Florida Supreme Court Can Issue Marijuana Ballot Opinion ‘At Any Time’ Before Monday Deadline, But ‘No Provisions’ On What Happens Without Ruling, Official Says

Florida’s Supreme Court is fast approaching a deadline—midnight on Monday—to render an opinion in a case that will decide whether a marijuana legalization initiative will appear on the state ballot this November. But while expectations were that it would issue its decision on Thursday, as it traditionally posts opinions on that day of the week, the court declined to do so—raising procedural questions about what to expect next with time running thin, and what might happen if justices miss the deadline.

The case that’s being decided is based on a constitutional challenge to the cannabis measure by Florida Attorney General Ashley Moody (R), who has asked the court to invalidate the initiative.

The prevailing opinion is that the court will ultimately abide by its constitutional mandate to render an opinion “no later than April 1.” The court is closed on Friday for the holiday Good Friday and on weekends, but there is a special rule that says opinions “may be released at any other time at the direction of the chief justice.”

While some industry observers have speculated that if the justices decline to issue an opinion altogether by Monday’s deadline the initiative would be automatically cleared for the ballot, a public information officer with the court indicated to Marijuana Moment on Thursday that isn’t necessarily the case.

“I’m not in the business of interpreting the constitution—that’s the Court’s job—but there is no provision for what happens with no opinion from the Court,” he said.

There are no Florida Supreme Court opinions ready for release today, March 28, 2024.

— FloridaSupremeCourt (@flcourts) March 28, 2024

“That’s because justices ‘shall render their written opinion no later than April 1,’” he said, citing the constitutional language and signaling that it’s unlikely the court will miss that deadline, even if justices took some by surprise by not rendering their decision on Thursday.

“The Court can release opinions at any time,” he said.

Kim Rivers, CEO of the cannabis company Trulieve that us financially supporting the ballot campaign, also pointed to the constitutional requirement for the court to act by the end of Monday in a social media post.

Friendly reminder, per Article IV, Sec 10 of the Florida Constitution, the Supreme Court “shall render their written opinion no later than APRIL 1 of the year in which the initiative is to be submitted to the voters pursuant to Section 5 of Article XI.”

— Kim Rivers (@rivers_kim) March 28, 2024

While most are ruling out the possibility that court does miss the deadline, what would that mean? Some believe it would simply mean that the cannabis measure would proceed to the ballot, as the secretary of state’s office has already affirmed that the Smart and Safe Florida campaign collected more than enough valid signatures to qualify. The court’s role isn’t to affirmatively approve the initiative any further; it’s being asked to decide on the attorney general’s request for invalidation.

While the state Constitution does say the justices need to act by April 1, the court itself would be the ultimate interpreter of that provision should it decide to make a late decision for whatever reason.

What’s also unclear is why justices declined to issue their ruling on Thursday. Under the “routine release” policy of the Supreme Court of Florida Manual of Internal Operating Procedure, it says: “Unless otherwise directed, on Thursday morning at 11 a.m., ET, the clerk electronically releases the opinions that were furnished to the justices the preceding Thursday.”

It’s possible that the delay is not directly related to the marijuana legalization initiative. The court is also due to rule on a case concerning abortion rights, so there are two hot-button issues that may have led justices not to rush their rulings to meet the Thursday deadline.

Florida Rep. Anna Eskamani (D) commented on the lack of decisions on Thursday and said we can “expect an out of calendar opinion release.”

FL State Supreme Court released no opinions today, but they only have till April 1st to release opinions on the abortion ballot initiative & marijuana ballot initiative — both of which are being challenged by DeSantis & Moody.

We can expect an out of calendar opinion release. pic.twitter.com/UrZfgagbCV

— Rep. Anna V. Eskamani 🔨 (@AnnaForFlorida) March 28, 2024

When the court does render its ruling, it will have been more than four months after justices heard oral arguments in the case against the Smart and Safe Florida campaign.

