Advisory Opinion to the Attorney General Re: Use of Marijuana for Certain Medical Conditions (Financial Impact Statement)

• Court: Supreme Court of Florida
• Decided: January 27, 2014
• Docket: SC13-2132
• Status: Published

Opinion

Supreme Court of Florida ____________

No. SC13-2006 ____________

ADVISORY OPINION TO THE ATTORNEY GENERAL RE: USE OF MARIJUANA FOR CERTAIN MEDICAL CONDITIONS.

____________

No. SC13-2132 ____________

ADVISORY OPINION TO THE ATTORNEY GENERAL RE: USE OF MARIJUANA FOR CERTAIN MEDICAL CONDITIONS (FINANCIAL IMPACT STATEMENT).

[January 27, 2014]

PER CURIAM.

The Attorney General of Florida has petitioned this Court for an advisory

opinion as to the validity of a proposed citizen initiative amendment to the Florida

Constitution, submitted by an organization called People United for Medical

Marijuana (the “proponent”), and the corresponding Financial Impact Statement

submitted by the Financial Impact Estimating Conference. We have jurisdiction.

See art. IV, § 10; art. V, § 3(b)(10), Fla. Const. Our review of the proposed amendment is confined to two issues: (1)

whether the proposed amendment itself satisfies the single-subject requirement of

article XI, section 3, of the Florida Constitution; and (2) whether the ballot title and

summary satisfy the requirements of section 101.161(1), Florida Statutes (2013).

See Advisory Op. to Att’y Gen. re Water & Land Conservation—Dedicates Funds

to Acquire & Restore Fla. Conservation & Recreation Lands, 123 So. 3d 47, 50

(Fla. 2013). For the reasons we explain, we conclude that the proposed

amendment embraces a single subject, which is the medical use of marijuana, and

therefore complies with article XI, section 3.

We also conclude that the ballot title and summary comply with section

101.161(1) because they are not clearly and conclusively defective. By reading the

proposed amendment as a whole and construing the ballot title together with the

ballot summary, we hold that 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. The interpretation of the

proposed amendment offered by the proponent that “the intent is to allow

-2- [marijuana] use for a serious medical condition or disease,” rather than for any

medical condition for which a physician personally believes that the benefits

outweigh the health risks, is a reasonable one that is supported by accepted

principles of constitutional interpretation.

Finally, we conclude that the accompanying Financial Impact Statement is in

compliance with section 100.371(5), Florida Statutes (2013). We therefore

approve the proposed amendment and Financial Impact Statement for placement

on the ballot. We express no opinion as to the merits of the proposal.

I. BACKGROUND

On October 24, 2013, the Attorney General petitioned this Court for an

opinion as to the validity of a citizen initiative petition sponsored by the proponent

and circulated pursuant to article XI, section 3, of the Florida Constitution. The

proposed amendment would add a new section 29 to article X of the Florida

Constitution. The full text of the proposed amendment states as follows:

ARTICLE X, SECTION 29. Medical marijuana production, possession and use.— (a) PUBLIC POLICY. (1) The medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability or sanctions under Florida law except as provided in this section. (2) A physician licensed in Florida shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section. (3) Actions and conduct by a medical marijuana treatment center registered with the Department, or its employees, as permitted

-3- by this section and in compliance with Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law except as provided in this section. (b) DEFINITIONS. For purposes of this section, the following words and terms shall have the following meanings: (1) “Debilitating Medical Condition” means cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient. (2) “Department” means the Department of Health or its successor agency. (3) “Identification card” means a document issued by the Department that identifies a person who has a physician certification or a personal caregiver who is at least twenty-one (21) years old and has agreed to assist with a qualifying patient’s medical use of marijuana. (4) “Marijuana” has the meaning given cannabis in Section 893.02(3), Florida Statutes (2013). (5) “Medical Marijuana Treatment Center” means an entity that acquires, cultivates, possesses, processes (including development of related products such as food, tinctures, aerosols, oils, or ointments), transfers, transports, sells, distributes, dispenses, or administers marijuana, products containing marijuana, related supplies, or educational materials to qualifying patients or their personal caregivers and is registered by the Department. (6) “Medical use” means the acquisition, possession, use, delivery, transfer, or administration of marijuana or related supplies by a qualifying patient or personal caregiver for use by a qualifying patient for the treatment of a debilitating medical condition. (7) “Personal caregiver” means a person who is at least twenty- one (21) years old who has agreed to assist with a qualifying patient’s medical use of marijuana and has a caregiver identification card issued by the Department. A personal caregiver may assist no more than five (5) qualifying patients at one time. An employee of a hospice provider, nursing, or medical facility may serve as a personal caregiver to more than five (5) qualifying patients as permitted by the Department. Personal caregivers are prohibited from consuming

-4- marijuana obtained for the personal, medical use by the qualifying patient. (8) “Physician” means a physician who is licensed in Florida. (9) “Physician certification” means a written document signed by a physician, stating that in the physician’s professional opinion, the patient suffers from a debilitating medical condition, that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient, and for how long the physician recommends the medical use of marijuana for the patient. A physician certification may only be provided after the physician has conducted a physical examination of the patient and a full assessment of the patient’s medical history. (10) “Qualifying patient” means a person who has been diagnosed to have a debilitating medical condition, who has a physician certification and a valid qualifying patient identification card. If the Department does not begin issuing identification cards within nine (9) months after the effective date of this section, then a valid physician certification will serve as a patient identification card in order to allow a person to become a “qualifying patient” until the Department begins issuing identification cards. (c) LIMITATIONS. (1) Nothing in this section shall affect laws relating to non- medical use, possession, production or sale of marijuana. (2) Nothing in this section authorizes the use of medical marijuana by anyone other than a qualifying patient. (3) Nothing in this section allows the operation of a motor vehicle, boat, or aircraft while under the influence of marijuana. (4) Nothing in this law section [sic] requires the violation of federal law or purports to give immunity under federal law. (5) Nothing in this section shall require any accommodation of any on-site medical use of marijuana in any place of education or employment, or of smoking medical marijuana in any public place. (6) Nothing in this section shall require any health insurance provider or any government agency or authority to reimburse any person for expenses related to the medical use of marijuana. (d) DUTIES OF THE DEPARTMENT. The Department shall issue reasonable regulations necessary for the implementation and enforcement of this section. The purpose of the regulations is to ensure the availability and safe use of medical marijuana by

-5- qualifying patients. It is the duty of the Department to promulgate regulations in a timely fashion. (1) Implementing Regulations. In order to allow the Department sufficient time after passage of this section, the following regulations shall be promulgated no later than six (6) months after the effective date of this section: a. Procedures for the issuance of qualifying patient identification cards to people with physician certifications, and standards for the renewal of such identification cards. b. Procedures for the issuance of personal caregiver identification cards to persons qualified to assist with a qualifying patient’s medical use of marijuana, and standards for the renewal of such identification cards. c. Procedures for the registration of Medical Marijuana Treatment Centers that include procedures for the issuance, renewal, suspension, and revocation of registration, and standards to ensure security, record keeping, testing, labeling, inspection, and safety. d. A regulation that defines the amount of marijuana that could reasonably be presumed to be an adequate supply for qualifying patients’ medical use, based on the best available evidence. This presumption as to quantity may be overcome with evidence of a particular qualifying patient’s appropriate medical use. (2) Issuance of identification cards and registrations. The Department shall begin issuing qualifying patient and personal caregiver identification cards, as well as begin registering Medical Marijuana Treatment Centers no later than nine months (9) after the effective date of this section. (3) If the Department does not issue regulations, or if the Department does not begin issuing identification cards and registering Medical Marijuana Treatment Centers within the time limits set in this section, any Florida citizen shall have standing to seek judicial relief to compel compliance with the Department’s constitutional duties. (4) The Department shall protect the confidentiality of all qualifying patients. All records containing the identity of qualifying patients shall be confidential and kept from public disclosure other than for valid medical or law enforcement purposes.

-6- (e) LEGISLATION. Nothing in this section shall limit the legislature from enacting laws consistent with this provision. (f) SEVERABILITY. The provisions of this section are severable and if any clause, sentence, paragraph or section of this measure, or an application thereof, is adjudged invalid by any court of competent jurisdiction other provisions shall continue to be in effect to the fullest extent possible.

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.

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.

-7- Following this Court’s direction for interested parties to file briefs as to the

Attorney General’s petition, the proponent submitted a brief in support of the

proposed amendment’s validity, while the Court received four 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 (collectively, the “opponents”). No briefs

or comments were submitted to this Court in response to the proponent’s argument

that the Financial Impact Statement complies with section 100.371(5), Florida

Statutes.

II. STANDARD OF REVIEW

This Court has traditionally applied a deferential standard of review to the

validity of a citizen initiative petition and “has been reluctant to interfere” with

“the right of self-determination for all Florida’s citizens” to formulate “their own

organic law.” Advisory Op. to Att’y Gen. re Right to Treatment & Rehab. for

Non-Violent Drug Offenses, 818 So. 2d 491, 494 (Fla. 2002). As this Court has

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

-8- entire failure to comply with a plain and essential requirement of [the law].

Id. (quoting Pope v. Gray, 104 So. 2d 841, 842 (Fla. 1958)). In this vein, this

Court has long explained that our “duty is to uphold the proposal unless it can be

shown to be ‘clearly and conclusively defective.’ ” In re Advisory Op. to Att’y

Gen. re Fla.’s Amend. to Reduce Class Size, 816 So. 2d 580, 582 (Fla. 2002)

(quoting Advisory Op. to Att’y Gen. re Tax Limitation, 673 So. 2d 864, 867 (Fla.

1996)); see also In re Advisory Op. to Att’y Gen. re Med. Liab. Claimant’s Comp.

Amend., 880 So. 2d 675, 676 (Fla. 2004) (“In order for the Court to invalidate a

proposed amendment, the record must show that the proposal is clearly and

conclusively defective . . . .” (quoting Advisory Op. to Att’y Gen. re Amend. to

Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So.

2d 888, 891 (Fla. 2000))).

When determining the validity of an amendment arising through the citizen

initiative process, our inquiry is limited to two legal issues: (1) whether the

proposed amendment violates the single-subject requirement of article XI, section

3, of the Florida Constitution; and (2) whether the ballot title and summary violate

the requirements of section 101.161(1), Florida Statutes. Right to Treatment &

Rehab., 818 So. 2d at 494. We do not address the merits of the proposal. Id.

We begin our analysis in this case with the single-subject requirement.

III. SINGLE-SUBJECT REQUIREMENT

-9- Article XI, section 3, of the Florida Constitution sets forth the requirements

for a proposed constitutional amendment arising through the citizen initiative

process. This constitutional provision provides in pertinent part that any proposed

citizen initiative amendment “shall embrace but one subject and matter directly

connected therewith.” Art. XI, § 3, Fla. Const. “In evaluating whether a proposed

amendment violates the single-subject requirement, the Court must determine

whether it has a ‘logical and natural oneness of purpose.’ ” Treating People

Differently, 778 So. 2d at 891-92 (quoting Fine v. Firestone, 448 So. 2d 984, 990

(Fla. 1984)).

The single-subject requirement “is a rule of restraint designed to insulate

Florida’s organic law from precipitous and cataclysmic change.” In re Advisory

Op. to Att’y Gen.—Save Our Everglades, 636 So. 2d 1336, 1339 (Fla. 1994). This

requirement prevents a proposal “from engaging in either of two practices: (a)

logrolling; or (b) substantially altering or performing the functions of multiple

branches of state government.” Water & Land Conservation, 123 So. 3d at 50-51.

This Court has defined logrolling as “a practice wherein several separate

issues are rolled into a single initiative in order to aggregate votes or secure

approval of an otherwise unpopular issue.” Save Our Everglades, 636 So. 2d at

1339. This Court has also explained that “[a] proposal that affects several

branches of government will not automatically fail; rather, it is when a proposal

- 10 - substantially alters or performs the functions of multiple branches that it violates

the single-subject test.” Advisory Op. to Att’y Gen. re Fish & Wildlife

Conservation Comm’n, 705 So. 2d 1351, 1353-54 (Fla. 1998).

The opponents, including the Attorney General and the Legislature, allege

that the proposed amendment violates the single-subject requirement for a variety

of reasons, including that the amendment engages in impermissible logrolling by

combining separate subjects into one proposal, and that the amendment

substantially alters multiple functions of government by making broad legislative

policy determinations; exercising executive authority through “constitutionalizing”

the Department of Health and establishing a complex regulatory system; and

providing physicians broad immunity, thereby affecting access to courts. We

disagree.

