Advisory Opinion to the Attorney General Re: Adult Use of Marijuana ( 2021 )

Supreme Court of Florida
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No. SC19-2116
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE: ADULT
USE OF MARIJUANA.
April 22, 2021
CORRECTED OPINION
PER CURIAM.
The Attorney General of Florida has requested this Court’s
opinion concerning the validity of an initiative petition circulated
pursuant to article XI, section 3 of the Florida Constitution. We
have jurisdiction. See art. IV, § 10, art. V, § 3(b)(10), Fla. Const. As
explained below, we strike the proposed amendment on the ground
that the ballot summary is affirmatively misleading.
BACKGROUND
On December 19, 2019, the Attorney General petitioned this
Court for an advisory opinion regarding the validity of an initiative
petition sponsored by Make it Legal Florida (the Sponsor) and titled
“Adult Use of Marijuana.” The Attorney General asks whether the
proposed amendment complies with the single-subject requirement
of article XI, section 3 of the Florida Constitution, and whether the
ballot title and summary comply with the clarity requirements of
section 101.161(1), Florida Statutes (2020). After we directed
interested proponents and opponents to file briefs, the Attorney
General submitted a brief opposing the initiative petition. Opposing
briefs were also submitted by: (1) the Florida Senate; (2) the Florida
House of Representatives; (3) the Drug Free America Foundation,
the Florida Coalition Alliance, National Families in Action, and
Smart Approaches to Marijuana; and (4) the Florida Chamber of
Commerce, Floridians Against Recreational Marijuana, Save Our
Society from Drugs, and the National Drug-Free Workplace Alliance.
The Sponsor filed the lone brief in support of the initiative petition.
Oral argument was held on May 6, 2020.
Text of the Proposed Amendment
The proposed amendment would add the following new section
33 to article X of the Florida Constitution:
Section 33. Adult Use of Marijuana.
(a) Definitions. As pertaining to this section
(1) “Adult” means a person 21 years of age or older.
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(2) “Department” means the Florida Department of
Health or its successor agency.
(3) “Marijuana” shall have the same meaning as defined
in Article X, Section 29.
(4) “Marijuana accessories” means any equipment,
products, or materials of any kind which are for
ingesting, inhaling, topically applying, or otherwise
introducing marijuana into the human body.
(5) “Medical Marijuana Treatment Center” shall have the
same meaning as defined in Article X, Section 29, except
a licensed Medical Marijuana Treatment Center is
permitted to sell, distribute, or dispense marijuana to a
person 21 years of age or older for personal use for any
reason in compliance with this section.
(6) “Public place” means any public street, sidewalk,
park, beach, or other public commons.
(b) Public policy.
(1) An adult is permitted to possess, use, display,
purchase, or transport marijuana or marijuana
accessories for personal use for any reason in compliance
with this section and Department regulations and is not
subject to criminal or civil liability or sanctions under
Florida law.
(2) A Medical Marijuana Treatment Center is permitted
to sell, distribute or dispense marijuana or marijuana
accessories to an adult for personal use for any reason in
compliance with this section and Department regulations
and is not subject to criminal or civil liability or sanctions
under Florida law.
(c) Restrictions.
(1) An adult may possess, display, purchase, or
transport up to two and a half ounces of marijuana for
personal use for any reason.
(2) A Medical Marijuana Treatment Center that sells,
distributes, or dispenses marijuana or marijuana
accessories to an adult shall ensure any marijuana or
marijuana accessories are clearly labeled and in
childproof packaging.
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(3) Marijuana or marijuana accessories shall not be
advertised or marketed to target persons under the age of
21.
(4) Marijuana authorized by this section may not be
used in any public place.
(5) The limitations set forth in Article X, Section 29(c)(4),
(5), (6), and (8) shall apply to personal use of marijuana
authorized by this section.
(d) Authority.
(1) The Department shall issue reasonable regulations
necessary for the implementation and enforcement of this
section.
(2) Nothing in this section shall limit the legislature from
enacting laws consistent with this section.
(e) Severability. The provisions of this section are
severable and if any clause, sentence, paragraph, or
section of this measure, or an application thereof, is
adjudged invalid by a court of competent jurisdiction,
other provisions shall continue to be in effect to the
fullest extent possible.
Ballot Title and Summary
The ballot title for the proposed amendment is: “Adult Use of
Marijuana.” The ballot summary states:
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. Permits Medical Marijuana Treatment
Centers to sell, distribute, or dispense marijuana and
marijuana accessories if clearly labeled and in childproof
packaging to adults. Prohibits advertising or marketing
targeted to persons under 21. Prohibits marijuana use in
defined public places. Maintains limitations on
marijuana use in defined circumstances.
