Alert
09.30.2019

In 2016, Florida voters approved a constitutional amendment legalizing medical marijuana. The Florida Legislature enacted new laws in 2017 for the purpose of implementing the constitutional amendment. The new laws imposed a vertical integration system on the medical marijuana industry in Florida and capped the number of dispensary licenses that could be issued. A company who was denied a dispensary license filed suit against the Florida Department of Health, who was responsible for issuing the licenses, alleging that the vertical integration system and dispensary license cap violated the medical marijuana constitutional amendment. The state trial court denied the Florida House’s motion to intervene and later ruled that the vertical integration system and dispensary license cap were unconstitutional. The state trial court’s ruling was affirmed in part on appeal and the issues are now pending before the Florida Supreme Court. 

Last year, the Florida House of Representatives (House) filed a motion to intervene in the underlying state trial court action. The trial court denied the motion to intervene and the Florida House filed an appeal. Florida’s First District Court of Appeals (DCA) ruled last week that the Florida House has an “actual cognizable interest” in the lawsuit and can intervene. Indeed, the DCA found that the Florida House’s interest in the lawsuit was vital due to the public safety concerns. The DCA emphasized that marijuana is a Schedule I drug under federal law with a high potential for abuse, no accepted medical use of the drug and a lack of accepted safety for use of the drug under medical supervision. The DCA also cited to research studies that found that marijuana use may impair brain function and possibly cause criminal or violent behavior. 

The Florida House’s motion to intervene in the civil lawsuit and the DCA authorizing it to do so is somewhat unusual. Although not entirely unheard of, state legislatures and the federal legislature do not generally appear as litigants in civil actions and litigate over the constitutionality of the laws they pass. Both state legislatures and the federal legislature usually wait on the side lines while the constitutionality of a law is litigated between private parties, between a private party and a sovereign state or a private party and the sovereign United States or between a state and the United States in their respective roles as sovereigns. Moreover, the executive branch of government is responsible for enforcing laws under the U.S. political system and not the legislative branch. As a result, it is arguably solely within the executive branch’s purview to defend the constitutionality of a law in litigation proceedings. Typically, a legislature’s role with regard to constitutional challenges is limited to amending the laws or issuing new laws to correct any constitutional defects after courts rule that a law is unconstitutional. The net result of the DCA’s ruling is that the Florida Legislature will be a party to the lawsuit with the ability to file motions, briefs and engage in oral argument in support of the constitutionality of the laws that it passed.

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