Supreme Court of Florida
____________
No. SC2023-0682
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ADVISORY OPINION TO THE ATTORNEY GENERAL RE: ADULT
PERSONAL USE OF MARIJUANA.
April 1, 2024
GROSSHANS, J.
A ballot initiative to legalize the recreational use of marijuana
under Florida law obtained the required number of signatures to
trigger mandatory judicial review of the initiative’s validity. Our role
is narrow—we assess only whether the amendment conforms to the
constitutionally mandated single-subject requirement, whether the
ballot summary meets the statutory standard for clarity, and
whether the amendment is facially invalid under the federal
constitution. In light of those limited considerations, we approve
the proposed amendment for placement on the ballot.
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I
The Attorney General requested an advisory opinion on the
validity of the “Adult Personal Use of Marijuana” initiative.
1
Proposing to modify article X, section 29 of the Florida Constitution,
the amendment would legalize personal use of marijuana by adults
under state law. The text of the proposed amendment is as follows:
SECTION 29. Medical mMarijuana production,
possession and use.—
(a) PUBLIC POLICY.
[No changes to (a)(1)-(3).]
(4) The non-medical personal use of marijuana products
and marijuana accessories by an adult, as defined below,
in compliance with this section is not subject to any
criminal or civil liability or sanctions under Florida Law.
(5) Medical Marijuana Treatment Centers, and other
entities licensed as provided below, are allowed to
acquire, cultivate, process, manufacture, sell, and
distribute marijuana products and marijuana accessories
to adults for personal use upon the Effective Date
provided below. A Medical Marijuana Treatment Center,
or other state licensed entity, including its agents and
employees, acting in accordance with this section as it
relates to acquiring, cultivating, processing,
manufacturing, selling, and distributing marijuana
products and marijuana accessories to adults for
1. We have mandatory jurisdiction. See art. IV, § 10; art. V,
§ 3(b)(10), Fla. Const.
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personal use shall not be subject to criminal or civil
liability or sanctions under Florida law.
(b) DEFINITIONS. For purposes of this section, the
following words and terms shall have the following
meanings:
[No changes to (b)(1)-(10).]
(11) “Marijuana accessories” means any equipment,
product, or material of any kind that are used for
inhaling, ingesting, topically applying, or otherwise
introducing marijuana products into the human body for
personal use.
(12) “Marijuana products” means marijuana or goods
containing marijuana.
(13) “Personal use” means the possession, purchase, or
use of marijuana products or marijuana accessories by
an adult 21 years of age or older for non-medical
personal consumption by smoking, ingestion, or
otherwise. An adult need not be a qualifying patient in
order to purchase marijuana products or marijuana
accessories for personal use from a Medical Marijuana
Treatment Center. An individual’s possession of
marijuana for personal use shall not exceed 3.0 ounces
of marijuana except that not more than five grams of
marijuana may be in the form of concentrate.
(c) LIMITATIONS.
[No changes to (c)(1).]
(2) Nothing in this section shall affect or repeal laws
relating to non-medical use, possession, production, or
sale of marijuana.
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(2) Nothing in this amendment prohibits the Legislature
from enacting laws that are consistent with this
amendment.
[No changes to (c)(3)-(4).]
(5) Nothing in this section changes federal law or requires
the violation of federal law or purports to give immunity
under federal law.
[No changes to (c)(6)-(8).]
[No changes to (d).]
(e) LEGISLATION. Nothing in this section shall limit the
legislature from enacting laws consistent with this
section. The legislature may provide for the licensure of
entities that are not Medical Marijuana Treatment
Centers to acquire, cultivate, possess, process, transfer,
transport, sell, and distribute marijuana products and
marijuana accessories for personal use by adults.
[No changes to (f).]
(g) EFFECTIVE DATE. This amendment shall become
effective six (6) months after approval by the voters.
In describing this amendment to the voters, the ballot
summary states:
Allows adults 21 years or older to possess, purchase, or
use marijuana products and marijuana accessories for
non-medical personal consumption by smoking,
ingestion, or otherwise; allows Medical Marijuana
Treatment Centers, and other state licensed entities, to
acquire, cultivate, process, manufacture, sell, and
distribute such products and accessories. Applies to
Florida law; does not change, or immunize violations of,
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federal law. Establishes possession limits for personal
use. Allows consistent legislation. Defines terms.
Provides effective date.
The Attorney General and two interested parties filed briefs in
opposition to the initiative, arguing that the ballot summary fails
statutory clarity rules. One opponent also argues that the proposed
amendment does not meet the single-subject requirement, and
another raises Supremacy Clause concerns. See art. VI, cl. 2, U.S.
Const. Disagreeing with these challenges, the Sponsor and three
additional interested parties filed briefs in support of the initiative.
II
Without regard to the merits or wisdom of the initiative, our
review is confined to three issues. See § 16.061, Fla. Stat. (2023).
We ask “(1) whether the proposed amendment itself satisfies the
single-subject requirement of article XI, section 3, of the Florida
Constitution; and (2) whether the ballot title and summary satisfy
the [clarity] requirements of section 101.161(1), Florida Statutes.”
Advisory Op. to Att’y Gen. re All Voters Vote in Primary Elections for
State Legislature, Governor, & Cabinet (All Voters Vote), 291 So. 3d
901, 904 (Fla. 2020). In carrying out this limited inquiry, we reject
a proposal if it is shown to be “clearly and conclusively defective.”
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Advisory Op. to Att’y Gen. re Regulate Marijuana in a Manner Similar
to Alcohol to Establish Age, Licensing, & Other Restrictions
(Recreational Marijuana II), 320 So. 3d 657, 667 (Fla. 2021) (quoting
Advisory Op. to Att’y Gen. re Amend. to Bar Gov’t from Treating
People Differently Based on Race in Pub. Educ., 778 So. 2d 888, 891
(Fla. 2000)). And by statute, as recently amended, we are also to
advise “whether the proposed amendment is facially invalid under
the United States Constitution.” Ch. 2020-15, § 2, Laws of Fla.
(amending § 16.061(1), Fla. Stat.).
A
The Florida Constitution requires that an amendment
proposed by initiative “embrace but one subject and matter directly
connected therewith.” Art. XI, § 3, Fla. Const.
2
Indeed, “[t]he
single-subject requirement in article XI, section 3, mandates that
the electorate’s attention be directed to a change regarding one
specific subject of government to protect against multiple
2. Of the various methods for amending or revising the
Florida Constitution, only the initiative process contains this single-
subject requirement. See art. XI, §§ 1-4, 6, Fla. Const.
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precipitous changes in our state constitution.” Fine v. Firestone,
448 So. 2d 984, 988 (Fla. 1984).
We have interpreted this text to require that an initiative focus
on a single dominant plan or scheme under which all components
have a natural and logical connection. See All Voters Vote, 291 So.
