Supreme Court of Florida

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No. SC19-2116

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ADVISORY OPINION TO THE ATTORNEY GENERAL RE: ADULT 

USE OF MARIJUANA.

April 22, 2021

CORRECTED OPINION

PER CURIAM.

The Attorney General of Florida has requested this Court’s 

opinion concerning the validity of an initiative petition circulated 

pursuant to article XI, section 3 of the Florida Constitution. We 

have jurisdiction. See art. IV, § 10, art. V, § 3(b)(10), Fla. Const. As 

explained below, we strike the proposed amendment on the ground 

that the ballot summary is affirmatively misleading.

BACKGROUND

On December 19, 2019, the Attorney General petitioned this 

Court for an advisory opinion regarding the validity of an initiative 

petition sponsored by Make it Legal Florida (the Sponsor) and titled 
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“Adult Use of Marijuana.” The Attorney General asks whether the 

proposed amendment complies with the single-subject requirement 

of article XI, section 3 of the Florida Constitution, and whether the 

ballot title and summary comply with the clarity requirements of 

section 101.161(1), Florida Statutes (2020). After we directed 

interested proponents and opponents to file briefs, the Attorney 

General submitted a brief opposing the initiative petition. Opposing 

briefs were also submitted by: (1) the Florida Senate; (2) the Florida 

House of Representatives; (3) the Drug Free America Foundation, 

the Florida Coalition Alliance, National Families in Action, and 

Smart Approaches to Marijuana; and (4) the Florida Chamber of 

Commerce, Floridians Against Recreational Marijuana, Save Our 

Society from Drugs, and the National Drug-Free Workplace Alliance. 

The Sponsor filed the lone brief in support of the initiative petition. 

Oral argument was held on May 6, 2020.

Text of the Proposed Amendment

The proposed amendment would add the following new section 

33 to article X of the Florida Constitution:

Section 33. Adult Use of Marijuana.

(a) Definitions. As pertaining to this section 

(1) “Adult” means a person 21 years of age or older.
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(2) “Department” means the Florida Department of 

Health or its successor agency.

(3) “Marijuana” shall have the same meaning as defined 

in Article X, Section 29.

(4) “Marijuana accessories” means any equipment, 

products, or materials of any kind which are for 

ingesting, inhaling, topically applying, or otherwise 

introducing marijuana into the human body.

(5) “Medical Marijuana Treatment Center” shall have the 

same meaning as defined in Article X, Section 29, except 

a licensed Medical Marijuana Treatment Center is 

permitted to sell, distribute, or dispense marijuana to a 

person 21 years of age or older for personal use for any 

reason in compliance with this section.

(6) “Public place” means any public street, sidewalk, 

park, beach, or other public commons.

(b) Public policy.

(1) An adult is permitted to possess, use, display, 

purchase, or transport marijuana or marijuana 

accessories for personal use for any reason in compliance 

with this section and Department regulations and is not 

subject to criminal or civil liability or sanctions under 

Florida law.

(2) A Medical Marijuana Treatment Center is permitted 

to sell, distribute or dispense marijuana or marijuana 

accessories to an adult for personal use for any reason in 

compliance with this section and Department regulations 

and is not subject to criminal or civil liability or sanctions 

under Florida law.

(c) Restrictions.

(1) An adult may possess, display, purchase, or 

transport up to two and a half ounces of marijuana for 

personal use for any reason.

(2) A Medical Marijuana Treatment Center that sells, 

distributes, or dispenses marijuana or marijuana 

accessories to an adult shall ensure any marijuana or 

marijuana accessories are clearly labeled and in 

childproof packaging.
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(3) Marijuana or marijuana accessories shall not be 

advertised or marketed to target persons under the age of 

21.

(4) Marijuana authorized by this section may not be 

used in any public place.

(5) The limitations set forth in Article X, Section 29(c)(4), 

(5), (6), and (8) shall apply to personal use of marijuana 

authorized by this section.

(d) Authority.

(1) The Department shall issue reasonable regulations 

necessary for the implementation and enforcement of this 

section.

(2) Nothing in this section shall limit the legislature from 

enacting laws consistent with this section.

(e) Severability. The provisions of this section are 

severable and if any clause, sentence, paragraph, or 

section of this measure, or an application thereof, is 

adjudged invalid by a court of competent jurisdiction, 

other provisions shall continue to be in effect to the 

fullest extent possible.

Ballot Title and Summary

The ballot title for the proposed amendment is: “Adult Use of 

Marijuana.” The ballot summary states:

Permits adults 21 years or older to possess, use, 

purchase, display, and transport up to 2.5 ounces of 

marijuana and marijuana accessories for personal use 

for any reason. Permits Medical Marijuana Treatment 

Centers to sell, distribute, or dispense marijuana and 

marijuana accessories if clearly labeled and in childproof 

packaging to adults. Prohibits advertising or marketing 

targeted to persons under 21. Prohibits marijuana use in 

defined public places. Maintains limitations on 

marijuana use in defined circumstances.
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ANALYSIS

Standard of Review

In reviewing the validity of an initiative petition, “[t]his Court 

has traditionally applied a deferential standard of review.” Advisory 

Op. to Att’y Gen. re Use of Marijuana for Certain Med. Conditions, 

132 So. 3d 786, 794 (Fla. 2014) (Medical Marijuana I). Prior to the

enactment of chapter 2020-15, Laws of Florida, this Court 

repeatedly recognized that our inquiry is limited “to two issues: (1) 

whether the amendment itself satisfies the single-subject 

requirement of article XI, section 3, Florida Constitution; and (2) 

whether the ballot title and summary satisfy the clarity 

requirements of section 101.161, Florida Statutes.” Advisory Op. to 

Att’y Gen. re Water & Land Conservation--Dedicates Funds to Acquire 

& Restore Fla. Conservation & Recreation Lands, 123 So. 3d 47, 50 

(Fla. 2013). “In order for the Court to invalidate a proposed 

amendment, the record must show that the proposal is clearly and 

conclusively defective on either ground.” Advisory Op. to Att’y Gen. 