We conclude that the proposed amendment has a logical and natural oneness

of purpose—namely, whether Floridians want a provision in the state constitution

authorizing the medical use of marijuana, as determined by a licensed Florida

physician, under Florida law. The amendment’s provision of a specific role for the

Department of Health in overseeing and licensing the medical use of marijuana is

directly connected with this purpose. See Advisory Op. to Att’y Gen.—Fee on

Everglades Sugar Prod., 681 So. 2d 1124, 1128 (Fla. 1996) (concluding that the

proposal did not violate the single-subject requirement and explaining that “the

- 11 - imposition of the fee and the designation of the revenue . . . are two components

directly connected to the fundamental policy of requiring first processors to

contribute towards ongoing Everglades restoration”). As this Court explained in

Advisory Opinion to the Attorney General re Standards for Establishing

Legislative District Boundaries, 2 So. 3d 175 (Fla. 2009), a proposed amendment

may “delineate a number of guidelines” consistent with the single-subject

requirement as long as these components possess “a natural relation and

connection as component parts or aspects of a single dominant plan or scheme.”

Id. at 181-82 (quoting Advisory Op. to Att’y Gen. re Patients’ Right to Know

About Adverse Med. Incidents, 880 So. 2d 617, 620 (Fla. 2004)).

Further, removing state-imposed penalties and liability from those involved

in the authorized medical use of marijuana consistent with the proposed

amendment is also directly connected with the amendment’s purpose. Therefore,

the proposed amendment does not engage in impermissible logrolling, but is

instead consistent with prior proposals this Court has approved “because they

encompassed a single plan and merely enumerated various elements necessary to

accomplish that plan.” Id. at 182; see also Advisory Op. to Att’y Gen. re. Fla.

Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or

Magnetic Levitation Sys., 769 So. 2d 367, 369 (Fla. 2000) (holding that “there is

no impermissible logrolling” where “[t]he only subject embraced in the proposed

- 12 - amendment is whether the people of this State want to include a provision in their

Constitution mandating that the government build a high speed ground

transportation system”).

Additionally, the proposed amendment does not substantially alter or

perform the functions of multiple branches. If the amendment passes, the

Department of Health would perform regulatory oversight, which would not

substantially alter its function or have a substantial impact on legislative functions

or powers. The amendment would require the Department of Health or its

successor agency to register and oversee providers, issue identification cards, and

determine treatment amounts to ensure the “safe use of medical marijuana by

qualifying patients.” See Everglades Sugar Prod., 681 So. 2d at 1128 (“[T]he Fee

amendment does not substantially affect or alter any government function, but is a

levy by an existing agency.”); see also Advisory Op. to Att’y Gen. re Term Limits

Pledge, 718 So. 2d 798, 802 (Fla. 1998) (concluding that the initiative did not

substantially alter the functions of multiple branches “even though affecting the

constitutional authority of the Secretary of State and affecting more than one

provision of the constitution”).

“[T]he fact that [a] branch of government is required to comply with a

provision of the Florida Constitution does not necessarily constitute the usurpation

of the branch’s function within the meaning of the single-subject rule.” Advisory

- 13 - Op. to Att’y Gen. re Protect People, Especially Youth, From Addiction, Disease,

and Other Health Hazards of Using Tobacco, 926 So. 2d 1186, 1192 (Fla. 2006).

Moreover, the Department of Health would not be empowered under this

amendment to make the types of primary policy decisions that are prohibited under

the doctrine of nondelegation of legislative power. See Askew v. Cross Key

Waterways, 372 So. 2d 913, 925 (Fla. 1978).

Accordingly, we conclude that the proposed amendment complies with the

single-subject requirement of article XI, section 3.

IV. BALLOT TITLE AND SUMMARY

The next issue we address is whether the proposed amendment will be

“accurately represented on the ballot.” Armstrong v. Harris, 773 So. 2d 7, 12 (Fla.

2000) (emphasis omitted). This requires us to consider two questions: (1) whether

the ballot title and summary, in clear and unambiguous language, fairly inform the

voters of the chief purpose of the amendment; and (2) whether the language of the

ballot title and summary, as written, will be affirmatively misleading to voters.

See Advisory Op. to Att’y Gen. re Fla. Marriage Prot. Amend., 926 So. 2d 1229,

1236 (Fla. 2006).

We conclude that the ballot title and summary fairly inform voters of the

chief purpose of the amendment and will not mislead voters, who will be able to

cast an intelligent and informed ballot as to whether they want a provision in the

- 14 - state constitution authorizing the medical use of marijuana, as determined by a

licensed Florida physician, under Florida law. We therefore reject the opponents’

assertion that the amendment “would allow far wider marijuana use than the ballot

title and summary reveal.”

Section 101.161, Florida Statutes, governs the requirements for the ballot

title and summary of an initiative petition. This statute provides in pertinent part as

follows:

(1) Whenever a constitutional amendment or other public measure is submitted to the vote of the people, a ballot summary of such amendment or other public measure shall be printed in clear and unambiguous language on the ballot after the list of candidates, followed by the word “yes” and also by the word “no,” and shall be styled in such a manner that a “yes” vote will indicate approval of the proposal and a “no” vote will indicate rejection. The ballot summary of the amendment or other public measure and the ballot title to appear on the ballot shall be embodied in the constitutional revision commission proposal, constitutional convention proposal, taxation and budget reform commission proposal, or enabling resolution or ordinance. The ballot summary of the amendment or other public measure shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure. In addition, for every amendment proposed by initiative, the ballot shall include, following the ballot summary, a separate financial impact statement concerning the measure prepared by the Financial Impact Estimating Conference in accordance with s. 100.371(5). The ballot title shall consist of a caption, not exceeding 15 words in length, by which the measure is commonly referred to or spoken of. This subsection does not apply to constitutional amendments or revisions proposed by joint resolution.

§ 101.161(1), Fla. Stat. (2013).

- 15 - In Save Our Everglades, this Court explained the meaning of section

101.161 in the following way:

“[S]ection 101.161 requires that the ballot title and summary for a proposed constitutional amendment state in clear and unambiguous language the chief purpose of the measure.” This is so that the voter will have notice of the issue contained in the amendment, will not be misled as to its purpose, and can cast an intelligent and informed ballot. However, “[i]t is not necessary to explain every ramification of a proposed amendment, only the chief purpose.”

636 So. 2d at 1341 (citations omitted). “In brief, the ballot title and summary must

fairly inform the voter of the chief purpose of the amendment.” Right to Treatment

& Rehab., 818 So. 2d at 497.

The opponents and Chief Justice Polston’s dissent, agreeing with the

arguments of the opponents, allege multiple reasons why the ballot title and

summary are affirmatively misleading. Taken together, the main arguments of the

opponents and the Chief Justice’s dissent are that: (1) the summary “promises a

narrow and limited marijuana program—the precise opposite of what the

[a]mendment would deliver”; (2) the summary fails to disclose that physicians who

authorize patients’ use of medical marijuana consistent with the amendment

allegedly will receive broad tort and disciplinary immunity; and (3) the summary

wrongly suggests that the amendment “allows” activities that are plainly illegal

under federal law. We address each of these arguments in turn.

A. The Scope of the Amendment

- 16 - We begin with the opponents’ first and primary assertion: that the ballot title

and summary hide the true scope of the proposed amendment. Specifically, we

address two arguments raised by the opponents and contained in the dissents of

Chief Justice Polston and Justice Labarga: (1) that the ballot summary is

misleading because the phrase “debilitating diseases” will lead voters to think that

the conditions that would qualify for the medical use of marijuana are only very

serious ones, when in fact the amendment would permit virtually “limitless” use of

marijuana; and (2) that the ballot title and summary are misleading based on the

inconsistent use of terms such as “certain” in the title and “diseases” in the

summary that will lead voters to believe that the amendment is narrow in scope,

when in actuality it would authorize marijuana use for any condition for which a

physician believes that the benefits outweigh the risks. To further illustrate this

contention as to the “limitless” scope of the proposed amendment, Chief Justice

Polston asserts that under the amendment, medical marijuana could be prescribed

for “anxiety about an upcoming exam” or “minor aches and pains.” Dissenting op.

at 50, 55 (Polston, C.J.).

The opponents and Chief Justice Polston’s dissent contend that the

proponent deceptively uses the phrases “debilitating diseases” and “certain medical

conditions” in the ballot title and summary in an attempt to gain an electoral

advantage with voters who might otherwise object to a broader use of medical

- 17 - 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.

To the contrary, the proponent contends that the opponents advance a flawed

interpretation of the proposed amendment as being “limitless” in scope and assert

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 proponent states that the “intent is to

allow use for a serious medical condition or disease.”

Because the proponent and opponents disagree as to the scope of the

proposed amendment, and because in our view the question of whether the ballot

title and summary are misleading on this point turns on the interpretation of the

amendment itself, we must review the operative portions of the proposed

amendment’s text. “When reviewing constitutional provisions, this Court follows

principles parallel to those of statutory interpretation.” Graham v. Haridopolos,

108 So. 3d 597, 603 (Fla. 2013) (quoting Crist v. Fla. Ass’n of Criminal Def.

Lawyers, Inc., 978 So. 2d 134, 139 (Fla. 2008)).

- 18 - 1. “Debilitating Medical Condition”

The initial argument we address concerns the breadth of the phrase

“debilitating medical condition” in the text of the proposed amendment. There are

three pertinent sections of the amendment related to this issue.

First, subsection (b)(1) defines the term “Debilitating Medical Condition” to

mean:

cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

Second, subsection (b)(9) defines the term “Physician Certification”

to mean:

a written document signed by a physician, stating that in the physician’s professional opinion, the patient suffers from a debilitating medical condition, that the potential benefits of the medical use of marijuana would likely outweigh the health risks for the patient, and for how long the physician recommends the medical use of marijuana for the patient. A physician certification may only be provided after the physician has conducted a physical examination of the patient and a full assessment of the patient’s medical history.

Finally, subsection (b)(10) defines the term “Qualifying patient” to

mean “a person who has been diagnosed to have a debilitating medical

condition, who has a physician certification and a valid qualifying patient

identification card.”

- 19 - The opponents claim that, contrary to the impression presented by the ballot

title and summary, these provisions in the proposed amendment’s text authorize

the medical use of marijuana for more conditions than are commonly thought of as

“debilitating,” and would allow physicians unfettered authority to authorize the use

of marijuana for conditions ranging from everyday aches and pains to everyday

stresses. In support of their argument about the breadth of the proposed

amendment, the opponents point to the portion of subsection (b)(1) that includes,

within the definition of “debilitating medical condition,” the phrase “other

conditions for which a physician believes that the medical use of marijuana would

likely outweigh the potential health risks for a patient.”

The proponent responds that the term “debilitating medical condition,” as

defined in the text of the proposed amendment, includes specific and known

debilitating conditions such as cancer and ALS but simply cannot and “does not

attempt to define all possible debilitating conditions” for now and the future. The

proponent contends that the “other conditions determined by a physician must be

generically similar in severity or seriousness to the specific list of medical

conditions” set forth in the proposed amendment.

The proponent further asserts that the types of conditions for which the

proposed amendment authorizes the medical use of marijuana are limited by the

requirement of “physician certification,” which mandates that a physician certify in

- 20 - writing that the patient suffers from a “debilitating” condition and that the benefits

of medical marijuana usage outweigh the health risks to the patient. In other

words, the proponent states that the ballot title and summary are not misleading

precisely because the intent of the amendment is to limit the use of marijuana to

“debilitating medical conditions” and not to a broad and open-ended range of more

minor medical conditions.

We reject the opponents’ construction of the proposed amendment. Instead,

for the reasons that follow, we conclude that the interpretation offered by the

proponent is a reasonable one that is supported by accepted principles of

constitutional interpretation.

In order to determine the scope of the proposed amendment, we begin by

defining the key term “debilitating,” which is the term used in both the amendment

itself and the ballot summary to describe the types of conditions for which the

amendment would authorize the medical use of marijuana. Notably, although

“debilitating” is the key term that defines the breadth of the proposed amendment

because it restricts the “medical conditions” that fall within the amendment’s

scope, Chief Justice Polston’s dissent finds this critical term to be insignificant,

focusing instead on the differences that exist between the terms “condition” in the

ballot title and text of the proposed amendment and “disease” in the ballot

summary, while minimizing the impact of the “debilitating” modifier used in both

- 21 - the proposed amendment and the ballot summary. To the contrary, we conclude

that an analysis of the term “debilitating” is critical to understanding the intended

scope of the proposed amendment, as a patient does not qualify under the text of

the proposed amendment to receive a physician certification unless a licensed

Florida physician makes a professional determination that the medical condition is

“debilitating.”

