By: Matthew Ginder, Esq.
Introduction Over the last several years, the controlling party of Florida’s legislature has expressed no desire to legalize marijuana for adult-use. Various adult-use bills filed in the State’s legislature have made headlines, but not headway. Thus, Florida’s best chance of legalizing adult-use marijuana remains to sidestep the legislature and present the issue directly to voters through a citizen-led ballot initiative. With the financial backing of Florida’s largest medical marijuana operator (Trulieve), Safe & Smart Florida (“SSF”) is the latest sponsor to attempt to reform the State’s marijuana laws through a citizen-led ballot initiative. SSF has received enough signed petitions for its initiative called “Adult Personal Use of Marijuana” (the “Initiative”) to present it on the 2024 ballot. But first, SSF’s Initiative must be approved by the Florida Supreme Court (the “Court”). This article will discuss SSF’s expensive endeavor to survive judicial scrutiny and the implications of the Court’s decision on the future of adult-use marijuana in Florida.
Florida’s Increasingly Expensive Citizen-Led Ballot Initiative Process
In Florida, citizens have the right to propose amendments to the Florida Constitution through an initiative petition process. The process entails obtaining a specific number of signed petitions by registered Florida voters. Once a certain percentage of verified signatures is obtained, the State’s Attorney General (“AG”) will petition the Court for an advisory opinion as to whether the text of the proposed initiative complies with applicable Florida law. In determining the validity of an initiative, the Court’s review is generally limited to the following three legal issues: (a) whether the initiative contains a single subject (Fla. Const. art. XI, § 3), (b) whether the ballot title and summary of the initiative are clear and unambiguous (Fla. Stat. § 101.161(1)), and (c) whether the initiative is facially invalid under the U.S. Constitution.[1] A defect found by the Court will prevent an initiative from being placed on the ballot.
Florida’s robust medical marijuana program is the result of two citizen-led ballot initiatives. The language of Florida’s 2014 medical marijuana ballot initiative (“Medical Marijuana I”) was approved by a slim majority (4-3 vote) of the Court but did not receive sufficient votes to become law. The sponsor attempted it again in 2016 without opposition from the AG, which was unanimously approved by the Court (“Medical Marijuana II”) and overwhelmingly supported by 71% of Florida voters. Since then, Florida has enacted laws to curb the use of citizen-led ballot initiatives. The laws have gone as far as to criminalize the practice of compensating petition circulators based on the number of signatures gathered. The campaign against citizen-led ballot initiatives has resulted in a much costlier endeavor than before. By way of example, Florida’s AG filed briefs with the Court opposing the medical marijuana initiative for 2014 (Medical Marijuana I) and an adult-use ballot initiative for 2022 (“Adult-Use I”). At the time of the filings, the sponsors spent approximately $1 million and $7.5 million, respectively. When the AG recently filed her brief in opposition to this Initiative, SSF had already spent nearly $40 million.
SSF’s Initiative
SSF’s Initiative seeks to amend Florida’s medical marijuana constitutional amendment (Article X, Section 29) to include the use of marijuana for adults 21 years of age or older. By doing so, SSF seeks to leverage existing language that was previously approved by the Court in Medical Marijuana I and II. Also, the Initiative follows the guidance provided by the Court when it issued opinions invalidating Adult-Use I and another adult-use initiative aimed for the 2022 ballot.
Opponents of the Initiative – the AG along with two organizations – have argued that the Initiative is invalid on multiple grounds. The Court only has to agree with one of their arguments to invalidate the Initiative. Opponents are hoping that the change in the composition of the Court since Medical Marijuana I and II will sufficiently counter SSF’s usage of legal precedent. Of the seven Florida Supreme Court justices who ruled to approve Medical Marijuana I, only two justices remain, and these two justices joined the dissent. Thus, no justice who was in favor of validating Medical Marijuana I remains on the Court today. Since then, the Court has struck down two adult-use ballot initiatives, including Adult-Use I where it declined to extend the opinion of Medical Marijuana I over the dissent of two justices, one of whom is no longer on the bench.
What’s At Stake
SSF’s Initiative remains pending before the Florida Supreme Court which is required to render a written opinion on or before April 1, 2024.[2] The outcome of this case has significant implications for the adult use of marijuana in Florida. If the Court validates the Initiative, then it will be placed on the 2024 ballot where it will need at least 60% of Florida voters to approve it. Even if the Initiative does not reach the 60% threshold, as was the case in 2014 for Medical Marijuana I, it will be much easier to raise money and survive judicial scrutiny for a subsequent attempt. On the other hand, if the Initiative is struck down by the Court, the contents of the written opinion may dictate the prospects of a future adult-use initiative. The Court may provide guidance on the flaws of the Initiative thereby creating a roadmap for a future initiative. The Court could, however, choose to invalidate the Initiative in a manner that creates uncertainty as to the viability of a subsequent adult-use initiative. In that case, proponents of adult-use legalization will have to reevaluate a path forward, which may require working through, and not around, Florida’s legislature.
[1] See Fla. Stat. 16.061(1).
[2] Fla. Const. art. IV, § 10.
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