re Amendment to Bar Gov’t from Treating People Differently Based on 

Race in Pub. Educ., 778 So. 2d 888, 891 (Fla. 2000).
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We conclude that the initiative petition is “clearly and 

conclusively defective,” id., on the ground that the ballot summary 

fails to comply with section 101.161.1

Section 101.161

Section 101.161(1), Florida Statutes (2020), provides that 

“[t]he ballot summary of the amendment or other public measure 

shall be an explanatory statement, not exceeding 75 words in 

length, of the chief purpose of the measure.” The statute further 

requires that the ballot title “consist of a caption, not exceeding 15 

words in length, by which the measure is commonly referred to or 

spoken of.” The purpose of these statutory requirements is “to 

ensure that the ballot summary and title ‘provide fair notice of the 

content of the proposed amendment’ to voters so that they ‘will not 

be misled as to [the proposed amendment’s] purpose, and can cast 

1. Because of our invalidation of the initiative on this ground, 

we need not address arguments presented concerning the scope 

and application of chapter 2020-15, Laws of Florida, which among 

other things amends existing statutes to (1) heighten the signature 

requirements before an initiative petition is eligible for this Court’s 

review, and (2) expand the scope of this Court’s review to include 

whether an initiative petition is facially invalid under the United 

States Constitution. Ch. 2020-15, §§ 1-2, Laws of Fla.
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an intelligent and informed ballot.’ ” Advisory Op. to Att’y Gen. re 

Voter Control of Gambling, 215 So. 3d 1209, 1215 (Fla. 2017) 

(alteration in original) (quoting Advisory Op. to Att’y Gen. re Right of 

Citizens to Choose Health Care Providers, 705 So. 2d 563, 566 (Fla. 

1998)).

In determining whether a ballot title and summary comply 

with section 101.161, this Court “consider[s] two questions: (1) 

whether the ballot title and summary, in clear and unambiguous 

language, fairly inform the voters of the chief purpose of the 

amendment; and (2) whether the language of the ballot title and 

summary, as written, will be affirmatively misleading to voters.” 

Medical Marijuana I, 132 So. 3d at 797. “[A]n accurate, objective, 

and neutral summary of the proposed amendment is the sine qua 

non of the citizen-driven process of amending our constitution.” 

Advisory Op. to Att’y Gen. re Indep. Nonpartisan Comm’n to 

Apportion Legislative & Cong. Districts Which Replaces 

Apportionment by Legislature, 926 So. 2d 1218, 1227 (Fla. 2006)

(quoting Advisory Op. to Att’y Gen. re Additional Homestead Tax 

Exemption, 880 So. 2d 646, 653-54 (Fla. 2004)).
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Here, the opponents of the proposed amendment offer various 

arguments for why the ballot summary is defective. Their primary 

argument—the only one we address—focuses on the first clause of 

the summary: “Permits adults 21 years or older to possess, use, 

purchase, display, and transport up to 2.5 ounces of marijuana and 

marijuana accessories for personal use for any reason.” They note 

that the proposed amendment itself states that it would only 

remove criminal and civil liability for the identified conduct “under 

Florida law.” They thus argue that the summary’s unqualified use 

of the word “[p]ermits” affirmatively misleads voters into believing 

that the recreational use of marijuana in Florida will be free of any 

repercussions, criminal or otherwise. We agree.

“Permits” Marijuana Use

There is no dispute here that the activities contemplated by 

the proposed amendment are criminal offenses under federal law. 

See 21 U.S.C. §§ 801-904 (the federal Controlled Substances Act). 

There is also no dispute that the proposed amendment states that 

the contemplated activities will only be free of “criminal or civil 

liability or sanctions under Florida law.” And there is further no 

dispute that the ballot summary unqualifiedly informs voters that 
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the amendment “[p]ermits” the contemplated activities. Although 

this Court once stated that it has “never required that a ballot 

summary inform voters as to the current state of federal law and 

the impact of a proposed state constitutional amendment on federal 

statutory law as it exists at this moment in time,” Medical

Marijuana I, 132 So. 3d at 808, we have certainly never concluded—

or suggested—that a summary may affirmatively “mislead voters 

regarding the interplay between the proposed amendment and 

federal law,” id. The summary here does precisely that.

The summary’s unqualified use of the word “[p]ermits” 

strongly suggests that the conduct to be authorized by the 

amendment will be free of any criminal or civil penalty in Florida. 

See The American Heritage Dictionary 1315 (5th ed. 2011) (defining 

the verb “permit” as “[t]o grant consent or leave to (someone); 

authorize”; and as “[t]o allow the doing of (something); consent to”). 

The proposed amendment, on the other hand, explains that the 

conduct will only be free of criminal or civil liability “under Florida 

law.” The proposed amendment includes that language, of course,

because a recreational marijuana user or distributor will remain 

exposed to potential prosecution under federal law—no small 
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matter. A constitutional amendment cannot unequivocally “permit” 

or authorize conduct that is criminalized under federal law. And a 

ballot summary suggesting otherwise is affirmatively misleading.