In construing terms used in the constitution and presented to the voters in a

proposed constitutional amendment, this Court looks to dictionary definitions of

the terms because we recognize that, “in general, a dictionary may provide the

popular and common-sense meaning of terms presented to the voters.” Advisory

Op. to Gov.–1996 Amend. 5 (Everglades), 706 So. 2d 278, 282 (Fla. 1997).

Merriam Webster’s Collegiate Dictionary defines “debilitating” to mean “to impair

the strength of; enfeeble.” Merriam-Webster’s Collegiate Dictionary 320 (11th ed.

2005). The Oxford English Dictionary likewise defines “debilitating” to mean

“[t]hat debilitates; weakening, enfeebling,” where “debilitate” is defined as “[t]o

render weak; to weaken, enfeeble.” The Oxford English Dictionary 312 (2d ed.

1989). Similarly, Stedman’s Medical Dictionary defines “debilitating” as

“[d]enoting or characteristic of a morbid process that causes weakness,” where

“morbid” is defined as “[d]iseased or pathologic.” Stedman’s Medical Dictionary

496, 1226 (28th ed. 2006).

- 22 - The common definition of “debilitating,” based on these authorities, is

therefore similar under both medical and lay dictionaries. While the opponents

suggest that the proposed amendment would authorize the “unfettered” use of

marijuana to treat more conditions than are commonly thought of as “debilitating,”

the popular and common-sense meaning of “debilitating”—though not requiring

the condition to be as “serious and devastating” as the opponents state—still

requires that the medical condition cause impaired strength, weakness, or

enfeeblement. In other words, a physician must first make a professional

determination that the patient’s medical condition causes impaired strength,

weakness, or enfeeblement in order to consider issuing a physician certification

consistent with the proposed amendment, which limits the amendment’s scope.

Nevertheless, the opponents contend that the proposed amendment does not

even require that an individual’s condition be “debilitating.” In arguing that the

proposed amendment is virtually “limitless,” the opponents point to the portion of

the definition of “debilitating medical condition” within the proposed amendment

that includes the phrase “other conditions for which a physician believes that the

medical use of marijuana would likely outweigh the potential health risks for a

patient.”

This phrase, however, is found within the section of the proposed

amendment that defines “debilitating medical condition.” (Emphasis added.) In

- 23 - this regard, we conclude that the phrase cannot be read in isolation to include any

medical condition in which the physician concludes that the benefits of marijuana

use outweigh the health risks, regardless of the “debilitating” nature of the

condition. Instead, in order for a physician to prescribe marijuana to treat a

medical condition not specifically listed in the amendment, the physician still must

make a professional determination that the condition is “debilitating.”

Further and importantly, the statutory and constitutional construction

principle of ejusdem generis—which is a Latin term for “of the same kind”—is

instructive on this issue. Distilled to its essence, this rule provides that where

general words or phrases follow an enumeration of specific words or phrases, “the

general words are construed as applying to the same kind or class as those that are

specifically mentioned.” Fayad v. Clarendon Nat’l Ins. Co., 899 So. 2d 1082,

1088-89 (Fla. 2005); see also Graham, 108 So. 3d at 605.

Application of ejusdem generis in this case supports our conclusion that the

scope of the proposed amendment is not open-ended because the general category

of “other conditions” that may qualify as a “debilitating medical condition” under

the terms of the amendment must be of the “same kind or class” as those

conditions specifically mentioned. In State v. Hearns, 961 So. 2d 211, 219 (Fla.

2007), this Court addressed the meaning of a similar general category that followed

a specific list, concluding that the general phrase “any other felony involving the

- 24 - use or threat of physical force or violence” included “only offenses which involve

a level of physical force or violence comparable to that of the enumerated

felonies.” The Court observed that the mere touching of a law enforcement officer

was “not in the same league” as the level of force contemplated by the enumerated

felonies in the forcible felony statute. Id.; see also State v. Rivers, 660 So. 2d

1360, 1362 (Fla. 1995) (explaining that the general category of other crimes

“dangerous to life, limb, or property, and punishable by imprisonment for more

than one year” must be construed “as applying only to crimes of the same kind as

those precisely stated in the statute”).

Although Chief Justice Polston’s and Justice Canady’s dissents criticize our

use of ejusdem generis, our application of this principle of constitutional

interpretation in this case is strikingly similar to its application in Hearns. While

Chief Justice Polston’s dissent asserts that “the majority rewrites the definition” of

“debilitating medical condition” by “in effect insert[ing] the word ‘similar’ into the

clear and unambiguous definition,” dissenting op. at 58 (Polston, C.J.), the canon

of ejusdem generis itself is predicated upon the concept that a general category

following an enumeration of specific words or phrases should be construed

“similarly” to those that are specifically mentioned. Thus, the very purpose of

ejusdem generis is to assist the Court in interpreting a general category that follows

a specific list but that does not include the word “similar.” In this way, Chief

- 25 - Justice Polston’s dissent appears to disagree with the interpretive canon itself, as

any use of ejusdem generis under the dissent’s reasoning would involve inserting

the word “similar” into the text.

Moreover, this Court is required to read the term “debilitating medical

condition” together with the rest of the proposed amendment. In construing

“multiple constitutional provisions addressing a similar subject, the provisions

‘must be read in pari materia to ensure a consistent and logical meaning that gives

effect to each provision.’ ” Graham, 108 So. 3d at 603 (quoting Caribbean

Conservation Corp. v. Fla. Fish & Wildlife Conservation Comm’n, 838 So. 2d 492,

501 (Fla. 2003)).

In Advisory Opinion to the Attorney General re Florida Locally Approved

Gaming, 656 So. 2d 1259, 1262 (Fla. 1995), this Court addressed a similar

argument to the one presented by the opponents in this case that the ballot title and

summary of a proposed citizen initiative amendment were misleading “because

neither inform[ed] the voter of the actual effects of the proposed amendment.”

This Court rejected that argument, concluding that two subsections of the proposed

amendment “must be read together” in order to properly interpret the meaning of

the amendment. Id. Moreover, the Court noted that its interpretation, after reading

the proposed amendment in pari materia, was “fully consistent with the

proponents’ construction of the amendment at oral argument.” Id.

- 26 - We conclude that a similar analysis applies in this case. Reading

subsections (b)(1), (b)(9), and (b)(10) together demonstrates that the circumstances

under which marijuana can be prescribed by a physician are not open-ended to any

condition in which the physician personally believes that the benefits outweigh the

risks. To the contrary, the circumstances under which the proposed amendment

authorizes the medical use of marijuana are limited by two conditions: first, that

“in the physician’s professional opinion, the patient suffers from a debilitating

medical condition”; and second, that “the potential benefits of the medical use of

marijuana would likely outweigh the health risks for the patient.”

We therefore reject the view expressed in Chief Justice Polston’s dissent that

“by reading subsections (b)(1) and (b)(9) together, it is abundantly (and

redundantly) clear that a physician need only believe that the potential benefits of

marijuana would likely outweigh the risks” in order to issue a physician

certification. Dissenting op. at 60 (Polston, C.J.). As this Court has consistently

explained, “[i]t is an elementary principle of statutory [and constitutional]

construction that significance and effect must be given to every word, phrase,

sentence, and part” of the provision if possible. Gulfstream Park Racing Ass’n,

Inc. v. Tampa Bay Downs, Inc., 948 So. 2d 599, 606 (Fla. 2006) (quoting

Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996 (Fla. 2003)). The

interpretation offered by Chief Justice Polston’s dissent, however, would render

- 27 - meaningless the first part of subsection (b)(9), which states that the physician must

determine that “the patient suffers from a debilitating medical condition,” since

this determination would become unnecessary under the dissent’s reasoning given

that the second part of subsection (b)(9) already requires a physician to determine

that “the potential benefits of the medical use of marijuana would likely outweigh

the health risks for the patient.”

When the various provisions of the proposed amendment are read together in

the context of the entire amendment, it is reasonable to construe the amendment as

being limited to “debilitating” medical conditions that require the professional

opinion of a physician to diagnose, and that as to each “debilitating” condition, the

benefits of prescribing marijuana as a treatment must outweigh the health risks.

Further, a “physician certification” must be filed with the Department of Health,

affirming that in the physician’s professional opinion, the patient suffers from a

“debilitating” medical condition; that the potential benefits of the medical use of

marijuana would likely outweigh the health risks; and a statement of “how long the

physician recommends the medical use of marijuana for the patient.”

As to this “physician certification,” the amendment also states that it “may

only be provided after the physician has conducted a physical examination of the

patient and a full assessment of the patient’s medical history.” The amendment in

- 28 - addition requires that a “physician certification” must be filed with the Department

of Health as to each “qualifying patient.”

Rather than allow the open-ended, broad use of marijuana, these multiple

restrictions in the text of the amendment itself reflect a constitutional scheme that

is meant to be limited in scope regarding the medical use of marijuana to treat

“debilitating medical conditions.” Indeed, this interpretation is consistent with the

interpretation of the proposed amendment offered by the proponent in its brief and

at oral argument as to the intent of the amendment as proposed.

2. Use of “Certain Medical Conditions” and “Debilitating Diseases”

The opponents’ next argument as to the scope of the proposed amendment is

that the ballot title and summary are affirmatively misleading because the use of

the phrase “certain medical conditions” in the ballot title denotes a fixed number of

conditions, and the term “debilitating diseases” used in the ballot summary—

instead of “debilitating medical condition,” as used in the amendment itself—

conveys a more limited scope regarding the use of marijuana than the amendment

would actually permit. The proponent, on the other hand, contends that when

viewed together, the ballot title and summary accurately convey the chief purpose

of the amendment—to authorize the use of marijuana for certain debilitating

medical conditions, as determined by a licensed Florida physician, under Florida

law.

- 29 - We agree with the proponent that, read together, the ballot title and summary

accurately convey to voters the chief purpose of the proposed amendment. We

have previously instructed that when determining whether the ballot title and

summary are misleading, it is appropriate to consider both together. See Advisory

Op. to Att’y Gen. re Voluntary Universal Pre-Kindergarten Educ., 824 So. 2d 161,

166 (Fla. 2002) (“[T]he ballot title and summary may not be read in isolation, but

must be read together in determining whether the ballot information properly

informs the voters.”); Tax Limitation, 673 So. 2d at 868 (rejecting the Attorney

General’s argument because “[s]ection 101.161 requires the ballot summary and

title to be read together”). This proposition that the ballot title and summary “must

be read together in determining whether the ballot information properly informs

the voters” has been reaffirmed numerous times, including in Florida Department

of State v. Slough, 992 So. 2d 142, 148 (Fla. 2008) (quoting Amendment to

Reduce Class Size, 816 So. 2d at 585).

The amendment’s ballot title—“Use of Marijuana for Certain Medical

Conditions”—supports the proponent’s assertion that the voters will not be misled

as to the scope of the amendment. Although the opponents contend that the use of

“certain” implies that the number of “debilitating” conditions to which the

amendment would apply is fixed and definite—while the amendment’s actual

scope is not—we disagree.

- 30 - The word “certain” can mean “fixed” or “settled,” but a primary dictionary

definition of “certain” is also “of a specific but unspecified character, quantity, or

degree.” Merriam-Webster’s Collegiate Dictionary 202 (11th ed. 2005); see also

The Oxford English Dictionary 1050-51, (2d ed. 1989) (defining “certain” as both

“determined, fixed, settled” and “a restricted or limited number of” or “[o]f

positive yet restricted . . . quantity, amount, or degree”). It is therefore necessary

to read the ballot title together with the ballot summary, which explains the

severity of the conditions that may qualify for the medical use of marijuana and

that the qualifying conditions are “determined by a licensed Florida physician.”

Read together, the use of “certain” in the ballot title conveys to the voters the role

of the physician in determining both the necessary severity for a qualifying

condition and the medical benefits of marijuana to treat that condition.

The opponents also challenge, and both Chief Justice Polston’s and Justice

Labarga’s dissenting opinions ascribe significance to, the use of the term

“diseases” in the ballot summary since this term differs from the term “medical

conditions” that is used in the text of the amendment itself. Merriam-Webster’s

Collegiate Dictionary defines “disease” as “a condition of the living animal or

plant body or of one of its parts that impairs normal functioning and is typically

manifested by distinguishing signs and symptoms; sickness; malady.” Merriam-

Webster’s Collegiate Dictionary 358 (11th ed. 2005) (emphasis added); see also

- 31 - Stedman’s Medical Dictionary 550 (28th ed. 2006) (defining “disease” as an

“interruption, cessation, or disorder of a body, system, or organ structure or

function”).

