On April 22, 2021, The Florida Supreme Court issued Advisory Opinion to the Attorney General Re: Adult Use of Marijuana. The subject of marijuana is not new to this blog. Most Americans by now have been exposed to the topic in some form. The concept or using pot for treatment of complaints has been around for decades now. And, the list of states that have decriminalized weed keeps growing. There is a "legal weed map" that illustrates this in bright colors. This, like so many other examples, insists that pot is "legal" when in fact it has merely been decriminalized.
That is an important distinction. Congress has yet to act in "legalizing" marijuana. Pot remains illegal for possession or use under federal law. There are interesting perspectives regarding enforcement of federal law, and many cite Gonzales v. Raich, 545 U.S. 1 (2005) in discussing, the commerce clause, and the supremacy clause. For more on the current posture of pot, see Mischaracterizing Pot Again (February 2020).
The law can be confusing. In 2020, WorkCompCentral reported on a Florida teacher who lost a job in 2020 because of marijuana use that the teacher believed was "legal." Pot advocates are prone to use the "legal" label. The teacher filed an appeal of the dismissal, and the decision was ultimately upheld. The news coverage in the Ocala Star Banner likewise repeatedly uses the "legal" label.
That labeling may cause confusion. The teacher was fired because marijuana is not legal. It is illegal in all 50 states. Some states have decriminalized it, meaning the state will not prosecute someone in certain circumstances of use or possession; will not prosecute under state law. But, it remains illegal pursuant to federal law. see Mischaracterizing Pot Again (February 2020).
More recently, WESH published a story of another fired teacher: "Florida teacher fired for prescribed medical marijuana use." That is also incorrect. No physician prescribes pot. Pot is illegal and a physician could imperil her or his license by writing such a prescription. Doctors therefore "recommend" pot for their patients, but they do not prescribe it. Using the word "prescription" lends an impression of permissibility or legitimacy, which may mislead the reader in the same manner as "legal."
Too complex? Is the nuance too subtle?
The pot issue has been discussed in Florida for several years. In both of the situations described above, the use of pot became known following work accidents. The subject of "medical" pot is thus becoming intertwined in the world of workers' compensation. The discussions of whether it must be paid for a treatment for workers' compensation is also an issue. See Federal Law Matters in Maine Also.
Some people are most eager to have pot. However, efforts to decriminalize it further have not been passed. WJCT recently reported on another teacher for whom pot was "recommended" (though the article headline portrays it as "legal). This teacher was also terminated according to the story. The article focuses upon a bill proposed but not passed in the just-ended legislative session to "to prohibit employers from taking action against qualified medical marijuana patients."
The alternative to legislation on legal topics is constitutional amendment. There have been a variety of provisions adopted in that manner, including animal rights, voting, the minimum wage, and more.
In the recent Opinion to the Attorney General Re: Adult Use of Marijuana, the Florida Supreme Court was asked to consider whether such a proposal for a constitutional amendment to decriminalize pot in Florida may be placed on the ballot for consideration. Justices Canady, Polston, Muniz, Couriel, and Grosshans concluded that the amendment may not be on the ballot as currently proposed. Justice Lawson wrote a dissenting opinion, and Justice Labarga dissented also.
The Court's majority concluded that the manner in which the proposal is summarized for the ballot lacks clarity as required by Florida law. It noted that clarity is required “to ensure that the ballot summary and title ‘provide fair notice of the content of the proposed amendment’ to voters." The Court explained its process for such cases as involving two considerations:
"(1) whether the ballot title and summary, in clear and unambiguous language, fairly inform the voters of the chief purpose of the amendment; and (2) whether the language of the ballot title and summary, as written, will be affirmatively misleading to voters.”
It explained that “[A]n accurate, objective, and neutral summary of the proposed amendment is the sine qua non of the citizen-driven process of amending our constitution” (sine qua non means absolutely indispensable). Here the summary says the amendment
“Permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason.”
The Court concluded that “[p]ermits” is problematic. It noted that the use of "permits" “mislead(s) voters regarding the interplay between the proposed amendment and federal law.” it concluded that this word "strongly suggests that the conduct to be authorized by the amendment will be free of any criminal or civil penalty in Florida," which ignores the persistent point that use or possession remains illegal under federal law. The Court concluded that "A constitutional amendment cannot unequivocally 'permit' or authorize conduct that is criminalized under federal law." Therefore, "a ballot summary suggesting otherwise is affirmatively misleading."
There will be those critical of the conclusions. Critics may see too fine of a point in the focus on word meaning. However, the examples cited herein reflect untoward outcomes for two Floridians who believed that their use of marijuana or THC was "legal." The connotation of "legal" or "prescription" is of legitimacy and permission, as is the word "permits."
Justice Lawson dissented with a written opinion. His conclusion is that such a ballot "summary need not address secondary issues or ramifications, including federal law." He analogizes the challenge of composing such a ballot summary to an examination and focuses upon whether some student's answer to that examination question is accurate, compared to whether the answer provides additional information not necessarily clearly sought by the question.
Justice Lawson also notes that the Court has “traditionally" been "deferential" in reviewing such ballot summaries. He characterizes this as "restraint," noting that "Sovereignty resides in the people and the electors have a right to approve or reject a proposed amendment to the organic law of th[e] State." Therefore, he notes the Court "take(s) a nonpaternalistic approach to our review, expecting voters to educate themselves regarding the details of a proposed amendment before voting." Justice Lawson concludes that it is thus the purpose of the initiative summary to "give the voter fair notice of the question he must decide so that he may intelligently cast his vote."
Both the majority and dissent are intriguing reading for the lawyer. It is 38 pages of perspectives regarding the Court's precedent in the Florida ballot initiative process and is recommended reading. The Court's conclusion will require reworking of the ballot summary and the debates about decriminalizing marijuana will continue. In the meantime, it would likely benefit people greatly if we all quit misusing the terms "legal," "legalize," "prescription," and "prescribed."
Two teachers have suffered consequences of their misunderstanding of marijuana being "legal" or "prescribed." The dissent's explanation of our "expecting voters to educate themselves" is respectful of our autonomy and freedoms as Americans. But, the majority's focus on avoiding the "affirmatively misleading" is also appealing in the context of our individual rights - specifically the right to not be misinformed.
The Court concluded that "permits" is misinformation. Similarly, when the press or pundits use "legal" or "prescribed" that is similarly misinformation that has the potential to lead good people into difficult situations involving their employment and lives. And, in some instances to suffer detriments regarding their workers' compensation benefits, see section 440.09(3).
