Filing # 177772433 E-Filed 07/19/2023 02:18:34 PM

SC2023-0682

In the Supreme Court of Florida

ADVISORY OPINION TO THE ATTORNEY GENERAL RE: ADULT PERSONAL USE

OF MARIJUANA

On a Petition for an Advisory Opinion to the Attorney General

Brief of The Cato Institute in Support of the Initiative

JOSHUA KATZ
(Admitted Pro Hac Vice)
PHV No. 0103783
Cato Institute
1000 Massachusetts Ave., N.W.
Washington, DC 20001
[email protected]
(202) 842-0200

SPENCER GEORGE
Fla. Bar No. 1010967
Law Office of Spencer George
567 Nutmeg Ct.,
Chuluota, Fl 32766
[email protected]
(407) 473-5302
Attorneys for Cato Institute
 TABLE OF CONTENTS

TABLE OF CONTENTS .................................................................... i

TABLE OF AUTHORITIES ............................................................... ii
IDENTITY AND INTEREST OF SUPPORTER.................................... 1
STATEMENT OF THE CASE AND FACTS ........................................ 2
SUMMARY OF THE ARGUMENT .................................................... 2
LEGAL STANDARD......................................................................... 4
ARGUMENT ................................................................................... 4
I. Amendment By Initiative Provides an Important Check on
the Government ...................................................................... 6
II. The Single-Subject Rule Initially Restricted, and Today
Overwhelmingly Restricts, Legislatures ................................... 9
A. Logrolling and Riders Are Not Serious Concerns for
Initiatives ......................................................................... 11
B. The Chamber Has Not Shown Logrolling or Riders Here ... 13
III. Aggressive Enforcement of the Rule Leads to Politicization ... 14
IV. Implementing Rules are Necessary to Prevent
Governmental Sabotage ....................................................... 16
CONCLUSION .............................................................................. 21

i
 TABLE OF AUTHORITIES

Cases
Advisory Op. to Att’y Gen. re: Additional Homestead Tax
Exemption, 880 So. 2d 646 (Fla. 2004) ....................................... 19
Advisory Op. to Att’y Gen. re: All Voters Vote in Primary Elections
for State Leg., Gov., and Cabinet, 291 So. 3d 901 (Fla. 2020) ...... 18
Advisory Op. to Att’y Gen. re: Fla’s Amend. to Reduce Class Size,
816 So. 2d 580 (Fla. 2002) ........................................................... 4
Advisory Op. to Att’y Gen. re: Repeal of High-Speed Rail Amend.,
880 So. 2d 628 (Fla. 2004) ......................................................... 18
Advisory Op. to the Att’y Gen. re: Marriage Protection, 926 So. 2d
1218 (Fla. 2006)................................................................... 10, 19
Advisory Op. to the Att’y Gen. re: Voter Control of Gambling in
Fla., 215 So. 3d 1209 (Fla. 2017) ............................................... 10
Afroyim v. Rusk, 387 U.S. 253 (1967) ............................................. 5
Briggs v. Brown, 3 Cal. 5th 808 (2017) ........................................... 6
Chisholm v. Georgia, 2 U.S. 419 (1793) ........................................... 4
Fine v. Firestone, 448 So. 2d 984 (Fla. 1984) ......................... passim
Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485 (2019)......................... 5
Heggs v. State, 759 So. 2d 620 (Fla. 2000) ................................... 10
Printz v. United States, 521 U.S. 898 (1997) .................................. 13
Ray v. Mortham, 742 So. 2d 1276 (Fla. 1999) ............................... 10
Other Authorities
Cannabis Laws in New Jersey—Frequently Asked Questions,
BRACH EICHLER LLC..................................................................... 20
Daniel H. Lowenstein, California Initiatives and the Single-
Subject Rule, 30 UCLA L. REV. 936 (1983) .................................. 15
ENCYCLOPEDIA OF DEMOCRATIC THOUGHT (Paul Barry Clark & Joe
Foweraker, eds. 1999) ................................................................ 12
ii
John G. Matsusaka & Richard L. Hasen, Aggressive
Enforcement of the Single Subject Rule, 9 ELECTION L.J. 399
(2010) .............................................................................. 6, 15, 16
Jonathan L. Marshfield, The Single-Subject Rule and the Politics
of Constitutional Amendment in Initiative States, 101 NEB. L.
REV. 71 (2022) .................................................................... passim
Mary E. Adkins, The Same River Twice: A Brief History of How
the 1968 Florida Constitution Came to Be and What it Has
Become, 18 FLA. COASTAL L. REV. 5 (2016) ................................. 7, 8
Nicholas Miller, Logrolling (May 20, 1999)..................................... 12
NIMBY, ENCYCLOPEDIA BRITANNICA (last visited July 11, 2023) ........ 14
Richard Briffault, The Single-Subject Rule: A State Constitutional
Dilemma, 82 ALB. L. REV. 1629 (2019) ............................ 10, 11, 15
Thomas Stratmann, The Effects of Logrolling on Congressional
Voting, 82 AM. ECON. REV. 1162 (1992) ....................................... 11
Constitutional Provisions
Art. III, § 16, FLA. CONST. (1968) ...................................................... 8
Art. VII, § 3, FLA. CONST. (1885)....................................................... 8
Art. XI, § 3, FLA. CONST. (1968)........................................................ 5
Art. XVII, FLA. CONST. (1885) ........................................................... 7