The fact that the ballot summary uses the phrase “debilitating diseases”

while the text of the amendment uses the phrase “debilitating medical conditions”

does not render the ballot summary per se misleading. The “inadvertent use of

different but clearly synonymous terms in the proposed amendment and the

summary will not render a ballot summary fatally defective where ‘[t]he differing

use of terminology could not reasonably mislead the voters.’ ” Legislative Dist.

Boundaries, 2 So. 3d at 185 (quoting Advisory Op. to Att’y Gen. re English—The

Official Language of Fla., 520 So. 2d 11, 13 (Fla. 1988)).

We conclude that the use of “diseases” instead of “conditions” in the ballot

summary will not reasonably mislead the voters. A “disease” is, by definition, a

medical “condition.” See Merriam-Webster’s Collegiate Dictionary 358 (11th ed.

2005). Although the opponents and Chief Justice Polston’s dissent assert that the

word “diseases” was intentionally chosen to deceive voters as to the scope of the

amendment “in an attempt to gain electoral advantage with voters who might

object to a broader use of medical marijuana,” dissenting op. at 56 (Polston, C.J.),

it is the modifier “debilitating”—used in both the ballot summary and the

amendment itself—that is the key to defining the severity of the conditions for

- 32 - which the amendment would apply. Further, the ballot title of the amendment,

which must be read together with the ballot summary, uses the term “medical

conditions.”

This case is therefore distinguishable from other cases in which this Court

has held a ballot summary to be misleading because of a discrepancy between the

terms used in the ballot summary and the text of the amendment, where the

discrepancy was “material and misleading” and where the difference had “legal

significance.” Treating People Differently, 778 So. 2d at 896-97. For example, in

In re Advisory Opinion to the Attorney General re Casino Authorization, Taxation

& Regulation, 656 So. 2d 466, 468-69 (Fla. 1995), which is relied on by Chief

Justice Polston’s dissent, this Court invalidated a proposed amendment because

“voters were not informed that the proposal’s use of different terminology was

legally significant.” Treating People Differently, 778 So. 2d at 897. In that case,

the summary used the term “hotel,” while the text of the proposed amendment used

the term “transient lodging establishment.” Casino Authorization, 656 So. 2d at

468. This Court found that difference in terminology to be significant because the

definitions of “hotel” and “transient lodging establishment” under the Florida

Statutes were “substantially different.” Id. Further, in Treating People Differently,

778 So. 2d 896, also relied on by Chief Justice Polston’s dissent, the ballot titles

and ballot summaries used the word “people,” while the text of the amendments

- 33 - referred to “persons”—a fact with legal significance not revealed to the voters

regarding whether the amendments affected corporations. Id. at 896-97.

Unlike the discrepancies in those cases, there is no legal significance in this

case between the use of “debilitating diseases” and “debilitating medical

conditions.” While Chief Justice Polston points to out-of-state cases that “have

acknowledged the differences in meaning between the terms ‘condition’ and

‘disease,’ and those differences have determined the outcomes of cases,”

dissenting op. at 51 (Polston, C.J.), those cases are distinguishable because they

have arisen in the insurance context, where other considerations not relevant to our

analysis, such as determining when the medical condition began and the scope of

insurance coverage, are important to the resolution of a legal dispute.

In contrast to those cases, our inquiry here focuses solely on whether the use

of “debilitating diseases” in the ballot summary and “debilitating medical

conditions” in the proposed amendment itself will be affirmatively misleading to

Florida voters. It is only if the difference between the two terms is “legally

significant,” and this legal significance is not disclosed to the voters, that the use of

different terminology will render the ballot summary affirmatively misleading.

Because “debilitating,” which is used in both the ballot summary and the text of

the proposed amendment itself, is the key to defining the severity of the conditions

for which the amendment authorizes the medical use of marijuana, the difference

- 34 - between the use of “debilitating diseases” in the ballot summary and “debilitating

medical conditions” in the amendment itself has no legal significance that is

hidden from the voters.

Further, since “disease” is in fact defined as “a condition,” the difference in

terminology is not “substantially different.” As this Court has repeatedly noted,

“[t]here is no requirement that the referendum question set forth the [text] verbatim

nor explain its complete terms at great and undue length. Such [requirements]

would hamper instead of aiding the intelligent exercise of the privilege of voting.”

Legislative District Boundaries, 2 So. 3d at 185 (quoting Right to Treatment &

Rehab., 818 So. 2d at 498). Instead, “[w]hat the law very simply requires is that

the ballot give the voter fair notice of the question he must decide so that he may

intelligently cast his vote.” Id. (quoting Right to Treatment & Rehab., 818 So. 2d

at 498).

Here, we conclude that the ballot title and summary, read together, satisfy

the legal requirement that the voters be given “fair notice” as to the scope of the

proposed amendment. Accordingly, we agree with the proponent that the phrases

used in the ballot title and summary “are complementary and explanatory, not

misleading” and reject the opponents’ arguments as to the allegedly misleading

ballot language on the issue of the proposed amendment’s scope.

B. Physician Immunity

- 35 - We next address the opponents’ position that the ballot summary is

affirmatively misleading because the proposed constitutional amendment protects

doctors who abuse the practice of medicine by prescribing marijuana fraudulently

or negligently, but this important aspect of the amendment—that is, physician

immunity—is nowhere revealed within the ballot summary. The opponents argue

that the immunity from “civil liability or sanctions” would “preclude an injured

patient from recovering damages in a civil action against a physician whose

wrongful issuance of a physician certification recommending marijuana use

resulted in damages to the patient” and the “prohibition against ‘sanctions’ on a

physician would likewise bar the Board of Medicine from initiating a disciplinary

action against a physician for recommending marijuana use to patients in a manner

contrary to accepted professional standards.”

The proponent responds that the text of the proposed amendment provides

no such broad immunity but offers protection to physicians only to the extent that

they issue a physician certification “in a manner consistent with this section.” The

proponent asserts that where a physician, whether by fraud or negligence, acts

outside of professional standards in diagnosing a patient or prescribing marijuana,

this behavior would not be “consistent with this section” and may be subject to

professional, civil, or criminal sanctions. Further, the proponent asserts that

- 36 - statutes governing the practice of medicine would remain in effect if the

amendment were to pass and would not be repealed by implication.

In other words, the proponent claims that it is not the intent of the proposed

amendment to confer broad immunity, but the opponents claim that this is

precisely what the amendment does, therefore rendering the ballot summary fatally

defective for omitting this substantial effect. To determine this issue, we once

again must examine the text of the amendment as proposed and analyze whether

the intent of the proponent was to confer broad immunity, even though the

proponent adamantly asserts that there was no such intent.

The text of subsection (a)(2) of the proposed amendment provides in

pertinent part as follows:

A physician licensed in Florida shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section.

We agree with the proponent that this subsection does not grant broad

immunity for either criminal or civil liability to physicians who prescribe medical

marijuana fraudulently or even negligently. Rather, this subsection does no more

than what it states—exempts physicians from being subject to criminal or civil

liability or sanctions for the limited act of prescribing marijuana in a manner

consistent with the amendment. This limited immunity is necessary because, in the

absence of such immunity, the mere act of prescribing marijuana, a controlled

- 37 - substance under Florida law, would result in civil or criminal liability or sanctions,

which would prevent the amendment from being implemented. In this regard, the

proposed amendment does not protect physicians who fraudulently or negligently

prescribe medical marijuana, does not change the professional duties and

obligations of licensed Florida physicians, and does not restrict Florida’s current

constitutional right of access to the courts.

Under the proposed amendment, it is a reasonable construction that

physicians are granted immunity only to the extent that they prescribe marijuana

“consistent with this section.” In other words, if a physician prescribes marijuana

without having conducted a physical examination of the patient or without having

made a “full assessment of the patient’s medical history,” and harm to the patient

results, this conduct would not be “consistent with this section” and the physician

would not be granted immunity.

The immunity subsection allows physicians to prescribe, consistent with the

amendment, the medical use of marijuana as a possible treatment option for a

“debilitating medical condition” without being criminally or civilly liable or

subject to sanctions under Florida law. As the proponent states, in order to enable

physicians “to consider medical marijuana and certify its use, it is necessary to

prevent them from being punished for the limited act of recommending marijuana

- 38 - under the terms of the amendment. That is all the amendment does. . . . The

amendment does not change liability for negligence, fraud or misconduct.”

In addition, nothing in the text of the amendment explicitly repeals existing

medical malpractice statutes. This Court has long held that “[i]n considering the

effect of constitutional amendments upon existing statutes, the rule is that the

statute will continue in effect unless it is completely inconsistent with the plain

terms of the Constitution.” In re Advisory Op. to Gov., 132 So. 2d 163, 169 (Fla.

1961). It is also settled that “implied repeal of one constitutional provision by

another is not favored, and every reasonable effort will be made to give effect to

both provisions. Unless the later amendment expressly repeals or purports to

modify an existing provision,” this Court has explained that “the old and new

should stand and operate together unless the clear intent of the later provision is

thereby defeated.” Legislative Dist. Boundaries, 2 So. 3d at 190 (quoting Jackson

v. City of Jacksonville, 225 So. 2d 497, 500-01 (Fla. 1969)). Therefore, as the

proposed amendment does not explicitly repeal and is not completely inconsistent

with existing medical malpractice or liability statutes, and does not mention the

constitutional right of access to courts, we conclude that these provisions would

remain in full effect if the amendment were to pass.

As this Court has stated, “a ballot summary need not (and because of the

statutory word limit, often cannot) explain ‘at great and undue length’ the complete

- 39 - details of a proposed amendment, and some onus falls upon voters to educate

themselves about the substance of the proposed amendment.” Legislative Dist.

Boundaries, 2 So. 3d at 186 (quoting Right to Treatment & Rehab., 818 So. 2d at

498). Because we conclude that this amendment would not alter the liability of

physicians for fraudulently or negligently prescribing marijuana, we reject the

opponents’ assertion that the ballot summary is affirmatively misleading for

omitting the issue of liability.

C. Federal Law

We next address whether the ballot summary will mislead voters regarding

the interplay between the proposed amendment and federal law. Specifically, the

ballot summary explains that the proposed amendment “[a]pplies only to Florida

law” and “[d]oes not authorize violations of federal law.” The opponents are

certainly correct that these statements, standing alone, do not explicitly inform

voters that any use and possession of marijuana, including the medical use of

marijuana that would be authorized by the amendment, is currently prohibited by

federal law.

However, the statements in the ballot summary are substantially similar in

meaning to the proposed amendment’s text, which provides that “[n]othing in this

law section [sic] requires the violation of federal law or purports to give immunity

under federal law.” By asserting that the ballot summary should include language

- 40 - informing the voters that marijuana possession and use is currently prohibited

under federal law, the opponents are actually asserting that the ballot summary

should include language that is not in the proposed amendment itself. This is not

required.

This Court has also never required that a ballot summary inform voters as to

the current state of federal law and the impact of a proposed state constitutional

amendment on federal statutory law as it exists at this moment in time. Moreover,

the statements in the ballot summary are legally accurate. Therefore, the ballot

summary’s discussion of federal law is not “so misleading as to clearly and

conclusively violate section 101.161.” Legislative Dist. Boundaries, 2 So. 3d at

187.

D. Remaining Claims

Finally, the opponents assert that the ballot title and summary are

affirmatively misleading because voters are not advised that there will allegedly be

no age limit for marijuana use and no requirement that physicians consult parents

before authorizing marijuana use for minors; that the definition of “caregiver” is

inconsistent with its common meaning and use under the Florida Statutes; and that

the ballot summary fails to disclose the amendment’s effect on two existing

provisions within the Florida Constitution’s Declaration of Rights: the right of

access to courts and the right of access to public records.

- 41 - These issues, however, do not involve the chief purpose of the amendment

or even a significant effect that would result from the amendment if passed. See

§ 101.161(1), Fla. Stat. (“The ballot summary of the amendment or other public

measure shall be an explanatory statement, not exceeding 75 words in length, of

the chief purpose of the measure.”). Consequently, these allegations do not

warrant striking the proposal from the ballot. See Advisory Op. to Att’y Gen. re

Prohibiting Pub. Funding of Political Candidates’ Campaigns, 693 So. 2d 972, 975

(Fla. 1997) (“[T]he title and summary need not explain every detail or ramification

of the proposed amendment.”). Moreover, we note that these allegations are

largely speculative and in some instances—such as the right of access to courts—

actually inaccurate as to the effect of the proposed amendment.

For all these reasons, we conclude that the ballot title and summary comply

with the clarity requirements of section 101.161.

