Marijuana Moment: Massachusetts Supreme Court Hears Case Challenging Marijuana Legalization Rollback Initiative (Op-Ed)

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“Even if the the court ultimately rules against the plaintiffs and allows the petition to be placed on the ballot, this litigation challenge has already served a vital public purpose.”

By Christine Baily, C Bailey Law LLC

The Massachusetts Supreme Judicial Court (SJC) heard arguments concerning the fate of ballot initiative petition that threatens to eliminate the legalized adult-use marijuana industry on Monday.

The case, Caroline Pineau, et al. v. Attorney General and Secretary of State, SJC-13927, involves a challenge to the certification and summary of the petition by the state attorney general that, if successful, would repeal laws that govern the legalized adult-use cannabis industry in the state while also impacting the medical industry and patient access.

The litigation concerns an initiative entitled “An Act to Restore a Sensible Marijuana Policy” and the attorney general’s certification and summary of the petition. Unless SJC rules in favor of the challengers, the initiative is likely to appear on the November ballot for voters’ consideration.

The petition states that the proposed law, if enacted, “continu[es] the medical program” and “repeal[s] Chapters 94G and 64N of the General Laws which govern the possession, use, distribution, cultivation, and taxation of marijuana not medically prescribed,” a.k.a., recreational or adult marijuana.

Under Article 48 of the state Constitution, as amended, the attorney general has a duty to review all properly submitted petitions, certify that they meet constitutional requirements (including that its provisions are related or mutually dependent), and draft a “fair” and “concise” summary for voters.

The plaintiffs in the suit challenging the petition, represented by Vicente LLP’s Adam Fine and Tim Swain, are cannabis social equity grant recipients and registered Massachusetts voters. At Monday’s oral argument, Fine made compelling arguments, including that the petition violates constitutional standards by including unrelated—and in some cases contradictory—policies.

They warned that if the petition were to succeed, the new law would eliminate the state’s social equity mandate “to promote and encourage full participation in the regulated marijuana industry by people from communities that have previously been disproportionately harmed by marijuana prohibition and enforcement.”

This would also include policies that support social equity applicants and licensees, like the dedicated Social Equity Trust Fund. In their argument, the plaintiffs’ attorneys also addressed other concerning aspects of the petition, including that it would increase penalties for simple possession of marijuana.

The Massachusetts Cannabis Coalition (MCC), the state’s largest cannabis industry group, participated as an amicus curiae or “friend of the court,” represented by myself.

In its amicus brief, MCC argued that the attorney general’s certification and summary were based on a version of state law that had recently been amended. In other words, Massachusetts voters will be considering a petition and summary based on a prior version of state statute, and thus potentially unaware of the substantial amendments the initiative would make.

MCC also argued that neither the petition nor the summary accurately reflected the impact of the repeal of part of the law on the medical program and patient access. The Massachusetts Cannabis Control Commission (CCC), the state agency charged with overseeing the adult and medical program, interpreted and implemented the laws to reflect that the medical and adult programs were interrelated, in other words, the programs cannot be surgically divided by repealing the adult-use focused statutes.

Concerningly, the repeal would impact individuals who purchase adult marijuana for therapeutic and medicinal purposes. Relatedly, the repeal would eliminate the requirement that municipalities enter into a host community agreement with applicants, an early and essential opportunity to identify critical public health concerns.

Ultimately, MCC warned in its brief that if the court were to affirm the attorney general’s certification and summary, voters would be confused and misled and placed in an untenable position, and therefore, the ballot text does not withstand constitutional scrutiny.

Challenges to an attorney general’s certification and summary of a petition are difficult cases to win. And, based on Monday’s oral argument, it did not seem likely that the court is inclined to rule in the plaintiffs’ favor. Justices are aware that if it were to rule against the attorney general, Massachusetts voters would not have the opportunity to exercise their constitutional right to enact legislation via the ballot box. That said, we cannot know for certain what SJC will do with this case until it issues a decision, which will likely be by June.

Even if the the court ultimately rules against the plaintiffs and allows the petition to be placed on the ballot, this litigation challenge has already served a vital public purpose.

“By filing this amicus brief, MCC is standing up for both the cannabis industry and the will of the voters,” Dominguez, the group’s executive director, said. “Our voters deserve to know that the ballot question in front of them will dismantle a legalized industry that they voted to create and that, if passed, will recriminalize simple cannabis possession, minimize patient access and move consumers into the illicit market and away from a regulated and taxed system with strong public health and safety protections.”

“And this is all before any mention of the ballot question’s downstream effects of killing thousands of jobs, hundreds of local businesses and billions in needed tax revenue for our cities and towns,” he said.

By exposing the serious omissions in the attorney general’s summary and the consequences of repealing parts of the state’s cannabis laws, the legal challenge will hopefully inform Massachusetts voters about what is at stake for the industry. Should the initiative appear on the ballot, voters will be aware that there are several reasons to vote “No” in November.

Christine Baily, a former general counsel to the Massachusetts Cannabis Control Commission,  is an experienced legal strategist and regulatory expert specializing in the cannabis industry. Through C Baily Law LLC, she provides comprehensive legal services, and through Grey Birch Associates, she offers court-appointed receivership and turnaround support for distressed corporate assets.

Photo elements courtesy of rawpixel and Philip Steffan.

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