iii
 IDENTITY AND INTEREST OF SUPPORTER

The Cato Institute was established in 1977 as a nonpartisan

public policy research foundation dedicated to advancing the

principles of individual liberty, free markets, and limited government.

Cato’s Robert A. Levy Center for Constitutional Studies was

established in 1989 to promote the principles of limited

constitutional government that are the foundation of liberty. Toward

those ends, Cato publishes books and studies, conducts conferences,

and issues the annual Cato Supreme Court Review.

This case interests Cato because it concerns the right of state

citizens to make changes to the form and policies of their government

and the role of judicial review in that process. Cato writes to point

out that aggressive application of the single-subject rule to initiatives

upsets the balance of power between citizens and their government

and to urge the Court to adopt a pragmatic reading that faithfully

implements the state constitutional commitment to self-

determination.

1
 STATEMENT OF THE CASE AND FACTS

Cato has no substantive disagreement with the statement of the

facts appearing in the brief of the Florida Chamber of Commerce and

adopts that statement.

SUMMARY OF THE ARGUMENT

Citizen initiatives to amend the state Constitution are a tool by

which citizens control and check their government. They secure

individual rights, prevent governmental abuses, and allow statewide

majorities to exert their might even when stymied by having only

minority representation in the state legislature. They can be a

powerful instrument both of individual liberty and of democratic

ideals, and courts should not interpret rules in ways that thwart that

purpose. But Florida courts sometimes unduly restrict citizen

initiatives through misapplication of the single-subject rule.

Supporter urges the Court to adopt a reading of the single-

subject rule that better implements the clear—and laudable—state

constitutional commitment to self-determination. Not coincidentally

this approach better aligns with the history and purposes of the

amendment-by-initiative process. While the Court’s past practice has

been to enforce the rule more stringently against the citizens than

2
the legislature, Supporter shows that history and purpose are to the

contrary.

The relevant history indicates that the citizens took back their

right to directly amend their state Constitution in response to

minority party control over the legislature. Thus, it is crucial that

judicial review not prevent the people from exerting control over their

government.

Moreover, the single-subject rule addresses concerns that are

less troubling in the context of an initiative than in the legislature:

logrolling and riders. These smoke-filled-room practices, whereby

legislators can pass minority provisions by tying them to each other

or to a more popular provision, allow representatives to vote against

the interests of their constituencies. But in the case of an initiative,

the citizens are themselves the constituency, making unseemly

backroom deals difficult, if not impossible. What’s more, riders can

even increase utility for the population. In any case, the Chamber’s

attempt to characterize this initiative as a case of logrolling or as

containing a impermissible rider are unpersuasive.