To put our decision into context, we review the two previous 

times marijuana-related initiative petitions came before this Court. 

Both times this Court approved the proposed amendment for 

placement on the ballot, the first time by way of a 4-3 decision and 

the second time unanimously. Here, the Sponsor—for whatever 

reason—took a far more problematic approach to the ballot 

summary than did the sponsors in the two earlier cases.

In Medical Marijuana I, this Court reviewed the validity of an

initiative petition that sought to allow the use of medical marijuana 

for patients with certain medical conditions. 132 So. 3d at 791. 

The text of the proposed amendment stated that “[t]he medical use 

of marijuana . . . is not subject to criminal or civil liability or 

sanctions under Florida law except as provided in this section.” Id. 

It further provided that “[n]othing in this law section [sic] requires 

the violation of federal law or purports to give immunity under 

federal law.” Id. at 793. The ballot summary then explained that 

the amendment “[a]llow[ed] the medical use of marijuana for 
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individuals with debilitating diseases” but “[a]pplie[d] only to Florida 

law.” Id. at 794. The ballot summary additionally disclosed that 

the amendment “[did] not authorize violations of federal law.” Id. 

Opponents of the initiative petition argued in relevant part that the 

ballot summary was defective for “mislead[ing] voters regarding the 

interplay between the proposed amendment and federal law.” Id. at 

808. And they argued “that the ballot summary should include 

language informing the voters that marijuana possession and use is 

currently prohibited under federal law.” Id. This Court’s majority 

disagreed. Id. In rejecting the opponents’ arguments—as well as 

arguments advanced by two of the three dissenting justices that the 

summary affirmatively misled the voters regarding federal law—the

majority concluded that “the statements in the ballot summary 

[were] substantially similar in meaning to the proposed 

amendment’s text” and that the opponents were improperly 

“asserting that the ballot summary should include language that 

[was] not in the proposed amendment itself.” Id. The majority also

noted that this Court had “never required that a ballot summary 

inform voters as to the current state of federal law and the impact of 

a proposed state constitutional amendment on federal statutory law 
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as it exists at this moment in time,” id., while concluding that “the 

ballot summary’s discussion of federal law [was] not ‘so misleading 

as to clearly and conclusively violate section 101.161,’ ” id. (quoting 

Advisory Op. to Att’y Gen. re Standards for Establishing Legislative 

District Boundaries, 2 So. 3d 175, 187 (Fla. 2009)).

The proposed amendment in Medical Marijuana I was 

ultimately not adopted by the voters. The following year, a similar 

initiative petition qualified for this Court’s review. See Advisory Op. 

to Att’y Gen. re Use of Marijuana for Debilitating Med. Conditions, 

181 So. 3d 471 (Fla. 2015) (Medical Marijuana II). There, the text of 

the proposed amendment provided—as in Medical Marijuana I—that 

the medical use of marijuana under certain circumstances would 

“not [be] subject to criminal or civil liability or sanctions under 

Florida law.” Id. at 473. It further provided—as in Medical 

Marijuana I—that “[n]othing in this section requires the violation of 

federal law or purports to give immunity under federal law.” Id. at 

475. The ballot summary then provided—as in Medical Marijuana 

I—that the amendment “[a]pplie[d] only to Florida law.” Id. at 476. 

But the ballot summary further provided—in clearer language than 

in Medical Marijuana I—that the amendment “[did] not immunize 
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violations of federal law.” Id. This Court unanimously approved the 

initiative petition for placement on the ballot, id. at 479, concluding 

that among other things “the ballot title and summary fairly 

inform[ed] voters of the purpose of the proposed amendment—the 

state authorization of medical marijuana for patients with 

debilitating medical conditions,” id. at 478. The amendment was 

ultimately approved by the voters and added article X, section 29 to 

the Florida Constitution.

Here, instead of following the roadmap this Court 

unanimously approved in Medical Marijuana II, the Sponsor chose a 

path that diverges even from the majority’s reasoning in Medical 

Marijuana I. That is, although the text of the proposed amendment

states it would only remove criminal and civil sanctions for the 

identified conduct “under Florida law,” the ballot summary omits 

this limiting language and affirmatively misleads voters by 

suggesting that the identified conduct will be “[p]ermit[ted]” without 

qualification. This we cannot approve.2

2. The dissenting opinion discusses reliance interests and yet 

does not address our discussion of Medical Marijuana I and Medical 

Marijuana II. Again, in both cases, the sponsor handled a nearly 

identical issue as presented here by unsurprisingly addressing that 
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The Sponsor offers various reasons why we should reject

striking the proposed amendment on this ground. We are not 

persuaded by any of these arguments. Indeed, the arguments 

largely sidestep the relevant issue.

First, the Sponsor relies on Advisory Opinion to Attorney 

General—Limited Political Terms in Certain Elective Offices, 592 So. 

2d 225 (Fla. 1991). There, we reviewed an initiative petition that 

purported to impose term limits on certain elective offices, including 

federal legislators from Florida. Id. at 226. Opponents of the 

measure argued “that the limitation on the terms of federal 

legislators violate[d] the Supremacy Clause of the United States 

Constitution.” Id. at 227 n.2. This Court declined to consider that

constitutional challenge, reasoning that its review of the initiative 

petition was “limited . . . to addressing whether the proposed 

important issue both in the proposed amendment itself and in the 

ballot summary. And both times this Court approved the petition. 

