement under the court’s stare-decisis analysis.[38] Justice Grosshans agreed that the term “oneness of purpose” is imprecise, but asserted that despite employing this phrase, the court has consistently asked if the elements of an amendment “may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme,” which does not appear to conflict with the text’s plain meaning, even if there is disagreement as to the ultimate conclusion in a particular case.[39] She wrote she does not believe that the adoption of a more restrictive approach, such as the one presented by Justice Francis, would guarantee greater consistency.[40] She noted that the single-subject provision’s chief purpose is viewed as preventing separate matters from being combined into a single initiative to secure votes for an unpopular issue—also known as “logrolling”—and that no one has argued this rationale is “out of place in a textually faithful analysis or that any other contextual or historical considerations apply.”[41]
[1] Advisory Opinion to the Attorney General re: Adult Personal Use of Marijuana, 384 So. 3d 104 (Fla. 2024).
[2] Fla. Const. art. XI, § 3.
[3] Fla. Const. art. IV, § 10; Fla. Const. art. V, § 3(b)(10); Fla. Stat. § 16.061.
[4] Fla. Const. art. XI, § 5(e).
[5] Advisory Opinion, 384 So. 3d at 106.
[6] Id. at 107.
[7] Id. at 109.
[8] Id.
[9] Id. at 109-11.
[10] Id. at 109 (quoting Fla. Stat. § 101.161(1)).
[11] Id. (quoting Advisory Opinion to Attorney General Re: Prohibits Possession of Defined Assault Weapons, 296 So. 3d 376, 381 (Fla. 2020)).
[12] Id. at 110.
[13] Id.
[14] Id.
[15] Id. at 110-11.
[16] Id. at 111.
[17] Id.
[18] Id.
[19] Id. at 112.
[20] Id. at 112 (Muñiz, C.J., concurring).
[21] Id. at 112-13.
[22] Id.
[23] Id. at 113.
[24] Id. at 120 (Sasso, J., dissenting).
[25] Id. at 121.
[26] Id.
[27] Id. at 121-22.
[28] Id. at 122.
[29] Id.
[30] Id. at 115 (Francis, J., dissenting).
[31] Id.
[32] Id.
[33] Id. at 115-17.
[34] Id. at 116-17 n.9; Floridians Against Casino Takeover v. Let’s Help Florida, 363 So. 2d 337, 340 (Fla. 1978).
[35] Advisory Opinion. at 118.
[36] Id.
[37] Id. at 113 (Grosshans, J., concurring).
[38] Id.; see State v. Poole, 297 So. 3d 487, 507 (Fla. 2020).
[39] Advisory Opinion. at 114-15.
[40] Id.
[41] Id. at 115.
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