A more moderate application of the single-subject rule is also

more neutral. Empirical research shows that the more aggressively

3
the rule is enforced, the more the outcomes align with the partisan

preferences of the judge, an effect that is less pronounced when the

rule is interpreted more loosely.

Finally, measures included in an initiative solely to prevent the

government from thwarting implementation do not constitute a

second subject. They are simply a means of preventing a hostile

legislature from thwarting the people’s ability to exercise their rights.

LEGAL STANDARD

Unless a proposed amendment is “clearly and conclusively

defective,” the right of the citizens to amend their constituting

document prevails over a single-subject challenge. Advisory Op. to

Att’y Gen. re: Fla’s Amend. to Reduce Class Size, 816 So. 2d 580, 582

(Fla. 2002) (cleaned up). “[T]he merits” of the proposal is a question

left to the voters. Id.

ARGUMENT

The Court must tread carefully when it stands between the

people, who individually are the sovereigns in our system of

government, and their attempts to secure liberty through the

Constitution, which they created and “can only change.” Chisholm v.

Georgia, 2 U.S. 419, 448 (1793) (Iredell, J.), superseded on other

4
grounds by constitutional amendment as stated in Franchise Tax Bd.

v. Hyatt, 139 S. Ct. 1485 (2019). The people are the authors and

maintainers of the Constitution; it is “the people[] with whom the

sovereign power is found[.]” Afroyim v. Rusk, 387 U.S. 253, 260

(1967). Courts must be particularly careful not to interfere with the

amendment process because “under state constitutions, the most

important aspect of amendment design is providing the people with

an effective instrument for controlling the government.”1

In this case, the Florida Chamber of Commerce argues that the

proposed constitutional amendment violates the single-subject rule

because it both decriminalizes and commercializes marijuana. See

Art. XI, § 3, FLA. CONST. (1968). While this amendment concerns a

single subject under any reading, an aggressive application of the

single-subject rule upsets the balance of power between the citizens

and their government. The Court should repudiate the strict

interpretation adopted in its past advisory opinions and instead

adopt a flexible reading that allows the people wide-latitude to protect

1 Jonathan L. Marshfield, The Single-Subject Rule and the Politics of

Constitutional Amendment in Initiative States, 101 NEB. L. REV. 71, 77
(2022).

5
their liberty through the initiative process. Such a stance is found in

California’s “reasonably germane” test.2 See Briggs v. Brown, 3 Cal.

5th 808, 828 (2017) (emphasizing that the requirement “should not

be interpreted in an unduly narrow or restrictive fashion that would

preclude the use of the initiative process to accomplish

comprehensive, broad-based reform”). Under that test, the provisions

need not “effectively interlock in a functional relationship.” Id. They

just need to be germane to each other and to the amendment’s

purpose. Id.3

I. Amendment By Initiative Provides an Important Check on

the Government

The history and purpose of amendment by citizen initiative

counsels in favor of giving the people wide latitude to amend. History

illuminates the purpose: allowing the rights of the people to prevail

2 See John G. Matsusaka & Richard L. Hasen, Aggressive

Enforcement of the Single Subject Rule, 9 ELECTION L.J. 399 (2010).
3 This argument should not be taken to imply that a flexible standard
is necessary for this initiative to pass muster. Indeed, it is single-
subject under any interpretation of the rule. But it is independently
true that a rigorous approach upsets the purposes of the initiative
and the balance of power between the people and the government,
and so must be eschewed.

