Citizen Initiatives Must Be Able to Overcome Government Hostility

Joshua A. Katz

Citizens should be able to assert their rights over governmental opposition. One way they do so is by amending their state constitutions by initiative, where permitted. But courts sometimes stretch sensible legal requirements in ways that insulate the government from this sort of interference. One of the rules that can be stretched in this way is the single‐​subject rule, at issue here.

This case arises from the Attorney General’s seeking an advisory opinion on whether a recreational marijuana initiative, which has met the petitioning requirement for the ballot, may lawfully be put on the ballot. One of the briefs in opposition to the initiative, that of the Florida Chamber of Commerce, challenges it under the single‐​subject rule, maintaining that it violates the rule because it both decriminalizes marijuana and “commercializes” it. By the latter, the Chamber means it allows for its commercial sale in existing medical marijuana dispensaries, among other things.

Initiatives are particularly important for addressing mismatches between rights the people seek and what their representatives deign to allow, as this case illustrates. Those mismatches can have many sources; an important one arises when a statewide majority is represented by a legislative minority, either because of districting or for other reasons. Minority rule resulting from apportionment rules was a driving force behind the 1968 revision of the Florida Constitution, the revision that permitted constitutional amendment by initiative. When there is such a mismatch, and an initiative is used to overcome it, the people cannot rely on the government to adopt implementing rules. So the amendment itself must contain rules making it effective, rather than waiting for statutes, regulations, funding sources, licensure rules, and so on, to emerge from the political branches. But that runs the risk of those provisions being labeled a second subject.

Our brief responds to the Chamber’s in, principally, two ways. First, the proper judicial approach to the rule is one of moderation and pragmatism, and the Supreme Court of Florida should adopt such an approach. The court is, after all, standing between the people and a document they themselves established and reserved to themselves the right to amend, and that in turn establishes the state government. This reading is consistent with the history of the citizen initiative.

While Florida’s Supreme Court has enforced the single‐​subject rule more strictly against initiatives than against the state’s legislature (subject to its own rule), the proper approach would be the inverse. In the legislature, the rule addresses logrolling and riders, two ways representatives might fail in their duty to represent their constituents. These are less concerning for initiatives, where the voters do not answer to a constituency, riders are less troublesome, and logrolling is more difficult.

Second, even under Florida’s existing jurisprudence, the “commercialization” here does not change the subject. It is an effort to head off governmental opposition. Opposition is reasonable to expect as many recreational marijuana bills have died in the legislature. So the initiative includes what the Chamber calls “commercialization” provisions, which ensure that a means of distribution is available and that some dispensaries (those currently dispensing medical marijuana) are immediately licensed. If that makes for a single‐​subject violation, then the government, contrary to design, will always have a veto over such amendments, sapping them of their power to overcome governmental hostility.

Initiatives to amend the state constitution, which reflect greater trust in the people than in politicians, are a tool for checking the government. Courts should use great care in keeping them off the ballot. Because they often overcome governmental hostility, indeed, that is a core purpose, they often need to contain detailed rules for their implementation, because otherwise government will frustrate their purposes. So implementing rules, in particular, is not a second subject for the purposes of this rule. When citizens speak, the government should listen.