Utah’s Medical Cannabis Fight Will Have a Day in State Supreme Court

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SALT LAKE CITY, Utah — A legislative override of the ballot initiative that legalized medical cannabis use in Utah should be tossed out as unconstitutional because it undermined the right of voters to enact public policy.

That’s the contention made by citizen group The People’s Right in an emergency petition filed with the Utah Supreme Court.

Utah’s constitution awards citizens co-equal power with the state’s Legislature, a balance that was ignored by lawmakers and Gov. Gary Herbert when a new medical cannabis law was passed, signed and enacted in a single day.

“It was all a sham,” Bart Grant, one of three co-founders of The People’s Right, told Cannabis Wire.

The group, which is made up of more than 50 Utah voters, filed the petition with the court after an unsuccessful bid for a referendum — a public vote on laws enacted by the Legislature — on the replacement law from the Lt. Governor’s office.

In its petition to the court, the group alleges that the state actions caused “a constitutional crisis … to effectively VETO and eviscerate the fundamentally-protected right of the people to initiative effective legislation.”  

Oral argument in the case is set for March 25.

The case is the second to challenge the Legislature’s dismantling of Prop. 2.

A state district court is considering a complaint filed on behalf of the Utah Epilepsy Association and the patient advocacy group Together for Responsible Use and Cannabis Education (TRUCE), which raises separate constitutional issues.

On Wednesday, an attorney for the plaintiffs sent letters to county elected officials, executives, and health department officials in each of Utah’s 29 counties, asking whether they might consider joining the case.

Under the new law, attorney Rocky Anderson notes, county health departments, which are funded in part through federal funds, are required under the replacement bill to set up and staff distribution centers for patients who use medical cannabis. That could leave county health departments and their staff subject to federal prosecution, Anderson wrote, because cannabis is still illegal under federal law.

“In other words, [the replacement bill] requires what federal law prohibits … even if there is little or no risk of prosecution for the federal offenses.”

No hearings have been set in that case.

In The People’s Right matter, a court decision in the group’s favor would vacate the replacement law and restore Prop. 2 as enacted by voters, said Steve Maxfield, another People’s Right co-founder.

State attorneys have asked the court to dismiss the case, saying simply that the “petitioners are mad” about the process and that their arguments lack merit because the actions of the legislature and the governor don’t violate state law.

Senate Majority Leader Evan Vickers, a Republican from Cedar City, did not return a message seeking comment, but has said he was surprised by the court’s decision to hear the case. Vickers told Utah’s Fox13 television station that he believes justices will uphold the bill passed by lawmakers.

Fifty-three percent of voters passed Prop. 2 in November. The law took effect Dec. 1, 2018. Two days later, the legislature replaced it with House Bill 3001, which swept aside significant portions of the ballot measure.

Utah’s governor, who had announced plans to call a special session to address Prop. 2 weeks before the election, signed the bill the same day.

Maxfield and Grant, who both have long records in political activism — specifically around the voter initiative process —  said the state’s actions show a blatant disregard for “the will of the people” and discourages Utahns from voting.

Salt Lake County District Attorney Sim Gill agrees. Prop. 2, he told Cannabis Wire, grew out of the refusal of lawmakers to listen to constituents, who had for years been asking for access to medicinal cannabis. Lawmakers only moved to override voters when it became clear they would lose at the ballot box.

Their actions are “an absolute betrayal of our political ideals, of our beliefs in representative government,” said Gill, who was the only one of Utah’s 19 county attorneys to support Prop. 2.

Other than voting out sitting lawmakers, Gill said, the only way for citizens to place a check on government is to use the initiative process.

“The most fundamental question now is, if the Legislature can just do whatever it wants to do, then why are we engaging in this farce of a citizen initiative?” Gill said.

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