6
over the government’s power when in conflict. Prior to the 1968

revision of the Florida Constitution, the people of Florida had

delegated away the ability to initiate an amendment. See Art. XVII,

FLA. CONST. (1885). The Constitution could only be amended by

convention or by voter ratification of a legislative proposal. Id. When

the legislature proposed one, the people retained the power of

approval. But that state of affairs was deemed insufficiently

protective of the people against the power of their government and so

the citizen initiative was added as a means of constitutional

amendment in the 1968 revision. That revision represented a major

shift for Florida, throwing off the vestiges of Confederate influence in

its 1885 constitution and modernizing more generally.4

One of the vestiges driving the revision was the lack of “true

representational fairness” in the legislature.5 The 1885 constitutional

scheme, under which the House of Representatives contained

between one and three representatives per county, see Art. VII, § 3,

4Mary E. Adkins, The Same River Twice: A Brief History of How the
1968 Florida Constitution Came to Be and What it Has Become, 18
FLA. COASTAL L. REV. 5, 7–9 (2016).
5 Id. at 10.

7
FLA. CONST. (1885), meant that the populous, urban counties were

severely underrepresented. In such circumstances, the people could

not effectively check their government. Thus, the people had

experience with a legislative majority representing a minority of the

population, with the people at the mercy of a government accountable

to only a thin sliver of society. While changing legislative

apportionment6 solved the immediate problem, further steps to

protect the ability of the people to check their government, such as

amendment by initiative, were needed.7

More broadly, the amendment by initiative process provides a

means for citizens to directly amend their relationship with the

government they founded without the need for permission from any

government middleman. Where the people desire to protect their

liberty, such as by decriminalizing recreational marijuana, while the

government is opposed or reluctant, this process allows the will of

the citizenry to prevail. It is “a core collective right of the people that

6 Adkins, supra note 4, at 19. Compare Art. III, § 16, FLA. CONST.
(1968) with Art. VII, § 3, FLA. CONST. (1885).
7 See Marshfield, supra note 1, at 88 (explaining that citizen
initiatives allow an underrepresented majority to exert its will).

8
reflects great trust in voters and great distrust of government

officials.”8

The single-subject rule for amendment by initiative, by contrast,

acts to impede the will of the people and enhance governmental

power, so applications of the rule must be mindful of the threat it

poses. While the rule is properly used to prevent contradictions in

the Constitution, see Fine v. Firestone, 448 So. 2d 984, 989 (Fla.

1984), and to ensure that voters are presented with clear choices, id.

at 988, aggressive enforcement risks subjugating the will of the

people to that of the government. In so doing, it risks defeating the

very purpose of citizen initiatives: to enable the people to exercise

their will despite the opposition of the government.9

II. The Single-Subject Rule Initially Restricted, and Today

Overwhelmingly Restricts, Legislatures

The single-subject rule first emerged in New Jersey in 1844 as

a constitutional means of limiting the legislature. It now appears in

the constitutions of 43 states, where it limits their legislatures to

8 Id. at 121.
9 See Marshfield, supra note 1, at 88.

9
considering bills of a single purpose.10 So conceived, it protects the

people from governmental overreach. The overriding purpose is to

protect constituents from perverse incentives for elected officials to

engage in logrolling and riders.11 Heggs v. State, 759 So. 2d 620, 627

(Fla. 2000); Fine, 448 So. 2d at 988. Legislative logrolls and riders

allow a bad or unpopular measure to measure because another also

passes. Applied to the people, by contrast, it threatens to protect the

government from the people, anathema to this nation’s founding

principles. This difference demands a less aggressive approach when

applied to citizen initiatives.12 Perverse incentives are less likely and

10 Richard Briffault, The Single-Subject Rule: A State Constitutional

Dilemma, 82 ALB. L. REV. 1629, 1629 (2019).
11 Id. at 1632–33.
12 Although this is an inversion of the Court’s practice of applying
greater rigor when this rule is assessed in the initiative context, see,
e.g., Fine, 448 So. 2d at 989, the rule to be proposed is not
inconsistent with the Court’s past formulation, calling for a “[u]nity
of object and plan,” Advisory Op. to the Att’y Gen. re: Marriage
Protection, 926 So. 2d 1218, 1234 (Fla. 2006) (quotation omitted), and
“logical and natural oneness of purpose.” Advisory Op. to the Att’y
Gen. re: Voter Control of Gambling in Fla., 215 So. 3d 1209, 1214 (Fla.
2017) (cleaned up). To the extent it does require deviation, advisory
opinions are not binding precedent. Ray v. Mortham, 742 So. 2d
1276, 1284–85 (Fla. 1999). Indeed, the Attorney General urges this
Court to turn from its precedents on the question of the ballot
statement. AG Br. at 23. Where a different standard better suits both
the text of the requirement and its purpose, the Court having

10
less harmful and are far outweighed by the need for the citizenry to

make use of the initiative as a check on the government.

