During oral arguments Thursday before the Florida Supreme Court, an advocate for a constitutional amendment legalizing medical marijuana struggled to defend the wording of a ballot measure that the attorney general claims is misleading.
The state and a coalition of business, medical and law enforcement groups are trying to keep the amendment off the 2014 general election ballot introduced in a July 10 petition by People United for Medical Marijuana.
Allen Winsor, solicitor general for Attorney General Pam Bondi, told the court the ballot summary would lead voters to think marijuana prescriptions would be limited to people with debilitating diseases, but the full text refers only to “debilitating medical conditions” and contains a clause that could open prescriptions to a broad scope of ailments.
Justice Charles Canady, questioning ballot advocate Jon Mills of Boies, Schiller & Flexner in Miami, said the question of misleading wording, as he understood it, turns on what to make of the phrase “or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.”
If that is interpreted the way the attorney general claims, Canady asked Mills if he agreed that would be misleading.
Mills said the full text is accurate if the ballot title, “Use of marijuana for certain medical conditions,” is taken into account when reading the summary, which does not again mention conditions but refers only to debilitating diseases.
The two main challenges to the amendment are whether the wording meets the single-subject rule applied to constitutional amendments and whether it accurately portrays the effects of the full text.
Justice R. Fred Lewis suggested the language contains such a broad “catchall” that a doctor could prescribe marijuana for anything.
Mills argued the amendment is intended to narrow the scope of conditions. The full text specifies marijuana’s use for cancer, glaucoma, HIV, AIDS, hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease, Parkinson’s disease and multiple sclerosis.
He said the “other conditions” language was included because medicine is always evolving and other seriously debilitating illnesses would arise in the future. But Mills insisted the list of conditions must be read in context with the subsection detailing the doctor’s duties.
A doctor would have to weigh the risks and benefits, and report each patient to the state Department of Health as a “qualifying patient.”
Justice Barbara Pariente suggested that if the intent was to narrow marijuana use, the offending clause would have said “other similar conditions.”
The solicitor general also argued the summary is misleading because it states the amendment doesn’t authorize violations of federal law.
All state laws that allow medical or recreational use of marijuana violate federal law, Winsor argued. He also insisted the amendment would grant doctors immunity from civil liability, but that would conflict with a doctor’s duty to provide a certain standard of care.
Canady asked Mills about the statement on federal law, and Mills said it just puts voters on notice that it does not violate federal law.
“But it does,” Canady said. “It is authorizing conduct that constitutes violations of federal law. This is a confusing statement that is likely to lead people to believe nothing in here is going to be illegal under federal law.”
A brief in opposition was submitted by the Florida Chamber of Commerce, Florida Medical Association, Florida Police Chiefs Association, Florida Sheriffs Association and Save Our Society From Drugs.
Adding to the state’s objections, the coalition said the amendment would expand the scope of physician to chiropractors and podiatric physicians, “who currently are not authorized to diagnose or treat illnesses such as those within the scope of the amendment,” wrote Susan Kelsey of Kelsey Appellate Law Firm in Tallahassee.
The Legislature also submitted a brief in opposition.