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ANALYSIS
Standard of Review
In reviewing the validity of an initiative petition, “[t]his Court
has traditionally applied a deferential standard of review.” Advisory
Op. to Att’y Gen. re Use of Marijuana for Certain Med. Conditions,
132 So. 3d 786, 794 (Fla. 2014) (Medical Marijuana I). Prior to the
enactment of chapter 2020-15, Laws of Florida, this Court
repeatedly recognized that our inquiry is limited “to two issues: (1)
whether the amendment itself satisfies the single-subject
requirement of article XI, section 3, Florida Constitution; and (2)
whether the ballot title and summary satisfy the clarity
requirements of section 101.161, Florida Statutes.” Advisory Op. to
Att’y Gen. re Water & Land Conservation--Dedicates Funds to Acquire
& Restore Fla. Conservation & Recreation Lands, 123 So. 3d 47, 50
(Fla. 2013). “In order for the Court to invalidate a proposed
amendment, the record must show that the proposal is clearly and
conclusively defective on either ground.” Advisory Op. to Att’y Gen.
re Amendment to Bar Gov’t from Treating People Differently Based on
Race in Pub. Educ., 778 So. 2d 888, 891 (Fla. 2000).
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We conclude that the initiative petition is “clearly and
conclusively defective,” id., on the ground that the ballot summary
fails to comply with section 101.161. 1
Section 101.161
Section 101.161(1), Florida Statutes (2020), provides that
“[t]he ballot summary of the amendment or other public measure
shall be an explanatory statement, not exceeding 75 words in
length, of the chief purpose of the measure.” The statute further
requires that the ballot title “consist of a caption, not exceeding 15
words in length, by which the measure is commonly referred to or
spoken of.” The purpose of these statutory requirements is “to
ensure that the ballot summary and title ‘provide fair notice of the
content of the proposed amendment’ to voters so that they ‘will not
be misled as to [the proposed amendment’s] purpose, and can cast
1. Because of our invalidation of the initiative on this ground,
we need not address arguments presented concerning the scope
and application of chapter 2020-15, Laws of Florida, which among
other things amends existing statutes to (1) heighten the signature
requirements before an initiative petition is eligible for this Court’s
review, and (2) expand the scope of this Court’s review to include
whether an initiative petition is facially invalid under the United
States Constitution. Ch. 2020-15, §§ 1-2, Laws of Fla.
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an intelligent and informed ballot.’ ” Advisory Op. to Att’y Gen. re
Voter Control of Gambling, 215 So. 3d 1209, 1215 (Fla. 2017)
(alteration in original) (quoting Advisory Op. to Att’y Gen. re Right of
Citizens to Choose Health Care Providers, 705 So. 2d 563, 566 (Fla.
1998)).
In determining whether a ballot title and summary comply
with section 101.161, this Court “consider[s] two questions: (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.”
Medical Marijuana I, 132 So. 3d at 797. “[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.”
Advisory Op. to Att’y Gen. re Indep. Nonpartisan Comm’n to
Apportion Legislative & Cong. Districts Which Replaces
Apportionment by Legislature, 926 So. 2d 1218, 1227 (Fla. 2006)
(quoting Advisory Op. to Att’y Gen. re Additional Homestead Tax
Exemption, 880 So. 2d 646, 653-54 (Fla. 2004)).
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Here, the opponents of the proposed amendment offer various
arguments for why the ballot summary is defective. Their primary
argument—the only one we address—focuses on the first clause of
the summary: “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.” They note
that the proposed amendment itself states that it would only
remove criminal and civil liability for the identified conduct “under
Florida law.” They thus argue that the summary’s unqualified use
of the word “[p]ermits” affirmatively misleads voters into believing
that the recreational use of marijuana in Florida will be free of any
repercussions, criminal or otherwise. We agree.
“Permits” Marijuana Use
There is no dispute here that the activities contemplated by
the proposed amendment are criminal offenses under federal law.
See 21 U.S.C. §§ 801-904 (the federal Controlled Substances Act).
There is also no dispute that the proposed amendment states that
the contemplated activities will only be free of “criminal or civil
liability or sanctions under Florida law.” And there is further no
dispute that the ballot summary unqualifiedly informs voters that
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the amendment “[p]ermits” the contemplated activities. Although
this Court once stated that it has “never required that a ballot
summary inform voters as to the current state of federal law and
the impact of a proposed state constitutional amendment on federal
statutory law as it exists at this moment in time,” Medical
Marijuana I, 132 So. 3d at 808, we have certainly never concluded—
or suggested—that a summary may affirmatively “mislead voters
regarding the interplay between the proposed amendment and
federal law,” id. The summary here does precisely that.
The summary’s unqualified use of the word “[p]ermits”
strongly suggests that the conduct to be authorized by the
amendment will be free of any criminal or civil penalty in Florida.
See The American Heritage Dictionary 1315 (5th ed. 2011) (defining
the verb “permit” as “[t]o grant consent or leave to (someone);
authorize”; and as “[t]o allow the doing of (something); consent to”).
The proposed amendment, on the other hand, explains that the
conduct will only be free of criminal or civil liability “under Florida
law.” The proposed amendment includes that language, of course,
because a recreational marijuana user or distributor will remain
exposed to potential prosecution under federal law—no small
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matter. A constitutional amendment cannot unequivocally “permit”
or authorize conduct that is criminalized under federal law. And a
ballot summary suggesting otherwise is affirmatively misleading.
To put our decision into context, we review the two previous
times marijuana-related initiative petitions came before this Court.
Both times this Court approved the proposed amendment for
placement on the ballot, the first time by way of a 4-3 decision and
the second time unanimously. Here, the Sponsor—for whatever
reason—took a far more problematic approach to the ballot
summary than did the sponsors in the two earlier cases.