A. Logrolling and Riders Are Not Serious Concerns for

Initiatives

Logrolling and riders13 in the legislature may present problems

for a representative democracy; less so with initiatives. A legislature

consists of a relatively small number of repeat players who may

engage in backroom deals, defeating their individual responsibilities

to their constituents.14 But none of that applies to initiatives, where

the citizenry as a whole decides. The citizenry answers to no one; it

contains the constituencies to which politicians owe loyalty.

Logrolling and riders are therefore far less likely or problematic.

previously reasoned from purpose for this requirement, see, e.g.,

Fine, 448 So. 2d at 993, there is reason to deviate from persuasive
authority. See id. at 988–89 (“[R]eced[ing] from [the Court’s] prior
language in Floridians”).
13 Consistent with this Court’s usage, the Chamber uses the term
“logrolling” for both logrolling and riders. But in the relevant
literature, a rider refers to an unpopular piece of legislation attached
to a popular one, as the Chamber argues exists here, while logrolling
is a way to advance two or more unpopular pieces of legislation by
attaching them to each other. Briffault, supra note 10, at 1634.
Supporter uses that terminology here so as to facilitate separate
treatment.
14See id. at 1635; Thomas Stratmann, The Effects of Logrolling on
Congressional Voting, 82 AM. ECON. REV. 1162, 1162 (1992).

11
 Consider riders. Imagine two proposals—A, which is popular,

and B, which is not—folded into one initiative. If the initiative passes,

it is because a majority, containing at least some who dislike B,

decided that A and B together was preferable to nothing at all. That

stark choice is the same one faced here. Should the Court find a

violation of the single-subject rule, it will strike the initiative from the

ballot, frustrating the will of the people. See Fine, 448 So. 2d at 993.

Logrolling is also much less of a concern in initiatives. While

riders are less harmful in initiatives than in the legislature, logrolling

is less likely. Logrolling, the passing of two unpopular proposals by

melding together their minority supporters, requires backroom deals

followed by partisan voting.15 Backroom deals are far harder in

initiatives, where the entire voting public must be brought along, as

opposed to bringing along party members who depend on leadership

for funding.

Consequently, an aggressive application of the single-subject

rule in the context of initiatives does not advance any of its goals. To

15 See Nicholas Miller, Logrolling (May 20, 1999),

https://bit.ly/3Q29vzx, from ENCYCLOPEDIA OF DEMOCRATIC THOUGHT
(Paul Barry Clark & Joe Foweraker, eds. 1999).

12
apply the rule in a way that does not defeat the purpose of

amendment by initiative, the Court must limit its review to preventing

voter confusion and ensuring that the result matches citizen

preferences. That can be accomplished through a restrained

application.

B. The Chamber Has Not Shown Logrolling or Riders Here

The Chamber has not shown logrolling or attachment of riders

in this case. It claims the initiative contains a rider, citing polls it

characterizes as showing majority support for decriminalization but

majority opposition to commercialization. Chamber Br. at 20–21. But

there are at least three problems. First, as described above, the

Chamber’s proposed solution is to prevent decriminalization, a

rights-enhancing provision that the Chamber admits is

overwhelmingly popular. Second, the Chamber points to national

polls to support this claim. Id. But this is hardly a national matter.

Our federalist form of government celebrates differences between

states. And those differences are often large, both in preferences and

in policy. The ability to respond to different preferences with different

policies is part and parcel to the federal system. Printz v. United

States, 521 U.S. 898, 919–20 (1997). An attempt to short-circuit the

13
right of Florida citizens to protect their rights by amending their own

constitution by reference to national preferences is an assault on

federalist principles.

