Prop. 2 backers ask the Utah Supreme Court to overturn the Utah Legislature’s rewrite of medical marijuana law

Utah Supreme Court

Justices on the Utah Supreme Court were polite Monday morning to petitioners who want the court to somehow block or overturn the Legislature’s rewrite of Prop. 2, the new medical marijuana law.

But from questions raised by several of the justices in the oral argument, it appears that’s not going to happen.

The justices homed in on several procedural issues: Did the 50 or so petitioners even have standing to bring the case? And, if so, how come it didn’t go first to a Utah district court?

Why is the Supreme Court even involved here? As one justice put it.

A decision by the court will come later.

But legal troubles aside, the three folks allowed to speak on the petitioners’ side made good emotional, if not legal, arguments.

Prop. 2 advocate Steven G. Maxfield said that within 48 hours of the medical marijuana initiative – passed by voters last November – becoming law, GOP Gov. Gary Herbert called the 104 part-time Legislature into special session Dec. 5 to change the new law.

And by two-thirds vote in the House and Senate – which means Prop. 2 advocates can’t run a referendum to repeal the Legislature’s rewrite – the greatly amended Prop 2 was passed.

“How absurd is this?” asked an emotional Maxfield.

It was a six-year process getting Prop. 2 on the ballot. Yet within several hours in early December the Legislature threw most of it out.

“Now citizens can’t run” a corrective initiative again until 2022, he said.

“Very clearly, what the citizens wanted is thrown out the window,” said Maxfield.

Associate Justice Deno Himonas said there are times when, especially in political matters, the high court “should step down,” and not get involved. Why isn’t this such a case? He asked. “You are asking this court to do something extraordinary” by ruling on how the Legislature amended a law – whether it was adopted via initiative or not.

One of the Prop. 2 petitioners’ arguments is that the current law – passed by the Legislature – that says if an amended initiative passes by a two-thirds vote of the House and Senate, then the original initiative backers can’t bring it back for six years.

And that violates the Utah constitutional provisions of initiative and referendum – as it greatly restricts that constitutional guarantee.

In a recent Utah Supreme Court decision – Gallivan v. Walker (when Olene Walker was the governor), the high court strictly warned the Legislature not to make the initiative process too difficult.

Although, it must be said since that ruling the GOP-controlled Legislature – which doesn’t like citizens passing laws at all – has done just that.

In fact, in the 2019 Legislature – after three initiatives passed last November – passed a handful of new initiative requirements that clearly make it more difficult to get an initiative passed – including one new law that says any initiative doesn’t take effect until months after the vote, giving legislators time to amend or repeal it.

When state lawyers got their chance to address the court, Eric Weeks of the Legislature’s legal office, said while in Prop. 2 legislators amended the language, if legislators had wished, they could have repealed the whole thing – two days after Prop. 2 became law.

And so the natural question is: What power to citizens really have via the initiative process if the Legislature can repeal, or greatly amend it, just days after it goes into law?

Associate Chief Justice Thomas Lee said the ballot box is the alternative: Citizens can just vote out any legislator who voted to greatly amend or repeal an initiative.

Daniel Newby, who works for the Sutherland Institute, a conservative Utah think tank, said he has many years experience trying to change government – including via citizen initiatives.

He said the Legislature making citizen initiative petitions very difficult to get on the ballot, combined with the Legislature’s ability to change or repeal them almost immediately, is threatening Utah’s own democratic processes.

Initiative petitioners – those who run the petitions – are forced to sit at the back of the political bus, said Newby.

Initiative-backers are forced by “childish statutes concocted out of thin air” to overcome roadblocks to initiatives.

“This really upsets me,” he said, his voice breaking with emotion.

More than 1 million eligible voters in Utah don’t vote in each election, he said. And one reason is that they don’t feel they have a way “to reform our government” – in part through the initiative process.

“Someone one” – perhaps the Utah Supreme Court – must say “enough is enough,” Newby said.

If so many Utahns don’t believe their democratic process “is legitimate,” then government and democracy are failing.

Democracy “is failing – and all the rest of this doesn’t matter” – the initiative process, legislative elections, any of it, he said.

But by the questions asked by several of the justices, it appears while they may have some sympathy for the plight of the Prop 2 petitioners, the court either shouldn’t get involved in this political process, or the Prop 2 folks who brought the extraordinary writ to the court need to go through the normal judicial process – file in state district court and then appeal up to the high court if they lose there.