In Medical Marijuana I, this Court reviewed the validity of an
initiative petition that sought to allow the use of medical marijuana
for patients with certain medical conditions. 132 So. 3d at 791.
The text of the proposed amendment stated that “[t]he medical use
of marijuana . . . is not subject to criminal or civil liability or
sanctions under Florida law except as provided in this section.” Id.
It further provided that “[n]othing in this law section [sic] requires
the violation of federal law or purports to give immunity under
federal law.” Id. at 793. The ballot summary then explained that
the amendment “[a]llow[ed] the medical use of marijuana for
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individuals with debilitating diseases” but “[a]pplie[d] only to Florida
law.” Id. at 794. The ballot summary additionally disclosed that
the amendment “[did] not authorize violations of federal law.” Id.
Opponents of the initiative petition argued in relevant part that the
ballot summary was defective for “mislead[ing] voters regarding the
interplay between the proposed amendment and federal law.” Id. at
808. And they argued “that the ballot summary should include
language informing the voters that marijuana possession and use is
currently prohibited under federal law.” Id. This Court’s majority
disagreed. Id. In rejecting the opponents’ arguments—as well as
arguments advanced by two of the three dissenting justices that the
summary affirmatively misled the voters regarding federal law—the
majority concluded that “the statements in the ballot summary
[were] substantially similar in meaning to the proposed
amendment’s text” and that the opponents were improperly
“asserting that the ballot summary should include language that
[was] not in the proposed amendment itself.” Id. The majority also
noted that this Court had “never required that a ballot summary
inform voters as to the current state of federal law and the impact of
a proposed state constitutional amendment on federal statutory law
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as it exists at this moment in time,” id., while concluding that “the
ballot summary’s discussion of federal law [was] not ‘so misleading
as to clearly and conclusively violate section 101.161,’ ” id. (quoting
Advisory Op. to Att’y Gen. re Standards for Establishing Legislative
District Boundaries, 2 So. 3d 175, 187 (Fla. 2009)).
The proposed amendment in Medical Marijuana I was
ultimately not adopted by the voters. The following year, a similar
initiative petition qualified for this Court’s review. See Advisory Op.
to Att’y Gen. re Use of Marijuana for Debilitating Med. Conditions,
181 So. 3d 471 (Fla. 2015) (Medical Marijuana II). There, the text of
the proposed amendment provided—as in Medical Marijuana I—that
the medical use of marijuana under certain circumstances would
“not [be] subject to criminal or civil liability or sanctions under
Florida law.” Id. at 473. It further provided—as in Medical
Marijuana I—that “[n]othing in this section requires the violation of
federal law or purports to give immunity under federal law.” Id. at
475. The ballot summary then provided—as in Medical Marijuana
I—that the amendment “[a]pplie[d] only to Florida law.” Id. at 476.
But the ballot summary further provided—in clearer language than
in Medical Marijuana I—that the amendment “[did] not immunize
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violations of federal law.” Id. This Court unanimously approved the
initiative petition for placement on the ballot, id. at 479, concluding
that among other things “the ballot title and summary fairly
inform[ed] voters of the purpose of the proposed amendment—the
state authorization of medical marijuana for patients with
debilitating medical conditions,” id. at 478. The amendment was
ultimately approved by the voters and added article X, section 29 to
the Florida Constitution.
Here, instead of following the roadmap this Court
unanimously approved in Medical Marijuana II, the Sponsor chose a
path that diverges even from the majority’s reasoning in Medical
Marijuana I. That is, although the text of the proposed amendment
states it would only remove criminal and civil sanctions for the
identified conduct “under Florida law,” the ballot summary omits
this limiting language and affirmatively misleads voters by
suggesting that the identified conduct will be “[p]ermit[ted]” without
qualification. This we cannot approve.2
2. The dissenting opinion discusses reliance interests and yet
does not address our discussion of Medical Marijuana I and Medical
Marijuana II. Again, in both cases, the sponsor handled a nearly
identical issue as presented here by unsurprisingly addressing that
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The Sponsor offers various reasons why we should reject
striking the proposed amendment on this ground. We are not
persuaded by any of these arguments. Indeed, the arguments
largely sidestep the relevant issue.
First, the Sponsor relies on Advisory Opinion to Attorney
General—Limited Political Terms in Certain Elective Offices, 592 So.
2d 225 (Fla. 1991). There, we reviewed an initiative petition that
purported to impose term limits on certain elective offices, including
federal legislators from Florida. Id. at 226. Opponents of the
measure argued “that the limitation on the terms of federal
legislators violate[d] the Supremacy Clause of the United States
Constitution.” Id. at 227 n.2. This Court declined to consider that
constitutional challenge, reasoning that its review of the initiative
petition was “limited . . . to addressing whether the proposed
important issue both in the proposed amendment itself and in the
ballot summary. And both times this Court approved the petition.
Given this “precedent,” dissenting op. at 27, we submit that it is the
dissenting opinion’s atmospheric-science analogy—and not our
decision here—that is unsound. That is, rather than analogizing
this case to a professor failing a student who followed “the test
instructions,” dissenting op. at 22, the better analogy would be to a
professor failing a student who chose an incorrect answer after
twice being shown the correct answer.