Given this “precedent,” dissenting op. at 27, we submit that it is the 

dissenting opinion’s atmospheric-science analogy—and not our 

decision here—that is unsound. That is, rather than analogizing 

this case to a professor failing a student who followed “the test 

instructions,” dissenting op. at 22, the better analogy would be to a 

professor failing a student who chose an incorrect answer after 

twice being shown the correct answer.
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amendment and ballot title and summary compl[ied] with article XI, 

section 3, Florida Constitution and section 101.161, Florida 

Statutes.” Id. at 227. Because those constitutional and statutory 

requirements had been satisfied, this Court approved the proposed 

amendment for placement on the ballot. Id. at 229.

The Sponsor argues that Limited Political Terms makes clear 

“that a conflict between current federal law and a proposed 

amendment is not justiciable” in the context of this Court’s review 

of an initiative petition. According to the Sponsor, “the ballot 

summary’s silence regarding federal law is therefore irrelevant.” 

But that reasoning is lacking. The issue here, of course, is not 

whether the proposed amendment is unconstitutional as

inconsistent with federal law. Rather, the issue is whether the 

ballot summary affirmatively misrepresents that inconsistency. It 

does. Limited Political Terms has no relevance here.

The Sponsor next looks to the majority’s statement in Medical 

Marijuana I that this Court had “never required that a ballot 

summary inform voters as to the current state of federal law and 

the impact of a proposed state constitutional amendment on federal 

statutory law as it exists at this moment in time.” Medical 
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Marijuana I, 132 So. 3d at 808. The Sponsor opines that even the 

dissenting justices in that case agreed there was no such 

requirement and that the issue dividing the Court was the perceived 

accuracy of the summary’s representation of the amendment’s 

relationship to federal law. The Sponsor contends that because the 

summary here is silent as to the amendment’s effect on federal law, 

there is no possibility voters could be left with the mistaken belief 

that the amendment is consistent with federal law. According to 

the Sponsor, the opponents’ arguments amount to nothing more 

than incorrect assertions that the summary is required to describe 

the amendment’s relationship to federal law or include information 

that is not contained within the amendment.

The Sponsor’s reliance on Medical Marijuana I similarly misses 

the point. The narrow issue is not whether the ballot summary is 

defective for failing to explain that marijuana use is currently 

prohibited by the Controlled Substances Act. Rather, the issue is 

whether the summary’s unqualified language is affirmatively 
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misleading. Again, it is.3 Because the summary affirmatively 

conceals the possibility that an individual could be prosecuted for 

conduct that the amendment purports to “[p]ermit[]” or authorize, 

the summary is “clearly and conclusively defective.” Race in Pub. 

Educ., 778 So. 2d at 891. Moreover, the opponents here are not 

arguing that “the ballot summary should include language that is

not in the proposed amendment itself.” Medical Marijuana I, 132 

So. 3d at 808. Quite the opposite. Here, the ballot summary omits 

important language that is found “in the proposed amendment 

itself.” Id. And the ballot summary does so even though—not 

surprisingly—similarly important language was included in the 

ballot summaries in both previous medical marijuana cases. See 

Medical Marijuana II, 181 So. 3d at 476 (ballot summary stated that 

the amendment “[a]pplie[d] only to Florida law” and “[did] not 

immunize violations of federal law”); Medical Marijuana I, 132 So. 3d 

at 794 (ballot summary stated that the amendment “[a]pplie[d] only 

to Florida law” and “[did] not authorize violations of federal law”).

3. The dissenting opinion similarly misses the point by 

wrongly asserting that we “condemn[] . . . this summary for not 

explaining federal law.” Dissenting op. at 34.
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The Sponsor next reasons that because “[t]his Court 

presumes . . . the average voter has a certain amount of common 

understanding and knowledge,” Fla. Educ. Ass’n v. Fla. Dep’t of 

State, 48 So. 3d 694, 701 (Fla. 2010), there is no need for the ballot 

summary to state that the amendment affects only Florida law. The 

Sponsor continues that it is an elementary principle of civics that 

federal law cannot be changed through a state constitution. We 

reject this line of reasoning. The taint of an affirmatively misleading 

statement in a ballot summary is not removed simply because some 

voters will wisely question the accuracy of the statement. The point 

is that a summary should not contain language that is affirmatively 

misleading and creates a risk that voters will be confused.

The Sponsor lastly argues that it is unnecessary to inform 

voters that the amendment would only apply to Florida law because 

“[t]his will be the third petition initiative in six years to address the 

possession and use of marijuana” in Florida. The Sponsor thus 

contends that voters should be presumed to be knowledgeable 

about prohibitions on marijuana, “especially when they have voted 

on similar amendments in two out of the last three elections cycles.” 

But even assuming this is a proper consideration in our review, the 
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Sponsor’s logic is self-defeating. Among other things, the Sponsor

overlooks that the ballot summaries in the two previous cases each 

made voters aware of the inconsistency between Florida law and 

federal law. See Medical Marijuana II, 181 So. 3d at 476; Medical 

Marijuana I, 132 So. 3d at 794. The fact that the summary here 

now makes no mention of that inconsistency could easily suggest to 

voters—misleadingly, to be sure—that there have been intervening 

changes to federal law since Medical Marijuana II. The Sponsor’s 

argument is without merit.

CONCLUSION

We conclude that the language in the ballot summary 

indicating that the proposed amendment unqualifiedly “[p]ermits” 

the use (and distribution) of recreational marijuana is affirmatively 

misleading. Because the proposed amendment fails to comply with 

section 101.161(1), Florida Statutes, we strike the proposed 

amendment.

It is so ordered.

CANADY, C.J., and POLSTON, MUÑIZ, COURIEL, and 

GROSSHANS, JJ., concur.