3d at 905 (characterizing the test as “oneness of purpose”); see also
Advisory Op. to Att’y Gen. re Water & Land Conservation—Dedicates
Funds to Acquire & Restore Fla. Conservation & Recreation Lands,
123 So. 3d 47, 50-51 (Fla. 2013).
3
This ensures that the initiative
does not engage in logrolling, a practice wherein unrelated matters
are combined into a single initiative “in order to aggregate votes or
secure approval of an otherwise unpopular issue.” In re Advisory
Op. to Att’y Gen.—Save Our Everglades, 636 So. 2d 1336, 1339 (Fla.
1994). And this makes sense, since the initiative process lacks the
3. One opponent argues that the “oneness of purpose” test
departs from the constitutional text adopted by voters in 1972.
Justice Francis also argues that our precedent on the single-subject
requirement lacks textual support and would recede from those
cases. However, as demonstrated in my concurring opinion, a
closer analysis of the provision’s text would not compel a different
result in this case. See concurring op. at 24 (Grosshans, J.).
Moreover, we do not find that the opponents, or Justice Francis in
her dissent, have demonstrated clear error, a threshold requirement
to support receding from precedent.
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legislative filtering, public hearing, and policy debate that are
inherently part of the other amendment processes. Id.
One opponent argues that the proposed amendment violates
the single-subject requirement because it both decriminalizes and
commercializes recreational marijuana. Justice Francis accepts
this argument. We, however, disagree. Allowing businesses to
distribute personal-use marijuana, and authorizing individuals to
possess it, are logically and naturally related as part of a dominant
plan or scheme. Legalization of marijuana presumes the product
will be available for the consumer. Likewise, the sale of personal-
use marijuana cannot be reasonably undertaken while possession
is criminalized. Selling and possessing marijuana appear, for better
or worse, directly connected, and we cannot say that an
amendment addressing both components violates the single-subject
requirement.
Our medical marijuana decision in 2015 reinforces this
analysis. See Advisory Op. to Att’y Gen. re Use of Marijuana for
Debilitating Med. Conditions (Medical Marijuana II), 181 So. 3d 471
(Fla. 2015). There, the proposed amendment allowed the use of
medical marijuana, removed state penalties and liability for such
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use, established the distribution of marijuana through qualified
providers, and gave the Department of Health a supervisory role.
See id. at 477. We held that those provisions satisfied the “directly
connected” requirement by being logically unified. Id. The
provisions in Medical Marijuana II on use and legalization are
similar to the sale and possession components of the proposed
amendment in this case. If anything, the connection here is even
more direct.
4
Accordingly, based on the analysis above—including our
discussion of the factually similar Medical Marijuana II case—we
conclude that the proposed amendment complies with the single-
subject requirement in article XI, section 3 of the Florida
Constitution.
4. The Florida Chamber of Commerce also argues that the
amendment substantially alters or performs the functions of
multiple branches of state government. We reject this argument as
well and do not find that the amendment substantially alters the
duties assigned to the branches. See Medical Marijuana II, 181 So.
3d at 477-78 (finding a similar proposed amendment to legalize
medical marijuana did not “substantially alter” the functions of
multiple branches even though multiple branches were required to
comply with the provision).
B
Having decided that the proposed amendment meets the
constitution’s single-subject requirement, we now turn to the
statutory directive. An initiative’s ballot summary must be seventy-
five words or less, must “be printed in clear and unambiguous
language on the ballot,” and must “be an explanatory statement . . .
of the chief purpose of the measure.” § 101.161(1), Fla. Stat. The
ballot title is limited to fifteen words and “shall consist of a
caption . . . by which the measure is commonly referred to or
spoken of.” Id. “The purpose of these [statutory] requirements is ‘to
provide fair notice of the content of the proposed amendment so
that the voter will not be misled as to its purpose, and can cast an
intelligent and informed ballot.’ ” Recreational Marijuana II, 320 So.
3d at 667 (alteration in original) (quoting Medical Marijuana II, 181
So. 3d at 478). In assessing a ballot summary for clarity under
section 101.161(1), “the Court must consider two questions: ‘(1)
whether the ballot title and summary . . . fairly inform the voter of
the chief purpose of the amendment; and (2) whether the language
of the title and the summary, as written, misleads the public.’ ”
Advisory Op. to Att’y Gen. re Prohibits Possession of Defined Assault
Weapons (Assault Weapons), 296 So. 3d 376, 381 (Fla. 2020)
(omission in original) (citation omitted). “Ballot language may be
clearly and conclusively defective either in an affirmative sense,
because it misleads the voters as to the material effects of the
amendment, or in a negative sense by failing to inform the voters of
those material effects.” Id. (citation omitted).
Opponents argue the ballot summary is misleading because it
implies that there are already other state-licensed entities ready to
engage in the sale of recreational marijuana, or that the
amendment itself licenses these entities. The opponents contend
that the word “allow” is an inaccurate description of the
amendment’s scope, as the Legislature would have to license other
entities in the future. Thus, say the opponents, it is overtly
misleading to state that the amendment “allows” other entities to
enter the market, when in fact the Legislature must first authorize
them to do so.
We reject this argument. To “allow” means to “permit the
presence of” or to “let . . . happen.” American Heritage Dictionary of
the English Language 48 (5th ed. 2011). The most natural reading
of the word “allow” suggests that other entities will be permitted to
enter the market, subject to a state-licensing process. Licensing is
a commonly understood activity of government agencies. Voters are
familiar with obtaining other licenses from the state, such as a
driver’s or contractor’s license. We do not believe the summary
would confuse a voter into thinking that the Legislature is required
to authorize additional licenses or that the amendment itself
establishes a licensing scheme.
5
It is therefore fair to say that the
amendment “allows” additional licensure but does not mandate it.
Nor do we find that a reasonable voter would believe that there
are other entities already in existence and licensed to distribute
personal-use marijuana, as this activity is currently illegal. The
summary does not imply that these entities already exist, but
instead properly informs the voter that the market could be
expanded, and state licensing will be a prerequisite to that
expansion. Thus, we disagree with Justice Sasso’s position that the
5. By contrast, different language has been utilized when
describing an amendment’s specific licensing scheme. Notably, the
successful ballot summary in Medical Marijuana II stated, “The
Department of Health shall register and regulate centers that
produce and distribute marijuana for medical purposes and shall
issue identification cards to patients and caregivers.” 181 So. 3d at
476 (emphasis added).
ballot summary inaccurately signals to the voters that the
amendment itself creates a specific noncontingent right in favor of
“other state licensed entities” to immediately enter the cannabis
market. See dissenting op. at 43-44 (Sasso, J.).
By its plain words, the amendment will immediately allow a
Medical Marijuana Treatment Center (MMTC)—an entity already
licensed to sell medical marijuana—to distribute cannabis for
personal use. However, the summary does not suggest that other
entities may automatically enter the recreational market without
first obtaining a license. Instead, consistent with the ballot
summary’s terms, the amendment “allows”—in other words,
permits the presence of—other licensed entities, provided that the
Legislature first creates an underlying licensing scheme for them.