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amendment and ballot title and summary compl[ied] with article XI,
section 3, Florida Constitution and section 101.161, Florida
Statutes.” Id. at 227. Because those constitutional and statutory
requirements had been satisfied, this Court approved the proposed
amendment for placement on the ballot. Id. at 229.
The Sponsor argues that Limited Political Terms makes clear
“that a conflict between current federal law and a proposed
amendment is not justiciable” in the context of this Court’s review
of an initiative petition. According to the Sponsor, “the ballot
summary’s silence regarding federal law is therefore irrelevant.”
But that reasoning is lacking. The issue here, of course, is not
whether the proposed amendment is unconstitutional as
inconsistent with federal law. Rather, the issue is whether the
ballot summary affirmatively misrepresents that inconsistency. It
does. Limited Political Terms has no relevance here.
The Sponsor next looks to the majority’s statement in Medical
Marijuana I that this Court had “never required that a ballot
summary inform voters as to the current state of federal law and
the impact of a proposed state constitutional amendment on federal
statutory law as it exists at this moment in time.” Medical
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Marijuana I, 132 So. 3d at 808. The Sponsor opines that even the
dissenting justices in that case agreed there was no such
requirement and that the issue dividing the Court was the perceived
accuracy of the summary’s representation of the amendment’s
relationship to federal law. The Sponsor contends that because the
summary here is silent as to the amendment’s effect on federal law,
there is no possibility voters could be left with the mistaken belief
that the amendment is consistent with federal law. According to
the Sponsor, the opponents’ arguments amount to nothing more
than incorrect assertions that the summary is required to describe
the amendment’s relationship to federal law or include information
that is not contained within the amendment.
The Sponsor’s reliance on Medical Marijuana I similarly misses
the point. The narrow issue is not whether the ballot summary is
defective for failing to explain that marijuana use is currently
prohibited by the Controlled Substances Act. Rather, the issue is
whether the summary’s unqualified language is affirmatively
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misleading. Again, it is. 3 Because the summary affirmatively
conceals the possibility that an individual could be prosecuted for
conduct that the amendment purports to “[p]ermit[]” or authorize,
the summary is “clearly and conclusively defective.” Race in Pub.
Educ., 778 So. 2d at 891. Moreover, the opponents here are not
arguing that “the ballot summary should include language that is
not in the proposed amendment itself.” Medical Marijuana I, 132
So. 3d at 808. Quite the opposite. Here, the ballot summary omits
important language that is found “in the proposed amendment
itself.” Id. And the ballot summary does so even though—not
surprisingly—similarly important language was included in the
ballot summaries in both previous medical marijuana cases. See
Medical Marijuana II, 181 So. 3d at 476 (ballot summary stated that
the amendment “[a]pplie[d] only to Florida law” and “[did] not
immunize violations of federal law”); Medical Marijuana I, 132 So. 3d
at 794 (ballot summary stated that the amendment “[a]pplie[d] only
to Florida law” and “[did] not authorize violations of federal law”).
3. The dissenting opinion similarly misses the point by
wrongly asserting that we “condemn[] . . . this summary for not
explaining federal law.” Dissenting op. at 34.
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The Sponsor next reasons that because “[t]his Court
presumes . . . the average voter has a certain amount of common
understanding and knowledge,” Fla. Educ. Ass’n v. Fla. Dep’t of
State, 48 So. 3d 694, 701 (Fla. 2010), there is no need for the ballot
summary to state that the amendment affects only Florida law. The
Sponsor continues that it is an elementary principle of civics that
federal law cannot be changed through a state constitution. We
reject this line of reasoning. The taint of an affirmatively misleading
statement in a ballot summary is not removed simply because some
voters will wisely question the accuracy of the statement. The point
is that a summary should not contain language that is affirmatively
misleading and creates a risk that voters will be confused.
The Sponsor lastly argues that it is unnecessary to inform
voters that the amendment would only apply to Florida law because
“[t]his will be the third petition initiative in six years to address the
possession and use of marijuana” in Florida. The Sponsor thus
contends that voters should be presumed to be knowledgeable
about prohibitions on marijuana, “especially when they have voted
on similar amendments in two out of the last three elections cycles.”
But even assuming this is a proper consideration in our review, the
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Sponsor’s logic is self-defeating. Among other things, the Sponsor
overlooks that the ballot summaries in the two previous cases each
made voters aware of the inconsistency between Florida law and
federal law. See Medical Marijuana II, 181 So. 3d at 476; Medical
Marijuana I, 132 So. 3d at 794. The fact that the summary here
now makes no mention of that inconsistency could easily suggest to
voters—misleadingly, to be sure—that there have been intervening
changes to federal law since Medical Marijuana II. The Sponsor’s
argument is without merit.
CONCLUSION
We conclude that the language in the ballot summary
indicating that the proposed amendment unqualifiedly “[p]ermits”
the use (and distribution) of recreational marijuana is affirmatively
misleading. Because the proposed amendment fails to comply with
section 101.161(1), Florida Statutes, we strike the proposed
amendment.
It is so ordered.
CANADY, C.J., and POLSTON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents.
LAWSON, J., dissents with an opinion.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
LAWSON, J., dissenting.
