Judge Allows Smokable Pot Case To Proceed

A lawsuit centered on whether patients can smoke medical marijuana will move forward after a Tallahassee judge refused to grant the state’s motion to dismiss the case.

Leon County Circuit Judge Karen Gievers on Friday gave the go-ahead to the lawsuit, filed by a handful of Floridians who are eligible to use medical marijuana and a political organization that was behind a 2016 constitutional amendment that broadly legalized the treatment.

The plaintiffs are challenging a state law, passed during a special legislative session last year, that carries out the amendment and, among other things, bans patients from smoking marijuana.

Lawyers for the plaintiffs argue that the smoking ban violates the state Constitution, which they maintain allows patients to use smokable marijuana as a treatment if their doctors order it.

Lawyers representing the state, however, insist the amendment doesn’t expressly authorize smoking. And, they argue, the Legislature was within its authority to ban smoking because the amendment gives lawmakers the power to implement it.

After hearing arguments Thursday on a state motion to dismiss the case, Gievers agreed with the state that People United for Medical Marijuana, the political committee, lacked standing to sue.

But she denied the state’s motion to dismiss the claims of three individual plaintiffs — including Cathy Jordan, an outspoken proponent of medical marijuana who has had Lou Gehrig’s disease for more than three decades — who have debilitating medical conditions that make them eligible for the pot treatment. Gievers’ decision allows the case to proceed.

“The pending complaint contains sufficient allegations to meet the standing and active case or controversy criteria for the court to have jurisdiction over this declaratory judgment action,” Gievers wrote in Friday’s order. The judge also gave 10 days to modify the complaint to include the political committee as a plaintiff.

Jordan, who uses a wheelchair and has difficulty speaking due to her illness, is among a small number of patients who were authorized to smoke marijuana as a medical treatment long before the Florida amendment passed in 2016. She and her husband, Bob, spent more than five years fruitlessly trying to convince lawmakers to legalize smokable medical marijuana for other sick patients.

“I’m delighted we can move forward. I’ve spoken with Cathy Jordan and Bob. They’re very happy. We’re happy that it came so quickly. It allows us to advance the case and that’s what we intend to do,” Jon Mills, a former House speaker and onetime University of Florida law-school dean who crafted the constitutional amendment and who represents the plaintiffs in the lawsuit, told The News Service of Florida on Friday.

Because Cathy Jordan is over the age of 65, Florida law allows her to request that the case be expedited, something Mills said he is likely to pursue.

“We want Cathy to be able to see the results as soon as possible,” he said.

Speaking to reporters after Thursday’s court hearing, Bob and Cathy Jordan — who grow their own marijuana — related their lengthy battle over her treatment, which included a raid by Manatee County deputies in 2013.

Cathy Jordan has consulted with more than two dozen neurologists, none of whom have advised her to stop smoking marijuana, according to her husband.

“The Legislature has taken the place of doctors telling us what we can and cannot do,” Bob Jordan said. “We voted for a constitutional amendment so we couldn’t be prosecuted for smoking cannabis. We’re still in danger.”

But during Thursday’s arguments, state Deputy Solicitor General Rachel Nordby told Gievers that banning marijuana smoking was within the Legislature’s realm.

“The plain language of the medical-marijuana amendment authorizes the Legislature to enact laws consistent with the amendment. Here, the Legislature has enacted a law that embodies reasonable health and safety concerns in compliance with the amendment,” Nordby argued, adding that “there is no express requirement that smoking has to be allowed” in the amendment.

Mills agreed that the Constitution doesn’t expressly require the Legislature to allow smoking.

“It doesn’t. It doesn’t require the Legislature to do that because the Constitution itself allows smoking. There’s no need for the Constitution to say, ‘Legislature, you may allow smoking, or must,’” he told the judge.

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