V. FINANCIAL IMPACT STATEMENT

Although neither the proponent of the amendment nor the opponents assert

that the Financial Impact Statement is misleading, this Court still has an

independent obligation to review the statement to ensure that it is clear and

unambiguous and in compliance with Florida law. See Advisory Op. to Att’y Gen.

re Referenda Required for Adoption & Amend. of Local Gov’t Comprehensive

Land Use Plans, 963 So. 2d 210, 214 (Fla. 2007) (explaining that “the Florida

- 42 - Constitution mandates that the advisory opinion address the financial impact

statement portion of the initiative process”). Article XI, section 5(c), of the Florida

Constitution states that “[t]he legislature shall provide by general law, prior to the

holding of an election pursuant to this section, for the provision of a statement to

the public regarding the probable financial impact of any amendment proposed by

initiative pursuant to [article XI,] section 3.” Section 100.371(5)(a), Florida

Statutes, provides that this Financial Impact Statement must address “the estimated

increase or decrease in any revenues or costs to state or local governments

resulting from the proposed initiative,” and section 100.371(5)(c)2., Florida

Statutes, requires the Financial Impact Statement to be “clear and unambiguous”

and “no more than 75 words in length.”

This Court has explained that its “review of financial impact statements is

narrow.” Water & Land Conservation, 123 So. 3d at 52. This Court only

addresses “whether the statement is clear, unambiguous, consists of no more than

seventy-five words, and is limited to address the estimated increase or decrease in

any revenues or costs to the state or local governments.” Land Use Plans, 963 So.

2d at 214.

Here, the Financial Impact Statement complies with the word limit and

addresses only the subject of the estimated increase or decrease in revenues and

costs to state and local governments. It plainly states that the increased costs

- 43 - associated with additional regulatory and enforcement activities could not be

determined and that fees would offset at least a portion of these increased costs.

The Financial Impact Statement also plainly explains that the Financial Impact

Estimating Conference could not determine the change in revenue because it could

not predict the extent to which medical marijuana would be exempt from taxation.

Accordingly, we hold that the Financial Impact Statement complies with section

100.371(5), Florida Statutes. See Advisory Op. to Att’y Gen. re Fla. Growth

Mgmt. Initiative Giving Citizens the Right to Decide Local Growth Mgmt. Plan

Changes, 2 So. 3d 118, 124 (Fla. 2008) (“Overall, the financial impact statement is

necessarily indefinite but not unclear or ambiguous.”).

VI. CONCLUSION

Based on the foregoing, we conclude that the initiative petition and ballot

title and summary satisfy the legal requirements of article XI, section 3, of the

Florida Constitution, and section 101.161(1), Florida Statutes. In addition, the

Financial Impact Statement is in compliance with section 100.371(5), Florida

Statutes. We therefore approve the proposed amendment and Financial Impact

Statement for placement on the ballot.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur. POLSTON, C.J., dissents with an opinion in which CANADY, J., concurs. CANADY, J., dissents with an opinion in which POLSTON, C.J., concurs. LABARGA, J., dissents with an opinion.

- 44 - NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

POLSTON, C.J., dissenting.

I respectfully dissent because placing this initiative’s title and summary on

the ballot will result in Floridians voting on a constitutional amendment in

disguise. The majority fails to acknowledge that the normal and common sense

meaning of the words used in this initiative’s ballot summary and title are

significantly different than the normal and common sense meaning of the words

used in the amendment’s text. The majority also fails to follow its own prior

amendment cases.

Given the plain meaning of the words used, the ballot summary and title

mislead voters and do not disclose the true purpose and effect of the amendment’s

text. See Advisory Op. to the Att’y Gen. re Fairness Initiative Requiring Leg.

Determination That Sales Tax Exemptions and Exclusions Serve a Pub. Purpose,

880 So. 2d 630, 635-36 (Fla. 2004) (detailing this Court’s review of the validity of

a ballot title and summary under section 101.161(1), Florida Statutes). The

summary and title “hide the ball” and allow this initiative to “fly under false

colors” regarding the severity of medical issues that qualify for marijuana use, a

type of deception this Court has previously disallowed and assailed against. See,

e.g., Fla. Dep’t of State v. Slough, 992 So. 2d 142 (Fla. 2008). Although this Court

will not review the substantive merits of this initiative proposal, voters are entitled

- 45 - to know if they are being asked to open Florida to the expansive use of medical

marijuana.

Specifically, the ballot title and summary are affirmatively misleading in

four respects: (1) they fail to accurately inform voters that generic “conditions”

(not “diseases”) qualify for the use of medical marijuana under the amendment’s

text; (2) 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; (3) they fail to disclose that the amendment grants broad

immunity to physicians, among others; and (4) they falsely imply that the use and

possession of marijuana in accordance with this amendment is permissible under

federal law. Accordingly, I would disapprove this initiative for placement on the

ballot.

1. “Condition” versus “Disease”

The ballot summary informs Florida’s voters that this amendment “[a]llows

the medical use of marijuana for individuals with debilitating diseases as

determined by a licensed Florida physician.” However, the amendment’s text does

not actually provide that a physician must determine that an individual suffers from

a “disease.” Instead, under the amendment’s text, an individual only has to have a

“condition” in order to qualify for medical marijuana.

- 46 - The majority faults my discussion of the differences in plain meaning

between the term “condition” in the amendment’s text and the term “disease” in

the ballot summary for not including an in-depth discussion of the word

“debilitating.” See majority op. at 21-22. This entirely misses the point! As

explained in the next section of my dissent, the “debilitating medical condition”

language that appears in the amendment’s text is specifically defined by that text to

include medical issues that could hardly be considered “debilitating” or

“enfeebling.” Infra at 55. In this section, I focus upon the affirmatively

misleading choice of employing the word “disease” in the ballot summary when

the word “condition” is what actually is to be given effect in the amendment’s text.

Moreover, the word “debilitating” is used to modify “disease” in the ballot

summary as well as “condition” in the amendment’s text. And because

“debilitating” modifies both, it could not possibly eradicate any differences in plain

meaning between the word “disease” and the word “condition.”

It is plainly obvious that the word “condition” is much broader in meaning

and much less negative in connotation than the word “disease.” For example, the

term “condition” can mean “states of health considered normal or healthy but

nevertheless posing implications for the provision of health care (e.g., pregnancy).”

Phil Sefton, Condition, Disease, Disorder, AMA Style Insider (Nov. 21, 2011),

available at http://blog.amamanualofstyle.com/?s=condition+disease+disorder.

- 47 - “Condition” can also refer to “grades of health,” such as “stable, serious, or critical

condition.” Id. And, if you look in a medical dictionary, you will discover that the

medical profession defines “condition” to mean “to train; to subject to

conditioning.” Dorland’s Illustrated Medical Dictionary 407 (31st ed. 2007); see

also Stedman’s Medical Dictionary 426 (28th ed. 2006) (defining “condition” to

mean “[t]o train; to undergo conditioning,” “[a] certain response elicited by a

specifiable stimulus or emitted in the presence of certain stimuli with reward of the

response during prior occurrence,” or “[r]eferring to several classes of learning in

the behavioristic branch of psychology.”).

Medical dictionaries do not include a definition of illness, injury, or

abnormal state of health for the term “condition.” However, the fourth entry for

the word in Merriam-Webster’s Collegiate Dictionary indicates that “condition”

may denote “a usu. defective state of health.” Merriam-Webster’s Collegiate

Dictionary 240 (10th ed. 1994). Similarly, the Oxford English Dictionary includes

“[a] state of health, esp. one which is poor or abnormal; a malady or sickness” as a

definition for the word “condition.” The Oxford English Dictionary 684 (2d ed.

1989).

In contrast, the term “disease” has a narrower meaning and much more

negative connotation. For example, according to Webster’s New World College

Dictionary, a “disease” is “a particular destructive process in an organ or organism,

- 48 - with a specific cause and characteristic symptoms.” Webster’s New World

College Dictionary 411 (4th ed. 1999). “Disease” is also defined as “a condition of

the living animal or plant body or of one of its parts that impairs normal

functioning and is typically manifested by distinguishing signs and symptoms”

Merriam-Webster’s Collegiate Dictionary 358 (11th ed. 2005). And those

affiliated with the medical profession have explained that “disease is perhaps most

often used when referring to a condition that possesses specific characteristics.”

Condition, Disease, Disorder, AMA Style Insider, supra. Specifically, Stedman’s

Medical Dictionary explains that a “disease” is “[a] morbid entity ordinarily

characterized by two or more of the following criteria: recognized etiologic

agent(s), identifiable group of signs and symptoms, or consistent anatomic

alterations.” Stedman’s Medical Dictionary 550 (28th ed. 2006); see also

Dorland’s Illustrated Medical Dictionary 535 (31st ed. 2007) (defining “disease” to

mean “any deviation from or interruption of the normal structure or function of a

part, organ, or system of the body as manifested by characteristic symptoms and

signs”).

Accordingly, Justice Labarga is correct in surmising that, while every

“disease” is by definition a “condition,” every “condition” is not a “disease.” See

dissenting op. at 81 (Labarga, J.). “Diseases” are only a subset of what is included

in the broader and more value-neutral term “condition.” And by employing

- 49 - “disease” in the ballot summary, rather than the term “condition” that actually

appears in the amendment’s text, the summary is affirmatively misleading.

Contrary to the commonly understood meaning of the words in the summary, an

individual could qualify for the use of marijuana under the amendment’s text if that

individual suffers from a sore back as a result of playing sports or anxiety about an

upcoming exam even though that abnormal soreness or anxiety (i.e., “condition”)

does not rise to the level of a “disease.”

The manner in which the summary in this case misleads voters is certainly

more egregious than other initiatives that this Court has stricken in the past,

including the casino initiative petition that this Court disapproved in Advisory

Opinion to the Attorney General re Casino Authorization, Taxation and

Regulation, 656 So. 2d 466 (Fla. 1995). There, the ballot summary explained that

local governments could authorize casinos at “hotels,” but the amendment’s text

would have allowed local governments to authorize casinos at “transient lodging

establishments.” Id. at 468. This Court concluded that the difference in language

was misleading, explaining that “[w]e believe that the public perceives the term

‘hotel’ to have a much narrower meaning than the term ‘transient lodging

establishment.’ ” Id. at 469. “Thus, while the summary leads the voters to believe

that casinos will be operated only in ‘hotels,’ the proposed amendment actually

permits voters to authorize casinos in any number of facilities, including a bed and

- 50 - breakfast inn.” Id.; see also Fla. Dep’t of State v. Mangat, 43 So. 3d 642, 648 (Fla.

2010) (invalidating legislatively proposed amendment due to misleading ballot

summary and explaining that while the ballot summary’s “statement about

‘mandates that don’t work’ might arguably have a relationship to the amendment

which is intended to prevent mandated participation in any health care system,

neither the amendment nor the summary identifies what mandates are at issue,

explains how the mandates do not work, or specifies for whom they do not work”).

Not only does the majority of this Court deny that there are commonly

understood differences in meaning between “condition” and “disease,” it also

suggests that, even if there were differences, those differences would not matter

because they would pose no legal significance. See majority op. at 33-34.

However, the majority is mistaken. Numerous courts have acknowledged the

differences in meaning between the terms “condition” and “disease,” and those

differences have determined the outcomes of cases, particularly in the insurance

context. See, e.g., Katskee v. Blue Cross/Blue Shield of Neb., 515 N.W.2d 645,

651-53 (Neb. 1994) (recognizing that not every medical condition is harmful

enough to be considered a disease under the plain and ordinary meaning of the

term “disease,” and explaining that “if the condition is abnormal when tested by a

standard of perfection, but so remote in its potential mischief that common speech

would not label it a disease or infirmity, such a condition is at most a predisposing

- 51 - tendency”); Leslie v. J.C. Penney Life Ins. Co., 62 P.3d 1101, 1104 (Idaho 2003)

(“[A] condition which is found to be abnormal only when tested by a standard of

perfection and with only a remote potential to be a source of physical disturbance

is not a ‘disease[.]’ ”); Silverstein v. Metro. Life Ins. Co., 171 N.E. 914 (N.Y.

1930) (same); see also Leland v. Order of United Commercial Travelers of Am.,

124 N.E. 517, 520 (Mass. 1919) (“[T]here is no active disease, but merely a frail

general condition[.]”). In fact, these legally recognized differences in the plain

meaning of “condition” and “disease” are more relevant to our analysis of whether

this ballot summary is affirmatively misleading to voters than were the legal

differences between “people” and “persons” at issue in Advisory Opinion to the

Attorney General re Amendment to Bar Government from Treating People

Differently Based on Race in Public Education, 778 So. 2d 888, 897 (Fla. 2000)

(invalidating proposed amendment due to misleading ballot summary and

explaining that “[w]hile ‘people’ and ‘person[s]’ also appear synonymous, their

legal differences are significant and are not revealed to the voter”).

