SJC hears appeals on marijuana ballot question

OPPONENTS OF THE BALLOT QUESTION to legalize marijuana argued before the state’s highest court Wednesday that the initiative should be shelved for a number of reasons, including the fact that architects of the referendum slipped in a provision to let nonprofit medical marijuana facilities cash in by getting preferential treatment for retail licenses.

In addition, the lawyer for the 59 voters who brought the suit, claimed Attorney General Maura Healey’s title and summary fails to inform voters how radically the law will change what drugs will be legal and how powerful they can be. The campaign committee formed by Gov. Charlie Baker, Boston Mayor Marty Walsh, and House Speaker Robert DeLeo to defeat the measure is not a party to the suit but a spokesman says the effort to kill the question “raises important issues” regarding the allowable level of THC in legal marijuana.

Supporters of the referendum argued in a separate suit against Healey, an opponent of legalization, that her headlines and summaries misled voters and had the potential to place fear into voters that a yes vote would strip away all laws regarding pot use with little or no regulation.

The hearing on the two cases came on the Supreme Judicial Court’s last scheduled day of oral arguments for the term; the justices are under pressure to make a ruling soon. The final day to file 10,972 signatures for certification to place the question on the ballot is July 6 and there is a deadline by the Secretary of State’s office to send the brochure detailing all ballot questions to the printer by July 11 to get them to voters in time for the election.

John Scheft, the attorney for the group seeking to remove the question, told the SJC that the set-aside for medical marijuana dispensaries to receive the first 75 retail marijuana licenses, which was spotlighted in a CommonWealth story last month, amounted to “logrolling.” He described it as an effort by proponents to include a number of items in a single complex question so voters will approve it. He said when voters passed the medical marijuana initiative in 2012, they did it out of compassion for people with debilitating illnesses, not for corporations to cash in without having to go through a regulatory process.

Scheft also said the more than 8,000-word proposed law contained a number of contradictions and hidden clauses that would allow marijuana sellers and manufacturers to skirt regulations to which other products are subject.

While marijuana is used in a number of edible products such as brownies, candy, and beverages, Scheft said the measure would exempt the drug from regulation under the state’s food safety laws, instead placing it under the Cannabis Control Commission, which he said would be “industry heavy.”

“What [voters] are being asked to approve is marijuana, hashish, concentrate, and food products,” said Sheft, referring to products that have been legalized in other states. “The things that are being sold and used are not the leafy green, natural substance called marijuana that voters are misled to believe is involved.”

Attorney Thomas Kiley, a plaintiff in the suit brought by marijuana supporters, said Healey’s headline on the question summary – Legalizing marijuana – did not give voters the full scope of the proposed regulations. He said the referendum strictly limits how the drugs could be marketed to assure it would not be available to anyone under 21.

Kiley, who also filed an amicus brief in the case brought by the opponents of the ballot question, was queried by several justices on how the edibles would be manufactured and whether that needed to be explained more openly to voters. Justice Robert Cordy asked if the inclusion of sticks, seeds, and twigs would require the application of food safety laws. Kiley said he was unaware of how most products are made.

“I only know about brownies,” he said with a slight smile.

Assistant Attorney General Robert Toone said his office was doing its job as well as possible in drawing up the summaries and the titles. He insisted there was no agenda for or against either side and said voters are savvy enough to read and understand the brochures.

Both Cordy and Justice Margot Botsford, though, indicated there was room for change. Cordy noted that after reading the 25-page referendum, he did not understand that THC could be put into edibles and beverages and sold on the open market.

“Don’t you think voters would sort of like to know that?” he asked Toone.

Chief Justice Ralph Gants gave some indication that the decision could lean more toward changing the wording than scrubbing the question off the ballot.

“What if the title read: ‘Legalize, regulate, and tax marijuana for adult use?’” he asked all three attorneys during their arguments. “Would that satisfy your concerns?”

The lawyers agreed that would more accurately introduce the question to voters.

Correction: An earlier version of this story incorrectly stated who brought the suit. The Campaign for a Safe and Healthy Massachusetts supports the suit but is not a party.