Utah lawmakers may attempt to head off the proposed ballot initiative to legalize medical marijuana by using the same tactics they employed when "Count My Vote" was threatening to head to the ballot in 2014.
UtahPolicy.com has learned that some legislators are considering a move that has been dubbed "SB54-ing" the medical cannabis proposal.
In essence, legislators are considering taking the exact language from the ballot initiative and passing it as a bill this session. However, that would include one important change. It would delay the implementation of legal medical marijuana until the federal government re-classifies cannabis as a Schedule IV drug. Currently, marijuana is classified as a Schedule I drug, which is the highest level of classification, and illegal to possess.
For example, Xanax, Valium, and Ambien are Schedule IV drugs, while heroin, LSD, and peyote are classified as Schedule I.
If lawmakers take this unusual move, it would have the practical effect of putting the brakes on the proposed ballot initiative, even if voters approve it in November. The language from the ballot initiative would already be in state code as well as the additional Schedule IV provision.
There is a clause in the proposed ballot initiative that reads, "This bill overrides, replaces, takes precedent over, and otherwise governs in place of any conflicting or contradictory legislation passed during a general session of the Utah Legislature before enactment of this law." That was included to prevent lawmakers from trying to block the initiative. However, legislative lawyers say adopting the ballot initiative language, then adding the Schedule IV language would not present a "conflict" with the proposal, so the initiative would not supersede what lawmakers passed.
One person involved in the process who spoke to UtahPolicy.com on background said they are considering this drastic measure because the ballot initiative is problematic.
"This initiative is written so poorly, that it will have some unintended consequences that the legislature will struggle to deal with," he said. "We used the SB54 move to bring 'Count My Vote' to the bargaining table in 2014, but this would keep poorly written law from going on the books."
For instance, they pointed out the initiative does not give any of the agencies rulemaking authority to the state agencies that would be tasked with implementing the ballot initiative if it passes. That means any needed changes would have to go through the legislature instead of the regular administrative process.
House Speaker Greg Hughes told UtahPolicy.com that he had not heard of the plan for lawmakers to adopt the medical marijuana petition language and tie its implementation to Congress or the White House changing the drug classification of cannabis.
But in general “it makes sense,” he said.
As with immigration or federal lands designations, medical marijuana’s legalization really depends not on state actions, but the federal government’s, said Hughes.
As long as marijuana is a Schedule I drug, it is technically illegal for Utah or any other state to start using it outside of federal controls on those substances — like opioids.
While local voters or lawmakers may not like what the feds do in any number of areas, the truth is Utah can’t really act on immigration and other federal areas.
(In fact, years ago the Legislature passed several laws that depended on Congress to give waivers or take other actions on immigration, including starting a foreign workers program within the state. Congress never acted, so Utah’s forward-thinking immigration reforms went nowhere.)
“The federal government may fly in the face of what we want to do” on medical marijuana or other issues, said Hughes. But for now, that is the way it is until the feds move on these matters.
Meanwhile, GOP House leaders tell UtahPolicy that they see a need to do something this session about the “affirmative defense” language in the citizen initiative petition.
According to them, there is about an 18-month window where anyone arrested for possession of marijuana has an “affirmative defense” that they have the drug for medical reasons — meaning the arresting agency must prove in court that they DON’T have a medical need for the drug.
That, said one leader, amounts to “recreational” use of marijuana in Utah for that time frame.
Nodding to the GOP side of the House aisle, he said many in the GOP House caucus feel that is unacceptable.
How to close that window in a new bill/new law is still unclear, he added. But there apparently will be some attempt to do so before lawmakers adjourn March 8.
Representative Brad Daw has proposed a pair of bills to put in place a limited program where terminally ill Utahns are allowed to access state grown medical marijuana, but backers of the proposed initiative say Daw's bills don't go far enough.
One lawmaker involved in the potential "SB54" move told UtahPolicy.com on background that they are trying to find a "middle ground" on the issue that would be palatable to lawmakers who are uneasy about the whole issue.
"There are some who think Daw's bills go too slow, but the ballot initiative is moving too fast. This would be a way to get something on the books, then fix it," he said.
Thursday is the last day to officially open and number bill file without having to ask permission of the body — either the House for a representative or the Senate for a senator.
So we may well soon see a “boxcar” bill — title, but no text — having something to do with medical marijuana soon.
D.J. Schanz, Director of the Utah Patients Coalition, sent us the following response to the story:
"We are moving forward with our efforts to give patients access to the medicine they need and that the public wants. These efforts by unscrupulous politicians and bureaucrats to undermine the political process and the public will, will, fortunately, be viewed as parlor tricks from a desperate legislative body to put their thumbprint on an issue and patients that they've ignored and kicked down the road. This isn't 'Count My Vote' in 2014, and we aren't playing chicken. This will be on the ballot in November of 2018 for the people of Utah to decide on, regardless of the shenanigans being toyed with."