The measures that could be on the ballot are the Smart and Safe Arizona Act, that would allow people 21 and older to posses up to an ounce of marijuana and would set up a system of licensing retailers, and the Second Chances, Rehabilitation and Public Safety Act, that would overhaul parts of criminal sentencing laws by allowing an earlier release in some cases. (Photo: Associated Press)
Voter initiatives that ask Arizonans to decide on legalizing marijuana and overhauling criminal sentencing laws survived legal challenges Friday aimed at keeping them off the ballot.
Both measures took another step closer to the November ballot, but still could face appeals.
The Second Chances, Rehabilitation and Public Safety Act would overhaul parts of the state’s criminal sentencing laws by allowing some people in prison who committed nondangerous offenses to earn an earlier release through good behavior and participation in programs such as rehabilitation.
Ballot initiatives are required to collect thousands of signatures from registered voters to qualify for the ballot, and those signing such initiatives must be provided a 100-word summary of the measure that accurately summarizes the changes being proposed.
Opponents of the measures both challenged the accuracy and completeness of the 100-word summaries, alleging voters were not given the proper information before signing the petitions.
Judges in both cases said the summaries were accurate.
Challenging the 100-word summary is a popular legal strategy, especially after such a dispute doomed the Invest in Education tax-hike proposal in 2018 when a judge determined the summary didn’t accurately describe all of the taxpayers that would be affected by the changes.
A similar measure again failed a legal challenge this year, but backers are appealing that ruling.
Anti-marijuana activists filed suit
Arizonans for Health and Public Safety, which gets funding from the Center for Arizona Policy, filed the challenge to the marijuana initiative, with former Congressman John Shadegg serving as their lawyer.
Center for Arizona Policy is well-known conservative group at the Capitol that espouses “foundational values of life, marriage and family, and religious freedom.”
The marijuana initiative is mostly funded by large medical-marijuana dispensaries in Arizona, who would be the first businesses given the opportunity to offer adult-use retail sales of the drug.
Opponents of the measure argued the summary either didn’t explain or was unclear on provisions dealing with the definition of marijuana, the 16% excise tax that would be placed on sales of the drug and several other provisions.
Judge James Smith rejected all of the arguments. He noted that the challengers were imposing their personal beliefs on what should be included in the summary, which is not required.
“Petitioners may believe the initiative should put more limits on possessing, using, or cultivating marijuana,” the judge wrote. “Those are policy arguments for the voters. That competing policy perspective does not mean the summary violates the law.”
In some cases, the judge refuted the challengers’ arguments with what was actually in the initiative, indicating their explanation of the initiative was incorrect. For example, the challenge suggested the initiative reduced penalties for minors. The judge said that was incorrect.
“In fact, (the initiative) includes penalties for underage possession,” he wrote. “Yes, minors possessing marijuana now may face charges that are more serious.”
At a hearing earlier in the week where both sides had an hour to make their case, Smith similarly challenged the initiative opponents.
“There’s nothing in this description that is actually wrong,” Smith said.
The opponents have five days to file a notice of appeal from Friday, when the order was filed.
Second Chances overcomes similar claims
Outgoing Pima County Attorney Barbara LaWall and other critics of the Second Chances measure filed suit to stop the initiative using many of the same strategies to try and knock it off the ballot.
They argued the 100-word summary was misleading because it did not explain all of the broad range of crimes that might be considered nondangerous under existing state law.
The lawsuit argued that conspiracy to commit murder could be considered nondangerous, for example.
Judge Joseph Mikitish rejected that argument, noting that the meaning of nondangerous is clearly defined in the text of the initiative, which was attached to each petition. Voters who were curious about the term’s meaning could simply refer to that text, he noted.
Moreover, a 100-word description does not need to detail every single provision of an initiative and its potential implications and it does not have to be neutral, he wrote.
“A reasonable voter is likely to understand that every proponent of a ballot initiative is attempting to gain his or her support and is likely to highlight the positive aspects of the proposal,” Mikitish wrote. “Like in any market, a certain level of puffery must be expected. The solution for any uncertainty is more speech.”
As one citation in his decision suggested, the most appropriate place to argue against an initiative is in the political sphere, through speeches, newspaper articles, advertisements and in other forums.
Opponents also have five days to appeal the decision.
Reach reporter Ryan Randazzo at email@example.com or 602-444-4331. Follow him on Twitter @UtilityReporter.
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