PHOENIX — An attorney for the group seeking to legalize recreational use of marijuana told a judge Friday she can’t keep the measure off the ballot even if she believes it is confusing or fraudulent.
Roy Herrera is not conceding the 9,900-word initiative is either.
He also said Arizona voters are smart enough to be able to read the measure for themselves — and reject it.
But he told Maricopa County Superior Court Judge Jo Lynn Gentry that her power to decide a not-yet-enacted voter-crafted proposal is flawed and block a vote is no more than her ability to tell lawmakers that a bill they are considering is not fit for a final vote.
That suggestion of the limit on her power clearly bothered Gentry.
“There’s something wrong with our system, then,” she said.
“Maybe so, your honor,” Herrera responded. “But that is the state of the law.”
Attorney Brett Johnson, representing groups trying to keep Proposition 205 from ever getting to voters, had a different take.
He said court have a duty “to protect the electorate against logrolling, against fraud and misleading and confusing text.” And Johnson told Gentry the initiative is rife with such provisions that make the initiative unfit for inclusion on the November ballot.
Gentry said she will rule on the challenge to the measure as early as Monday. But no matter what she decides, it is unlikely to be the last word: Whichever side loses is virtually certain to seek state Supreme Court review.
The initiative if approved would expand an existing 2010 initiative that now allows those with a doctor’s recommendation to obtain up to 2½ ounces of marijuana every two weeks. Instead, anyone at least 21 years old could have up to an ounce of the drug or six plants without fear of prosecution.
Johnson, however, said voters are not told in the required 100-word summary about all of the other changes the initiative would enact, including to laws on driving while impaired on drugs, the ability of companies to fire workers who have marijuana in their system and even barring judges from considering whether someone uses marijuana in child visitation and custody cases.
Gentry acknowledged the requirement for the principal provisions of an initiative have to be in the summary. But she said there have to be some limits.
“It took you four pages to describe what wasn’t in there,” she told Johnson. “I don’t know how you think that a 100-word summary could include what it took you four pages to describe.”
And Herrera pointed out that, as required by Arizona law, each petition had not just the summary but the actual text of the initiative attached should any signer have wanted to review it to see what else the measure would do. He also told Gentry that Johnson never explained what should be taken out of the summary to make the space for what he claims should have been included.
Johnson, however, argued that proves his point that unless a measure can have its principal provisions explained in 100 words it is far too complex to send to the ballot.
Herrera said Johnson is off-base in concluding that principal provisions were omitted.
“The only principal provision is that adults are allowed to possess and privately consume and grow limited amounts,” he told the judge.
Everything else, he said, relates to that central change. And he said foes cannot use the multiple effects of such a change as a reason to keep it off the ballot.
“There is no limitation on the complexity of statutory initiatives,” he continued. “Ultimately, it’s up to voters to decide whether the initiative is too confusing, whether it is overreaching or whether it is too complex.”
That goes along with Herrera’s argument that there’s no authority for Gentry or any other judge to block the measure from going to voters.
He said part of the argument by foes is the initiative is too long, too complex and affects too many areas of the law. Herrera said if there are questions about the interpretation of any provision, the time to consider that is after it is enacted, just the same as any law approved by the Legislature.
“There can be litigation by interested parties over the meaning or alleged vagueness of the statutory text,” he said.
“If the allegation is simply that the language is fraudulent, this is an impossible legal argument,” Herrera said.
“There’s no authority for a court to invalidate an initiative for fraudulent text,” he said. “The text is what it is. And ultimately it’s up to the voters whether it is confusing or overreaching.”
And Herrera suggested that the bid by foes to keep the issue off the ballot, including prosecutors and business interests, reflected a viewpoint that voters are not smart enough to make their own decisions.
Johnson bristled at that suggestion.
“This doesn’t have to do with being paternalistic,” he told Gentry. “This has to do with protecting the Arizona electorate.”
