Commentary: Utah Legislature’s disregard for the people’s initiative leads to legally invalid pot plan

The Utah Legislature goes into session Monday, Dec. 3, 2018, in Salt Lake City, to consider changes to a voter-approved ballot initiative legalizing medical marijuana — a move that has generated backlash among supporters of the pot measure. (AP Photo/Rick Bowmer)

“All political power is inherent in the people.” That’s a “fundamental principle” the Utah Constitution recognizes as being “essential to the security of individual rights and the perpetuity of free government.” Under our Constitution, the people vested legislative power in the Utah Legislature, but retained the power and the right to pass their own laws through the initiative process.

By passing Proposition 2, the people of the state voted, among other things, to have a free-market system of distributing medical cannabis. As soon as possible, the Legislature, in a special session called by the governor, eviscerated Proposition 2 because legislators, urged on by The Church of Jesus Christ of Latter-day Saints, believed they had the right to disregard the will of the majority of the people.

State Rep. Merrill Nelson’s website states: “Under our Constitution, all government power originates with the people, and government officials are accountable to the people. Government exists to serve and protect the people in their rights. Government functions best when it is limited, transparent, and local — operating within its proper role … and closest to the people.”

Nice sentiments. But hypocrisy knows no bounds at the Legislature. What Nelson and other legislators have done is diametrically the opposite of what he said he stands for. Immediately after Proposition 2 became law, Nelson and Republican legislators (plus one Democrat) voted to transform it into something vastly different, in the form of HB3001, sponsored by Rep. Greg Hughes and pushed by their church.

Nelson expressed his disdain for the people and their initiatives, stating: “We [legislators] have the right to override what the people do by initiative. … We have a right to moderate the excesses of the initiative.” In other words, to hell with the people and their pesky initiatives.

The church and the Legislature have created an absurd, federally prohibited state-run bureaucracy that, by comparison, almost (but not quite) makes the DABC seem rational. They also created enormous, unique roadblocks to access for people who could find relief from suffering with medical cannabis.

But worst of all — at least for the church, the Legislature, their lawyers and the turncoats who pushed for Proposition 2, then capitulated to its opponents — the provisions in the replacement bill requiring the Utah Health Department to “procure,” “prepare,” “transport,” “distribute” and sell marijuana are legally invalid because they are pre-empted by the federal Controlled Substances Act. If the Health Department were to do what the Legislature insists it do in HB3001, it would become, under federal law, an illegal drug cartel. That could mean the criminal prosecution of all who participate in the state’s mandatory distribution scheme.

Sen. Todd Weiler argued that voters for the 28-page Proposition 2 did not read it. One must assume that neither he nor any other legislator read the 199-page HB3001. Or do they just not understand the concept of federal pre-emption?

When it is not possible for someone (or some state agency) to comply with both federal and state law, the state law is pre-empted by federal law under the Supremacy Clause of the United States Constitution. Proposition 2 provided for a free-market approach, which is not pre-empted by federal law because it does not require anyone to violate the federal Controlled Substances Act. By contrast, HB3001 compels the creation by the Utah Health Department of a marijuana enterprise, which obviously is a violation of federal law. Very simply, a state is forbidden from requiring the violation of federal law, which HB3001 does — and Proposition 2 did not.

The Legislature screwed up royally. The governor should call another special session so these egregious, self-inflicted errors can be remedied at once by the Legislature, instead of by the courts. And this time the Legislature would be well-counseled to listen to the people and to leave their initiative alone.

Al Hartmann | The Salt Lake Tribune Former Salt Lake City Mayor Rocky Anderson.

Rocky Anderson, a former Salt Lake City mayor, is an attorney representing patients, care-givers and the patient-advocacy groups Epilepsy Association of Utah and TRUCE.