The majority views the ballot summary for this proposed
constitutional amendment as misleading even though it accurately
summarizes changes to the Florida Constitution that would result
upon passage of the amendment. They assert that the summary
misleads when it states that the amendment would generally
“permit” the adult use of marijuana—which is accurate and not
misleading as to the change in Florida law that would be brought
about by passage of the amendment, but which would be
misleading to any voter who thought that his or her vote could
change federal statutory law or, more specifically, 21 U.S.C. §§ 801-
904 (the federal Controlled Substances Act) “[pursuant to which]
the activities contemplated by the proposed amendment are
[currently] criminal offenses under federal law.” Majority op. at 8.
Because the majority’s reasoning and conclusion are logically
irreconcilable with this Court’s precedent, I respectfully dissent. I
would follow our precedent and approve the proposed amendment
for placement on the ballot.
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I. Summary of Core Analysis
Our precedent correctly states that a ballot summary must
simply and accurately summarize the change in Florida law that
would occur if a proposed amendment is adopted. This implies—
and we have expressly held—that the summary need not address
secondary issues or ramifications, including federal law. See
Advisory Opinion to Atty. Gen. re Use of Marijuana for Certain Med.
Conditions (Medical Marijuana I), 132 So. 3d 786, 808 (Fla. 2014)
(“This Court has . . . never required that a ballot summary inform
voters as to the current state of federal law [or] the impact of a
proposed state constitutional amendment on federal statutory law .
. . .”).
The fallacy in the majority’s conclusion that this summary
misleads as to federal law when accurately explaining the Florida
law change proposed in the amendment is most easily illustrated by
analogy. If, for example, you and I were instructed on a one-
question final exam to summarize the predominant compounds
present in the earth’s atmosphere and answered that the earth’s
atmosphere is predominantly comprised of nitrogen (approximately
78%) and oxygen (approximately 21%), our summary should be
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viewed as correct because the rest of the gases combined account
for only about 1% of the earth’s atmosphere. UCAR Center for
Science Education, https://scied.ucar.edu/shortcontent/earths-
atmosphere (last visited Apr. 15, 2021). We would be quite upset,
and rightfully so, if we were told by our professor that we had failed
the exam because our answer was misleading in that it did not
explain that the sun’s atmosphere is different. 4 Our justifiable
confusion would be even more profound if the test instructions had
plainly stated that our summary need not list predominant
compounds in the sun’s atmosphere and need not explain
differences between the earth’s atmosphere and the sun’s.
There is no logical difference between my hypothetical
professor’s illogical explanation for an unjustifiable failing grade
and the majority’s explanation for “strik[ing] the proposed
amendment on the ground that the ballot summary is affirmatively
misleading.” Majority op. at 1.
4. Our sun’s atmosphere is predominantly comprised of
hydrogen (75%) and helium (24%). Katharina Lodders, Solar
System Abundances and Condensation Temperatures of the
Elements, 591 The Astrophysical J. 1220, 1220 (2003) (rounded
number to the second significant figure).
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II. Governing Precedent
A. The Right of Self-Governance and Expectation of Non-
Ignorance
Florida citizens have the right “to formulate ‘their own organic
law.’ ” Medical Marijuana I, 132 So. 3d 786, 794 (quoting Advisory
Op. to Att’y Gen. re Right to Treatment & Rehab. for Non-Violent Drug
Offenses, 818 So. 2d 491, 494 (Fla. 2002)). To avoid undue
interference with this right, we have “traditionally applied a
deferential standard of review to the validity of a citizen initiative
petition.” Id. Our restraint in this area is longstanding:
There is no lawful reason why the electors of this
State should not have the right to determine the
manner in which the Constitution may be amended.
. . . 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, limited
only by those instances where there is an entire
failure to comply with a plain and essential
requirement of [the law].
Id. at 795 (second alteration in original) (quoting Advisory Op. to
Att’y Gen. re Right to Treatment & Rehab. for Non-Violent Drug
Offenses, 818 So. 2d at 494 (quoting Pope v. Gray, 104 So. 2d 841,
842 (Fla. 1958))).
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Consistent with these principles, we take a nonpaternalistic
approach to our review, expecting voters to educate themselves
regarding the details of a proposed amendment before voting and
advising that the ballot summary need not educate voters on
collateral implications of a proposed amendment’s effects:
Under our system of free elections, the voter must
acquaint himself with the details of a proposed ordinance
on a referendum together with the pros and cons thereon
before he enters the voting booth. If he does not, it is no
function of the ballot question to provide him with that
needed education. What the law very simply requires is
that the ballot give the voter fair notice of the question he
must decide so that he may intelligently cast his vote.
Advisory Op. to Att’y Gen. re Standards for Establishing Legislative
Dist. Boundaries, 2 So. 3d 175, 185 (Fla. 2009) (quoting Right to
Treatment & Rehab. for Non-Violent Drug Offenses, 818 So. 2d at
498).
Our review similarly presumes that voters possess a
rudimentary knowledge of their government’s structure and of the
laws governing their conduct. Fla. Educ. Ass’n v. Fla. Dep’t of State,
48 So. 3d 694, 701 (Fla. 2010) (“This Court presumes that the
average voter has a certain amount of common understanding and
knowledge.”); Am. Home Assur. Co. v. Plaza Materials Corp., 908 So.