That is, once other entities are properly licensed, they can
distribute cannabis for personal use, just like MMTCs can.
The opponents’ other clarity arguments fare no better. For
example, the summary is not misleading for failure to warn that the
amendment only covers Florida law and not federal law. Rather, it
follows the federal-law-effects “roadmap” first laid out in the Medical
Marijuana cases. See Advisory Op. to Att’y Gen. re Adult Use of
Marijuana (Recreational Marijuana I), 315 So. 3d 1176, 1181-82
(Fla. 2021). In Recreational Marijuana I, we offered examples of
language that would not be misleading: a summary stating that
nothing in the amendment “g[a]ve immunity under federal law,”
that it “[a]pplie[d] only to Florida law,” and that it “[did] not
immunize violations of federal law.” Id. (several alterations in
original) (citations omitted). Consistent with that language, the
summary here states that the amendment “[a]pplies to Florida law;
does not change, or immunize violations of, federal law.”
6
Nor does
the summary fail to state the amendment’s chief purpose: it clearly
states that the amendment legalizes adult personal possession and
use of marijuana as a matter of Florida law.
The summary does not mislead in stating that the amendment
“[e]stablishes possession limits for personal use.” The summary
signals that the amendment sets a limit on the immunity it grants
under state law. And the amendment does exactly that: in the
6. Justice Sasso’s dissent also concludes that the summary
misleads by saying that the amendment allows for personal
consumption of marijuana by adults. See dissenting op. at 45-46
(Sasso, J.). Quite simply, we think this view is hard to square with
our Medical Marijuana precedent as detailed above.
definitions section, the amendment describes “personal use” and
notes that “personal use” of marijuana “shall not exceed 3.0 ounces
of marijuana except that not more than five grams of marijuana
may be in the form of concentrate.”
Finally, we note that the amendment leaves untouched the
Department of Health’s existing authority to “issue reasonable
regulations necessary for the implementation and enforcement of
this section.” See art. X, § 29(d), Fla. Const. Moreover, the
amendment specifies that “[n]othing in this amendment prohibits
the Legislature from enacting laws that are consistent with this
amendment.” See art. X, § 29(c)(2), Fla. Const. Consequently, the
Department and the Legislature maintain the authority to regulate
MMTCs and any additional state-licensed entities. Therefore, we
disagree with the Attorney General’s argument that the summary is
deficient for failing to mention “a gap” during which MMTCs would
supposedly be able to sell recreational marijuana without any
regulations.
A “ballot summary need not (and because of the statutory
word limit, often cannot) explain ‘at great and undue length’ the
complete details of a proposed amendment, and some onus falls
upon voters to educate themselves about the substance of the
proposed amendment.” Advisory Op. to Att’y Gen. re Standards for
Establishing Legis. Dist. Boundaries, 2 So. 3d 175, 186 (Fla. 2009)
(quoting Advisory Op. to Att’y Gen. re Right to Treatment & Rehab.
for Non-Violent Drug Offenses, 818 So. 2d 491, 498 (Fla. 2002)).
Based on the reasoning above, we find that the summary is not
misleading and meets the statutory clarity standards.
C
A recent amendment to section 16.061 requires the Attorney
General’s request for an advisory opinion include the question
“whether the proposed amendment is facially invalid under the
United States Constitution.” One opponent argues that the
proposed amendment is preempted by the federal Controlled
Substances Act and, under the Supremacy Clause, the proposal is
therefore facially invalid. Assuming that preemption is an
appropriate consideration for this Court in assessing facial validity,
7
7. As a threshold issue, no one has briefed whether section
16.061 uses the phrase “invalid under the United States
Constitution” to include any proposed amendment that would be
preempted by an act of Congress or if that phrase should instead be
interpreted to apply only if a proposed amendment is in conflict
with a substantive provision of the United States Constitution.
we reject the opponent’s argument. In order for a facial challenge to
succeed, we must find that a law would be unconstitutional in all of
its applications. See Wash. State Grange v. Wash. State Republican
Party, 552 U.S. 442, 449 (2008). We decline to make that broad
finding here. A detailed analysis of the potential conflict between
sections of this amendment and federal law is a task far afield from
the core purpose of this advisory proceeding under the Florida
Constitution. See id. at 450 (“Exercising judicial restraint in a
facial challenge ‘frees the Court not only from unnecessary
pronouncement on constitutional issues, but also from premature
interpretations . . . .’ ” (quoting United States v. Raines, 362 U.S. 17,
22 (1960))).
III
For these reasons, we conclude that the ballot summary and
amendment comply with the requirements imposed by article XI,
section 3 of the Florida Constitution and section 101.161(1) of the
Florida Statutes. We therefore approve the proposed amendment
for placement on the ballot. No rehearing will be permitted.
It is so ordered.
CANADY, LABARGA, and COURIEL, JJ., concur.
MUÑIZ, C.J., concurs with an opinion, in which CANADY, J.,
concurs.
GROSSHANS, J., concurs with an opinion.
FRANCIS, J., dissents with an opinion.
SASSO, J., dissents with an opinion.
MUÑIZ, C.J., concurring.
I fully concur in the majority opinion, but I write briefly to
address the current version of section 16.061, Florida Statutes.
That law has long required the Attorney General to seek an advisory
opinion from this Court determining a proposed amendment’s
compliance with the single-subject and ballot clarity requirements.
As of 2020, section 16.061 also requires the Attorney General to
ask “whether the proposed amendment is facially invalid under the
United States Constitution.” Ch. 2020-15, § 2, Laws of Fla.
In a future case, our Court would benefit from briefing by
interested parties on the meaning and legal effects of this provision.
What provisions of the United States Constitution does it
encompass? Does the provision sweep so broadly as to include
proposed amendments that are preempted by a federal law or
regulation and therefore “invalid” under the Supremacy Clause?
Would a reasonable reader of the provision understand it to require
this Court to take up potentially complicated, wide-ranging
questions of federal law in this non-adversarial, pre-enactment
proceeding?
More fundamentally, what would be the legal consequence if
this Court were to deem a proposed amendment “facially invalid
under the United States Constitution”? Is the assumption that the
Court would disapprove the proposal from appearing on the ballot?
Cf. Ray v. Mortham, 742 So. 2d 1276, 1284 (Fla. 1999) (“[W]hen our
‘advisory’ opinions conclude that there is a defect in the ballot title
and summary or a violation of the single-subject requirement, the
effect of our ‘advice’ is the removal of the amendment from the
ballot.”). Is that what the Legislature should be understood to have
mandated? If so, does the Legislature have the authority to limit
the substance of proposed amendments beyond what is
contemplated in article XI, section 3 of our state constitution?
Eventually a case will come along where the answers to these
questions could affect the outcome. Thorough and thoughtful
briefing from the parties will help the Court get it right.
CANADY, J., concurs.
GROSSHANS, J., concurring.