In addition, contrary to the majority’s suggestion otherwise, 1 the misleading

use of the word “disease” in the ballot summary is not cured by reading the

summary along with the title. The sponsor chose the title “Use of Marijuana for

Certain Medical Conditions,” and, as explained above, the summary states that the

1. See majority op. at 33.

- 52 - amendment “[a]llows the medical use of marijuana for individuals with debilitating

diseases as determined by a licensed Florida physician.” Read together, these

phrases would reasonably lead voters to believe that only those certain medical

conditions that are determined by a physician to be debilitating diseases would

qualify for the use of medical marijuana if the amendment passed. This Court’s

decision in Slough is directly on point in this regard.

In Slough, 992 So. 2d at 148-49, this Court held that a ballot title and

summary were misleading because, when read together, they distinctly implied that

the proposed amendment would only apply to school property taxes when in fact it

would have applied to other property taxes as well. This Court emphasized in

Slough that “the ballot title and summary may not be read in isolation, but must be

read together in determining whether the ballot information properly informs the

voters.” Id. at 148 (quoting Advisory Op. to Att’y Gen. re Fla.’s Amend. to

Reduce Class Size, 816 So. 2d 580, 585 (Fla. 2002)). This Court concluded that

“[a]lthough the summary does state that proposed Amendment 5 ‘[l]imit[s] annual

increases in assessment of non-homestead real property,’ . . . [t]he specific

reference to school property taxes in the title would reasonably lead voters to

believe that the maximum increases in ‘assessment of non-homestead real

property’ referenced in the summary are limited to school property taxes.” Id.

Therefore, because “the actual ballot title and summary, when read together, do not

- 53 - clearly and unambiguously disclose [the] significant and distinct effect of proposed

Amendment 5” on non-school assessments, “voters would likely be misled or

confused with regard to the actual impact of Amendment 5.” Id. at 149.

Similarly, in this case, the inclusion of “certain medical conditions” in the

title does not erase the summary’s reference to “diseases.” When read together, the

title and summary are still misleading because they do not clearly and

unambiguously disclose to voters that those with “conditions” would qualify for

medical marijuana under the amendment’s text, not just those with medical issues

that rise to the level of “diseases.”

2. Benefits Would Likely Outweigh Risks

In addition to deceptively employing the term “disease,” the summary and

title of this initiative also mislead voters by failing to inform them that all that is

required under the amendment’s text to qualify for the use of marijuana is for one

physician to think that the potential benefits of the drug would likely outweigh the

potential risks.

As explained above, the title references “certain medical conditions” and the

summary mentions that the amendment would allow access to marijuana for the

relief of “debilitating diseases.” And while the definition in the amendment’s text

of what qualifies for medical marijuana as a “Debilitating Medical Condition”

includes a specific list of diseases that are clearly “debilitating” (such as cancer,

- 54 - AIDS, and ALS), it also includes the catchall category of “other conditions for

which a physician believes that the medical use of marijuana would likely

outweigh the potential health risks for a patient.” This catchall category certainly

encompasses various medical issues that are less severe and less enfeebling than

the “debilitating diseases” described in the title and summary. For example,

despite what the title and summary convey to voters, minor aches and pains, stress,

insomnia, or fear of an upcoming flight could qualify for the medical use of

marijuana under the text of the amendment. This is seriously misleading.

The manner in which the title and summary mislead voters regarding the

scope of medical issues that qualify for marijuana is analogous to the casino

initiative petition that this Court disapproved in Advisory Opinion to the Attorney

General re Casino Authorization, Taxation and Regulation, 656 So. 2d 466. The

summary in the casino initiative case stated that local governments could authorize

casinos “on riverboats, commercial vessels, [and] at hotels.” Id. at 467. However,

as this Court explained, the text of the amendment would allow casinos on

stationary vessels, including “a casino in a building constructed to look like a

riverboat even though the structure is completely landlocked.” Id. at 469.

Consequently, this Court struck the casino proposal, concluding that “the summary

of the proposed amendment [did] not accurately describe the scope of the text.” Id.

- 55 - Furthermore, the title and summary in this case are an example of

“wordsmithing,” a practice that this Court expressly prohibited in Slough, 992 So.

2d at 149:

In recent years, advantageous but misleading “wordsmithing” has been employed in the crafting of ballot titles and summaries. Sponsors attempt to use phrases and wording techniques in an attempt to persuade voters to vote in favor of the proposal. When such wording selections render a ballot title and summary deceptive or misleading to voters, the law requires that such proposal be removed from the ballot—regardless of the substantive merit of the proposed changes.

The sponsor here deceptively uses the terms “debilitating diseases” and

“certain medical conditions” in the title and summary in an attempt to gain

electoral advantage with voters who might object to a broader use of medical

marijuana. However, the amendment’s text authorizes the medical use of

marijuana for more “conditions” and “diseases” than one commonly thinks of as

“debilitating.” If the sponsor had wished to accurately convey the effect of the

amendment’s text in an informative and straightforward manner, the sponsor could

have titled its amendment “Use of Marijuana for Various Medical Conditions” and

employed terminology in the summary similar to “allows medical use of marijuana

when licensed physician finds patient benefits would likely outweigh risks.” See

Slough, 992 So. 2d at 149 (“If a sponsor . . . wishes to guard a proposed

amendment from [being stricken due to deceptive wordsmithing] it need only draft

a ballot title and summary that is straightforward, direct, accurate and does not fail

- 56 - to disclose significant effects of the amendment merely because they may not be

perceived by some voters as advantageous.”); see also Advisory Op. to Att’y Gen.

re Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 228 (Fla. 1991)

(“A ballot summary may be defective if it omits material facts necessary to make

the summary not misleading.”).

The majority ignores this deceptive wordsmithing and the expansive use of

medical marijuana that would result under the plain meaning of the amendment’s

text. Instead, the majority warps the ordinary and common sense meaning of the

amendment’s text through the inappropriate use of statutory construction tools.

They do so even though the principle of ejusdem generis that they employ is

inappropriate in this case because the meaning of this amendment’s text (including

its catchall category) is clear and unambiguous. See City of Panama City v. State,

60 So. 2d 658, 660 (Fla. 1952); see also Pottsburg Util. Inc. v. Daugharty, 309 So.

2d 199, 201 (Fla. 1st DCA 1975) (“[Ejusdem generis] is applicable, however, only

where there is some inconsistency or ambiguity in the contract and the meaning of

the general provision is doubtful and requires clarification. (17A C.J.S. Contracts

§ 313) Where both the general and special provisions may be given reasonable

effect in the context of the contract both provisions must be retained and given

whatever meaning the words employed convey.”). “Ejusdem generis should only

come into play when it is necessary to construe an ambiguous statute, not to create

- 57 - an ambiguity in a clearly worded statute.” State v. Hobbs, 974 So. 2d 1119, 1121

(Fla. 5th DCA 2008).

Specifically, the definition of “Debilitating Medical Condition” that appears

in subsection (b)(1) of the amendment’s text reads in its entirety as follows:

“Debilitating Medical Condition” means cancer, glaucoma, positive status for human immunodeficiency virus (HIV), acquired immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis or other conditions for which a physician believes that the medical use of marijuana would likely outweigh the potential health risks for a patient.

Instead of concluding that this definition includes a list of specific diseases

followed by a catchall category of “other conditions for which a physician believes

that the medical use of marijuana would likely outweigh the potential health risks

for a patient” as its text plainly and expressly says, the majority rewrites the

definition. Inappropriately using the principle of ejusdem generis, the majority in

effect inserts the word “similar” into the clear and unambiguous definition, thereby

transforming the catchall category into something else entirely. After the

majority’s rewrite, subsection (b)(1) now states “or other similar conditions for

which a physician believes that the medical use of marijuana would likely

outweigh the potential health risks for a patient.” The majority’s revision is

entirely inappropriate under our precedent. See generally Mangat, 43 So. 3d at 650

(“This Court does not have the authority to substitute the language that three-fifths

- 58 - of the members of the Legislature have voted to place on the ballot.”). To be clear,

I do not disagree with the canon of ejusdem generis itself as the majority

incorrectly asserts. See majority op. at 26. Rather, I disagree with the majority’s

decision to apply the canon in this particular case because the meaning of the

amendment’s text (including its catchall category) is very clear and unambiguous.

Additionally, while the majority correctly mentions that the amendment’s

subsections must be read together as a whole, it fails to do so. The majority points

to subsection (b)(9), which defines “Physician certification” to mean “a written

document signed by a physician, stating that in the physician’s professional

opinion, the patient suffers from a debilitating medical condition, that the potential

benefits of the medical use of marijuana would likely outweigh the health risks for

the patient, and for how long the physician recommends the medical use of

marijuana.” And the majority insists that based upon subsection (b)(9) a physician

must not only conclude that the potential benefits outweigh the risks, but that the

patient also has a “debilitating medical condition.” See majority op. at 27-28.

However, the majority ignores that “debilitating medical condition” is a

specifically defined term under the amendment’s text. In fact, as just mentioned

above, subsection (b)(1) has already defined “Debilitating Medical Condition” to

mean “other conditions for which a physician believes that the medical use of

marijuana would likely outweigh the potential health risks for a patient.”

- 59 - Therefore, by reading subsections (b)(1) and (b)(9) together, it is abundantly (and

redundantly) clear that a physician need only believe that the potential benefits of

marijuana would likely outweigh the risks for the individual. There is no

additional “debilitating” medical condition or “debilitating” disease that must be

present to qualify for marijuana.

The majority claims that this interpretation renders “meaningless the first

part of subsection (b)(9), which states that the physician must determine that ‘the

patient suffers from a debilitating medical condition.’ ” Majority op. at 28. To the

contrary, it is the majority’s interpretation that renders meaningless an entire

subsection of the amendment’s text, specifically subsection (b)(1) which actually

defines what the amendment’s text means when it states “debilitating medical

condition” in the first part of subsection (b)(9) and everywhere else. Why include

a specific definition of a term that is used repeatedly in the amendment’s text if the

sponsor of the amendment did not intend for that term to mean what the definition

says it means?

The majority also mentions other parts of the amendment’s text that it claims

are “restrictions [that] reflect a constitutional scheme that is meant to be limited in

scope regarding the medical use of marijuana.” Majority op. at 29. In particular,

the majority notes subsection (b)(9)’s explanation that “[a] physician certification

may only be provided after the physician has conducted a physical examination of

- 60 - the patient and a full assessment of the patient’s medical history.” But an exam

and a medical history are hardly “restrictions” limiting the ability of a physician to

recommend marijuana for medical issues that are not commonly viewed as severe

or debilitating. In fact, these requirements are in place every time someone

receives an antibiotics prescription for a mild, non-debilitating infection.

Accordingly, contrary to the majority’s suggestion otherwise, the title and

summary mislead voters regarding the scope of medical issues that qualify for

medical marijuana under the plain meaning of the amendment’s text.

3. Immunity

Additionally, the title and summary of this initiative proposal mislead voters

by failing to disclose the broad immunity that would be granted if this amendment

is adopted, immunity that conflicts with and restricts Floridians’ current

constitutional right of access to courts. Cf. Advisory Op. to the Att’y Gen. re Fla.

Growth Mgmt. Initiative Giving Citizens the Right to Decide Local Growth Mgmt.

Plan Changes, 2 So. 3d 118, 123 (Fla. 2008) (“Because the Smarter Growth

amendment will not conflict with or restrict any existing rights to subject local

growth management plans to local referenda, the lack of detail concerning the

petition process does not render the title and summary misleading.”).

- 61 - While the title and summary omit any mention of immunity from civil

liability, criminal liability, and sanctions under Florida law, the first section of the

amendment’s text reads as follows:

(a) PUBLIC POLICY. (1) The medical use of marijuana by a qualifying patient or personal caregiver is not subject to criminal or civil liability or sanctions under Florida law except as provided in this section. (2) A physician licensed in Florida shall not be subject to criminal or civil liability or sanctions under Florida law for issuing a physician certification to a person diagnosed with a debilitating medical condition in a manner consistent with this section. (3) Actions and conduct by a medical marijuana treatment center registered with the Department, or its employees, as permitted by this section and in compliance with Department regulations, shall not be subject to criminal or civil liability or sanctions under Florida law except as provided in this section.

