BY MARC CAPUTO AND MARY ELLEN KLAS
MCAPUTO@MIAMIHERALD.COM
Florida voters will decide whether to legalize marijuana for medical use, after the state Supreme Court ruled Monday that a proposed constitutional amendment won’t mislead people when they go to the polls in the Nov. 4 elections.
“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,” the court said in a 4-3 ruling that split liberals and conservatives. “We therefore reject the opponents’ assertion that the amendment ‘would allow far wider marijuana use than the ballot title and summary reveal.’ ”
By knocking down a core objection to the amendment, the justices dealt a serious blow to the talking points of opponents who called the measure a type of backdoor legalization that allows for “unfettered” marijuana use for minor ailments.
Leading the opposition: Florida Attorney General Pam Bondi, state House Speaker Will Weatherford, state Senate President Don Gaetz and many conservative-leaning lobby groups based in Tallahassee. Gov. Rick Scott also opposes the proposed amendment.
Democratic governor candidates Charlie Crist and Nan Rich support the amendment, as does Libertarian candidate Adrian Wyllie.
The amendment draws strong bipartisan support from voters, according to polls, so the effect it will have on the gubernatorial race is debatable.
Numerous polls show Florida’s measure would pass if the vote were held today, with one survey showing support as high as 82 percent. The most recent Public Policy Polling survey gauged voter support at 65 percent.
If the amendment passes — for which it needs 60 percent of the vote — Florida would become the 21st state plus the District of Columbia to decriminalize marijuana for medical use. Marijuana remains illegal at the federal level.
The citizens’ group pushing the amendment, People United for Medical Marijuana, pointed out that the Florida Legislature, led by Republicans, has repeatedly blocked medical-marijuana efforts from even getting a hearing in the state Capitol until recently.
Opponents say medical marijuana is a first step toward legalization in general; they opposed Florida’s measure because they said it would trick voters into legalizing pot under the guise of helping sick people.
One of the most conservative members of the court, Chief Justice Ricky Polston, echoed the arguments of opponents — sure to be amplified on the campaign trail — in saying the proposal is designed to “hide the ball” from voters.
Polston drew a major distinction between the ballot summary’s statement, which says marijuana would be legal for those who suffer from a debilitating “disease,” and the amendment’s actual text, which never mentions “disease” but uses the wording “debilitating medical conditions.”
Polston suggested that voters would be tricked into voting for something that he believes will sanction the use of pot for “minor aches and pains, stress, insomnia or fear of an upcoming flight.”
“In addition to deceptively employing the term ‘disease,’ the summary and title of this initiative also mislead voters by failing to inform them that all that is required under the amendment’s text to qualify for the use of marijuana is for one physician to think that the potential benefits of the drug would likely outweigh the potential risks,” Polston wrote. “This is seriously misleading.”
Polston said the amendment would grant doctors immunity from lawsuits — even if they prescribed heavy doses of marijuana for a “teething toddler.”
Proponents say Polston is engaging in the very type of misleading “wordsmithing” that he decries in his dissent, which was joined by fellow conservative Charles Canady, who also wrote another dissent that Polston signed.
Justice Jorge Labarga, a moderate, issued a separate dissent, citing what he thought was unclear language.
A majority of the liberal-leaning court — justices Barbara Pariente, James E.C. Perry, Peggy Quince and Fred Lewis — pointed out that, under the plain text of the amendment, physicians had to use sound medical judgment, conduct a thorough exam and recommend marijuana in writing for those who suffered from debilitating medical conditions — a clause that Polston essentially ignored.
Medical marijuana took on a more-partisan hue last year when Orlando trial attorney John Morgan — a major Democratic donor and Crist’s employer — took over the group to underwrite the rewriting of the initiative and a petition drive needed to collect enough verified voter signatures to place the measure on the ballot.
Morgan said he is not playing partisan politics or trying to help Crist with the amendment, which is heavily backed by young and Democratic voters. Morgan noted polls show that support for the initiative cuts across all age, ethnic, racial, demographic and partisan lines.
“The criticism of partisanship is made by people who are conspiracy theorists. If I wanted to help Charlie Crist, I would just have given him $4 million directly, not spent it this way,” Morgan said.