I write separately from the majority opinion to address an
opponent’s argument on the single-subject requirement. That
opponent argues—and Justice Francis agrees—that our
jurisprudence on this requirement is flawed and urges us to recede
from it. Though I have some misgivings about the phrasing of one
of our tests to determine single-subject compliance, I do not think
that the opponent has demonstrated clear error—a requirement
under our stare-decisis analysis. See State v. Poole, 297 So. 3d
487, 507 (Fla. 2020).
Our approach to constitutional interpretation stresses that the
text is supreme. See Advisory Op. to Governor re Implementation of
Amend. 4, The Voting Restoration Amend., 288 So. 3d 1070, 1078
(Fla. 2020). Given this emphasis, we search for the ordinary
meaning of the text at the time the voters approved the
constitutional change. Id. Indeed, “[e]very word employed in the
constitution is to be expounded in its plain, obvious, and common
sense, unless the context furnishes some ground to control, qualify,
or enlarge it.” Id. (quoting Joseph Story, Commentaries on
the Constitution of the United States 157-58 (1833)); see also Israel
v. DeSantis, 269 So. 3d 491, 496 (Fla. 2019) (“[U]nless the text of a
constitution suggests that a technical meaning is intended, words
used in the constitution should be given their usual and ordinary
meaning . . . .” (alteration in original)). To discern the objective
meaning of the text, we routinely consult dictionaries. See City of
Tallahassee v. Fla. Police Benevolent Ass’n, Inc., 375 So. 3d 178,
184 (Fla. 2023) (dictionaries are often the best evidence of ordinary
and commonly accepted meanings of words at the time they were
written).
Here, the relevant text says that a proposed amendment must
“embrace but one subject and matter directly connected therewith.”
Art. XI, § 3, Fla. Const. (emphasis added). “Subject” is defined as a
“topic.” Subject, American Heritage Dictionary of the English
Language 1282 (1969 ed.). And more specifically, as it relates to
laws, “subject” refers to “[t]he matter of public or private concern for
which law is enacted.” Subject, Black’s Law Dictionary 1594 (4th
ed. 1968). The phrase “directly connected therewith” also does
significant work in this provision. When Florida voters added the
single-subject requirement in 1972, “direct” could be defined as
“characterized by close logical, causal, or consequential
relationship”; “natural, straightforward.” Direct, Webster’s Seventh
New Collegiate Dictionary 235 (1971 ed.); see also Direct, American
Heritage Dictionary of the English Language 373 (1969 ed.) (defining
“direct” as “[w]ithout intervening persons, conditions, or agencies;
immediate”). Moreover, the word “connected” conveyed a sense of
being “united” or “related.” Connected, American Heritage
Dictionary of the English Language 282 (1969 ed.); see also Connect,
Webster’s Seventh New Collegiate Dictionary 176 (1971 ed.) (“to
have a relationship”).
In light of these era-appropriate dictionary definitions and
consistent with the text’s immediate context, a common-sense
understanding of this text is that all aspects of the proposed
amendment must be logically, closely related and share a natural
unity or dependency in addressing a singular matter of public
concern. However, in applying these definitions, jurists could easily
reach different views on how terms like “logically related” or
“natural unity” apply in a given case or how immediate and close
the connection must be.
8
8. In arguing that our jurisprudence on the single-subject
provision is wrong, Justice Francis stresses that this “requirement’s
Not relying on definitions like the ones outlined above, our
case law sometimes asks whether the proposed amendment has
“oneness of purpose,” a test which does not appear anchored to the
text of the constitution.
9
I agree with the opponent that this term is
imprecise. Nevertheless, despite employing this phrase, we have
clear constitutional function [is] restraint.” Dissenting op. at 34
(Francis, J.). However, that restraining function does not require us
to scour the relevant dictionaries in search of the most restrictive
meanings for the terms in article XI, section 3’s text. Take “directly”
as an example. I offered definitions that are not as restrictive as the
one advanced by Justice Francis. I do not find those definitions
inconsistent with a restraining function—even though such
definitions might allow some “daylight” between the subject and the
matter. See id. at 26.
9. As early as 1978, we largely relied upon City of Coral
Gables v. Gray, 19 So. 2d 318, 320 (Fla. 1944), to support our
“oneness of purpose” approach to the single-subject clause in
article XI, section 3. See Floridians Against Casino Takeover v. Let’s
Help Fla., 363 So. 2d 337, 339 (Fla. 1978). However, Coral Gables
interpreted an entirely different provision of a previous constitution
that read, “The proposed amendments shall be so submitted as to
enable the electors to vote on each amendment separately.” 19 So.
2d at 320; see Floridians, 363 So. 2d at 339. Nevertheless, our
jurisprudence has continued to depend upon that phraseology
when analyzing the single-subject provision. See, e.g., Fine v.
Firestone, 448 So. 2d 984, 990 (Fla. 1984); Advisory Op. to Att’y
Gen.—Ltd. Pol. Terms in Certain Elective Offs., 592 So. 2d 225, 227
(Fla. 1991); Advisory Op. to Att’y Gen. re Prohibiting State Spending
for Experimentation that Involves the Destruction of a Live Hum.
Embryo, 959 So. 2d 210, 213 (Fla. 2007); Advisory Op. to Att’y Gen.
re All Voters Vote in Primary Elections for State Legislature, Governor,
& Cabinet, 291 So. 3d 901, 905 (Fla. 2020).
consistently asked if the elements of an amendment “may be
logically viewed as having a natural relation and connection as
component parts or aspects of a single dominant plan or scheme.”
Advisory Op. to Att’y Gen. re Water & Land Conservation—Dedicates
Funds to Acquire & Restore Fla. Conservation & Recreation Lands,
123 So. 3d 47, 51 (Fla. 2013) (citation omitted); Advisory Op. to
Att’y Gen. re All Voters Vote in Primary Elections for State
Legislature, Governor, & Cabinet (All Voters Vote), 291 So. 3d 901,
905 (Fla. 2020). This focus does not appear to conflict with the
text’s plain meaning, even if there is disagreement as to the
ultimate conclusion in a particular case.
Justice Francis claims that our precedent on the single-
subject requirement has been erratic, which may be true. Though
greater consistency is a laudable goal, I do not think that adopting
a more restrictive approach guarantees achievement of that goal,
especially when broad terms still exist under her formulation of the
test. Moreover, based on my reading of the text, I do not believe
that our precedent in this regard can be viewed as clearly
erroneous, even if one might prefer what Justice Francis describes
as a less “malleable” interpretation.
Additionally, we have viewed the single-subject provision’s
chief purpose as preventing separate matters being combined into a
single initiative to aggregate votes or secure approval of an
unpopular issue, otherwise known as “logrolling.” See, e.g., Evans
v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984) (characterizing Fine
as “discuss[ing] the primary and fundamental concern of the one-
subject restriction—the prevention of logrolling”); Advisory Op. to
Att’y Gen. re Prohibiting State Spending for Experimentation that
Involves the Destruction of a Live Hum. Embryo, 959 So. 2d 210,
212-13 (Fla. 2007); All Voters Vote, 291 So. 3d at 905. This, in my
view, is compatible with the definitions noted above and with our
case law’s focus on whether all aspects of an amendment are
related as part of a single dominant plan or scheme. No one has
argued that our emphasis on this anti-logrolling rationale is out of
place in a textually faithful analysis or that any other contextual or
historical considerations apply.