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2d 360, 375 (Fla. 2005) (Cantero, J., concurring in part and
dissenting in part) (“All citizens are presumed to know the law.”)
(quoting Hart v. Hart, 377 So. 2d 51, 52 (Fla. 2d DCA 1979)).
Citizens are also presumed to know what constitutes a federal
crime. See Lambert v. California, 355 U.S. 225, 228 (1957) (“The
rule that ‘ignorance of the law will not excuse’ is deep in our law . . .
.” (quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68
(1910))).
Finally, it is one of the most fundamental and elementary
principles of our constitutional republic that no state law—not even
a state constitution—can override federal law. See U.S. Const., art.
VI, cl. 2.
B. Ballot Summary
Section 101.161(1), Florida Statutes (2019), requires that each
ballot summary 5 be written in “clear and unambiguous language”
5. Although the title and summary “must be read together in
determining whether the ballot information properly informs the
voters,” Advisory Op. to the Att’y Gen. re All Voters Vote in Primary
Elections for State Legislature, Governor, & Cabinet, 291 So. 3d 901,
906 (Fla. 2020) (quoting Advisory Op. to Att’y Gen. re Voluntary
Univ. Pre-Kindergarten Educ., 824 So. 2d 161, 166 (Fla. 2002)), I will
focus on the summary because that is where the language is found
that the majority judges to be misleading.
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and provide “an explanatory statement, not exceeding 75 words in
length, of the chief purpose of the measure.” Id. (emphasis added).
In plain language, this statute imposes a straightforward legal
requirement that the summary unambiguously and succinctly
explain the primary legal change to the Florida Constitution that the
amendment would bring about—and thereby “provide fair notice of
the content of the proposed amendment.” All Voters Vote, 291 So.
3d at 906 (quoting Advisory Op. to Att’y Gen. re Right of Citizens to
Choose Health Care Providers, 705 So. 2d 563, 566 (Fla. 1998)).
The point here is that the statute’s directive is solely to explain the
Florida constitutional change—with no requirement that the
summary provide an explanation of secondary ramifications of the
proposed amendment. See id. (explaining that the statute does not
require an explanation of “possible ramifications” of an
amendment). Accordingly, we have “never required that a ballot
summary inform voters as to the current state of federal law [or] the
impact of a proposed state constitutional amendment on federal
statutory law.” Medical Marijuana I, 132 So. 3d at 808.
We also properly consider “whether the language of the title
and summary, as written, misleads the public.” Fla. Educ. Ass’n v.
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Fla. Dep’t of State, 48 So. 3d 694, 701 (Fla. 2010) (quoting Fla. Dep’t
of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008)). This aspect of
our review necessarily flows from the language of section
101.161(1), requiring that the ballot summary in “clear and
unambiguous” language explain the chief purpose of the proposal.
We have properly read this language as including an “accuracy”
requirement—stating that the substance of the proposal must be
“accurately represented on the ballot.” Armstrong v. Harris, 773 So.
2d 7, 12 (Fla. 2000) (emphasis omitted). Therefore, the proponents
of the measure cannot use the summary to disguise the measure
“as something else.” Askew v. Firestone, 421 So. 2d 151, 156 (Fla.
1982). Stated another way, “[a] ballot title and summary cannot
either ‘fly under false colors’ or ‘hide the ball’ as to the amendment’s
true effect.” Armstrong, 773 So. 2d at 16. In lay terms, the statute
supports an inquiry into whether the summary would inadvertently
trick the voter as to how Florida law would change if the
amendment passes. Id.C. Stare Decisis
The doctrine of stare decisis requires us to follow the
precedent outlined above unless “we are convinced that [it] clearly
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conflicts with the law we are sworn to uphold.” State v. Poole, 297
So. 3d 487, 507 (Fla. 2020). Even clearly erroneous precedent
should be maintained and followed based upon citizens’ reliance on
that precedent in conducting their affairs. Id.Here, reliance interests are at their zenith because citizens rely
heavily (if not exclusively) on our precedent when seeking to amend
their constitution. Citizens draft the proposal knowing that it will
never make the ballot unless we judge their language to be
compliant with section 101.161(1). They then expend significant
resources to obtain the signatures necessary to trigger our review,
with no opportunity to redraft the proposal if we find it deficient.
Rather, if their original work product is deemed defective, the
citizenry must start again with a new proposal for a later election
cycle, at least two years in the future. They must then redraft a
new summary and restart the expensive signature-gathering
process. These practicalities, and the core right of self-governance
they relate to, clearly militate in favor of following the doctrine of
stare decisis in the citizen-initiative context, see Poole, 297 So. 3d
at 507 (identifying reliance as a “critical consideration” in
determining whether to adhere to precedent), and underscore why it
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is of paramount importance that we faithfully, consistently, and
impartially apply our precedent in this area, irrespective of our
personal views as to “the merits or wisdom of the proposed
amendment,” Advisory Op. to Att’y Gen. re Repeal of High Speed Rail
Amendment, 880 So. 2d 624, 625 (Fla. 2004). Our precedent
therefore appropriately dictates that we must “act with extreme
care, caution, and restraint before [we] remove[ ] a constitutional
amendment from the vote of the people,” Askew, 421 So. 2d at 156,
and also appropriately instructs that “[t]his Court has no authority
to inject itself in the process [by blocking a proposed amendment
from appearing on the ballot], unless the laws governing the process
have been clearly and conclusively violated,” Advisory Op. to Att’y
Gen. re Right to Treatment & Rehab. for Non-Violent Drug Offenses,
818 So. 2d at 494, 498-99, thereby rendering the proposal “clearly
and conclusively defective,” id at 494 (quoting Floridians Against
Casino Takeover v. Let’s Help Florida, 363 So. 2d 337, 339 (Fla.
