Marijuana amendment opponents sue in Arkansas Supreme Court

Opponents of the Arkansas Medical Marijuana Amendment have filed a lawsuit in the Arkansas Supreme Court saying the ballot title is insufficient.

The lawsuit by Arkansans Against Legalized Marijuana alleges that the ballot title fails to convey the proposed amendment’s scope and contains misleading information. The lawsuit asks that the amendment be removed from the ballot, that Secretary of State Mark Martin be prohibited from certifying ballots cast for the amendments, and costs be awarded to the plaintiffs.

The case is Toni Rose, Individually And on Behalf of Arkansans Against Legalized Marijuana v. Mark Martin, Secretary of State. Robert Shafer and Phillip Brick with Friday, Eldredge & Clark are attorneys for the petitioners.

The amendment would authorize up to 40 for-profit dispensaries and eight cultivation facilities and allow patients to possess up to 2.5 ounces for medical use. On the ballot, it will be listed as Issue 6.

Also on the ballot is the Arkansas Medical Cannabis Act, an initiated act where the dispensaries would be run by non-profits. Unlike the proposed amendment, it includes a provision allowing patients to grow their own marijuana if they live too far from a dispensary. The amendment lists about 14 ailments qualifying for use. The initiated act lists about 50. Arkansans Against Medical Marijuana filed suit against the Arkansas Medical Cannabis Act Aug. 24.

Dr. Greg Bledsoe, the state’s surgeon general, who has been serving as a spokesperson for Arkansans Against Legalized Marijuana, said proponents of the two proposals “both say that marijuana the plant is medicine, which we are concerned about, and they both say that marijuana is safe, which we don’t believe is true and are very concerned about.”

Among the lawsuit’s specific allegations are:
• It claims the title says the amendment sets limitations on the use of medical marijuana by patients when it actually limits possession, not use, and it does not limit gifts of marijuana from patients to others.

David Couch, the amendment’s sponsor, responded in an interview by saying, “I think it’s very hard to use something you don’t possess.” He said the amendment does limit possession to 2.5 ounces at any one time. Patients would be able to transfer marijuana to another patient.

• The lawsuit claims the ballot title does not tell voters that the amendment permits marijuana dispensaries to sell food and drink containing marijuana.

Couch said such use would be regulated by the Department of Health, and the General Assembly can amend the amendment with a two-thirds vote.

• The lawsuit claims the title tells voters the amendment prohibits criminal or civil penalties or discrimination against those using marijuana medically. However, it does not inform voters that employers cannot hire or fire employees based on use, that landlords may not refuse to lease to a medical marijuana user or prohibit use on leased premises, and that schools cannot refuse to enroll students using the drug for medicinal purposes.

Couch said the amendment treats medical marijuana as any other medicine.

“If you came to work high, you can be fired. If you come to work strung out on Oxycontin, you can be fired,” he said.

He said a landlord can’t prohibit a tenant from using marijuana but can prohibit the tenant from smoking it, just as smoking tobacco can be prohibited.

• The lawsuit says the title does not tell voters that the amendment prevents doctors, attorneys and other professionals from being denied a license or from being disciplined for use of the drug.

Couch said marijuana is treated as other situations: A physician abusing or overprescribing marijuana can be disciplined by the State Medical Board, for example.

Couch said the items cited by the lawsuit were on the 2012 ballot question narrowly defeated by voters, which the Arkansas Supreme Court approved. He said the current title was amended and approved by Attorney General Leslie Rutledge.

“The important things are covered. It’s marijuana; it’s taxed; it’s regulated,” he said. “All of the big items are covered. You can’t put everything that’s in an amendment or in an act on the ballot title because then you couldn’t read it in the voting booth.”