Accordingly, based on the analysis above and supported by
factually similar precedent as analyzed in the majority opinion, I
agree that the provision does not violate the single-subject
requirement.
FRANCIS, J., dissenting.
While I agree with Justice Sasso’s dissenting opinion regarding
the misleading nature of the ballot summary, I cannot join that
dissent (or the majority) because I believe the ballot initiative also
violates the single-subject requirement.
Our precedents adopted a broad reading of the single-subject
requirement, a reading that this Court perpetuates in approving the
amendment for the ballot.
But in requiring “but one subject and matter directly
connected therewith,” article XI, section 3’s plain text requires a
narrow reading, one where there is no daylight between the subject
and matter. (Emphasis added.)
One need only review the relevant definitions to understand
why. Those relevant definitions are of “subject,” “connected,” “one,”
“matter,” and “directly,” and they should be read together in
context. I agree with the concurrence’s definitions of “subject”
(“topic”) and “connected” (“united” or “related”). See concurring op.
at 21-22 (Grosshans, J.). The word “one” means “being a single
unit or entire being or thing and no more”; “existing alone in a
specified sphere[; for example,] there is [one] apple in the basket.”
One, Webster’s Third New International Dictionary 1575 (1961, rev.
1981, unabridged); see also Single, Black’s Law Dictionary 1665
(11th ed. 2019) (“Consisting of one alone; individual”). And “matter”
is defined as “the substance of a branch of knowledge”; “something
(as information or a topic of discussion) of a particular nature or
involving a particular and often specified thing or relation”;
“something of an indicated kind or having to do with an indicated
field or situation.” Matter, Webster’s Third New International
Dictionary 1394 (1961, rev. 1981, unabridged).
But, in context, article XI, section 3’s use of the word “directly”
modifies the verb “connected” to describe how the nouns “subject”
and “matter” must be “connected” (i.e., “directly”). Thus, “directly”
is used as an adverb. In turn, the adverb “directly” means:
straight on along a definite course without deflection or
slackening . . . purposefully or decidedly and straight to
the mark . . . in a straightforward manner without
hesitation, circumlocution, or equivocation: plainly and
not by implication . . . in unmistakable terms:
unqualifiedly[; for example,] deals [directly] with the
stated purpose of the book . . . without divergence from
the source or the original . . . .
Directly, Webster’s Third New International Dictionary 641 (1961,
rev. 1981, unabridged).
Defining “directly” this way, to me, makes the most sense in
the context of the constitutional text. Why? Because alternative
definitions require the reader to make additional inferential leaps
outside of the written words and their context.
Consider, for instance, the two alternative definitions of
“direct” offered by the concurrence. The first alternative defines
“direct” as possibly meaning that which is “characterized by [a] . . .
causal, or consequential relationship.” Concurring op. at 21-22
(Grosshans, J.). But the fuller text of article XI, section 3 provides
that “any such revision or amendment . . . shall embrace but one
subject and matter directly connected therewith.” This reflects a
presumption that the subject and connected matters are being
proposed at one time and together—simultaneously—in the same
proposed revision or amendment. There is simply nothing in the
language of article XI, section 3 supporting a cause-and-effect
relationship between the “one subject” and “matter directly
connected therewith.”
The second alternative proposed definition of “directly” as a
“close logical relationship” also misses the mark. Many matters
may logically relate to a topic either implicitly or explicitly. But
given that the proposed amendment must “embrace but one
subject,” which cannot be defined by the proposed amendment’s
broader purpose(s), see Franklin v. State, 887 So. 2d 1063, 1077-78
(Fla. 2004) (quoting Gibson v. State, 16 Fla. 291, 299 (1877)),
10
“directly” must mean that other logically related matters addressed
in the proposed amendment must be very closely related to the one
subject or topic (i.e., a matter must be unequivocally and plainly,
not implicitly related to the subject).
Applying the contextually informed definitions above, the
single-subject requirement of article XI, section 3, then, would be
read and understood like this: the proposed amendment must
“embrace but one [‘a single unit or entire being or thing and no more
. . . existing alone in a specified sphere’] subject [‘topic,’ not the
proposed amendment’s purpose or purposes] and matter
[‘something (as information or a topic of discussion) of a particular
10. Because the single-subject requirement in the citizen
initiative context is narrower than the one in the legislative context,
see Franklin, 887 So. 2d at 1077-78 (quoting Fine v. Firestone, 448
So. 2d 984, 988-89 (Fla. 1984)), I assume the narrower reading of
the term “subject” as non-synonymous with purpose in the
legislative context applies with at least equal force in the citizen
initiative context.
nature or involving a particular and often specified thing or relation’]
directly [‘without equivocation,’ ‘straightforward,’ ‘plainly and not by
implication,’ and ‘in unmistakable terms’] connected [‘joined or
linked’] therewith.”
This reading is a narrow one. It means that in the context of
the citizen initiative process, proposed amendments are limited to
one topic (one item is in the figurative basket), and other matters
addressed in the proposed amendment must be plainly and
unequivocally linked to that one topic.
A narrow reading, I believe, best protects the people’s right to
self-governance by replacing the Court’s nebulous “oneness of
purpose” analysis with a straightforward, analytical framework for
examining these proposed amendments. By eliminating the
malleable standard associated with “oneness of purpose”—the
definition of which can change depending on the makeup of the
Court,
11
and under which many subjects can be construed as one—
11. “[T]he erratic nature of our own case law construing
article XI, section 3 shows just how vague and malleable this
‘oneness’ standard is. What may be ‘oneness’ to one person might
seem a crazy quilt of disparate topics to another. ‘Oneness,’ like
beauty, is in the eye of the beholder; and our conception of
‘oneness’ thus has changed every time new members have come
we both guard electoral integrity, and shift power back to the voters
by ensuring they are presented with a proposal that is not “radically
defective.”
12
We also restore the power of voters to amend their
governing document by retaining their “prerogative to separately
decide discrete issues.”
13
This Court could rely solely on the text to recede from this
broad reading based on clear error under Poole. See 297 So. 3d at
onto this Court.” Advisory Op. to Att’y Gen.—Ltd. Pol. Terms in
Certain Elective Offs., 592 So. 2d 225, 231 (Fla. 1991) (Kogan, J.,
concurring in part, dissenting in part); see also State v. Poole, 297
So. 3d 487, 507 (Fla. 2020) (expressing wariness for tests that are
“malleable and do not lend themselves to objective, consistent, and
predictable application”).
12. See generally In re Advisory Op. to Att’y Gen. re Use of
Marijuana for Certain Med. Conditions, 132 So. 3d 786, 819-20 (Fla.
