If you favor medical marijuana — and polling shows overwhelming public support — you will face three different initiatives on Missouri’s November ballot. The bottom line is this: Constitutional Amendment 2 is the best option for medical marijuana. Constitutional Amendment 3 is unworkable and probably unconstitutional. Proposition C, the third choice, proposes changes in state statutes, but Amendment 2 is preferable because, as a constitutional provision, it would prevent legislative meddling.
Many voters may be tempted to vote for all three of them. That’s not a good idea. Let me explain.
The Missouri Constitution says that when voters approve two or more conflicting ballot measures, the one that gets the largest number of yes votes “shall prevail.” Because Missouri statutes draw a distinction between proposals for changes in the constitution and changes in statutes, I will focus on the conflicting constitutional amendments.
Constitutional Amendment 2 simply authorizes physicians to recommend medical marijuana to patients in limited circumstances. An existing state agency would regulate it. Constitutional Amendment 2 would legalize medical marijuana for treatment of certain specified conditions — post-traumatic stress disorder, cancer, chronic pain, epilepsy, as examples — upon the recommendation of a physician. The state Department of Health and Senior Services would regulate the program. Sales would be taxed at 4 percent, which would be used to pay for regulation and to provide money for veterans’ health care.
Physicians, patient advocates and veterans support Amendment 2. It most resembles the laws in 30 other states that already allow doctors and patients to decide if medical marijuana is an appropriate treatment option.
By contrast, when I explain Constitutional Amendment 3 to acquaintances, a common reaction is: “you’re kidding, right?” Actually, I am not kidding. Amendment 3 offers a radical departure from our constitutional system and sets up a powerful research board that would bypass existing government structures so that the board would not be accountable to the people or their elected representatives.
Amendment 3 would tax retail sales of medical marijuana at 15 percent plus a wholesale tax on cultivation — which appears to be the highest marijuana tax in the nation. Amendment 3 would turn control of marijuana tax money over to a “research board” whose initial members would be appointed by the amendment’s initiator, Springfield trial lawyer Brad Bradshaw. Bradshaw so far has funded more than 98 percent of the Amendment 3 campaign.
Bradshaw’s research board would govern all aspects of medical marijuana, including handing out licenses. The board would exercise powers normally reserved for the governor, the Legislature and the courts. Ordinary voters would have no say in who serves on this powerful board; the board generally would not be accountable to Missouri voters or their elected representatives. In effect, the “research board” would be its own fourth branch of government.
Amendment 3’s research board would build a research institute to find cures for incurable diseases. The research board’s “land acquisition board” could use eminent domain to acquire the land. The research board could issue revenue bonds in the name of Missouri to borrow money to pay for the institute. The profits from the institute’s research work would theoretically pay off the bonds, pay for roads and other infrastructure, and reduce taxes. If there ever were to be a payoff to the public in this grandiose scheme, it undoubtedly would be decades away.
I said Amendment 3 is “grandiose.” Was that too strong?
Recognizing the weak legal footing it stands on, Amendment 3 proactively offers options for the courts to fix it if and when certain provisions are declared unconstitutional, as I expect they would be. Court challenges, of course, would delay and could derail the implementation of medical marijuana under Amendment 3.
The third option for legal medical marijuana, Proposition C, proposes change in Missouri statutes. It resembles Constitutional Amendment 2 in several respects, but it also would give local officials control over licensing of facilities for cultivation and sale of medical marijuana. If you trust the Legislature not to mess with a voter-enacted law, and if you trust local politicians with licensing decisions, Proposition C is a rational choice but not the best one.
Constitutional Amendment 2 is the best choice because it would safeguard the essentials of medical marijuana regulation from legislative interference and ensure Missouri patients the relief that patients in 30 others states already enjoy.
All three proposals are wordy. They can be read in their entirety on the Missouri secretary of state’s website. If you are tempted to vote for both Constitutional Amendment 2 and Amendment 3, you should read them both and see for yourself — Amendment 2 is the only constitutional option that makes sense.
Michael A. Wolff is a former judge and chief judge of the Missouri Supreme Court and professor emeritus and former dean of St. Louis University Law School. He helped represent New Approach Missouri, initiator of Amendment 2, in Brad Bradshaw’s unsuccessful lawsuit to force the secretary of state to remove Amendment 2 from the ballot.