1978)).
III. Analysis
In oral argument, the Attorney General correctly acknowledged
that the summary for this proposed constitutional amendment
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fairly informs voters of the amendment’s chief purpose—to “permit”
the adult use of marijuana, with limitations also fairly
summarized—and that the summary is not misleading with respect
to the changes in Florida law that would occur if the amendment is
adopted. The majority does not suggest otherwise. The key point is
this: the proposed amendment itself expressly states that certain
actions are “permitted,” Majority op. at 2-4 (quoting proposed
amendment), and the ballot summary says that the amendment
“[p]ermits” those actions. Majority op. at 4 (quoting ballot
summary). Given the precedent cited above, these observations
should end our analysis in favor of approving the measure for
placement on the ballot. See, e.g., Medical Marijuana I, 132 So. 3d
at 808 (approving a ballot summary that contains statements
“substantially similar in meaning to the proposed amendment’s
text”).
Yet, in an extraordinarily rare occurrence for this Court, we
are declaring a summary to be misleading even though it accurately
describes the effect of the amendment using the same operative
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language as used in the amendment itself. 6 The majority reasons
that the summary is misleading because it fails to explain that
adult use of marijuana is not permitted under federal law and that
the proposed Florida constitutional law change would not alter the
federal Controlled Substances Act—contrary to the bedrock
principle that citizens are presumed to know what constitutes a
federal crime, see Lambert, 355 U.S. at 228, and in direct violation
of the deferential, nonpaternalistic rules and presumptions that
have historically governed our decisions in this area. See, e.g.,
Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d at
185 (explaining that the law does not require the ballot summary to
6. In Detzner v. League of Women Voters of Fla., 256 So. 3d
803, 809 (Fla. 2018), we condemned another ballot measure as
misleading under similar circumstances. Writing in dissent, Chief
Justice Canady explained:
The majority’s opinion thus repeatedly reveals that the
summary is condemned not because it is misleading, but
because of what the majority views as deficiencies in the
proposed constitutional amendment itself. This is a clear
departure from the fundamental principle of our jurisprudence
that in determining the adequacy of a ballot summary, we do
not review the merits of the proposed constitutional
amendment.
Id. at 817.
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provide voters with “needed education” regarding “the details of a
proposed ordinance on a referendum together with the pros and
cons thereon before [entering] the voting booth” (quoting Advisory
Op. to Att’y Gen. re Right to Treatment & Rehab. for Non-Violent Drug
Offenses, 818 So. 2d at 498)); Fla. Educ. Ass’n v. Fla. Dep’t of State,
48 So. 3d 694, 701 (Fla. 2010) (explaining that this “Court
presumes that the average voter has a certain amount of common
understanding and knowledge” regarding the structure and
operation of their legal and governmental systems); Medical
Marijuana I, 132 So. 3d at 808 (explaining that we have “never
required that a ballot summary inform voters as to the current state
of federal law [or] the impact of a proposed state constitutional
amendment on federal statutory law”).
In Advisory Opinion to Attorney General re Protect People from
the Health Hazards of Second-Hand Smoke, 814 So. 2d 415, 419
(Fla. 2002), we rejected as “contrary to rational analysis” an
argument that voters would be misled by an accurate description of
an amendment banning smoking in “indoor workplaces.”
Opponents of the indoor workplace smoking ban amendment had
argued that the ballot summary was misleading when it stated that
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the measure would “prohibit tobacco smoking in enclosed indoor
workplaces” without “indicat[ing] that smoking would be banned in
places like restaurants, which many patrons visit for the sole
purpose of relaxing.” Id. at 418-19. We unanimously dismissed the
contention, explaining: “In our view, the argument that Florida
citizens cannot understand that a restaurant may be a workplace is
contrary to rational analysis.” Id. at 419.
The majority’s reasoning here is similarly “contrary to rational
analysis,” id., by which I mean that it violates basic principles of
logic. This assertion obviously bears some explanation. My
challenge in giving this explanation is that although the law is
supposed to be governed by “standards of rationality” reflected in
the “basic principles of logic,” David Barker-Plummer et al.,
Language, Proof and Logic 1 (2d ed. 2011), we do not generally teach
logic and rhetoric as part of our core curriculum, even in our law
schools.
Even without that education, however, most should be able to
recognize the “non sequitur” in the majority’s analysis. In Latin, non
sequitur means “it does not follow.” See Merriam-Webster,
https://www.merriam-webster.com/dictionary/non%20sequitur
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(last visited Apr. 15, 2021). It should be intuitively obvious to most
that the majority’s condemnation of this summary for not
explaining federal law is logically irreconcilable with (i.e., does not
logically “follow” from) our precedent stating that the summary need
only explain the Florida constitutional change being proposed. I
believe that the analogy used in the summary of my position bears
repeating.