2014) (Canady, J., dissenting) (“One of the most important rights
enjoyed by the people of Florida under our constitution is the right
to vote on constitutional amendments proposed through the
initiative process. That right and the initiative process are
subverted when the voters are presented a misleading ballot
summary. The integrity of the electoral process is seriously
compromised by placing this proposed amendment on the ballot
with a radically defective summary . . . .”).
13. See Ltd. Pol. Terms in Certain Elective Offs., 592 So. 2d at
231 (Kogan, J., concurring in part, dissenting in part).
507. But a review of the history behind this Court’s broad “oneness
of purpose” reading also reflects that it was built on shaky ground.
When the Court first applied the “oneness of purpose” test in
Floridians Against Casino Takeover v. Let’s Help Florida, 363 So. 2d
337, 340 (Fla. 1978), Floridians adopted Justice England’s
reasoning in his concurring opinion in Weber v. Smathers, 338 So.
2d 819 (Fla. 1976). In Weber, Justice England analyzed the intent
behind the 1972 amendment to article XI, section 3 as an overall
expansion of the power to either amend or revise the Florida
Constitution by citizen initiative petition.
14
Justice England
reasoned that the new limiting condition, that any such proposal
must embrace a single subject, should be read as a “functional . . .
restraint on the range of authorized amendments.” 338 So. 2d at
14. Indeed, the text of the 1972 version clearly expanded the
1968 version of article XI, section 3 by providing for both the
revision or amendment of “any portion or portions” of the Florida
constitution, whereas the 1968 version limited such proposals to
amendments of a single section. See Adams v. Gunter, 238 So. 2d
824 (Fla. 1970) (removing a ballot proposal to revise the bicameral
legislature and create a unicameral legislature because the 1968
version of article XI, section 3 restricted citizen initiative petitions to
amend a single portion of the constitution, whereas the petition
proposed revising multiple constitutional provisions).
823 (England, J., concurring) (emphasis added). But he candidly
noted that the Court had not been advised “what functional
limitation might have been intended.” Id. Turning to historical
clues and the similar “but one subject” language applicable to the
Legislature in article III, section 6, Justice England reasoned that
the new single-subject requirement should be interpreted as it is in
the legislative context, an interpretation that is quite broad. Id.; see
also art. III, § 6, Fla. Const. Of course, Justice England did not
address the intent behind the “matter directly connected therewith”
language.
That concurrence was then mostly adopted by the Court’s
subsequent decision in Floridians. 363 So. 2d at 340.
15
In
Floridians, this Court agreed that the 1972 amendment was
intended to expand the citizen initiative process. Id. And citing the
15. Floridians also partly reaffirmed a test set out in City of
Coral Gables v. Gray, 19 So. 2d 318 (Fla. 1944), that in determining
whether a proposal addresses a single subject, the test is whether it
“may be logically viewed as having a natural relation and
connection as component parts or aspects of a single dominant plan
or scheme. Unity of object and plan is the universal test . . . .” 363
So. 2d at 339 (quoting City of Coral Gables, 19 So. 2d at 320); see
also Fine, 448 So. 2d at 990 (explaining that this Court in Floridians
partly reaffirmed the test set out in City of Coral Gables).
Weber concurrence, Floridians determined that the single-subject
limitation should also be read broadly in line with this expansion,
meaning that the subject and connected matters need only have
“functional unity” and a “oneness of purpose.” Id.
These judicial glosses not only have no support in the
constitutional text, their use has also rendered the actual words—
“directly”—as mere surplusage. Receding from our cases that
employed this clear error would revive the full text and restore the
single-subject requirement’s clear constitutional function, as a
restraint.
16
16. Cf. McDonald v. City of Chicago, 561 U.S. 742, 805-13
(2010) (Thomas, J., concurring in part and concurring in the
judgment) (agreeing that the city of Chicago’s handgun ban was
unconstitutional but advocating for reviving the Fourteenth
Amendment’s privileges and immunities clause as the “more
straightforward” analysis that is also “faithful to the Fourteenth
Amendment’s text and history”; explaining that the Court’s post-
Civil war precedent interpreting the Fourteenth Amendment so
narrowed the “privileges and immunities” clause that litigants
turned to the due process clause, which ultimately led to the
concept of “substantive due process” and the Court’s reliance on
“tests” for determining state violations of citizens’ fundamental
rights; and advocating for reviving the privileges and immunities
clause, saying, “I believe this case presents an opportunity to
reexamine, and begin the process of restoring, the meaning of the
Fourteenth Amendment agreed upon by those who ratified it.”).
As it relates to this case, personal use and commercialization
of marijuana aren’t even two sides of the same coin. If the matters
directly connected to the “subjects” are different, it’s plain to me
that the subjects themselves are different.
At bottom, using marijuana as an individual and growing it for
commercial sale and consumption implicate different criminal and
regulatory schemes.
The proposed amendment grafts in a new personal right to use
recreational, non-medical marijuana in Florida and removes
criminal penalties for said personal use.
17
Perhaps the Department
of Health can continue to oversee this. But the proposed
amendment also adds a new right for certain commercial entities to
cultivate (i.e., grow) recreational marijuana, which would
traditionally come under the purview of Florida’s Department of
Agriculture
18
and is not directly (unequivocally) related to personal
17. Currently, personal possession of 20 grams or less of
cannabis is only subject to a misdemeanor penalty. § 893.13(6)(b),
Fla. Stat. (2023).
18. See, e.g., § 581.217, Fla. Stat. (2023) (permitting the
cultivation and growth of hemp so long as compliant with
use. And it adds a new right for certain entities to sell,
manufacture, etc., trafficking amounts of recreational marijuana
commercially,
19
which would now also involve the regulation of
business entities by the Department of State and would require
licensing by the Department of Business and Professional
Regulation.
20
None of these commercial regulations directly relates
to the regulation or decriminalization of recreational marijuana for
personal use; they relate directly to the business of growing and
selling marijuana on a large scale.
provisions of statute; requiring that grower is licensed by the
Department of Agriculture).
19. Currently, possession of trafficking amounts of cannabis
(in excess of 25 pounds or 300 plants) is punishable as a first-
degree felony with minimum mandatory sentences and fines, which
increase depending on the amount. § 893.135(1), Fla. Stat. (2023).
20. See § 561.02, Fla. Stat. (2023) (“There is created within
the Department of Business and Professional Regulation the
Division of Alcoholic Beverages and Tobacco, which shall supervise
the conduct, management, and operation of the manufacturing,
packaging, distribution, and sale within the state of all alcoholic
beverages and shall enforce the provisions of the Beverage Law and
the tobacco law and rules and regulations of the division in
connection therewith.” (footnote omitted)); § 569.0025, Fla. Stat.
(2023) (“The establishment of the minimum age for purchasing or
possessing, and the regulation for the marketing, sale, or delivery
of, tobacco products is preempted to the state.”).