The attorney general’s main argument is that the ballot initiative is affirmatively misleading, in part because she says voters would not be able to understand from the summary that marijuana would remain federally illegal even if Florida moved to legalize.

A prior version of the ballot measure was invalidated on constitutional grounds by the same court in 2022 following a separate challenge from Moody’s office.

The campaign and supporters have maintained that the court needs to respect the intent of the citizen initiative process and allow voters the opportunity to decide on the issue after they turned in more than one million signatures for ballot placement that have been certified by the state.

If approved, the measure would change the state Constitution to allow existing medical cannabis companies in the state like Trulieve to begin selling marijuana to all adults over 21. It contains a provision that would allow—but not require—lawmakers to take steps toward the approval of additional businesses. Home cultivation by consumers would not be allowed under the proposal as drafted.

Adults 21 and older would be able to purchase and possess up to one ounce of cannabis, only five grams of which could be marijuana concentrate products. The three-page measure also omits equity provisions favored by advocates such as expungements or other relief for people with prior cannabis convictions.

Separately, economic analysts from the Florida legislature and the office of Gov. Ron DeSantis (R) estimate that the marijuana legalization initiative would generate between $195.6 million and $431.3 million in new sales tax revenue annually if voters enact it. And those figures could increase considerably if lawmakers opted to impose an additional excise tax on cannabis transactions that’s similar to the ones in place in other legalized states.

Here’s what the Smart & Safe Florida marijuana legalization initiative would accomplish:

• Adults 21 and older could purchase and possess up to three ounces of cannabis for personal use. The cap for marijuana concentrates would be five grams.
• Medical cannabis dispensaries could “acquire, cultivate, process, manufacture, sell, and distribute marijuana products and marijuana accessories to adults for personal use.”
• The legislature would be authorized—but not required—to approve additional entities that are not currently licensed cannabis dispensaries.
• The initiative specifies that nothing in the proposal prevents the legislature from “enacting laws that are consistent with this amendment.”
• The amendment further clarifies that nothing about the proposal “changes federal law,” which seems to be an effort to avoid past legal challenges about misleading ballot language.
• There are no provisions for home cultivation, expungement of prior records or social equity.
• The measure would take effect six months following approval by voters.

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Here’s the full text of the ballot title and summary:

The multi-state marijuana company Trulieve has contributed more than $40 million to the Smart and Safe Florida campaign to date. The state attorney general has accused the company of supporting the measure in order to have a “monopolistic stranglehold” on the state’s cannabis market.

The Florida Chamber of Commerce released a poll in January showing that the marijuana legalization initiative that may appear on the November ballot enjoys majority support from likely voters—but not quite enough to meet the state’s steep 60 percent threshold for passage.

Other previous polls have found that voters are well-positioned to pass the legalization initiative with more than enough support. For example, the University of North Florida put out a survey in December that showed 67 percent of voters back the proposal.

While DeSantis opposes the reform—and pledged not to federally decriminalize marijuana if elected president when he was running—he predicted in January that Florida voters will get a chance to decide on the issue this time.

That said, the governor has raised concerns about cannabis legalization in Florida, saying there could be a “big problem” with some of the provisions of the initiative and complaining that letting adults legally consume cannabis could impact businesses and communities—including as the result of odor.

DeSantis also weighed in on another relevant cannabis policy issue recently when he said that he doesn’t believe the federal gun ban for state-legal marijuana consumers is constitutional. Florida’s former agriculture commissioner brought a lawsuit against the Biden administration over the rule, though the governor did not get involved.

Meanwhile, a Florida bill that sought to cap THC potency if voters approved the legalization initiative at the ballot died this session, much to the relief of cannabis advocates and stakeholders.

Legislation to restrict consumable hemp products and ban delta-8 THC was approved by lawmakers and awaits DeSantis’s action.

Separately, a House subcommittee recently advanced a medical marijuana bill that would waive patient registration and renewal fees for service-disabled military veterans.

Kansas Senators Kill Bill To Create Medical Marijuana Pilot Program

Photo elements courtesy of rawpixel and Philip Steffan.