LABARGA, J., dissents.

LAWSON, J., dissents with an opinion.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, 

IF FILED, DETERMINED.

LAWSON, J., dissenting.

The majority views the ballot summary for this proposed 

constitutional amendment as misleading even though it accurately 

summarizes changes to the Florida Constitution that would result 

upon passage of the amendment. They assert that the summary 

misleads when it states that the amendment would generally 

“permit” the adult use of marijuana—which is accurate and not 

misleading as to the change in Florida law that would be brought 

about by passage of the amendment, but which would be 

misleading to any voter who thought that his or her vote could 

change federal statutory law or, more specifically, 21 U.S.C. §§ 801-

904 (the federal Controlled Substances Act) “[pursuant to which] 

the activities contemplated by the proposed amendment are 

[currently] criminal offenses under federal law.” Majority op. at 8. 

Because the majority’s reasoning and conclusion are logically 

irreconcilable with this Court’s precedent, I respectfully dissent. I 

would follow our precedent and approve the proposed amendment 

for placement on the ballot.
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I. Summary of Core Analysis

Our precedent correctly states that a ballot summary must 

simply and accurately summarize the change in Florida law that 

would occur if a proposed amendment is adopted. This implies—

and we have expressly held—that the summary need not address 

secondary issues or ramifications, including federal law. See 

Advisory Opinion to Atty. Gen. re Use of Marijuana for Certain Med. 

Conditions (Medical Marijuana I), 132 So. 3d 786, 808 (Fla. 2014) 

(“This Court has . . . never required that a ballot summary inform 

voters as to the current state of federal law [or] the impact of a 

proposed state constitutional amendment on federal statutory law . 

. . .”).

The fallacy in the majority’s conclusion that this summary 

misleads as to federal law when accurately explaining the Florida 

law change proposed in the amendment is most easily illustrated by 

analogy. If, for example, you and I were instructed on a onequestion final exam to summarize the predominant compounds 

present in the earth’s atmosphere and answered that the earth’s 

atmosphere is predominantly comprised of nitrogen (approximately 

78%) and oxygen (approximately 21%), our summary should be 
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viewed as correct because the rest of the gases combined account 

for only about 1% of the earth’s atmosphere. UCAR Center for 

Science Education, https://scied.ucar.edu/shortcontent/earthsatmosphere (last visited Apr. 15, 2021). We would be quite upset, 

and rightfully so, if we were told by our professor that we had failed 

the exam because our answer was misleading in that it did not 

explain that the sun’s atmosphere is different.4 Our justifiable 

confusion would be even more profound if the test instructions had 

plainly stated that our summary need not list predominant

compounds in the sun’s atmosphere and need not explain 

differences between the earth’s atmosphere and the sun’s.

There is no logical difference between my hypothetical 

professor’s illogical explanation for an unjustifiable failing grade 

and the majority’s explanation for “strik[ing] the proposed 

amendment on the ground that the ballot summary is affirmatively 

misleading.” Majority op. at 1.

4. Our sun’s atmosphere is predominantly comprised of 

hydrogen (75%) and helium (24%). Katharina Lodders, Solar 

System Abundances and Condensation Temperatures of the 

Elements, 591 The Astrophysical J. 1220, 1220 (2003) (rounded 

number to the second significant figure).
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II. Governing Precedent

A. The Right of Self-Governance and Expectation of NonIgnorance

Florida citizens have the right “to formulate ‘their own organic 

law.’ ” Medical Marijuana I, 132 So. 3d 786, 794 (quoting Advisory 

Op. to Att’y Gen. re Right to Treatment & Rehab. for Non-Violent Drug 

Offenses, 818 So. 2d 491, 494 (Fla. 2002)). To avoid undue 

interference with this right, we have “traditionally applied a 

deferential standard of review to the validity of a citizen initiative 

petition.” Id. Our restraint in this area is longstanding:

There is no lawful reason why the electors of this 

State should not have the right to determine the 

manner in which the Constitution may be amended. 

. . . Sovereignty resides in the people and the 

electors have a right to approve or reject a proposed 

amendment to the organic law of th[e] State, limited 

only by those instances where there is an entire 

failure to comply with a plain and essential 

requirement of [the law].

Id. at 795 (second alteration in original) (quoting Advisory Op. to 

Att’y Gen. re Right to Treatment & Rehab. for Non-Violent Drug 

Offenses, 818 So. 2d at 494 (quoting Pope v. Gray, 104 So. 2d 841, 

842 (Fla. 1958))).
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Consistent with these principles, we take a nonpaternalistic 

approach to our review, expecting voters to educate themselves 

regarding the details of a proposed amendment before voting and 

advising that the ballot summary need not educate voters on 

collateral implications of a proposed amendment’s effects:

Under our system of free elections, the voter must 

acquaint himself with the details of a proposed ordinance 

on a referendum together with the pros and cons thereon 

before he enters the voting booth. If he does not, it is no 

function of the ballot question to provide him with that 

needed education. What the law very simply requires is 

that the ballot give the voter fair notice of the question he 

must decide so that he may intelligently cast his vote.

Advisory Op. to Att’y Gen. re Standards for Establishing Legislative 

Dist. Boundaries, 2 So. 3d 175, 185 (Fla. 2009) (quoting Right to 

Treatment & Rehab. for Non-Violent Drug Offenses, 818 So. 2d at 

498).