Based on the plain meaning of this text, physicians, caregivers, patients, marijuana

treatment centers, and treatment center employees will be granted broad immunity

relating to their participation in the medical use of marijuana if this amendment

passes.

The majority completely ignores the broad immunity that subsection (a)

provides to caregivers, patients, treatment centers, and treatment center employees.

And while the majority acknowledges that subsection (a) discusses immunity for

physicians, it completely misconstrues the plain language of the text to the point of

making it meaningless.

- 62 - Specifically, the majority claims that “it is a reasonable construction that

physicians are granted immunity only to the extent that they prescribe marijuana

‘consistent with this section.’ ” Majority op. at 38. Thus, the majority concludes

that “the proposed amendment does not protect physicians who fraudulently or

negligently prescribe medical marijuana, does not change the professional duties

and obligations of licensed Florida physicians, and does not restrict Florida’s

current constitutional right of access to the courts.” Id. However, the majority

fails to acknowledge that a physician could recommend marijuana for a patient “in

a manner consistent with this section” but that recommendation could still be a

form of medical malpractice. For 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

- 63 - 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.

Because any mention of immunity is omitted from the ballot title and

summary, voters would be unaware that their valuable right to pursue medical

malpractice claims (as well as other tort claims) associated with medical marijuana

will be lost if this amendment passes. And, to be clear, this valuable right is

currently guaranteed by article I, section 21 of Florida’s Constitution, which

provides that “[t]he courts shall be open to every person for redress of any injury,

and justice shall be administered without sale, denial or delay.”

This Court has invalidated prior proposed amendments based upon less

significant omissions in ballot language with respect to the amendment’s effect on

other constitutional provisions than the one at issue here. See, e.g., Advisory Op.

to the Att’y Gen. re 1.35% Prop. Tax Cap, Unless Voter Approved, 2 So. 3d 968,

976 (Fla. 2009) (“[W]e find the ballot summary misleading because it does not

inform the voter of the repeal of an existing Florida constitutional provision

[providing] for the millages that can be assessed by the various local government

units[.]”); Fla. Dep’t of State v. Fla. State Conference of NAACP Branches, 43 So.

- 64 - 3d 662, 668 (Fla. 2010) (invalidating an amendment proposed by the Legislature

and explaining that “the ballot language did not inform the voters that the

amendment would allow the existing mandatory constitutional requirement in

article III, section 16(a), requiring that districts be contiguous to be subordinated to

the discretionary standards” for redistricting outlined in the proposed amendment).

Accordingly, based upon our precedent, this initiative’s ballot language is

fatally misleading because it fails to disclose the amendment’s significant effect on

Floridians’ constitutional right of access to courts, including the right to pursue

medical malpractice claims against physicians who negligently recommend

marijuana in a manner consistent with the amendment’s text. See also Bar Gov’t

from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d at 895

(“[C]ourts will be closed, not open, to victims of discrimination who seek redress

for their injuries. Thus, the proposed amendments have a substantial effect on

article I, section 21, and the failure to identify this substantial effect violates the

single-subject requirement.”).

4. Federal Law

Finally, the summary misleads Florida’s voters by falsely implying that the

use and possession of marijuana in accordance with this amendment would be

lawful, including under federal law.

- 65 - The summary states the following: “Applies only to Florida law. Does not

authorize violations of federal law or any non-medical use, possession or

production of marijuana.” When read together with the entire ballot summary and

title, these statements imply that qualifying patients may lawfully use and possess

marijuana if the amendment passes. However, this is absolutely false. Whether or

not this amendment passes, the medical use of marijuana will remain a federal

crime.

In fact, any manufacture, distribution, or possession of marijuana is a

criminal offense under federal law. See Gonzales v. Raich, 545 U.S. 1, 14 (2005).

The federal Controlled Substances Act (CSA) “designates marijuana as contraband

for any purpose; in fact, by characterizing marijuana as a Schedule I drug,

Congress expressly found that the drug has no acceptable medical uses.” Id. at 27.

Moreover, in 2005, the United States Supreme Court expressly held that Congress

has the power to prohibit the local, intrastate cultivation and use of marijuana

under the CSA even though such cultivation and use complied with a state’s

medical marijuana law. Id. at 29.

Therefore, despite what the summary falsely implies to voters, Floridians

can still be prosecuted for the medical use of marijuana even if such use is in

accordance with this amendment. See City of Riverside v. Inland Empire Patients

Health and Wellness Ctr., Inc., 300 P.3d 494, 497 (Cal. 2013) (explaining that

- 66 - California’s medical marijuana laws “have no effect on the federal enforceability

of the CSA in California. The CSA’s prohibitions on the possession, distribution,

or manufacture of marijuana remain fully enforceable in this jurisdiction.”); United

States v. Stacy, 734 F. Supp. 2d 1074, 1084 (S.D. Cal. 2010) (explaining that

defendant’s compliance with California’s medical marijuana laws did not grant

him immunity under federal law and that, in his federal prosecution, defendant

could not present the defense that he was cultivating marijuana in compliance with

state law and that he had a good faith belief it was lawful). And while ballot

summaries are not required to mention the current state of federal law or a

proposed state constitutional amendment’s effect on federal law, they are required

to not affirmatively mislead Florida voters by falsely implying the opposite of what

that current state of federal law is.

5. Conclusion

To summarize, the title and summary at issue in this case are affirmatively

misleading because they obscure the breadth of medical issues that would qualify

for medical marijuana by deceptively employing the term “disease” and by failing

to disclose that a physician need only believe that the benefits would likely

outweigh the risks. Additionally, the title and summary are affirmatively

misleading because they fail to disclose the broad immunity that would be granted

if the amendment passes and because they falsely imply that the use and possession

- 67 - of marijuana in accordance with the amendment would not violate federal law. As

a result, the ballot title and summary omit significant details that would enable a

voter to make an informed decision regarding the merits of the amendment.

Therefore, I would disapprove the proposal for placement on the ballot, and

I respectfully dissent.

CANADY, J., concurs.

CANADY, J., dissenting.

I agree with Chief Justice Polston and Justice Labarga that the proposed

amendment should be denied placement on the ballot because the ballot summary

is clearly and conclusively misleading. One of the most important rights enjoyed

by the people of Florida under our constitution is the right to vote on constitutional

amendments proposed through the initiative process. That right and the initiative

process are subverted when the voters are presented a misleading ballot summary.

The integrity of the electoral process is seriously compromised by placing this

proposed amendment on the ballot with a radically defective summary—a

summary that will affirmatively mislead the voters in several different ways

concerning the chief purpose of the amendment. I dissent.

I.

- 68 - Most egregiously, the ballot summary seriously misrepresents the interaction

of the proposed amendment with federal law. The problem here is not with what

the summary omits but with what it contains. The summary states that the

proposed amendment “[d]oes not authorize violations of federal law,” but the truth

is that violations of federal law unquestionably are authorized by the amendment.

A more misleading characterization of the relationship between the amendment

and federal law is hard to conceive.

The majority’s attempt to address this issue blithely sidesteps the basic

deception in this portion of the summary. First, the majority states that “the

statements in the ballot summary are substantially similar in meaning to the

proposed amendment’s text.” Majority op. at 40. A comparison of the text of the

summary with the text of the amendment gives the lie to this assertion. Second,

the majority states that we have “never required that a ballot summary inform

voters as to the current state of federal law and the impact of a proposed state

constitutional amendment on federal statutory law as it exists at this moment in

time.” Id. at 42. That assertion may be true, but it is totally beside the point. The

issue here is not that the summary fails to explain the amendment’s relationship

with federal law but that it affirmatively misrepresents that relationship.

This is what the text of the amendment says about federal law: “Nothing in

this law section [sic] requires the violation of federal law or purports to give

- 69 - immunity under federal law.” (Emphasis added.) And this is what the summary

says about federal law: “Applies only to Florida law. Does not authorize violations

of federal law. . . .” (Emphasis added.) Contrary to the majority’s assertion, it is

obvious that the text of the summary is strikingly dissimilar to the text of the

amendment.

The text of the amendment says that nothing in the amendment “requires the

violation of federal law,” but the text of the summary says that the amendment

“[d]oes not authorize violations of federal law.” There is a vast difference between

not requiring a violation of federal law—whatever that may mean—and not

authorizing a violation of federal law. To find substantial similarity here is to find

something that does not exist. The text of the amendment also says that the

amendment does not “purport[] to give immunity under federal law,” but the

summary says nothing about “immunity.” Once again, there is a salient lack of

similarity between the amendment and the summary.

The problem with this aspect of the summary, however, goes beyond these

dissimilarities. The fundamental problem is that the summary is blatantly

deceptive because it informs the voters that the amendment “[d]oes not authorize

violations of federal law,” although it is beyond dispute—as Chief Justice

Polston’s dissent explains—that conduct authorized by the amendment is criminal

conduct under federal law. The voters therefore are potentially hoodwinked into

- 70 - believing that the amendment is consistent with the requirements of federal law.

The summary’s proclamation of the amendment’s supposed consistency with

federal law is not about some inconsequential, ancillary detail that would be

unlikely to influence a reasonable voter’s evaluation of the proposed amendment.

On the contrary, it is a circumstance to which many voters may attach considerable

significance. By misleading the voters on this significant point, the summary

corrupts the electoral process.

The sponsors of the proposed amendment argue that the language of the

summary is accurate because it “explicitly places the voter[s] on notice that they

should be aware that the proposed initiative does not authorize violation of federal

marijuana laws.” Initial Brief of Sponsor at 41, Advisory Op. to the Att’y Gen. re

Use of Marijuana for Certain Med. Conditions, SC13-2006 (Fla. Nov. 8, 2013).

They also argue that the summary places “voters on notice that any change

provided by this amendment affects only Florida law, and that federal laws are

unaffected by this change.” Id. at 44. The first argument is nonsensical. The

second argument is correct, but it dodges the real issue.

By the first argument, the sponsors apparently mean to suggest that the

summary informs voters that liability for violations of federal law will not be

affected by the amendment. That is not inaccurate as a description of the portion

of the summary that states: “Applies only to Florida law.” A reasonable reader

- 71 - would understand from this statement that the amendment would not alter or

preempt federal law. If that were the only language in the summary bearing on the

relationship between the proposed amendment and federal law, there would be no

problem. The deception comes in the language that immediately follows, which

informs the voters that the amendment “[d]oes not authorize violations of federal

law.”

The sponsors suggest that this language is equivalent to the immediately

preceding language in the summary. The suggestion that the two distinct

statements communicate the same information crumbles under scrutiny. The

question immediately arises why in the summary—where the seventy-five-word

limitation places a premium on economy of expression—a statement would be

included that simply restated in different words what had already been stated. A

reasonable reader of the summary would hardly expect that the summary would

repeat itself.

But, of course, the summary does not repeat itself. The statement that the

amendment “[d]oes not authorize violations of federal law” carries a meaning that

is entirely different from the preceding statement that the amendment “[a]pplies

only to Florida law.” The attempt to equate the two statements does violence to

the plain meaning of the terms. A reasonable reader can only conclude that the

second of the two statements occurring in the summary affirms that the conduct

- 72 - authorized by the amendment is not conduct that would violate federal law. That is

what it says. If the statement in the summary had paralleled the statement in the

text of the amendment that nothing in the amendment “purports to give immunity

under federal law,” there would have been no deception, and the voters would have

indeed been placed on notice that conduct authorized by the amendment might run

afoul of federal law. The sponsors, however, chose not to include the statement

tracking the text of the amendment. Instead, they chose—for some inexplicable

reason—the deceptive statement.

II.

The remaining defects in the ballot summary largely revolve around the

failure of the summary accurately to reflect the amendment’s chief purpose, which

is to authorize physicians to prescribe the medical use of marijuana when the

“physician believes that the medical use of marijuana would likely outweigh the

potential health risks for a patient.” (Emphasis added.) This crucial language of

the amendment—which appears in the definition of “Debilitating Medical

Condition” in subsection (b)(1)—establishes a subjective standard for the medical

use of marijuana, a standard granting physicians the authority to authorize the use

of marijuana if the physician “believes” that the use by a particular patient would

be medically beneficial given the medical condition from which the patient suffers.

In particular, this language in the text of the amendment is relevant to the

- 73 - misleading statement in the summary that the amendment “[a]llows the medical

use of marijuana for individuals with debilitating diseases as determined by a

licensed Florida physician.” It is also relevant to the summary’s failure to disclose

the broad nature of the immunity from civil liability granted to physicians by the

text of the amendment, an immunity that is inextricably tied to the chief purpose of

the amendment.