Of course, it depends on how broadly you define a topic. But
what if a proposal was just called “government”? Would a more
limited single-subject requirement apply then? Aren’t we
incentivizing citizen groups to generalize their topics to such a
degree they will always evade the single-subject limitation? Isn’t
this precisely what happened in Weber, which permitted five
subjects to be rolled into one under the broad subject, “Ethics in
Government”? These questions are the iceberg below the tip of our
continued broadening of the single-subject rule, evoking the
warnings of potential abuse Justice McDonald noted thirty years
ago.
21
21. Justice McDonald noted that the citizen initiative process
had been abused in Advisory Opinion to the Attorney General—
Limited Marine Net Fishing:
[T]he legislative power of the state is vested in the
Legislature, art. III, § 1, and on matters that are statutory
in nature, a concerted effort should be made to have the
Legislature address the subject. The technical
requirements, such as the single-subject rule and the
requirements of section 101.161(1), Florida Statutes
(1991), appear insufficient to prevent abuse of the
amendment process. At this juncture, rather than
espouse any particular solution as to how to prevent
such abuse, I merely express my thought that some
Here, the most concerning forms of abuse of process are not
directly implicated; the Sponsor did not submit the amendment
under the general topic “legalization of marijuana.” The Sponsor
selected a narrower subject here instead, entitling the proposed
amendment “Adult Personal Use of Marijuana.” This title explicitly
states that the ballot proposal is about the “personal use” of adult
recreational marijuana, not a company’s ability to supply large
amounts of marijuana to those persons.
22
Commercialization is a
tangential topic, not a direct, unequivocally connected matter to
legalizing the personal use of marijuana.
But if the single-subject requirement means anything, it must
act as a restraint or limit on the power to revise or amend multiple
provisions of the Florida Constitution, as is plainly stated by article
XI, section 3. Otherwise, the power to revise our governing
issues are better suited as legislatively enacted statutes
than as constitutional amendments.
620 So. 2d 997, 1000 (Fla. 1993) (McDonald, J., concurring)
(emphasis added) (footnote omitted).
22. I would conclude the title is misleading as well given that
the actual proposed amendment language reaches well beyond
simply providing for personal use of recreational marijuana by
adults.
document is really in the hands of a few interested groups that may
not have the interests of all Floridians in mind. But they can, at
least, be required to clear the strict constitutional hurdle article XI,
section 3 plainly provides.
For these reasons, I respectfully dissent.
SASSO, J., dissenting.
I agree with the majority’s conclusion that the initiative in this
case does not violate the single-subject requirement based on our
existing precedent. However, I believe the Sponsor has failed to
provide a ballot summary in “clear and unambiguous language” as
required by section 101.161, Florida Statutes (2023). In three
places, the Sponsor chose to use the word “allows” to describe the
legal effect of the initiative. But in choosing that language, the
Sponsor twice misleads voters as to what the initiative would
accomplish. For that reason, I conclude that the proposed initiative
is precluded from being placed on the ballot and therefore
respectfully dissent.
Section 101.161(1) imposes “certain clarity requirements for
ballot titles and summaries.” Advisory Op. to Att’y Gen. re Regulate
Marijuana in a Manner Similar to Alcohol to Establish Age, Licensing,
& Other Restrictions, 320 So. 3d 657, 667 (Fla. 2021); see also
§ 101.161(1), Fla. Stat. (providing that “a ballot summary of such
amendment or other public measure shall be printed in clear and
unambiguous language on the ballot” (emphasis added)). This
Court has therefore derived from the statute’s text two requirements
the sponsor must fulfill in preparing the ballot summary: 1) the
summary must not mislead the public and 2) the ballot summary
must fairly inform the voter of the chief purpose of the amendment.
See Fla. Dep’t of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008)
(quoting Advisory Op. to Att’y Gen. re Prohibiting State Spending for
Experimentation that Involves the Destruction of a Live Hum.
Embryo, 959 So. 2d 210, 213-14 (Fla. 2007)). Failure to meet either
requirement is fatal. See Detzner v. League of Women Voters of Fla.,
256 So. 3d 803, 808 (Fla. 2018) (“A proposed amendment must be
removed from the ballot when the summary does not accurately
describe the scope of the text of the amendment, because it has
failed in its purpose.”).
My assessment of this case implicates the first requirement—
that the ballot summary may not mislead voters. This requirement
is critical because it ensures voters receive “fair notice of the
content of the proposed amendment” so that they “will not be
misled as to [the proposed amendment’s] purpose, and can cast an
intelligent and informed ballot.” Advisory Op. to Att’y Gen. re Right
of Citizens to Choose Health Care Providers, 705 So. 2d 563, 566
(Fla. 1998) (quoting Advisory Op. to Att’y Gen.—Fee on Everglades
Sugar Prod., 681 So. 2d 1124, 1127 (Fla. 1996)). In fulfilling this
requirement, the sponsor “need not explain every detail or
ramification of the proposed amendment.” Advisory Op. to Att’y
Gen. re Prohibiting Pub. Funding of Pol. Candidates’ Campaigns, 693
So. 2d 972, 975 (Fla. 1997). But when the sponsor chooses to
include language in a ballot summary, accuracy is key. See
Advisory Op. to Att’y Gen. re Protect People, Especially Youth, from
Addiction, Disease, & Other Health Hazards of Using Tobacco, 926
So. 2d 1186, 1194 (Fla. 2006) (noting ballot summaries “must be
accurate”).
Here, the ballot summary misleads voters in two ways. The
first, and most egregious, is the Sponsor’s decision to claim that the
initiative “allows” “other state licensed entities” to enter the
marijuana market when the initiative does no such thing.
Specifically, the summary says the initiative:
allows Medical Marijuana Treatment Centers, and other
state licensed entities, to acquire, cultivate, process,
manufacture, sell, and distribute such products and
accessories.
(Emphasis added.)
The word “allows” has differing meanings and can be applied
at differing levels of generality, so I will start by explaining what I
conclude the word “allows” means in this context.
23
And in context,
the summary uses the word “allows” twice before the phrase “other
state licensed entities” appears. It appears three times throughout
the ballot summary in total, presumptively carrying the same
meaning throughout. Each time, the word “allows” appears before
some right the initiative ostensibly confers. That context confirms
that the use of “allows” throughout the summary means “[t]o
recognize as a right or privilege; to accord as a legal entitlement.”
Black’s Law Dictionary 95-96 (11th ed. 2019). In other words, the
use of the word “allows” in context suggests that the amendment
23. This Court has used traditional tools of interpretation to
assist in determining how voters will understand ballot summaries.
See, e.g., Advisory Op. to Att’y Gen. re Adult Use of Marijuana, 315
So. 3d 1176, 1180-81 (Fla. 2021); Regulate Marijuana in a Manner
Similar to Alcohol to Establish Age, Licensing, & Other Restrictions,
320 So. 3d at 668-69.
itself does the work—that the amendment itself would generate
some specific right.