Third, even assuming that the preferences in Florida match

those nationally, the question the Chamber uses as a proxy for

commercialization is not helpful. It asked only if respondents want a

dispensary in their own neighborhoods. Chamber Br. at 20–21. A

person may well consider his own neighborhood a poor place for a

dispensary without opposing the construction and licensure of

dispensaries elsewhere. A negative vote on the question presented in

the poll, then, is not a negative vote on commercialization. The poll

reflects only NIMBY16 tendencies. And NIMBYism is characterized by

worries about the locations, not the existence, of things (here,

dispensaries).

III. Aggressive Enforcement of the Rule Leads to Politicization

There is yet a further problem with aggressive enforcement of

the single-subject rule: research shows it results in politically-driven

judicial decisions. As the legal scholar Daniel Hayes Lowenstein

16 See generally NIMBY, ENCYCLOPEDIA BRITANNICA,

https://bit.ly/3pW0Nbq (last visited July 11, 2023).

14
wrote decades ago, and as remains a truism today, “subject” depends

on the level of abstraction.17 Any two laws can be read as being on

the same subject if the question is viewed on a high enough level. On

the other hand, if fine enough distinctions are admitted, any two laws

are on different subjects. This makes the rule dangerously pliable.

Courts apply various legal tests to try to give those inherently vague

terms meaning, such as this Court’s unity of object and plan test.

See Fine, 448 So. 2d at 990.

The more flexible the test, the more likely judges are to engage

in traditional legal interpretation and application. But when the test

becomes more strict, judges tend to rule in ways that confirm their

political biases.

Empirical research bears this out. Economist John G.

Matsusaka and political scientist and legal scholar Richard L. Hasen

studied judicial review of initiatives in five states with the single-

subject rule during 1997–2006.18 What they found was striking.

17Briffault, supra note 10, at 1636 & n.64 (quoting Daniel H.

Lowenstein, California Initiatives and the Single-Subject Rule, 30
UCLA L. REV. 936, 938 (1983)).
18 Matsusaka & Hasen, supra note 2, at 1–2.

15
When a state’s courts applied a flexible standard to the rule, there

was little to no relationship between the deemed partisan affiliation

of the judges,19 the ideological leaning of the amendment, and the

tendency to accept or reject the initiative.20 But with more aggressive

enforcement, judges were more likely to approve initiatives matching

their partisan priors.21

IV. Implementing Rules are Necessary to Prevent

Governmental Sabotage

The proposed amendment’s “commercialization” is not a second

subject; it’s merely a method of preventing governmental sabotage.

Government, after all, is often hostile both to the rights of the citizens

and to citizen control over its policies and forms. While the initiative

process gets around legislative refusal to propose an amendment, the

government still retains a number of ways to thwart the popular will.

By its nature, a constitutional amendment is typically not self-

executing, and requires either legislative or executive action.22 This

19As determined by the appointing governor’s party, except that in

open elections in Washington, the judge’s former career is used to
determine a partisan affiliation. See id. at 16.
20 Id. at 28.
21 Id.
22 Marshfield, supra note 1, at 95.

16
opens the door to sabotage. The legislature might fail to fund a

program established by initiative.23 It, or the executive, might fail to

adopt necessary implementing statutes or regulations.24 Either might

adopt implementing rules and regulations that undermine the

amendment.25 Or government actors can fail to take necessary

actions for the amendment to come to fruition.26

These are not just theoretical concerns in Florida. After the

2016 medical marijuana amendment passed by initiative, the

legislature passed supposed enabling legislation prohibiting the

smoking of medical marijuana.27 It further imposed burdens on

physicians attempting to prescribe marijuana with the apparent goal

of discouraging them from ever becoming fully qualified to prescribe

the medication.28 The state had similar experiences with government

interference with its high-speed rail referendum, where the

Governor’s opposition to funding led to broken contracts and

23 Id.
24 Id. at 96.
25 Id. at 96–97.
26 Id. at 98.
27 Id. at 96.
28 Id. at 97.

17
eventual repeal, as well as with the felon enfranchisement initiative.29

See also Advisory Op. to Att’y Gen. re: Repeal of High-Speed Rail

Amend., 880 So. 2d 628, 629 (Fla. 2004) (rejecting financial impact

statement as including possible but not probable costs and directed

at households rather than governments).

