Supreme Court Clears Medical Marijuana Pot Proposal; Floridians Vote On It November 4

In a significant victory for advocates of the initiative, the Florida Supreme Court on Monday ruled that the wording of the proposed constitutional amendment to legalize medical marijuana passes legal muster and can now appear on the November election ballot, giving Floridians a direct say. Polls have shown a 3-to-1 majority of Floridians favoring legalization.

The 4-3 decision is a severe blow to the Scott administration, which opposes legalization, to Attorney General Pam Bondi, who challenged the wording of the amendment and  was the loser in Monday’s case, and to the Florida Sheriff’s Association, which has been lobbying against legalization. The court of course did not take a position on the merits of legalization.

Justices Barbara Pariente, Fred Lewis, Peggy Quince and James Perry were in the majority. Chief Justice Ricky Polston, Charles Canady and Jorge Labarga dissented. Polston and Labarga filed dissenting opinions.

Ten states have legalized medical marijuana, and two states—Washington and Colorado—have legalized recreational marijuana outright. Ion the south, Mississippi and North Carolina have decriminalized possession of small amounts of marijuana.

Florida’s marijuana initiative is the work of United For Care: People United for Medical Marijuana, which a few days ago secured the necessary number of petitions to ensure from its end that the proposal is placed on the ballot. The Supreme Court was the last hurdle.

“This is a historic moment for the people of Florida – and in particular, those suffering from debilitating conditions and illnesses,” United for Care’s Ben Pollara, a campaign manager, said in a statement after the ruling. “Now the work of educating voters and combating false information truly begins – and I hope we can count on you.” He added: “This was an enormous, unlikely victory – made possible because of the work and generosity of so many – particularly John Morgan, who largely funded the petition gathering effort.” Morgan is the Orlando attorney who is helping to fund the initiative.

Flagler County Sheriff Jim Manfre was reserving judgment when asked about the ruling Monday afternoon. “I’ll be following this closely because it obviously affects the Flagler County Sheriff’s Office and implementing any laws approved by the amendment process,” Manfre said, but he was not yet ready to take a position. For now, he said, he would “listen to the debates on both sides.”

Bondi had opposed the proposal on two grounds. She argued that it was not a single-issue amendment, as required by law. And that the title of the amendment and the ballot summary were deceiving.  “Any physician could approve marijuana for seemingly any reason to seemingly any person (of any age) — including those without any ‘debilitating disease,’” Bondi argued to the court. “So long as a physician held the opinion that the drug use ‘would likely outweigh’ the risks, Florida would be powerless to stop it.”

A majority of justices disagreed.

“By reading the proposed amendment as a whole and construing the ballot title together with the ballot summary,” the majority ruled, “we hold that the voters are given fair notice as to the chief purpose and scope of the proposed amendment, which is to allow a restricted use of marijuana for certain ‘debilitating’ medical conditions. We conclude that the voters will not be affirmatively misled regarding the purpose of the proposed amendment because the ballot title and summary accurately convey the limited use of marijuana, as determined by a licensed Florida physician, that would be authorized by the amendment consistent with its intent. The interpretation of the proposed amendment offered by the proponent that ‘the intent is to allow [marijuana] use for a serious medical condition or disease,’ rather than for any medical condition for which a physician personally believes that the benefits outweigh the health risks, is a reasonable one that is supported by accepted principles of constitutional interpretation.”

The court also found that “the proposed amendment has a logical and natural oneness of purpose” that neither confuses voters nor proposes to attain more than one goal, as Bondi had claimed.

In a key section of the ruling, the majority wrote: “The opponents and Chief Justice Polston’s dissent contend that the proponent deceptively uses the phrases ‘debilitating diseases’ and ‘certain medical conditions’ in the ballot title and summary in an attempt to gain an electoral advantage with voters who might otherwise object to a broader use of medical marijuana.  The proponent counters that the intent of the amendment and the actual wording of the amendment, when various portions are read together, is not to authorize the open-ended and broad use of marijuana whenever a physician personally believes that the benefits outweigh the risks.”

The ruling then goes on to analyze the meaning of “debilitating,” relying on standard and medical dictionary definitions of the word (which are similar).

“While the opponents suggest that the proposed amendment would authorize the ‘unfettered’ use of marijuana to treat more conditions than are commonly thought of as ‘debilitating,’ the popular and common-sense meaning of ‘debilitating’—though not requiring the condition to be as ‘serious and devastating’ as the opponents state—still requires that the medical condition cause impaired strength, weakness, or enfeeblement. In other words, a physician must first make a professional determination that the patient’s medical condition causes impaired strength, weakness, or enfeeblement in order to consider issuing a physician certification consistent with the proposed amendment, which limits the amendment’s scope.”

Polson’s dissent reverted at times to exclamation points, an unusual degree of expressiveness in the court’s opinions, and a reflection of the intensity of the debate reverberating from this issue.

“The majority faults my discussion of the differences in plain meaning between the term ‘condition’ in the amendment’s text and the term ‘disease’ in the ballot summary for not including an in-depth discussion of the word ‘debilitating,’ Polson wrote. “This entirely misses the point!” He then provides his own spirited word analysis to the point of—like his colleagues in the majority—sounding more like an English teacher than justice.

“Accordingly, Justice Labarga is correct in surmising that, while every ‘disease’ is by definition a ‘condition,’ every ‘condition’ is not a ‘disease,’ Polson wrote. “‘Diseases’ are only a subset of what is included in the broader and more value-neutral term ‘condition.’ And by employing ‘disease’ in the ballot summary, rather than the term ‘condition’ that actually appears in the amendment‘s text, the summary is affirmatively misleading. Contrary to the commonly understood meaning of the words in the summary, an individual could qualify for the use of marijuana under the amendment’s text if that individual suffers from a sore back as a result of playing sports or anxiety about an upcoming exam even though that abnormal soreness or anxiety (i.e., ‘condition’) does not rise to the level of a ‘disease.’”

