Can ‘amend’ mean ‘repeal’? Utah Supreme Court weighs the scope of legislative tinkering on medical marijuana initiative

(Marina Riker | Associated Press file photo) This Feb. 17, 2016 file photo shows marijuana plants at a home in Honolulu.

Justices of the Utah Supreme Court acknowledged Monday that the state Legislature’s decision to replace two voter-approved initiatives in the past year, and alter the initiative process going forward, could raise questions of constitutionality.

But those same justices expressed skepticism that the case before them — filed by a group of Utah voters called The People’s Right in response to lawmakers’ overhaul of medical marijuana legalization — was the proper vehicle to address those questions.

“Those may be all fairly subject to constitutional challenge,” said Justice Constandinos Himonas, “but that’s not fairly in front of us right now.”

The high court did not immediately rule and gave no indication when its decision might be expected.

About 50 petitioners with The People’s Right made their argument to the state’s highest court without any professional legal counsel. Steven Maxfield, a lead plaintiff, said he couldn’t find an attorney who would take the case, so petitioners decided to represent themselves.

“I don’t need an attorney to screw up the case for me,” he joked during an interview after the hearing.

At points during a hearing Monday, justices raised various procedural questions, such as whether all the plaintiffs affiliated with The People’s Right had proper standing to bring the case and whether the state’s lower courts were the more appropriate venue.

But Himonas and Justice Paige Petersen also offered statements sympathetic to the plaintiffs’ argument that the right of Utah voters to initiate and enact legislation may be diminished by the Legislature’s discretion and expressed political will to disregard successful initiatives.

The Legislature’s power to greatly change or repeal voter-approved laws has come under increased scrutiny in recent months as elected leaders have acted to replace two separate initiatives, the one legalizing medical cannabis and another on Medicaid expansion. Critics have charged lawmakers with arrogantly overriding the will of the people by altering these laws.

Himonas and Petersen pressed attorneys for the state’s executive and legislative branches to explain whether the Legislature’s constitutional power to “amend” initiatives extended to the full or effective repeal of voter-approved laws, or whether some legislative limit protecting the public exists.

“If the Legislature can effectively change anything that the people pass, has that nullified that [voters’] right?” Petersen asked. “Is it essentially an empty power?”

Utah voters approved Proposition 2 in November, legalizing medical marijuana in the state for patients with qualifying conditions and the recommendation of their physician.

But on the first business day after the initiative took effect in December, lawmakers convened in special session to replace Prop 2 with a medical marijuana program of their own design.

And because the replacement legislation was approved by a two-thirds majority of the House and Senate, the action is not subject to a public referendum.

The People’s Right asked the court to either invalidate the Legislature’s replacement — reverting the state back to Prop 2 — or to determine that the prohibition on referendums does not apply to voter-initiated legislation. In the case of the latter ruling, Prop 2 supporters could move forward with a new campaign to undo the replacement plan through a second public vote.

Plaintiffs argued that the “coequal” power of the voters and Legislature to enact law has become unconstitutionally imbalanced by the state’s election laws, which now include new rules that delay the implementation of successful initiatives and prohibit the same initiative being run in back-to-back election cycles.

Maxfield described the Legislature’s actions as “unconscionable.” Without the ability to sponsor a referendum vote on replacement laws, Maxfield said, the public’s constitutional right to legislate is transformed into an advisory capacity.

“The initiative power is dead,” Maxfield said.

Himonas credited Maxfield for his argument linking the initiative power to the referendum power. But he also questioned whether the court was in a position to redraw those lines.

“You’re offering me a way in which to reconcile it,” Himonas said, “but I’m not sure it’s based in the actual language of the constitution.”

One of the petitioners’ primary arguments contested the urgency of a December special session to overwrite Prop 2. After the hearing, plaintiff Gary Clark said special sessions should be called only in exceptional situations when the need exists.

In this case, Clark asked, “What is the extraordinary circumstance?”

Clark’s wife, who suffers from multiple sclerosis, has found relief with medicinal cannabis, and he says the replacement bill limits her ability to experiment with forms of the treatment.

During the hearing, Himonas and Petersen pressed legislative and executive attorneys for clarifications on the need for the special session and what limits, if any, exist for the alteration of voter initiatives.

“Why couldn’t you just wait until the general session?” Himonas asked. “What was so extraordinary that it had to take place the day after?”

Stanford Purser, the state’s deputy solicitor general, initially deflected the question. When pressed by Himonas, Purser responded that the general subject matter of the initiative necessitated an expedited review by lawmakers.

“I think just the topic in general,” Purser said. “This is the first time the state would be faced with a medical marijuana law. To me, that’s extraordinary.”

On the subject of amendment versus repeal, Himonas suggested that “at some point” it becomes a valid argument to question whether an initiative can legally be amended “to the point of nonexistence.”

He also suggested that in some cases “it’s the fox in the henhouse,” because the Legislature’s bills trump the voters’ initiatives.

But Eric Weeks, an attorney for the Legislature, said the corresponding check on legislative power is the voters’ ability to remove individual lawmakers from office.

“Legislators serve at the whim of their constituents,” Weeks said.

Weeks also stated that the definition of “amend” does include “repeal,” in keeping with standard legislative practice.

“Amendments done in the legislative process often repeal things,” Weeks said, “often change them entirely.”

After the roughly hourlong hearing, the debate continued outside the Supreme Court chambers with an impromptu verbal tug of war between Maxfield and Connor Boyack, one of the primary architects of the cannabis bill passed by the Legislature.

Boyack also helped design Prop 2 and led the effort to put it on the ballot, and some fellow advocates feel he betrayed the cause by subsequently negotiating replacement legislation with lawmakers and The Church of Jesus Christ of Latter-day Saints.

Boyack, president of the Libertas Institute , told reporters after the hearing that Prop 2 had been “substantively amended” but not repealed. His comments were interrupted by Maxfield, who said Boyack had “capitulated,” a remark that led to a roughly 20-minute debate in full view of the news media.

Boyack said he wishes The People’s Right success in its effort to restore the voter initiative; the problem is, he doesn’t believe it will prevail.

His willingness to compromise on Prop 2 emerged from the reality that the Legislature would’ve otherwise dismantled the voter initiative and left patients without any access to cannabis treatments, he said.

“So we won,” Boyack said. “We got 85, 90 percent of what’s in Prop 2. Patients right now have legal access.”

But Maxfield maintained that the replacement bill gutted Prop 2 and he objected that the legislative process was also problematic, with advocates and politicians hammering out the cannabis act behind closed doors. That type of lawmaking might not be ideal, Boyack conceded, but it’s par for the course when it comes to the Utah Legislature.

While Himonas and Petersen offered most of the questions during Monday’s hearing, Justice Thomas Lee offered a few comments that appeared sympathetic to the state’s arguments.

Voters who support an initiative are able to put “all kinds of political pressure” on their elected representatives, Lee said. And the distinction between “amend” and “repeal” is an interesting question, he said, but without an obvious answer.

“Certainly one legislative body can repeal the legislative handiwork of a prior Legislature,” he said.