Our review similarly presumes that voters possess a 

rudimentary knowledge of their government’s structure and of the 

laws governing their conduct. Fla. Educ. Ass’n v. Fla. Dep’t of State,

48 So. 3d 694, 701 (Fla. 2010) (“This Court presumes that the 

average voter has a certain amount of common understanding and 

knowledge.”); Am. Home Assur. Co. v. Plaza Materials Corp., 908 So. 
- 25 -

2d 360, 375 (Fla. 2005) (Cantero, J., concurring in part and 

dissenting in part) (“All citizens are presumed to know the law.”) 

(quoting Hart v. Hart, 377 So. 2d 51, 52 (Fla. 2d DCA 1979)).

Citizens are also presumed to know what constitutes a federal 

crime. See Lambert v. California, 355 U.S. 225, 228 (1957) (“The 

rule that ‘ignorance of the law will not excuse’ is deep in our law . . . 

.” (quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68 

(1910))).

Finally, it is one of the most fundamental and elementary 

principles of our constitutional republic that no state law—not even 

a state constitution—can override federal law. See U.S. Const., art. 

VI, cl. 2.

B. Ballot Summary

Section 101.161(1), Florida Statutes (2019), requires that each 

ballot summary5 be written in “clear and unambiguous language” 

5. Although the title and summary “must be read together in 

determining whether the ballot information properly informs the 

voters,” Advisory Op. to the Att’y Gen. re All Voters Vote in Primary 

Elections for State Legislature, Governor, & Cabinet, 291 So. 3d 901, 

906 (Fla. 2020) (quoting Advisory Op. to Att’y Gen. re Voluntary 

Univ. Pre-Kindergarten Educ., 824 So. 2d 161, 166 (Fla. 2002)), I will 

focus on the summary because that is where the language is found 

that the majority judges to be misleading.
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and provide “an explanatory statement, not exceeding 75 words in 

length, of the chief purpose of the measure.” Id. (emphasis added). 

In plain language, this statute imposes a straightforward legal 

requirement that the summary unambiguously and succinctly 

explain the primary legal change to the Florida Constitution that the 

amendment would bring about—and thereby “provide fair notice of 

the content of the proposed amendment.” All Voters Vote, 291 So. 

3d at 906 (quoting Advisory Op. to Att’y Gen. re Right of Citizens to 

Choose Health Care Providers, 705 So. 2d 563, 566 (Fla. 1998)). 

The point here is that the statute’s directive is solely to explain the 

Florida constitutional change—with no requirement that the 

summary provide an explanation of secondary ramifications of the 

proposed amendment. See id. (explaining that the statute does not 

require an explanation of “possible ramifications” of an 

amendment). Accordingly, we have “never required that a ballot 

summary inform voters as to the current state of federal law [or] the 

impact of a proposed state constitutional amendment on federal 

statutory law.” Medical Marijuana I, 132 So. 3d at 808.

We also properly consider “whether the language of the title 

and summary, as written, misleads the public.” Fla. Educ. Ass’n v. 
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Fla. Dep’t of State, 48 So. 3d 694, 701 (Fla. 2010) (quoting Fla. Dep’t 

of State v. Slough, 992 So. 2d 142, 147 (Fla. 2008)). This aspect of 

our review necessarily flows from the language of section 

101.161(1), requiring that the ballot summary in “clear and 

unambiguous” language explain the chief purpose of the proposal. 

We have properly read this language as including an “accuracy” 

requirement—stating that the substance of the proposal must be 

“accurately represented on the ballot.” Armstrong v. Harris, 773 So. 

2d 7, 12 (Fla. 2000) (emphasis omitted). Therefore, the proponents 

of the measure cannot use the summary to disguise the measure 

“as something else.” Askew v. Firestone, 421 So. 2d 151, 156 (Fla. 

1982). Stated another way, “[a] ballot title and summary cannot 

either ‘fly under false colors’ or ‘hide the ball’ as to the amendment’s 

true effect.” Armstrong, 773 So. 2d at 16. In lay terms, the statute 

supports an inquiry into whether the summary would inadvertently 

trick the voter as to how Florida law would change if the 

amendment passes. Id.

C. Stare Decisis

The doctrine of stare decisis requires us to follow the 

precedent outlined above unless “we are convinced that [it] clearly 
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conflicts with the law we are sworn to uphold.” State v. Poole, 297 

So. 3d 487, 507 (Fla. 2020). Even clearly erroneous precedent 

should be maintained and followed based upon citizens’ reliance on 

that precedent in conducting their affairs. Id.

Here, reliance interests are at their zenith because citizens rely 

heavily (if not exclusively) on our precedent when seeking to amend 

their constitution. Citizens draft the proposal knowing that it will 

never make the ballot unless we judge their language to be 

compliant with section 101.161(1). They then expend significant 

resources to obtain the signatures necessary to trigger our review, 

with no opportunity to redraft the proposal if we find it deficient. 

