Second Circuit Judge Karen Gievers ruled Wednesday that Joe Redner, a pony-tailed strip club owner from Tampa, is entitled to grow his own pot.
This ruling is another example of judicial overreach and excessive activism.
I think the Judge may be on better drugs than I am.
Unfortunately for Judge Gievers, she’s also the most overturned jurist in the 2nd Circuit -- I’ve heard 70 percent of the time -- and I bet right now she’ll be overturned once again on appeal.
I sat in on the hearing last month when the lawyers made their final oral arguments.
I know lawyers are very creative people and any lawyer can find any reason to file a suit.
Mr. Redner’s lawyer found an alleged loophole by reading the “plain language” of Amendment 2, and in parsing the words of the amendment, he even color-coded the key words, so the judge wouldn’t miss them.
I’ve read the amendment several times and I don’t see it, and I’ve even showed it to other lawyers and they don’t see the “hidden” meaning that homegrown is permitted there either, or the intent to allow home grown.
But the judge ... she bought it hook, line and sinker.
In fact, she announced almost from the very beginning of the case she was in favor of the plaintiff’s reasoning.
The defense lawyer representing the Florida Department of Health, Jason Gonzalez, thought that by going to the Amendment 2 sponsor -- United for Care -- website, he might be able to show the judge that not even the authors of the amendment agreed that home grown was allowed.
Sure enough, FAQ No. 3 on the proponent’s own website asked "Why isn’t home grown" allowed or mentioned in the amendment?
The answer was that the proponents wanted a tight regulatory structure.
If the judge read the proponents' website, one would hope she would take their word that the intent was to NOT allow home-grown pot, so either she didn’t read it, or she refused to believe them when she read the “plain language” of FAQ No. 3.
Funny how two people can read the same sentence and come away with two entirely different conclusions!
So, it appears Mr. Gonzalez assumed that the judge wouldn’t abide by the proponent’s own wishes, and now we know he was right.
His next argument was that if the judge ruled in favor of the plaintiff, then that might mean the Supreme Court in its initial review of the ballot summary may have erred in thinking the words actually told voters what the amendment would do.
Since the proponents never argued in any forum that if the amendment passed it would allow home-growing of ganja, but the Judge decides that in fact it does mean that, then logically it could be construed that the Supremes missed something, meaning the summary was defective.
Now, I’m not a lawyer, but that makes sense to me.
In fact, Mr. Gonzalez presented two Supreme Court cases where just this type of situation has happened before.
Once in 1984 and again in 2004.
Where the Supremes ruled ex post facto (it means after the fact, I just had to throw that in there) that if a ballot summary is defective, and even if the voters have already approved the amendment, then the amendment must be stricken from the state’s Constitution.
And they’ve done that twice, thus removing amendments already ensconced in the Constitution.
Mr. Gonzalez argued before the judge that if she indeed ruled in favor of the plaintiff, and based on these two Supreme Court decisions, then on appeal, Amendment 2 may end up being deleted from the Constitution.
That didn’t deter the judge either.
The plaintiff and his lawyers were all exuberantly rallying the faithful that home-grown pot is here to stay, though the decision only applies to him personally, until, of course, the appellate court decides the issue.
No doubt this case will make it to the state’s ultimate court where Mr. Gonzalez’s recitation of legal precedence will be fully appreciated and respected.
Interestingly, the judge also has the John Morgan case -- yeah, that guy -- who along with former House Speaker Jon Mills wrote both the original Amendment 2 and the second one, which finally passed.
They’re now arguing in essence that even though they didn’t put the specific words that you’re allowed to smoke pot in public if a physician recommends it, that’s what they intended.
How neat an argument is that?
Judge, we wrote the amendment ourselves -- twice. We polled the language and if we put that the public could smoke medical weed in public, it would have lost, so we didn’t mention it in the amendment language. But now that it’s passed, if you read the “plain language” of the amendment, we really meant that you could take a toke in public, if need be.
And guess what?
Judge Gievers is going to rule in their favor too.
Which is why so many of us are thankful we have appellate courts that can overturn the wrongheaded decisions of trial court judges, and yep, you can bet that one’s going to be overruled too.
This continual second-guessing of the authors of Amendment 2, by the authors themselves and others who want to make pot legal for everyone anytime is making a joke of the citizens amendment process.
That’s why this amendment process can become so fraught with rich people manipulating the public to get what they want, and even if they didn’t say something succinctly, they can fool a Judge into doing what they want anyway.
Mr. Redner and Mr. Morgan, celebrate now, but trust me when I say that your phyrric victory now may be the undoing of the medical marijuana amendment itself.
And for that, you only must look in the mirror and realize that you are, in fact, the problem rather than the solution.
Barney Bishop III is CEO of Barney Bishop Consulting, LLC, a strategic public affair frim based in Tallahassee, and the former CEO of Associated Industries of Florida.
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