The full opinion and dissents appear below, beneath the wording of the amendment and its summary.

BALLOT TITLE: Use of Marijuana for Certain Medical Conditions

BALLOT SUMMARY: Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients’ medical use of marijuana. The Department of Health shall register and regulate centers that produce and distribute marijuana for medical purposes and shall issue identification cards to patients and caregivers. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.

ARTICLE AND SECTION BEING AMENDED OR CREATED: Article X, Section 29
Full text of proposed constitutional amendment is as follows:

ARTICLE X, SECTION 29. Medical marijuana production, possession and use.

(a) PUBLIC POLICY.
(1) The medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability sanctions under Florida law except as provided in this section.
(2) A physician licensed in Florida shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section.
(3) Actions and conduct by a medical marijuana treatment center registered with the Department, or its employees, as permitted by this section and in compliance with Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law except as provided in this section.

(b) DEFINITIONS. For purposes of this section, the following words and terms shall have the following meanings:
(1) “Debilitating Medical Condition” means cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.
(2) “Department” means the Department of Health or its successor agency.
(3) “Identification card” means a document issued by the Department that identifies a person who has a physician certification or a personal caregiver who is at least twenty-one (21) years old and has agreed to assist with a qualifying patient’s medical use of marijuana.
(4) “Marijuana” has the meaning given cannabis in Section 893.02(3), Florida Statutes (2013).
(5) “Medical Marijuana Treatment Center” means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their personal caregivers and is registered by the Department.
(6) “Medical use” means the acquisition, possession, use, delivery, transfer, or administration of marijuana or related supplies by a qualifying patient or personal caregiver for use by a qualifying patient for the treatment of a debilitating medical condition.
(7) “Personal caregiver” means a person who is at least twenty-one (21) years old who has agreed to assist with qualifying patient’s medical use of marijuana and has a caregiver identification card issued by the Department. A personal caregiver may assist no more than five (5) qualifying patients at one time. An employee of a hospice provider, nursing, or medical facility may serve as a personal caregiver to more than five (5) qualifying patients as permitted by the Department. Personal caregivers are prohibited from consuming marijuana obtained for the personal, medical use by the qualifying patient.
(8) “Physician” means a physician who is licensed in Florida.
(9) “Physician certification” means a written document signed by a physician, stating that in the physician’s professional opinion, the patient suffers from a debilitating medical condition, that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient, and for how long the physician recommends the medical use of marijuana for the patient. A physician certification may only be provided after the physician has conducted a physical examination of the patient and a full assessment of the patient’s medical history.
(10) “Qualifying patient” means a person who has been diagnosed to have a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card. If the Department does not begin issuing identification cards within nine (9) months after the effective date of this section, then a valid physician certification will serve as a patient identification card in order to allow a person to become a “qualifying patient” until the Department begins issuing identification cards.

(c) LIMITATIONS.
(1) Nothing in this section shall affect laws relating to non-medical use, possession, production or sale of marijuana.
(2) Nothing in this section authorizes the use of medical marijuana by anyone other than a qualifying patient.
(3) Nothing in this section allows the operation of a motor vehicle, boat, or aircraft while under the influence of marijuana.
(4) Nothing in this law section requires the violation of federal law or purports to give immunity under federal law.
(5) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any place of education or employment, or of smoking medical marijuana in any public place.
(6) Nothing in this section shall require any health insurance provider or any government agency or authority to reimburse any person for expenses related to the medical use of marijuana.

(d) DUTIES OF THE DEPARTMENT. The Department shall issue reasonable regulations necessary for the implementation and enforcement of this section. The purpose of the regulations is to ensure the availability and safe use of medical marijuana by qualifying patients. It is the duty of the Department to promulgate regulations in a timely fashion.
(1) Implementing Regulations. In order to allow the Department sufficient time after passage of this section, the following regulations shall be promulgated no later than six (6) months after the effective date of this section:
a. Procedures for the issuance of qualifying patient identification cards to people with physician certifications, and standards for the renewal of such identification cards.
b. Procedures for the issuance of personal caregiver identification cards to persons qualified to assist with a qualifying patient’s medical use of marijuana, and standards for the renewal of such identification cards.
c. Procedures for the registration of Medical Marijuana Treatment Centers that include procedures for the issuance, renewal, suspension, and revocation of registration, and standards to ensure security, record keeping, testing, labeling, inspection, and safety.
d. A regulation that defines the amount of marijuana that could reasonably be presumed to be an adequate supply for qualifying patients’ medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient’s appropriate medical use.
(2) Issuance of identification cards and registrations. The Department shall begin issuing qualifying patient and personal caregiver identification cards, as well as begin registering Medical Marijuana Treatment Centers no later than nine months (9) after the effective date of this section.
(3) If the Department does not issue regulations, or if the Department does not begin issuing identification cards and registering Medical Marijuana Treatment Centers within the time limits set in this section, any Florida citizen shall have standing to seek judicial relief to compel compliance with the Department’s constitutional duties.
(4) The Department shall protect the confidentiality of all qualifying patients. All records containing the identity of qualifying patients shall be confidential and kept from public disclosure other than for valid medical or law enforcement purposes.

(e) LEGISLATION. Nothing in this section shall limit the legislature from enacting laws consistent with this provision.

(f) SEVERABILITY. The provisions of this section are severable and if any clause, sentence, paragraph or section of this measure, or an application thereof, is adjudged invalid by any court of competent jurisdiction other provisions shall continue to be in effect to the fullest extent possible.

Florida Supreme Court Decision on proposed Medical Marijuana Constitutional Amendment