For marijuana law, now the ‘Grown-Up’s Hour’

State has long history of applying legislative fixes to ballot questions

MANY OF US have listened to Longfellow’s poem that reminds us that there “Comes a pause in the day’s occupations, that is known as the Children’s Hour.” Now that democracy has worked its magic in Massachusetts with the legalization of recreational use of marijuana, I suggest it is time for the Grown-Up’s Hour when it comes to the details of the new law.

Democracy works in different ways in different jurisdictions. Massachusetts voters at last year’s election, notwithstanding vocal opposition from the governor, the mayor of Boston, Cardinal O’Malley, law enforcement officials, and a host of others, approved by a significant margin (300,000+ votes) an initiative petition that legalizes the recreational use of marijuana.

The proponents drafted the language, which passed constitutional muster. It was written in such a way that it provided a set of rules for how the new system would work. Even the well-meaning, however, often don’t take into account all the consequences of their drafting. In this case, among other concerns, the level of taxation is far below what is in place in Colorado, Oregon, and other states that have passed similar legislation in recent years. Most believe that the tax to be levied is so minimal that the revenues collected will not even cover the expenses of enforcement.

Initiative petition, referendum, and recall are three of the pillars of the platforms of the Progressive Era. They were adopted in response to frustrations at the legislative process and out of a desire to permit maximum possible participation by the average citizen. Some states, mostly in the west, put most everything on the ballot. California’s ballots are clogged with propositions of all sorts. In Massachusetts, the barrier to entry may be a bit higher; we have fewer issues that find their way to the electorate. In 2016, there were four.

The most famous of all Massachusetts initiative petitions, of course, was the 1980 measure that that created the state’s Proposition 2½ law limiting property tax increases. (For younger readers, please know that before Prop. 2½, there were no overrides, and no Community Preservation Act, with the resulting increasing disparity between the “have” and the “have-not” communities.)

The good thing about initiative petitions is that they are statutes, which can be amended by the Legislature. I often remind students that the word legislate comes from two Latin words which can loosely be translated “to make laws.” After the passage of Proposition 2½, the Legislature saw fit to make legally significant, although not substantively dramatic, changes to the law. It is not that the citizenry is not to be trusted, but often popular movements engage in what is sometimes cynically referred to as the “Lazy Susan” method of drafting: Various groups put together their desired changes and incorporate them into one petition.

The Legislature now faces a similar situation with the measure legalizing recreational marijuana. Members of the House and the Senate do not want to alienate their constituents who voted, quite overwhelmingly, almost everywhere, for the marijuana legalization proposal. They certainly don’t want zealous police officers to arrest their constituents who might believe they are exercising their rights pursuant to the change in the law, especially given the confusion resulting from the comments of Attorney General Sessions and others. On the other hand, they want the system to work and for the revenues collected to be adequate to cover enforcement, and, I expect, public health initiatives.

I think the majority of the people who voted for Question 4 were concerned about the general issue of decriminalization, rather than the specifics. Without regard to whether the Legislature may have brought about the initiative petition by its previous inaction, now is the time for them to step up. The new committee, chaired by Rep. Mark Cusack and Sen. Patricia Jehlen, must study the facts and report out legislation soon.

Meet the Author

The average citizen wants the system to work, even if they may necessarily not partake! At this point in the history of Massachusetts, it’s time for the Grown-Up’s Hour to ensure that will of the people is fulfilled in a manner that is reasonable and practical.

Lawrence S. DiCara is a partner at Nixon Peabody and a former president of the Boston City Council.