The colloquial definition of “allows” reinforces that specific
meaning in all three clauses. See American Heritage Dictionary of
the English Language 48 (5th ed. 2011) (defining “allow” to mean
“[t]o permit the presence of” or “[t]o let do or happen; permit”). And
my conclusion that “allows” would signal to voters that the
amendment itself accords some specific right is made even more
evident when contrasted with additional language in the same
ballot summary. When attempting to explain the impact of federal
law, for example, the ballot summary states the initiative “does not
change . . . federal law.”
Choosing the word “allows” is misleading in context because
the amendment itself does not “allow” “other state licensed entities”
to sell marijuana. Instead, and as the full text of the initiative
provides, there is an intervening step that may never materialize:
the Legislature must decide to provide for the licensure of “other”
entities first.
Proposed article X, section 29(e) says, “The legislature may
provide for the licensure of entities that are not [MMTCs] to” sell
marijuana products. (Emphasis added.) As a proponent concedes,
“if the Legislature does nothing, MMTCs will remain the only
entities legally entitled to cultivate and distribute marijuana.”
Answer Brief of Medical Marijuana Business Association of Florida
in Support of the Initiative at 18. Thus, it is inaccurate to say that
the amendment also “allows” “other” entity sales. See Advisory Op.
to Att’y Gen. re Right to Competitive Energy Mkt. for Customers of
Inv.-Owned Utils., 287 So. 3d 1256, 1260-61 (Fla. 2020) (noting that
the question was not whether a person had the right to sell
electricity if the initiative was adopted, but whether, as the ballot
summary claimed, the initiative granted that right, and concluding
that the ballot summary was affirmatively misleading for creating
the impression that the initiative granted a right).
The misleading nature of “allows” in this context presents
more than a mere technical, or immaterial, violation of the statutory
clarity requirements. Indeed, Floridians have expressed concern
that existing medical marijuana markets stifle competition and give
the MMTCs monopolies. See, e.g., Fla. Dep’t of Health v. Florigrown,
LLC, 317 So. 3d 1101, 1113-15 (Fla. 2021) (discussing affidavits
related to “difficulties in finding the products [consumers] need,
high prices when they do find the products they need, and lack of
knowledge and professionalism in MMTC employees they have dealt
with”). So rather than being forthcoming with voters and explaining
that the Legislature may choose to replicate the medical marijuana
market by limiting entities that may sell marijuana to MMTCs, the
ballot summary instead suggests that the initiative affirmatively
“allows” other state licensed entities to sell. In reality, there are no
“other state licensed entities” and there may never be “other state
licensed entities” regardless of whether the initiative passes.
24
This defect in the Sponsor’s chosen language is enough to
keep the amendment off the ballot, but there is a second,
independent way in which the summary is misleading. The
initiative misleads voters with its opening stanza when it says that
it “[a]llows adults 21 years or older to possess, purchase, or use
24. So the only sense in which the amendment “allows” other
state licensed entities to sell marijuana is in the sense that it “does
not prohibit” the Legislature from making a policy decision as to
whether to allow entities other than MMTCs to sell marijuana. But
in my view, ascribing that meaning to the word “allows” here would
both fail to give the term its reasonable, ordinary meaning and
ignore the context in which the term is used, particularly when the
summary also says it “[a]llows consistent legislation” as something
the amendment does unique from allowing other state licensed
entities to sell marijuana.
marijuana products and marijuana accessories for non-medical
personal consumption by smoking, ingestion, or otherwise.”
(Emphasis added.) That statement is false. A state has no power to
authorize its residents to participate in conduct that would
constitute a federal crime. See art. VI, cl. 2, U.S. Const.; cf. United
States v. Aquart, 912 F.3d 1, 60-61 (2d Cir. 2018). Consequently,
this initiative does not “allow” anything. Instead, whether
Floridians are “allowed” to possess marijuana for recreational use
will depend on the federal government.
The only remaining question then is whether the Sponsor
made up for the falsity of this statement by including a subsequent
statement (after intervening clauses) that the initiative “[a]pplies to
Florida law; does not change, or immunize violations of, federal
law.” In my view, the Sponsor failed in its endeavor.
Read together with “allows,” which again is used in the
affirmative sense, voters will likely attempt to harmonize the two
clauses. In doing so, they would be misled into concluding that
marijuana use will be legal in Florida, either because the
amendment is consistent with federal law or because there is some
subset of marijuana that Floridians will be allowed to use without
penalty. That will not be the case even if the amendment passes.
See Advisory Op. to Att’y Gen. re Adult Use of Marijuana, 315 So. 3d
1176, 1181 (Fla. 2021) (noting a marijuana user in Florida would
“remain exposed to potential prosecution under federal law”).
It would be astonishingly simple to state what the amendment
actually does in a straightforward and upright way.
25
But the
Sponsor chose not to do so, including the misleading statement
instead. For that independent reason, I conclude the ballot
summary fails, and I respectfully dissent.
Original Proceeding – Advisory Opinion – Attorney General
Ashley Moody, Attorney General, Henry C. Whitaker, Solicitor
General, Jeffrey Paul DeSousa, Chief Deputy Solicitor General, and
Daniel W. Bell, Chief Deputy Solicitor General, Tallahassee, Florida,
for Petitioner
Alan Lawson, Jason Gonzalez, Jessica Slatten, and Samuel J.
Salario, Jr., of Lawson Huck Gonzalez, PLLC, Tallahassee, Florida,
for Interested Party, Florida Chamber of Commerce
Jeremy D. Bailie of Weber, Crabb & Wein, P.A., St. Petersburg,
Florida,
for Interested Party, Drug Free America Foundation
25. For example, the Sponsor could say the initiative
“prohibits state law penalties.”
Joshua Katz and Anastasia Boden of Cato Institute, Washington,
District of Columbia; and Spencer George of the Law Office of
Spencer George, Chuluota, Florida,
for Interested Party, Cato Institute
Jonathan S. Robbins, Zachary R. Kobrin, and Scott Miller of
Akerman LLP, Fort Lauderdale, Florida,
for Interested Party, Medical Marijuana Business Association
of Florida, Inc., a Florida Corporation
Glenn Burhans, Jr. of Stearns Weaver Miller, Tallahassee, Florida;
Barry Richard of Barry Richard Law Firm, Tallahassee, Florida; Dan
Humphrey of Quinn Emanuel Urquhart & Sullivan, LLP, Miami,
Florida; John F. Bash of Quinn Emanuel Urquhart & Sullivan, LLP,
Austin, Texas; Ellyde R. Thompson of Quinn Emanuel Urquhart &
Sullivan, LLP, New York, New York; and Rachel G. Frank of Quinn
Emanuel Urquhart & Sullivan, LLP, Washington, District of
Columbia,
for Interested Party, Smart & Safe Florida
Daniel B. Tilley of American Civil Liberties Union Foundation of
Florida, Inc., Miami, Florida,
for Interested Party, American Civil Liberties Union of Florida,
Inc.