Rather, if their original work product is deemed defective, the 

citizenry must start again with a new proposal for a later election 

cycle, at least two years in the future. They must then redraft a 

new summary and restart the expensive signature-gathering 

process. These practicalities, and the core right of self-governance 

they relate to, clearly militate in favor of following the doctrine of 

stare decisis in the citizen-initiative context, see Poole, 297 So. 3d 

at 507 (identifying reliance as a “critical consideration” in 

determining whether to adhere to precedent), and underscore why it 
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is of paramount importance that we faithfully, consistently, and 

impartially apply our precedent in this area, irrespective of our 

personal views as to “the merits or wisdom of the proposed 

amendment,” Advisory Op. to Att’y Gen. re Repeal of High Speed Rail 

Amendment, 880 So. 2d 624, 625 (Fla. 2004). Our precedent 

therefore appropriately dictates that we must “act with extreme 

care, caution, and restraint before [we] remove[ ] a constitutional 

amendment from the vote of the people,” Askew, 421 So. 2d at 156, 

and also appropriately instructs that “[t]his Court has no authority 

to inject itself in the process [by blocking a proposed amendment 

from appearing on the ballot], unless the laws governing the process 

have been clearly and conclusively violated,” Advisory Op. to Att’y 

Gen. re Right to Treatment & Rehab. for Non-Violent Drug Offenses, 

818 So. 2d at 494, 498-99, thereby rendering the proposal “clearly 

and conclusively defective,” id at 494 (quoting Floridians Against 

Casino Takeover v. Let’s Help Florida, 363 So. 2d 337, 339 (Fla. 

1978)).

III. Analysis

In oral argument, the Attorney General correctly acknowledged 

that the summary for this proposed constitutional amendment 
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fairly informs voters of the amendment’s chief purpose—to “permit” 

the adult use of marijuana, with limitations also fairly 

summarized—and that the summary is not misleading with respect 

to the changes in Florida law that would occur if the amendment is 

adopted. The majority does not suggest otherwise. The key point is 

this: the proposed amendment itself expressly states that certain 

actions are “permitted,” Majority op. at 2-4 (quoting proposed 

amendment), and the ballot summary says that the amendment 

“[p]ermits” those actions. Majority op. at 4 (quoting ballot 

summary). Given the precedent cited above, these observations 

should end our analysis in favor of approving the measure for 

placement on the ballot. See, e.g., Medical Marijuana I, 132 So. 3d 

at 808 (approving a ballot summary that contains statements 

“substantially similar in meaning to the proposed amendment’s 

text”).

Yet, in an extraordinarily rare occurrence for this Court, we 

are declaring a summary to be misleading even though it accurately 

describes the effect of the amendment using the same operative 
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language as used in the amendment itself.6 The majority reasons

that the summary is misleading because it fails to explain that 

adult use of marijuana is not permitted under federal law and that 

the proposed Florida constitutional law change would not alter the 

federal Controlled Substances Act—contrary to the bedrock 

principle that citizens are presumed to know what constitutes a 

federal crime, see Lambert, 355 U.S. at 228, and in direct violation 

of the deferential, nonpaternalistic rules and presumptions that 

have historically governed our decisions in this area. See, e.g., 

Standards for Establishing Legislative Dist. Boundaries, 2 So. 3d at 

185 (explaining that the law does not require the ballot summary to 

6. In Detzner v. League of Women Voters of Fla., 256 So. 3d 

803, 809 (Fla. 2018), we condemned another ballot measure as 

misleading under similar circumstances. Writing in dissent, Chief 

Justice Canady explained:

The majority’s opinion thus repeatedly reveals that the 

summary is condemned not because it is misleading, but 

because of what the majority views as deficiencies in the 

proposed constitutional amendment itself. This is a clear 

departure from the fundamental principle of our jurisprudence 

that in determining the adequacy of a ballot summary, we do 

not review the merits of the proposed constitutional 

amendment. 

Id. at 817.
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provide voters with “needed education” regarding “the details of a 

proposed ordinance on a referendum together with the pros and 

cons thereon before [entering] the voting booth” (quoting Advisory 

Op. to Att’y Gen. re Right to Treatment & Rehab. for Non-Violent Drug 

Offenses, 818 So. 2d at 498)); Fla. Educ. Ass’n v. Fla. Dep’t of State, 

48 So. 3d 694, 701 (Fla. 2010) (explaining that this “Court 

presumes that the average voter has a certain amount of common 

understanding and knowledge” regarding the structure and 

operation of their legal and governmental systems); Medical 

Marijuana I, 132 So. 3d at 808 (explaining that we have “never 

required that a ballot summary inform voters as to the current state 

of federal law [or] the impact of a proposed state constitutional 

amendment on federal statutory law”).

In Advisory Opinion to Attorney General re Protect People from

the Health Hazards of Second-Hand Smoke, 814 So. 2d 415, 419 

(Fla. 2002), we rejected as “contrary to rational analysis” an 

argument that voters would be misled by an accurate description of 

an amendment banning smoking in “indoor workplaces.” 

Opponents of the indoor workplace smoking ban amendment had 

argued that the ballot summary was misleading when it stated that 
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the measure would “prohibit tobacco smoking in enclosed indoor 

workplaces” without “indicat[ing] that smoking would be banned in 

places like restaurants, which many patrons visit for the sole 

purpose of relaxing.” Id. at 418-19. We unanimously dismissed the 

contention, explaining: “In our view, the argument that Florida 

citizens cannot understand that a restaurant may be a workplace is 

contrary to rational analysis.” Id. at 419.

The majority’s reasoning here is similarly “contrary to rational 

analysis,” id., by which I mean that it violates basic principles of 

logic. This assertion obviously bears some explanation. My 

challenge in giving this explanation is that although the law is 

supposed to be governed by “standards of rationality” reflected in 

the “basic principles of logic,” David Barker-Plummer et al., 

Language, Proof and Logic 1 (2d ed. 2011), we do not generally teach 

logic and rhetoric as part of our core curriculum, even in our law 

schools. 