If you and I were asked on a one-question final exam to list the
predominant compounds in the earth’s atmosphere and answered
nitrogen and oxygen, our answer should be judged as correct
because the question only related to the earth’s atmosphere which
consists primarily of nitrogen (approximately 78%) and oxygen
(approximately 21%), with the remaining 1% comprised of various
other gases. UCAR Center for Science Education,
https://scied.ucar.edu/shortcontent/earths-atmosphere (last
visited Apr. 15, 2021). We would be quite upset, and rightfully so,
if we were told by our professor that we had failed the exam
because our answer was inaccurate or misleading in that it did not
explain that the sun’s atmosphere is very different, consisting
primarily of hydrogen (75%) and helium (24%). Katharina Lodders,
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Solar System Abundance and Condensation Temperatures of the
Elements, 591 The Astrophysical J. 1220, 1220 (2003) (rounded
number to the second significant figure). Although we would likely
be unable to discuss the problem using terms or concepts familiar
to those who have studied classical logic, we would certainly be
confounded at the irrational explanation and might even recognize
the explanation as a non sequitur. See Merriam-Webster,
https://www.merriam-webster.com/dictionary/non%20sequitur
(last visited Apr. 15, 2021) (explaining that “we now use non
sequitur for any kind of statement that seems to come out of the
blue”). Our justifiable confusion and anger would be even more
profound if the test question itself had plainly stated that our
answer need not list compounds predominant in the sun’s
atmosphere and need not explain differences between the earth’s
atmosphere and the sun’s.
There is no logical difference between my hypothetical
professor’s illogical explanation for an unjustifiable failing grade
and the majority’s illogical conclusion that this ballot summary’s
explanation of the proposed Florida constitutional change is
misleading for failing to explain either (1) that the proposed changes
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in Florida law would not change federal law, or (2) how Florida law
would differ from the federal Controlled Substances Act (assuming
that it is not changed) if the Florida ballot measure were to pass.
The majority apparently justifies sidestepping our longstanding
precedent in this area on grounds that the sponsors were “twice . . .
shown the correct” way to address federal law differences in Medical
Marijuana I and Medical Marijuana II. Majority op. at 13-14, note 2.
Neither case comes close to holding that federal law implications
must be addressed for a summary to comply with the constitutional
and statutory standards by which we are to judge the language. To
the contrary, and as already addressed, Medical Marijuana I
expressly states the opposite: that the summary did not need to
address or disclose “the current state of federal [controlled
substances] law” when explaining the chief purpose of an
amendment that was inconsistent with federal law when drafted.
Medical Marijuana I, 132 So. 3d at 808.
Finally, there is the practical matter of not knowing how
federal law will change in the years between the drafting of any
ballot summary and a vote on the amendment. This is especially
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the case when dealing with a matter like the legalization of
marijuana in a federal political landscape that is ever-changing. 7
IV. Conclusion
Today’s decision underestimates Florida voters and adds
hurdles to the citizen-initiative process that are not supported by
the plain language of the governing law or our precedent. Because
the ballot summary in this case complies with the constitutional
and statutory requirements by which we are to judge ballot
summaries, I would apply our precedent and approve this measure
for placement on the ballot.
Original Proceeding – Advisory Opinion – Attorney General
Ashley Moody, Attorney General, Amit Agarwal, Solicitor General,
James Percival, Chief Deputy Solicitor General, and Jeffrey Paul
DeSousa, Deputy Solicitor General, Tallahassee, Florida,
for Petitioner
Ashley Hoffman Lukis and George T. Levesque of GrayRobinson,
P.A., Tallahassee, Florida,
for Interested Party, Make It Legal, Florida
7. In a 2020 vote that mostly remained along party lines, the
U.S. House of Representatives passed the Marijuana Opportunity
Reinvestment and Expungement Act to decriminalize marijuana on
the federal level. H.R. 3884, 116th Cong. (as passed by House of
Representatives, Dec. 4, 2020).
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Daniel W. Bell, General Counsel, and J. Michael Maida, Deputy
General Counsel, Florida House of Representatives, Tallahassee,
Florida,
for Interested Party, Florida House of Representatives
Jeremy D. Bailie of Weber, Crabb & Wein, P.A., St. Petersburg,
Florida,
for Interested Parties, Drug Free America Foundation, Florida
Coalition Alliance, National Families in Action, and Smart
Approaches to Marijuana
Jeremiah Hawkes, General Counsel, and Ashley Urban, Deputy
General Counsel, The Florida Senate, Tallahassee, Florida,
for Interested Party, The Florida Senate, and Bill Galvano, in
his official capacity as President of the Florida Senate
Jason Gonzalez, Daniel Nordby, Benjamin Gibson, Amber Stoner
Nunnally, and Rachel Procaccini, Tallahassee, Florida, and Julissa
Rodriguez of Shutts & Bowen LLP, Miami, Florida,
for Interested Parties, Florida Chamber of Commerce,
Floridians Against Recreational Marijuana, Save Our Society
From Drugs and National Drug-Free Workplace Alliance
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