Protecting the Teething Toddler - One Example
The dissenting opinion lays its best example - it involves a teething toddler's parents not being able to sue a physician for medical malpractice after the physician prescribes medical marijuana (a pretty unlikely scenario). In order to explain the problem, Justice Polston, writes an opinion in which Justice Canady concurs. This is the example:
[A] physician, in his misguided "professional opinion," could believe that the benefits of marijuana for a teething toddler would likely outweigh the risks and, therefore, recommend that the toddler use marijuana three times a day for six months or until the teething subsided.
Indeed, this physician could have reached this determination and recommendation after conducting a "physical examination" of the toddler and after "a full assessment of the patient‘s medical history," which would mean the recommendation would be made "in a manner consistent with this section."
Of course, such a recommendation may fall outside "the prevailing professional standard of care for that health care provider." § 766.102(1), Fla. Stat. (2013).
And the victims of this medical malpractice would have no legal recourse due to the civil immunity provided to physicians by subsection (a) of the amendment's text. The text of the amendment fails to include a requirement of adhering to the prevailing professional standard of care and instead provides immunity for whatever "professional opinion" the physician exercises, even if it is a negligent one.This example just points out the problems the opposition is going to have explaining any problem with the legislation. This scenario is so unlikely to begin with that the hypothetical is almost laughable.
What Else is the Opposition Saying?Those who oppose the ballot initiative argue that the ballot language used certain terms deceptively, such as the phrases "debilitating diseases" and "certain medical conditions" in an attempt to gain an electoral advantage with voters who might otherwise object to a broader use of medical marijuana.
The proponent counters that the intent of the amendment and the actual wording of the amendment, when various portions are read together, is not to authorize the open-ended and broad use of marijuana whenever a physician personally believes that the benefits outweigh the risks.
Instead, the statutory language requires that marijuana can be prescribed by a physician only after the physician performs a physical examination, reviews the patient's medical history and finds that the patient has a "debilitating" medical condition, concludes that the potential benefits of using medical marijuana would likely outweigh the health risks, and then allows a limited time for any qualifying use.
The dissenting opinions argue that the ballot title and summary are affirmatively misleading in
four different ways:
- it fails to accurately inform voters that generic ― conditions (not ―diseases) qualify for the use of medical marijuana under the amendment's text;
- they fail to disclose that a person can obtain marijuana under the amendment's text if a doctor simply thinks the benefits of marijuana would likely outweigh the risks;
- they fail to disclose that the amendment grants broad immunity to physicians, among others; and
- they falsely imply that the use and possession of marijuana in accordance with this amendment is permissible under federal law.
Those arguments were rejected by a majority of the Florida Supreme Court and the ballot initiative stands.
Who is the Opposition to Medical Marijuana in Florida?The Florida Supreme Court Court received briefs in opposition, filed by:
- the Attorney General;
- the Florida Senate and Florida House of Representatives;
- the Florida Chamber of Commerce,
- Florida Medical Association,
- Florida Police Chiefs Association,
- Florida Sheriffs Association, and
- Save Our Society from Drugs; and a pro se citizen.
The Florida Sheriffs Association voted almost unanimously earlier this month to oppose medical marijuana arguing that it could lead to more traffic accidents and crime (although there is little evidence to support that proposition, in fact, most evidence from other states with similar measures show a slight decrease in traffic accidents and crime). The sheriff in Polk County, Grady Judd, called the initiative a "fraudulent" effort to fully legalize cannabis.
Florida has one of the highest number of marijuana arrests in the country with more than 57,000 in 2010. Only the State of New York and Texas have more arrests each year. Marijuana arrests account for a whopping 40% of arrests in the State of Florida.
Marijuana is a jobs program for law enforcement officers in Florida. This basis truth prompted Norm Kent, the current Chair of the Board of Directors of NORML (the National Organization for the Reform of Marijuana Laws) to write in a recent blog article that includes this quote: "Let them do real work and arrest criminals, not cannabis users."
What is the Financial Impact of the Proposed Amendment?
On November 4, 2013, the Financial Impact Estimating Conference forwarded to the Attorney General the following Financial Impact Statement regarding the proposed amendment:
Increased costs from this amendment to state and local governments cannot be determined. There will be additional regulatory and enforcement activities associated with the production and sale of medical marijuana. Fees will offset at least a portion of the regulatory costs. While sales tax may apply to purchases, changes in revenue cannot reasonably be determined since the extent to which medical marijuana will be exempt from taxation is unclear without legislative or state administrative action.
Florida Supreme Court on Medical MarijuanaOn January 27, 2014, the Florida Supreme Court, in Case Number SC13-2006 issued an advisory opinion to the Florida Attorney General on the proposed citizen initiative amendment to the Florida Constitution to allow for medical marijuana. In Case Number SC13-2132 it also issued an advisory opinion on the financial impact statement.
The Attorney General of Florida filed a petition with the Florida Supreme Court for an advisory opinion as to the validity of a proposed citizen initiative amendment to the Florida Constitution to legalize medical marijuana in the State of Florida.
As expected, the Florida Supreme Court found the found that the proposed amendment to the Florida Constitution did not violate the single subject rule and the ballot title and summary met acceptable. A majority of the court held the:
"the voters are given fair notice as to the chief purpose and scope of the proposed amendment, which is to allow a restricted use of marijuana for certain "debilitating" medical conditions. We conclude that the voters will not be affirmatively misled regarding the purpose of the proposed amendment because the ballot title and summary accurately convey the limited use of marijuana, as determined by a licensed Florida physician, that would be authorized by the amendment consistent with its intent."
Sometime the People Get to Make the LawIn the opinion, the Florida Supreme Court said it was reluctant to interfere with the right of the self-determination for all Florida citizens to formulate their own organic law. See Advisory Op. to Att‘y Gen. re Right to Treatment & Rehab. for Non-Violent Drug Offenses, 818 So. 2d 491, 494 (Fla. 2002).
As the Florida Supreme Court has previously stated:
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. This is the most sanctified area in which a court can exercise power. Sovereignty resides in the people and the electors have a right to approve or reject a proposed amendment to the organic law of this State, limited only by those instances where there is an entire failure to comply with a plain and essential requirement of [the law].Id. (citations omitted).
What is the proposed amendment to the Florida Constitution?The ballot title for the proposed amendment is"Use of Marijuana for Certain Medical Conditions," and the ballot summary, which is limited by law to seventy-five words, reads as follows:
Allows the medical use of marijuana for individuals with debilitating diseases as determined by a licensed Florida physician. Allows caregivers to assist patients' medical use of marijuana. 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. Applies only to Florida law. Does not authorize violations of federal law or any non-medical use, possession or production of marijuana.The proposed amendment would add a new section 29 to article X of the Florida Constitution.
Updated on January 9, 2015: The Secretary of State has just approved the petition language to put the medical marijuana issue on the 2016 ballot in Florida.