With respect to the immunity from liability granted by subsection (a)(2) of

the amendment, analysis must begin with the acknowledgment that a standard

predicated on what a particular physician “believes”—a word denoting a subjective

determination—is not equivalent to the prevailing medical standard of care. It is

significant that the word “believes” in subsection (b)(1) is unqualified by the word

“reasonably.” And nothing in the text or the context of the amendment suggests

that “reasonably” should be read into the text. As a consequence, a physician who

“believes that the medical use of marijuana would likely outweigh the potential

health risks for a patient” and who issues a physician certification reflecting that

subjective belief, has issued a physician certification “in a manner consistent with”

the amendment. Under subsection (a)(2), the physician therefore “shall not be

subject to . . . civil liability or sanctions under Florida law for issuing” the

physician certification.

- 74 - The unmistakable import of the immunity provision is that such a physician

cannot be held liable for negligence in connection with the issuance of the

physician certification. The voters have a right to know that their right to pursue

negligence claims in these circumstances is barred by the amendment’s immunity

provision. But the summary omits any mention of this immunity.

Finally, I turn to the majority’s attempt to justify the misleading reference to

“debilitating diseases” in the ballot summary. In that attempt, the majority

incorrectly relies on the ejusdem generis—“like kind”—canon. Consideration of

the structure and full context of the amendment’s central definition in light of the

rationale for the canon leads to the conclusion that the canon is not properly

applied here.

The canon “means that ‘where an enumeration of specific things is followed

by some more general word or phrase, such general word or phrase will usually be

construed to refer to things of the same kind or species as those specifically

enumerated.’ ” Arnold v. Shumpert, 217 So. 2d 116, 119 (Fla. 1968) (quoting

Children’s Bootery v. Sutker, 107 So. 345, 347 (Fla. 1926)). The canon “rests on

[a] practical insight[] about everyday language usage” which recognizes that

“[w]hen people list a number of particulars and add a general reference . . . they

mean to include by use of the general reference not everything else [within the

scope of the general reference] but only others of like kind [with the listed

- 75 - particulars].” 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory

Construction § 47:18, at 382 (7th ed. 2007).

A necessary condition for the application of the canon is that the “members

of the enumeration suggest a class.” Id. at 380. That is to say, there must be

something that makes the enumerated particulars of “like kind” with one another.

“Without some objective relationship” among the members of the enumeration,

identifying a class for purposes of applying the canon will necessarily be “arbitrary

and meaningless.” Id. at 382. Accordingly, to properly apply the canon, some

naturally understood common quality or characteristic among all the specific

members of the enumeration must exist. If that condition obtains, the specific

common quality or characteristic ordinarily will naturally be understood to limit

the sweep of the general reference following the enumeration to a subcategory of

the general reference. Otherwise, there is no basis for restricting the sweep of the

general reference.

Here, the enumerated particulars in the definition do not “suggest a class"

that can reasonably be understood to limit the sweep of the general provision to

some subcategory. These are the particulars enumerated in the definition: “cancer,

glaucoma, positive status for human immunodeficiency virus (HIV), acquired

immune deficiency syndrome (AIDS), hepatitis C, amyotrophic lateral sclerosis

(ALS), Crohn’s disease, Parkinson’s disease, multiple sclerosis.” This list

- 76 - represents a diverse group of medical conditions, ranging from the inevitably and

devastatingly debilitating and fatal to conditions that frequently can be successfully

treated and controlled or cured. The list does not suggest a subcategory of the

general category of “other conditions for which a physician believes that the

medical use of marijuana would likely outweigh the potential health risks for a

This is a consequence not only of the diverse nature of the specifically

enumerated medical conditions but also of the special nature of the general

reference, which focuses on what a physician subjectively “believes” about the

medical benefit for a particular patient given the particular medical condition from

which the patient suffers. Based on this structural feature of the general reference,

it is more natural to understand the listed medical conditions as illustrative of

conditions that physicians will likely “believe” warrant the medical use of

marijuana than to understand the listed conditions as establishing a limitation on

the scope of the physician’s authority. The general thus controls the specific. The

standard is whether the patient suffers from a medical condition—listed or

unlisted—“for which [the] physician believes that the medical use of marijuana

would likely outweigh the potential health risks for [the] patient.”

The majority unconvincingly asserts that an ancillary administrative

provision of the amendment—subsection (b)(9)—relating to the content of

- 77 - physician certifications, should be allowed to alter the meaning of the definition

that is the very heart of the proposed amendment. Contrary to the majority’s

assertion, subsection (b)(9) does not require that the key phrase of the definition in

subsection (b)(1)—which refers to “other conditions for which a physician believes

that the medical use of marijuana would likely outweigh the potential health risks

for a patient”—be effectively read out of the definition. Instead, the dual

requirements of subsection (b)(9) that the physician certification include the

statement that “the patient suffers from a debilitating medical condition” and the

statement “that the potential benefits of the medical use of marijuana would likely

outweigh the health risks for the patient,” are entirely consistent with the

understanding that the general phrase in the definition controls the specifically

enumerated conditions. Subsection (b)(9) simply requires the physician to state the

conclusion that the patient is eligible as a patient with a “debilitating medical

condition” and to state the basis for that conclusion—namely, that the benefits of

the medical use of marijuana outweigh the risks for the particular patient.

In maintaining that only debilitating diseases are within the scope of the

subsection (b)(1) definition, the majority is determinedly oblivious to the fact that

“debilitating medical condition” is a specifically defined term and that neither the

term “debilitating” nor the term “disease” appears in the operative language of the

definition. The majority is also determinedly oblivious to the fact that “medical

- 78 - condition” is a broader, more inclusive term than “diseases.” By reading

“debilitating diseases” into the operative language of the definitions set forth in

subsection (b)(1), the majority gives the definition a meaning that the text of the

definition does not admit. As a result, the majority turns a blind eye to the

misleading reference to “debilitating diseases” in the ballot summary, a reference

that cannot be squared with the text of the amendment, which allows physicians to

authorize the use of medical marijuana not only for patients suffering from a

debilitating disease but for any patient suffering from a condition “for which [the]

physician believes that the medical use of marijuana would likely outweigh the

potential health risks for [the] patient.”

III.

Foisting this seriously deceptive ballot summary on the voters does a severe

disservice to the people and to their constitution. The proposed amendment should

not be placed on the ballot. The sponsors of this amendment should be given an

opportunity to pursue their objective with a new proposal that has a ballot

summary that does not mislead the voters.

POLSTON, C.J., concurs.

LABARGA, J., dissenting.

- 79 - I dissent because I conclude that the ballot title and ballot summary are

fatally confusing in regard to the conditions or diseases which may be treated by

the use of medical marijuana. When determining the validity of initiative petitions

such as this, the Court’s inquiry is limited to whether the petition satisfies the

constitutional single-subject requirement and the requirement of section

101.161(1), Florida Statutes (2013). See Advisory Op. to Att’y Gen. re Amend. to

Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So.

2d 888, 890-91 (Fla. 2000). Section 101.161(1) requires that that ballot title and

summary state “in clear and unambiguous language the chief purpose of the

measure.” Advisory Op. to Att’y Gen.—Limited Political Terms in Certain

Elective Offices, 592 So. 2d 225, 228 (Fla. 1991).

We have noted that “voters are generally required to do their homework and

educate themselves about the details of a proposal and about the pros and cons of

adopting the proposal.” Smith v. Am. Airlines, Inc., 606 So. 2d 618, 621 (Fla.

1992). However, no amount of voter homework would disclose exactly what

conditions or diseases may be treated with medical marijuana under this ballot title

and summary. As we reiterated in Armstrong v. Harris, 773 So. 2d 7 (Fla. 2000),

“[t]he problem, therefore, lies not with what the summary says, but rather with

what it does not say.” Id. at 15 (quoting Askew v. Firestone, 421 So. 2d 151, 156

(Fla. 1982)).

- 80 - While the ballot title suggests that medical marijuana may be prescribed

only for “certain medical conditions,” the ballot summary states that the use is

allowed for “debilitating diseases as determined by a licensed Florida physician.”

At this point, the voter will not know if the category of “medical conditions” for

which use of medical marijuana is allowed is smaller or larger than the category of

“debilitating diseases” for which physicians may prescribe medical marijuana.

Further confusing the matter for the voter is the fact that the text of the amendment

defines “debilitating medical condition” with a list of specifically named diseases

followed by a catchall phrase, “other conditions for which a physician believes that

the medical use of marijuana would likely outweigh the potential health risks for a

patient.” Is the term “condition” limited to what may be characterized as a

“disease”? Or may a debilitating medical condition be a condition not caused by

disease? While “disease” may be defined by use of the term “condition,” it is not

so clear that “condition” is in turn defined by use of the term “disease” or is

synonymous with it. The confusion inherent in the use of these terms, even when

read together, gives me great concern that the voter will not be fairly and clearly

apprised of the proposal’s chief purpose.

“Fair notice in terms of a ballot summary must be actual notice consisting of

a clear and unambiguous explanation of the measure’s chief purpose.” Askew, 421

So. 2d at 156. In my view, even the informed voters who have done their

- 81 - homework and read the complete ballot title, ballot summary, and ballot text will

not be clearly informed of what limits, if any, are placed on the use of medical

marijuana. Nor will the voter know the scope of “certain medical conditions” or

“debilitating diseases” for which the use of marijuana may be allowed.

This Court has been assiduous in the past in scrutinizing ballot titles and

summaries to assure that they fairly inform the voters of the substance and effect of

proposed amendments. Although the Court is reluctant to remove proposed

amendments from a vote of the public, this Court has not been reluctant to strike a

summary that fails to clearly and fully inform the voter of the significant effects of

the amendment. As we held in Smith, “we are required by section 101.161

[Florida Statutes] to ensure that the ballot summary clearly communicates what the

electorate is being asked to vote upon. This ballot summary fails to do so.” Smith,

606 So. 2d at 621.

I do recognize that the limited range of the ballot summary “prevents [it]

from revealing all the details or ramifications of the proposed amendment.” Smith,

606 So. 2d at 621. Even so, the summary must clearly state the amendment’s chief

purpose. 2 In this case, the chief purpose of the proposed amendment is

2. Section 101.161(1), Fla. Stat. (2013), provides that the ballot summary for a constitutional amendment proposed by citizen initiative “shall be an explanatory statement, not exceeding 75 words in length, of the chief purpose of the measure.” Given the complexity of issues often raised in amendments proposed by citizen initiative, the Legislature should consider expanding that limit

- 82 - inextricably tied to the circumstances under which medical marijuana may be

prescribed. That is exactly the area of the ballot title and summary that are not

clear. For these reasons, I dissent from the majority’s approval of the ballot title

and summary and the placement of this proposed amendment on the ballot.

Two Cases: Original Proceeding – Advisory Opinion – Attorney General

Pamela Jo Bondi, Attorney General, and Gerry Hammond, Senior Assistant Attorney General, Tallahassee, Florida; Allen Winsor, Solicitor General, and Rachel E. Nordby and Leah A. Sevi, Deputy Solicitors General, Tallahassee, Florida,

for Petitioner,

Jon L. Mills of Boies Schiller & Flexner, LLP, Miami, Florida, Timothy McLendon, Gainesville, Florida, and John Morgan, Orlando, Florida,

for People United for Medical Marijuana, Sponsor

George T. Levesque, General Counsel, Tallahassee, Florida, on behalf of The Florida Senate and Don Gaetz, in his official capacity as President of the Florida Senate; and Daniel E. Nordby, General Counsel, on behalf of The Florida House of

or providing some mechanism for redrafting the amendment, where practicable, to provide the clarity necessary for placement on the ballot. The Legislature provided a similar corrective mechanism for legislatively proposed constitutional amendments where the ballot statement proposed by legislative joint resolution is found to be defective. Section 101.161, Florida Statutes, was amended in 2011 to provide in subsection (3) that if the court finds the Legislature’s ballot statement to be defective, the Attorney General may prepare and submit a revised ballot statement, unless otherwise provided in the joint resolution. See § 101.161(3)(b)2., Fla. Stat. (2011). I urge the Legislature to consider extending a similar corrective mechanism to constitutional amendments proposed by citizen initiative.

- 83 - Representatives and Will Weatherford, in his official capacity as Speaker of the Florida House of Representatives; Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, Florida, and Kenneth B. Bell of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, Florida, on behalf of Florida Chambers of Commerce, Florida Medical Association, Florida Police Chiefs Association, Florida Sheriffs Association, and Save Our Society from Drugs,

as Opponents

Rupert E. Dunkum, Webster, Florida,

Responding with comments

- 84 -