“If the Florida Legislature thinks this is a partisan issue, I call on them to open their minds, start hearing evidence and testimony from experts and sick people and their advocates,” Morgan said. “Why not have hearings in the sunshine so people can hear the facts?”
A main driver of the opposition, Clearwater-based Save Our Society from Drugs, has Republican ties: Founder Mel Sembler is a longtime GOP fundraiser. He was appointed ambassador to Australia and Nauru by President George H.W. Bush and then was appointed ambassador to Italy by President George W. Bush.
As does Morgan, the Clearwater group says its position is about healthcare and not politics.
With the amendment on the ballot in the gubernatorial election year, consultants and voting experts say it is an open question whether it will help Democrats or hurt Republicans.
Prior state constitutional amendments had no discernable impact on other statewide races. A successful 2010 anti-gerrymandering amendment pushed by liberal groups did nothing to stop conservatives from racking up historic wins that year.
And a successful 2008 amendment banning gay marriage that conservatives drafted did nothing to stop President Barack Obama and Democrats from making big gains.
Last week, after Morgan and his group spent about $4 million, the state confirmed that People United had collected 734,405 verified voter signatures, more than required.
Despite clearing the tall hurdles of collecting signatures and arguing the case before the Supreme Court, People United and its backers know they are in for a difficult fight. Morgan said he believes the pharmaceutical and the corrections industries might try to defeat the amendment.
The Florida Sheriffs Association and the Florida Association of Chiefs of Police, which tried to stop the amendment in court, plan to step up their criticism through the year.
“This medical marijuana initiative is a fraud that’s being perpetuated against the compassionate people of the state of Florida — it is not about helping people,”’ said Polk County Sheriff Grady Judd, president of the Florida Sheriffs Association. “It’s about legalizing marijuana for recreational use.”
He said anecdotal evidence from states that have passed similar provisions shows “people have been able to receive recommendations for medical marijuana for menstrual cramps, back pain and test anxiety.”
The amendment names nine specific medical conditions: cancer, glaucoma, human immunodeficiency virus infection (HIV), acquired immunodeficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease and multiple sclerosis.
But physicians could recommend marijuana for other ailments if, after conducting an examination, they determine cannabis would help patients more than it would hurt them.
To opponents, that last clause allowing for medical marijuana in unspecified cases is a major loophole that could allow the “unfettered” prescribing of the drug.
In at least two states — Washington and Colorado — the legalization of medical marijuana was a precursor to outright marijuana decriminalization. In both cases, voters decided the laws. Unlike Florida, those states do not require super-majority votes of the citizenry to enact such measures.
Recent state and national polls have shown that support for medical marijuana has increased, as well as support for complete legalization of cannabis.
If the amendment passes, qualifying patients and doctors would receive instant protection from prosecution or punishment in most cases. But the Department of Health has six to nine months to make rules governing the finer points of the program. The amendment does not give people permission to grow marijuana.
As support increased and People United showed signs of success, state lawmakers began giving more consideration to proposals to allow the limited use of medical cannabis, after years of quashing discussion of the issue.
That limited proposal is aimed at a niche strain of marijuana called “Charlotte’s Web,” which contains a low level of psychoactive THC and a stronger level of a substance called CBD, which parents and physicians say helps prevent severe epileptic attacks, especially in children.
But that legislative proposal, which is being resisted by some Republican leaders, is far more limited in scope than the proposed constitutional amendment.
After repeatedly sponsoring medical-marijuana proposals in the Legislature, state Rep. Katie Edwards, D-Plantation, recently joined with Republican Rep. Matt Gaetz — the Senate president’s son — to push the Charlotte’s Web proposal.
Edwards called the Supreme Court ruling a “step in the right direction.”
“The bottom line is the Legislature has forced people to go this route,” Edwards said. “Had we acted last year, had we reacted to patients, we wouldn’t be in this situation.”
“If I were Will Weatherford,” she said, referring to the House speaker, “I’d be worried about my members.”
Weatherford said in a statement that he accepted the court’s decision, which he described as “unique and unprecedented legal reasoning.”
Weatherford said he had “faith” that “voters will do their homework and understand the impact of this truly radical proposal. Make no mistake: This is not about compassionate medical marijuana. This is about the Coloradofication of Florida, where the endgame is a pot shop on every street corner.”