Even without that education, however, most should be able to 

recognize the “non sequitur” in the majority’s analysis. In Latin, non 

sequitur means “it does not follow.” See Merriam-Webster, 

https://www.merriam-webster.com/dictionary/non%20sequitur 
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(last visited Apr. 15, 2021). It should be intuitively obvious to most 

that the majority’s condemnation of this summary for not 

explaining federal law is logically irreconcilable with (i.e., does not 

logically “follow” from) our precedent stating that the summary need 

only explain the Florida constitutional change being proposed. I 

believe that the analogy used in the summary of my position bears 

repeating.

If you and I were asked on a one-question final exam to list the 

predominant compounds in the earth’s atmosphere and answered 

nitrogen and oxygen, our answer should be judged as correct

because the question only related to the earth’s atmosphere which

consists primarily of nitrogen (approximately 78%) and oxygen 

(approximately 21%), with the remaining 1% comprised of various 

other gases. UCAR Center for Science Education, 

https://scied.ucar.edu/shortcontent/earths-atmosphere (last 

visited Apr. 15, 2021). We would be quite upset, and rightfully so, 

if we were told by our professor that we had failed the exam 

because our answer was inaccurate or misleading in that it did not 

explain that the sun’s atmosphere is very different, consisting 

primarily of hydrogen (75%) and helium (24%). Katharina Lodders, 
- 35 -

Solar System Abundance and Condensation Temperatures of the 

Elements, 591 The Astrophysical J. 1220, 1220 (2003) (rounded 

number to the second significant figure). Although we would likely 

be unable to discuss the problem using terms or concepts familiar 

to those who have studied classical logic, we would certainly be 

confounded at the irrational explanation and might even recognize 

the explanation as a non sequitur. See Merriam-Webster, 

https://www.merriam-webster.com/dictionary/non%20sequitur 

(last visited Apr. 15, 2021) (explaining that “we now use non 

sequitur for any kind of statement that seems to come out of the 

blue”). Our justifiable confusion and anger would be even more 

profound if the test question itself had plainly stated that our 

answer need not list compounds predominant in the sun’s 

atmosphere and need not explain differences between the earth’s 

atmosphere and the sun’s.

There is no logical difference between my hypothetical 

professor’s illogical explanation for an unjustifiable failing grade 

and the majority’s illogical conclusion that this ballot summary’s 

explanation of the proposed Florida constitutional change is 

misleading for failing to explain either (1) that the proposed changes 
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in Florida law would not change federal law, or (2) how Florida law 

would differ from the federal Controlled Substances Act (assuming 

that it is not changed) if the Florida ballot measure were to pass. 

The majority apparently justifies sidestepping our longstanding 

precedent in this area on grounds that the sponsors were “twice . . . 

shown the correct” way to address federal law differences in Medical 

Marijuana I and Medical Marijuana II. Majority op. at 13-14, note 2. 

Neither case comes close to holding that federal law implications 

must be addressed for a summary to comply with the constitutional 

and statutory standards by which we are to judge the language. To 

the contrary, and as already addressed, Medical Marijuana I 

expressly states the opposite: that the summary did not need to

address or disclose “the current state of federal [controlled 

substances] law” when explaining the chief purpose of an 

amendment that was inconsistent with federal law when drafted. 

Medical Marijuana I, 132 So. 3d at 808.

Finally, there is the practical matter of not knowing how 

federal law will change in the years between the drafting of any 

ballot summary and a vote on the amendment. This is especially 
- 37 -

the case when dealing with a matter like the legalization of 

marijuana in a federal political landscape that is ever-changing.7

IV. Conclusion

Today’s decision underestimates Florida voters and adds 

hurdles to the citizen-initiative process that are not supported by 

the plain language of the governing law or our precedent. Because 

the ballot summary in this case complies with the constitutional 

and statutory requirements by which we are to judge ballot 

summaries, I would apply our precedent and approve this measure 

for placement on the ballot.

Original Proceeding – Advisory Opinion – Attorney General

Ashley Moody, Attorney General, Amit Agarwal, Solicitor General, 

James Percival, Chief Deputy Solicitor General, and Jeffrey Paul 

DeSousa, Deputy Solicitor General, Tallahassee, Florida,

for Petitioner

Ashley Hoffman Lukis and George T. Levesque of GrayRobinson, 

P.A., Tallahassee, Florida,

for Interested Party, Make It Legal, Florida

7. In a 2020 vote that mostly remained along party lines, the 

U.S. House of Representatives passed the Marijuana Opportunity 

Reinvestment and Expungement Act to decriminalize marijuana on 

the federal level. H.R. 3884, 116th Cong. (as passed by House of 

Representatives, Dec. 4, 2020).
- 38 -

Daniel W. Bell, General Counsel, and J. Michael Maida, Deputy 

General Counsel, Florida House of Representatives, Tallahassee, 

Florida,

for Interested Party, Florida House of Representatives

Jeremy D. Bailie of Weber, Crabb & Wein, P.A., St. Petersburg, 

Florida,

for Interested Parties, Drug Free America Foundation, Florida 

Coalition Alliance, National Families in Action, and Smart 

Approaches to Marijuana

Jeremiah Hawkes, General Counsel, and Ashley Urban, Deputy 

General Counsel, The Florida Senate, Tallahassee, Florida,

for Interested Party, The Florida Senate, and Bill Galvano, in 

his official capacity as President of the Florida Senate

Jason Gonzalez, Daniel Nordby, Benjamin Gibson, Amber Stoner 

Nunnally, and Rachel Procaccini, Tallahassee, Florida, and Julissa 

Rodriguez of Shutts & Bowen LLP, Miami, Florida,

for Interested Parties, Florida Chamber of Commerce,

Floridians Against Recreational Marijuana, Save Our Society 

From Drugs and National Drug-Free Workplace Alliance