Medical Marijuana Tangles Up Florida Supreme Court Justices In Weeds of Words

The Florida Supreme Court tried Thursday to cut through the smoke surrounding a proposed constitutional amendment that would allow doctors to prescribe marijuana, with justices set to issue an opinion on whether the ballot initiative can go before voters in 2014.

During oral arguments between supporters and opponents of the measure, the court’s two most conservative justices seemed openly hostile to the proposal. But the fate of the measure could be decided by whether the five more liberal members of the bench decide to back the amendment or not.

The idea of medical marijuana technically isn’t at issue in the case. Instead, Attorney General Pam Bondi, legislative leaders and medical, law enforcement and business groups argue that the ballot title and summary that would appear on the ballot could deceive voters about the scope of the amendment.

They say the ballot language, written by United for Care: People United for Medical Marijuana, wrongly suggests that only people with “debilitating diseases” could get the green leafy substance. Instead, doctors would have a much freer hand to prescribe pot.

Chief Justice Ricky Polston, one of the more conservative members of the bench, appeared receptive to that argument.

“The way I read it, it would seem to be if a student’s just stressed over exams, and they go in and see a doctor, and they said, ‘I’m really stressed out.’ (The doctor says,) ‘Well, I’ve got something I can help you with,’ and prescribes marijuana. Wouldn’t that be included in this?” Polston asked.

Supporters of the proposal deny that the language is that sweeping. Instead, they say, Florida doctors would have to weigh the risks of the medication against the benefits to the patient.

“The sponsors were focused on two things: the patient and how best to make that determination for a patient, which is very much focused on physician decision,” said Jon Mills, representing the amendment’s backers. “So a list (of conditions) alone would not be adequate.”

The amendment is the brainchild of Orlando attorney John Morgan, who says he has poured $1 million of his own money into the effort. The Florida Division of Elections says it has verified 136,458 of the 683,149 signatures that the measure needs to be placed on the ballot for 2014.

Much of the discussion centered on the difference between “debilitating diseases,” which will appear in the ballot summary, and “debilitating medical condition,” the term that appears in the amendment.

“You don’t even have to have a disease to get marijuana under this amendment,” said Solicitor General Allen Winsor, who argued the case for opponents Thursday.

But while Justice Barbara Pariente suggested that the amendment might be imprecise, she seemed skeptical about the idea that the ballot language was misleading.

“It seems that the problem may be in the drafting of the amendment, as opposed to in the title and summary,” she said. “How do we deal with that?”

Lawyers and the justices also tangled over whether the ballot statement that the amendment “[d]oes not authorize violations of federal law” might suggest that possessing marijuana would not be a violation of federal law, something that is false. Mills suggested that it was instead making clear that the state amendment would not change whether pot was illegal at the federal level.

“It’s obvious that the state of Florida cannot change federal law,” Justice Charles Canady retorted. “Wouldn’t you think that that’s obvious?”

Speaking with reporters after the session, Morgan expressed confidence that he would be able to gather enough valid signatures by the Feb. 1 deadline to make the ballot if justices approved the language. And he said that no matter the outcome of the case, victory is inevitable.

“Everybody here knows that one day medical marijuana is going to be legal in Florida,” he said. “We all know that. … Is it going to be 2014 or ’24? It’s going to happen.”

–Brandon Larrabee, News Service of Florida

The proposed Medical Marijuana Amendment includes the following title and summary as required by Section 101.161(1), Florida Statutes:

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 and 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.