High stakes: upcoming recreational marijuana case will have far-reaching impact

by | Oct 22, 2023

A high-stakes legal showdown over the future of recreational marijuana in Florida is just weeks away, as the state’s highest court prepares to hear oral arguments in a case with far-reaching implications. At the center of the drama is Smart and Safe Florida, the organization campaigning to tweak the state’s constitution in a way that would green-light the use of recreational marijuana. The group’s investment is massive; backers like Trulieve have funneled at least $40 million into the group to get the issue in front of voters. On the other side of the issue stands Attorney General Ashley Moody, who, along with the Florida Chamber of Commerce and the Drug Free American Foundation, has taken the legal sword against the proposed language, leading to a clash that promises as many twists and turns as a suspense novel.

But before the electorate has its say, the Florida Supreme Court must first render its own judgment by April 1, 2024. If approved, the Initiative will go to voters in 2024 and needs 60 percent approval to pass. The Court’s written opinion – shaped by the upcoming oral arguments – will be critical in shaping the future of adult-use marijuana legalization in Florida, either providing a guide for improvement or creating uncertainty.

The process to get a constitutional amendment onto Florida’s general election ballot isn’t easy. For months, Smart and Safe Florida (SSF) have gathered hundreds of thousands of signatures in order to meet the state’s petition requirements. The effort was costly – the group spent close to $40 million already – but also vastly exceeded the number of required signatures, qualifying the matter to go before the Supreme Court of review. And they say they’ve crossed all their T’s and dotted their I’s—in other words, they’ve followed all the rules for crafting ballot language – including rules set forth by the Florida Supreme Court itself.

Enter Florida Attorney General Ashley Moody. She’s thrown out a range of objections, arguing primarily that the ballot language could mislead voters. Her key point of contention? The word “allow.” Moody asserts that the word could be confusing because, while the amendment would lift state-level penalties for marijuana use, it wouldn’t affect federal laws that still make it illegal.

Leading the other side of the case is John Bash, a partner at Quinn Emanuel Urquhart & Sullivan, LLP, who argues that the court, over the last several years, established a ‘roadmap’ for sponsors of marijuana-related ballot initiatives. Bash and his legal team working the case say that in drafting the initiative, Smart and Safe Florida followed that clear roadmap, and say Moody and other opponents are now pushing the court to redraw the roadmap.

The bad news for Bash and his client is that the court composition has shifted dramatically since that road map was drawn. Not that such things should matter. Both Bash and Moody have been media contributors, lecturers, or guest speakers at Federalist Society events in recent years – the group promotes the idea that it is “emphatically the province and duty of the judiciary to say what the law is, not what it should be.” But opponents – including Moody – are hoping that the Florida Supreme Court will throw its own precedent out the window. The Court has new justices compared to when it approved previous medical marijuana proposals, and while they’re more conservative and thus likely to be sympathetic to Moody’s point of view, the fact remains that conservative justices – usually – try to avoid throwing a monkey wrench into prior court precedent.

On paper, at least, the math isn’t great for Smart and Safe Florida’s hope that prior precedent will be followed. While Florida’s Supreme Court previously said ‘yes’ to medical marijuana and laid out a legal roadmap for future cases, only two of the judges involved in those cases still remain on the bench, and both actually dissented with the majority decision at that time. The court has also ruled against that precedent in more recent rulings and one of the justices who opposed the overuling is also gone.

But Bash remains unfazed, expressing confidence that the court won’t be too eager to toss out prior rulings.

“The Attorney General has asked the Court to not only ignore the guidance it has given repeatedly for marijuana-related initiatives but also to change the long-established deferential standard of review for ballot initiatives,” Bash wrote in an email to the Capitolist. “This is a very principled Court, so we are optimistic that the Justices will reject this request to change the rules after the fact, which could have a destabilizing effect on this area of law and would undermine the citizen-initiative process.”

But Moody isn’t having it. She’s less concerned about prior court precedents and more concerned about the here and now. To her, the word “allow” is a can of worms. In legal speak, she contends that the amendment only removes state-level penalties but doesn’t make marijuana use federally legal, so using the word “allow” could mislead voters into thinking it’s a total green light to light up. In her eyes, even though the ballot mentions that it applies to Florida law, that might not be enough to clear the air.

As for Moody’s claim that the language is misleading, Bash says the text of the proposed ballot language is crystal clear. Anyone reading the 74-word ballot summary, he believes, will see that the proposed amendment specifically refers to Florida law and doesn’t immunize against federal law.

“If you read the 74-word ballot summary you can see that it clearly and directly states that the amendment ‘[a]pplies to Florida law’ and ‘does not change, or immunize violations of, federal law,'” Bash argues. “We believe that language is easy for any voter to understand and unambiguously explains that the amendment would not in any way impact federal laws.”

Aside from the nearly $50 million investment hanging in the balance for Trulieve and Smart and Safe Florida, the Supreme Court’s final decision will have ramifications for the entire citizen-initiative process in the state. Moody is essentially asking the court to make a departure from their prior rulings, a move that could stir the pot (pardon the pun) for future ballot initiatives. Courts usually prefer stability and predictability, so asking them to make an exception this time could set a precedent that others might use—or misuse—in the future.

So, as the Justices prepare to listen to both sides and eventually make their ruling, Florida voters will be waiting eagerly to see whether they’ll have the chance to vote on this smokin’ hot issue in the 2024 elections. The court’s decision could be a game-changer not just for marijuana enthusiasts and potential businesses but also for the very framework of how legal decisions are made in the Sunshine State. And remember, once the Florida Supreme Court makes its decision, that’s it. There are no do-overs or appeals; this is the final scene in this particular legal drama. Stay tuned.


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