Utah Supreme Court hears challenge to the medical cannabis replacement bill

Posted at 9:56 AM, Mar 25, 2019
and last updated 2019-03-25 23:47:03-04

SALT LAKE CITY -- The Utah Supreme Court is considering whether to overturn the legislature's replacement of Proposition 2, the medical cannabis ballot initiative.

The justices heard arguments on Monday from members of The People's Right, a fledgling group seeking to overturn House Bill 3001, which replaced voter-approved Prop 2 days after it went into effect. The group wants a public referendum on the bill (meaning voters would determine whether to accept it).

"We have the ability to check and balance," argued Steve Maxfield.

The People's Right is challenging a determination by the Utah Lt. Governor's Office that it would not qualify for a referendum because the legislature approved the medical cannabis bill with a two-thirds majority.

Members of The People's Right acted as their own attorneys during Monday's hour-long hearing. Daniel Newby argued to the Court that lawmakers had disenfranchised a half-million voters who supported Prop. 2.

"You've gone way over the line and look at the mess you've made in the people's yard," he said, referencing the legislature.

Justices quizzed the Utahns about whether they could even bring an action before them. But they also pressed lawyers for the state heavily about the speed the legislature moved in replacing Prop. 2.

"Why couldn't you just wait until the general session? What was so extraordinary that it had to take place the day after?" Justice Deno Himonas grilled Deputy Solicitor General Stanford Purser.

"The legislature saw issues and problems," Purser replied.

Justice Paige Petersen repeatedly questioned state attorneys about the legislature "amending" an initiative passed by the voters, they really "repealed" it.

"Could they just pass a bill that says, 'No medical marijuana. Whatever the citizens just did, we reverse it?" she asked Purser. "Can they do that or do they have to preserve the spirit of what the citizens just passed?"

"Certainly there's a difference between amend and repeal, and at some point the legislature has to recognize the difference," he replied.

Justice Petersen asked Eric Weeks of the Utah State Legislature's Office of Legislative Research and General Counsel what citizens could do to protect a voter-approved initiative from being changed by lawmakers.

"I think there's a lot of things they could do," Weeks replied, arguing that bringing an initiative is a message in and of itself, but lawmakers can be voted out.

Among those in court watching the arguments was Connor Boyack of the libertarian-leaning think tank Libertas Institute. He helped to negotiate the replacement bill alongside the Utah Patients Coalition, opponents of Prop. 2 and legislative leadership.

Outside court, Boyack told FOX 13 he did not predict The People's Right would win its legal challenge.

"I hope petitioners are successful. We would love to see Prop. 2 restored," he said. "We think at the end of the day they're going to recognize the legislature can do precisely what they did and HB3001 will stand."

Maxfield, who was watching the interview take place nearby, confronted him.

"If we're the people, can't we create the laws and say what the hell is criminal or not?" he asked Boyack. "Can't we say we're tired of being told that it's criminal? Can't we put an affirmative defense in there?"

"We did," Boyack replied.

"So, I understand why you capitulate and went there," Maxfield responded.

Boyack tried to explain his position.

"When we worked on Prop. 2, we recognized after multiple legal analysis, that they could amend anything they wanted," he said.

Maxfield tried to interject.

"My turn," Boyack responded. "Whether a special session, 48 hours later, or a general session, we recognized we were in a losing position strategically to protect long-term what we wanted."

Boyack argued that what was in HB3001 was "85 percent" what voters approved in Prop. 2. It didn't appear to appease members of The People's Right, but after about 20 minutes, Maxfield and Boyack shook hands and walked away.

The Court did not immediately issue a ruling, but took the case under advisement. Sharla Christie, a member of The People's Right, told FOX 13 she hoped the Court would side with them.

"It isn't right for the legislature to be able to overturn what the voters say," she said.