Moody’s Opposition to Recreational Marijuana Ballot Proposal

Updated: May 24, 2023      Originally Published: May 16, 2023

With the citizens of Florida once again on the verge of placing a proposed constitutional amendment to legalize the adult use of recreational marijuana on the 2024 ballot, Florida Attorney General Ashley Moody has again vowed to stand in the way of one of the few measures that has bi-partisan support across the state.

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The proposed amendment, numbered 22-05 and titled “Adult Personal Use of Marijuana”, is nearing the amount of certified petition signatures necessary to qualify for placement on the 2024 ballot. However, the proposal must also garner the approval of the Florida Supreme Court before being considered by Florida’s electorate. The current proposal builds on the failures of similar amendments in the past, and ostensibly followed the formula set forth by the Florida Supreme Court four years ago when it denied the placement of proposed amendment 19-11, titled “Adult Use of Marijuana” in April 2021. Given that the proposed amendment rectified the Court’s concerns, the ballot proposal would appear to meet the requirements to be placed on the 2024 ballot. However, if the current Court sides with Moody – who has provided only unsupported statutory references as the basis for her concerns at this time – proponents of recreational cannabis legalization in Florida will be left at an impasse.

The Court’s denial in case number SC19-2116 saw Moody, aligned with several organizations that opposed legalization at the time such as Floridians Against Recreational Marijuana, the National Drug-Free Workplace Alliance, Drug Free America Foundation, and the Florida Chamber of Commerce , raise numerous arguments as to why the proposed amendment should be kept off the 2022 ballot. The Court addressed only one, taking issue with proposed amendment 19-11’s use of the word “permits” in the ballot summary.

When reviewing the sufficiency of a proposed constitutional amendment for the inclusion on the ballot after the enactment of chapter 2020-15, Laws of Florida, the Court is constrained to three areas of inquiry: whether the proposed amendment satisfies the single-subject requirement of article XI, section 3 of the Florida Constitution, whether the proposed amendment is facially invalid under the U.S. Constitution, and whether the ballot title and summary satisfy the clarity requirements of section 101.161, Florida Statutes . Section 101.161, Florida Statutes, reads in pertinent part:
“The ballot summary of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of.”

In SC19-2116, the Court addressed only the proposed amendment’s compliance with section 101.161, Florida Statutes, considering “whether the ballot title and summary, in clear and unambiguous language, fairly inform the voters of the chief purpose of the amendment” and “whether the language of the ballot title, as written, will be affirmatively misleading to voters.” Moody and the aligned associations argued that the use of the word “permits” in first clause of the summary in 19-11 would mislead voters into believing that the recreational use of marijuana in Florida would be entirely free of any repercussions. Due to the federal Controlled Substances Act (“CSA”), this would not be the case. Marijuana has been listed as a “Schedule I” drug within the CSA since the Act’s inception in 1970. Schedule I drugs are those that have been recognized at the federal level as having a high potential for abuse, no currently accepted medical use in treatment in the United States, and a “lack of accepted safety” for use under medical supervision. No exception for state-legal use and possession exists within the CSA, as was acknowledged within the body of the proposed amendment. However, the Court agreed with Moody’s position.

Doing so, the Court described the correct way to format a proposed amendment dealing with recreational adult use of marijuana in Florida. Calling back to its decisions in the medical marijuana context, Marijuana I and Marijuana II, the Court noted that the ballot summaries in those cases clearly identified that the amendment applied only to Florida law while also specifying that the amendment would not authorize violations of federal law. Determining that this language was sufficient, the Court approved both medical marijuana amendments for inclusion on their respective ballots. Thus, in SC19-2116, the Court identified the medical marijuana ballot language as the correct method for complying with section 101.161, Florida Statutes, without misleading voters about the consequences of the federal Controlled Substances Act.

Recognizing the error of proposed amendment 19-11 and following the Court’s guidance, the drafters of proposed amendment 22-05 clearly state within the ballot summary that the proposed amendment applies only to Florida law and does not alter federal law, nor immunize violations of federal law.

Rather than attempt to create a new section of the Florida Constitution, 22-05 instead adds the ability to acquire, cultivate, process, manufacture, distribute and sell marijuana products and accessories to adults for personal use into the previously approved medical marijuana section, while defining any new terms such as “personal use”.

Doing so, the drafters of 22-05 addressed the Court’s sole concern while adhering to a previously approved model, doing everything they could to garner the Court’s approval based on the guidance provided in SC 19-2116. For the Court to find the proposed amendment invalid, the proposal must be clearly and conclusively defective. Such a finding would appear to be unlikely as 22-05 aligns with the Court’s prior holdings. In SC 19-2116, the Court asserted that the path to defeating a title and summary challenge was clear and well defined. In both Medical Marijuana I and II , the Court approved proposed amendments that clearly stated that the medical use of marijuana under certain circumstances would “not [be] subject to criminal or civil liability or sanctions under Florida law” and that “[n]othing in this section requires the violation of federal law or purports to give immunity under federal law. Further, the ballot summaries of the two proposed amendments each specifically noted that they applied only to Florida law and would not protect or otherwise immunize Floridians from federal prosecution. The Court unanimously approved the proposal in Medical Marijuana II, while chastising the author of the proposal in SC 19-2116 for diverging from “the roadmap this Court unanimously approved.”

The authors of 22-05 followed the path laid out by the previously approved medical marijuana ballot proposals. As a result, Moody’s opposition to the proposed amendment is particularly perplexing. Recognizing that the summary and proposal challenge appear to be foreclosed, Moody indicated that she intends to challenge 22-05 under the single subject requirement of the Florida Constitution. The requirement applies to all citizen initiative proposals, requiring that the proposal “embrace but one subject and matter directly connected therewith.”

Neither Medical Marijuana I or II succumbed to such a challenge, nor did the Court address a single-subject deficiency in SC 19-2116. Thus, it is unclear how a ballot proposal substantially similar to those approved and favorably cited by the Court would be in violation of the single-subject rule. Moody has yet to identify any specifics supporting her position that the ballot proposal violates the state constitution’s single-subject requirement and section 101.161, Florida Statutes. Given how closely 22-05 comports with the Court’s prior holdings, this is not surprising, as finding a distinction that makes a difference may prove to be difficult. As a result, if the Court were to side with Moody in this instance and go against its own recently issued guidance and precedent it would, at a minimum, lead to the following question – What more can proponents do, beyond following prior precedent of this very court, to follow the law?

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1 Advisory Op. to Att’y Gen. re Adult Use of Marijuana, 315 So. 3d 1176 (Fla. 2021).
2 See Advisory Op. to Att’y Gen. re Water & Land Conservation—Dedicates Funds to Acquire & Restore Fla. Conservation & Recreation Lands, 123 So. 3d 47, 50 (Fla. 2013).
3 Advisory Op. to Att’y Gen. re Use of Marijuana for Certain Med. Conditions, 132 So. 3d 786, 797 (Fla. 2014) (“Medical Marijuana I”).
4 Advisory Op. to Att’y Gen. re Amendment to Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888, 891 (Fla. 2000).
5 Advisory Op. to Att’y Gen. re Use of Marijuana for Debilitating Med. Conditions, 181 So. 3d 471 (Fla. 2015) (“Medical Marijuana II”).
6 Art. XI, § 3, Fla. Const.