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Here’s how and why the Legislature could change Proposition 2 — even if it passes

By Liesl Nielsen, KSL.com | Posted - Nov 7th, 2018 @ 6:45pm



SALT LAKE CITY — Utah’s controversial medical marijuana initiative, Proposition 2, looks like it’s going to pass. As of Wednesday evening, it lead with 53 percent of the vote — and that’s not likely to change much.

The proposition, which legalizes cannabis use for those with specific medical issues, faced stiff opposition before the elections, most notably when The Church of Jesus Christ of Latter-day Saints asked church members in Utah to vote against the initiative. Many opponents of Proposition 2 felt it did not include sufficient regulation and would pave the way for recreational use.

In early October, Gov. Gary Herbert announced that the Legislature would hold a special session after the midterm elections to amend the proposition in what both opponents and supporters of the initiative are calling a “compromise” they can agree on.

But why can the Legislature change the proposition when Utahns voted it into law? And how is it likely to change? (Hint: medical marijuana will still be legal).

Why can the Legislature change a proposition Utahns voted into law?

Under Utah law, any initiative passed by a statewide vote can be amended or changed by the Legislature once it becomes law. Proposition 2 is really no different, it’s just getting special attention.

Utah is one of 11 states that does not place restrictions on the Legislature when it comes to amending citizen ballot initiatives. Some states require local governments to wait for a certain time period before amending the initiative, or they require a two-thirds majority to vote to overturn a proposition.

Once an initiative becomes law in Utah, it can be amended by the Legislature — just like any other law. Another reason the Legislature has this power is because initiatives are often much more complex than a simple “yes” or “no” answer, House Speaker Greg Hughes told KSL.com.

Most, if not all, initiatives have connections to other areas of the government, making them too difficult to navigate or completely understand, Hughes said. Take the initiative that would have raised the gas tax to fund public schools, for example. Most have remarked that the reason the initiative failed was because it was just too complex, Hughes added. It was very intricately connected to the budget — an incredibly complicated document.

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While the public can and should get out to vote, Hughes said, it’s up to the Legislature to protect against unintended consequences or effects caused by details of an initiative that the public didn’t know about or understand.

“It could be argued that not everybody reads every word of the proposition that’s before them, but they understand the public policy and its purpose. So it’s up to those that are duly elected to weigh what that public sentiment is, what unintended consequences (there are) and try and get it right,” Hughes said.

This does mean, however, that the Legislature can walk back initiatives Utahns have overwhelmingly passed. That was the main reason supporters of Proposition 2 were willing to go to the table to compromise on the ballot initiative, said president of the Libertas Institute Connor Boyack, who helped draft the compromise. They didn’t want to win the battle, just to lose the war.

“The whole reason we elected to talk up front to our opposition is that we recognized that the Legislature in the next session could gut the entire thing if they wanted. There were plans to effectively do so, but we instead wanted to negotiate and find targeted and narrow ways to resolve their concerns rather than have entire provisions eliminated,” Boyack said.

So what will the compromise change?

The compromise will:

  • Change which qualifying conditions can get someone a medical cannabis card by changing the definition of chronic pain.
  • Not allow a person living 100 miles or more from a dispensary to grow up to six of their own marijuana plants.
  • Decrease the number of facilities in Utah that are allowed to sell marijuana.
  • Require licensed pharmacists to work at the facilities.
  • Require patients to show ID.
  • Require certain dosage amounts.
  • More consistently track a patient’s process.
  • Keep the use of whole-flower marijuana, but only when it is broken up into a blister pack, with each blister containing a maximum of 1 gram.

A modified version of the compromise bill released Monday evening also added a few changes, including:

  • Requiring only public employers to not “take an adverse employment action against” a worker or decline to hire a person on the sole basis of their cannabis use. Private businesses would be exempt from that requirement.
  • Changing the amount of time some medical cannabis cards remain valid.
  • Somewhat widening which post-traumatic stress disorder patients may qualify for a card.

Ok, but what if I need to use medical marijuana right now?

While it will take a couple years for Proposition 2 to go through the whole bureaucratic program and become effective, there is a protection for those who want to use medical marijuana right away, Boyack told KSL Newsradio Wednesday.

Those whose doctors have recommended the use of medical marijuana can go buy cannabis in another state. Though doctors won’t prescribe cannabis in a set form, the patient is free to go “figure it out” for themselves if they want to travel to a neighboring state and buy, Boyack said.

Were the patient to be stopped by police, something called “affirmative defense” would protect them in court. While it may not stop the patient from being taken into custody, most prosecutors and policemen will recognize affirmative defense as a protection, Boyack said.

While it is still a little clunky, he acknowledged, most are optimistic about the compromise.

“We had that commitment on all sides to say, ‘Look, we’ve had a mutual give and take, and we’re all committing to proceeding down this path, regardless of how the vote turns out,'” Boyack said.

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