This possibility might reasonably lead initiative sponsors to take

steps to prevent such governmental foot-dragging, like implementing

rules. If these specifics, necessary as countermeasures in case of

government opposition, themselves invalidate an initiative, then

governmental foot-dragging works. It’s for exactly this reason that

this Court has held that implementing regulations are not a different

subject for purposes of the single-subject rule. See Advisory Op. to

Att’y Gen. re: All Voters Vote in Primary Elections for State Leg., Gov.,

and Cabinet, 291 So. 3d 901, 905 (Fla. 2020) (rejecting similar claim

and the dissent’s argument that “tak[ing] away the Legislature’s

discretion to provide for state-run elections to choose political party

nominees” together with allowing for top-two primary violated the

rule (quoting id. at 911 (Muñiz, J., dissenting))). In All Voters Vote,

29 Id. at 99, 101–02.

18
while implementing a top-two scheme required three steps, all were

part of the same logical design, and thus were a single subject. So

too here.

Countermeasures, of course, expand the text of initiatives. They

increase the complexity of the amendment, sometimes making it

appear more like a statute or regulation than a constitutional

amendment.30 But they do not change the subject. Instead, they “may

be logically viewed as having a natural relation and connection as

component parts or aspects of a single dominant plan or scheme.”

See Advisory Op. to the Att’y Gen. re: Marriage Protection, 926 So. 2d

1229, 1234 (Fla. 2006) (quoting Advisory Op. to Att’y Gen. re:

Additional Homestead Tax Exemption, 880 So. 2d 646, 649 (Fla.

2004)). Indeed, the purpose of the implementing rules and

countermeasures is to ensure that the aim of the initiative is carried

out even over governmental hostility, a clear unity of object and plan.

Their natural relation is one of goal and strategy, suitably situating

both as parts of a dominant scheme—to achieve the goals of the

underlying change.

30 See Marshfield, supra note 1, at 111 (describing an apt example).

19
 It’s rational that voters sought to include provisions that would

overcome governmental interference here. As the Attorney General

notes, 20 bills to achieve the same aim have died in the legislature in

the last 10 years. AG Br. at 1 & n.1. The sponsors therefore chose a

means of implementation rather than leaving gaps for the legislature

to fill.

The sponsors chose what the Chamber calls

“commercialization.” Perhaps mindful of the experience of New

Jersey, where the government did not license any facilities for years

after adoption of a recreational marijuana initiative,31 the sponsors

also chose to allow, at least as an initial step, existing dispensaries

(MMTCs), to sell the newly legal recreational marijuana. That ensures

that there will be facilities authorized to sell the decriminalized

marijuana once the amendment takes effect. Again, the plan remains

unified, as does the purpose.

31Cannabis Laws in New Jersey—Frequently Asked Questions, BRACH

EICHLER LLC 2, https://bit.ly/3OmrTC0 (describing situation in June
2021 as “New Jerseyans are allowed to possess up to 6 oz of
marijuana or up to 17 grams of hashish; yet, they have nowhere to
legally buy it.”).

20
 CONCLUSION

The Court should uphold the initiative under any set of

standards. It should use the opportunity, though, to announce a less

aggressive approach to policing initiatives under the single-subject

rule. Additionally, consistent with the Court’s precedent and

practice, provisions in an amendment that implement the

amendment, and that seek to prevent potential government hostility,

do not create a second subject, and do not violate the single-subject

rule.

