Arizona Lawsuit Challenges Upcoming Pot Legalization Vote

By Hilary Corrigan
Jul 22, 2020

One of the few remaining state cannabis legalization initiatives intended for the November ballot now faces a lawsuit.

On Monday, a group of plaintiffs, represented by a former Republican Congressman, sued Arizona Secretary of State Katie Hobbs (D) and Smart and Safe Arizona, the organization leading the effort to legalize REC in the state. The suit argues that the statement petition circulators showed to potential signers left out key information. (Read the complaint here.)

“These omissions and statements misled voters who signed the petition about what the initiative would do,” plaintiff Lisa James, chairwoman of Arizonans for Health and Public Safety, a political action committee opposed to legalizing REC, said in a statement.

The lawsuit, filed at state Superior Court in Arizona’s Maricopa County (Phoenix), argues the initiative should not be placed on the ballot because the 100-word summary used by signature collectors is “misleading” and “creates a substantial danger of fraud, confusion and unfairness.”

A spokesperson for Smart and Safe Arizona called the lawsuit “frivolous.”

The suit argues the summary fails to explain that the initiative would allow potent THC products and “unlimited cultivation of marijuana by commercial licensees,” as well as decrease criminal penalties for underage use and possession, and cap marijuana taxes, among other complaints.

The summary reads:

“This Act permits limited possession, transfer, cultivation, and use of marijuana (as defined) by individuals 21 years old or older; protects employer and property owner rights; bans smoking in public places; imposes a 16% excise tax on marijuana to fund public safety, community colleges, infrastructure, and public health and community programs; authorizes state and local regulations for the safe sale and production of marijuana by a limited number of licensees; requires impairment to the slightest degree for marijuana DUIs; transfers monies from the Medical Marijuana Fund; permits expungement of some marijuana violations; and prescribes penalties for violations.”

“Confusing and deceptive”

The proposed REC measure would legalize the sale, possession and consumption of one ounce of marijuana and empower the state to create a regulatory framework for the industry. Proponents say it would generate $300M in annual tax revenue for community colleges, public safety, health programs and roads. It would also allow for expunging criminal records related to low-level pot convictions.

The lawsuit seeks a court order to block the initiative from the ballot. Besides James, the six other plaintiffs are Merilee Fowler, Todd Griffith, Dr. Edward Gogek, Paul Smith, Dr. Dale Guthrie and Sally Schindel. The suit lists their respective occupations as substance abuse education provider, retired forensic scientist, physician, hospital pharmacy operations director, pediatrician, and volunteer educator on marijuana addiction. 

Schindel’s son “died by suicide when he could not end his marijuana addiction,” the lawsuit says. “She fears that other families will face similar tragedies if recreational use of marijuana is legalized in Arizona.”

The group’s legal team, from the firm Polsinelli, includes former Arizona Congressman John Shadegg (R).

In a statement, Shadegg called the initiative “clearly defective,” and said it does not comply with the state’s constitution or laws for such measures. “The proponent’s summary of the initiative is confusing and deceptive in numerous ways, beginning with the very definition of marijuana.”

‘Fraudulent’ summary?

Citing previous court cases, the suit argues that an initiative petition must be invalidated if its 100-word summary is fraudulent or creates significant danger of confusion or unfairness. Plaintiffs say the summary doesn’t tell voters that it would change the existing definition of marijuana and legalize potent products like hash and concentrates. The initiative’s definition of marijuana includes the resin extracted from any part of the plant.

The suit also calls the summary’s description of the standard for cannabis-impared driving deceptive and fraudulent. As the plaintiffs see it, it would loosen state DUI laws. The state currently prohibits people from driving or controlling vehicles with cannabis in their bodies.

The suit says the summary’s description of a 16% pot tax is also misleading since it doesn’t tell voters the tax is fixed and can only be adjusted via another ballot initiative. “Unlike virtually every other tax levied by the government, this tax on marijuana cannot be changed even with a 2/3 vote of the legislature.”

The suit also argues that the summary omits or misleads on other results of the initiative. According to the suit, the measure would:

  • Remove employers’ ability to take action against current and potential employees if they test positive for marijuana
  • Let commercial licensees cultivate an unlimited amount of marijuana
  • Circumvent or dismantle the state’s MED-related rules by allowing stores to sell both REC and MED
  • Decrease use and possession penalties for those under age 21.

“A hail mary attempt to stop the inevitable”

Stacy Pearson, spokesperson for Smart and Safe Arizona and a senior vice president at public affairs firm Strategies 360, said the summary of the initiative accurately reflects the measure. The group plans to respond in court, but Pearson called the lawsuit “frivolous,” “without merit” and a “hail Mary attempt to stop the inevitable.”

“We’re not concerned about [the suit] at all,” she said. She predicts the initiative will make it to the ballot and voters will pass it.

Meanwhile, a new poll from OH Predictive Insights found that six in 10 Arizona voters favor legalizing. The monthly tracking poll of 600 likely voters found 62% support legalization, up from 51% in December 2019. 

Currently, 32% oppose legalization, down from 42% opposed in December 2019, according to the poll. It notes that Republicans in Arizona, the state’s largest party, continue to oppose REC legalization 52% to 44%.

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