Respectfully submitted,

(July 19, 2023)

/s/Spencer George /s/Joshua Katz

Spencer George Joshua Katz
Florida Bar No. 1010967 (Admitted Pro Hac Vice)
Law Office of Spencer George PHV No. 0103783
567 Nutmeg Ct., Missouri Bar No. 72239
Chuluota, Fl 32766 Cato Institute
[email protected] 1000 Mass. Ave. NW
(407) 473-5302 Washington, DC 20001
[email protected]
(202) 842-0200

Attorneys for Cato Institute

21
 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing

motion was served by the Florida Courts E-Filing Portal to:

Christopher John Baum

Henry C. Whitaker, Esq.
Jeffrey Paul DeSousa, Esq.
Daniel W. Bell, Esq.,
Office of the Attorney General
The Capitol, PL-01
Tallahasee, FL 32399
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Counsel for the Attorney General

Alan Lawson, Esq.

Jason Gonzalez, Esq.
Jessica Slatten, Esq.
Lawson Huck Gonzalez, PLLC
215 South Monroe Street, Suite 320
Tallahassee, FL 32301
[email protected]
[email protected]
[email protected]
Counsel for Opponent Florida Chamber of Commerce
Jeremy D. Bailie, Esq.
5453 Central Avenue
St. Peterburg, FL 33710
[email protected]
[email protected]
[email protected]
Counsel for Opponent The Drug Free America Foundation

Ryan Newman
Executive Office of the Governor
State of Florida
The Capitol
400 S. Monroe Street
Tallahassee, FL 32399-0001
[email protected]
General Counsel to Governor Ron DeSantis

Joseph S. Van de Bogart

Florida Department of State
R.A. Gray Building
500 S. Bronough Street
Tallahassee, FL 32399-0250
[email protected]
General Counsel to Secretary of State Cord Byrd

Carlos A. Rey
The Florida Senate
The Capitol
404 S. Monroe Street
Tallahassee, FL 32399-1100
[email protected]
Counsel to Senate President Kathleen Passidomo
David Axelman
Florida House of Representatives
The Capitol
402 S. Monroe Street
Tallahassee, FL 32399-1300
[email protected]
Counsel to Florida House of Representatives

Glenn Burhans, Jr.

Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A.
Highpoint Center
106 East College Ave., Suite 700
Tallahassee, FL 32301
[email protected]
[email protected]
[email protected]

Barry S. Richard
Barry Richard Law Firm
101 East College Ave., Suite 400
Tallahassee, FL 32302
[email protected]

John Bash
Quinn Emanuel Urquhart & Sullivan, LLP
300 W. 6th St., Suite 2010
Austin, TX 78701
[email protected]

Rachel G. Frank
Quinn Emanuel Urquhart & Sullivan, LLP
1300 I Street, N.W., Suite 900
Washington, D.C. 20005
[email protected]
Daniel L. Humphrey
Quinn Emanuel Urquhart & Sullivan, LLP
2601 S. Bayshore Dr. FL 15
Miami, FL 33133
[email protected]
[email protected]

Ellyde R. Thompson
Quinn Emanuel Urquhart & Sullivan, LLP
51 Madison Ave., 22nd Floor
New York, NY 10010
[email protected]

Attorneys for Sponsor Smart & Safe Florida

Dated: July 19, 2023

/s/Spencer George
Spencer George
Florida Bar No. 1010967
Law Office of Spencer George
567 Nutmeg Ct.,
Chuluota, Fl 32766
[email protected]
(407) 473-5302
 CERTIFICATE OF COMPLIANCE
I certify that this brief complies with the requirements of Florida

Rules of Appellate Procedure 9.045(b) and 9.210(a)(2) because it was

prepared using Bookman Old Style 14-point font and because the

word count from the word-processing system used to prepare this

document is 3,929 words, exclusive of those sections which may be

omitted pursuant to Rule 9.045(e).

Dated: July 19, 2023

/s/Spencer George
Spencer George
Florida Bar No. 1010967
Law Office of Spencer George
567 Nutmeg Ct.,
Chuluota, Fl 32766
[email protected]
(407) 473-5302