Florida Solicitor General Amit Agarwal, left, and attorney George Levesque during Florida Supreme Court oral argument in Tallahassee.

After a brief COVID-19-induced hiatus, the Florida Supreme Court is back, but not in the way attorneys are used to seeing it.

In a historic first Wednesday morning — and after several dry-run tests last week — the court broadcast its oral arguments remotely, with justices superimposed onto their usual courtroom environment.

First on the docket was a proposed amendment decriminalizing the adult possession of up to 2.5 ounces of marijuana under state law, and allowing medical marijuana centers to also sell the drug for recreational purposes. The court must decide whether the proposal meets two legal requirements: containing only a single subject and having a fair ballot summary.

The arguments that followed demonstrated how messy things can get when state and federal laws conflict.

While one side argued the ballot language misleads the public into believing they won't be prosecuted for marijuana use or possession — still illegal under federal law — the other claimed there was nothing ambiguous about it.

Florida Solicitor General Amit Agarwal in Tallahassee represented Attorney General Ashley Moody, who petitioned the court for the advisory opinion. He argued there's the potential for "a whole lot of confusion about the interplay of state and federal law," because the ballot language doesn't really mean what it says.

The proposed amendment says an adult is "permitted" to have, use and buy marijuana for personal use and "is not subject to criminal or civil liability or sanctions under Florida law."

Agarwal argued that's missing an important caveat about federal law, but Justice Jorge Labarga noted voters are responsible for educating themselves about proposed laws before voting.

Jason Gonzalez of Shutts & Bowen seconded Agarwal, on behalf of the Florida Chamber of Commerce, Floridians Against Recreational Marijuana, Save Our Society from Drugs and National Drug-Free Workplace Alliance.

Gonzalez argued that if he repeated the first few lines of the ballot summary to a client he'd be making a serious false statement, as the sale of any marijuana is federal felony punishable by up to 10 years in prison.

"If I said that with no condition, I would be committing professional malpractice. I would be violating the oath of attorney and the rules of professional conduct because it's patently false, and it would not just merely be a mild misstatement," Gonzalez said.

GrayRobinson attorney George Levesque in Tallahassee represented the petition's sponsor, Nick Hansen of Make It Legal Florida, who disagrees with those interpretations.

Levesque called the 75-word ballot summary clear and unambiguous, and stressed that the court has never found it has an obligation to inform voters about "what's going on in federal law."

"We inform the voter in our ballot summary of the only organic law that we can change. A constitutional amendment to the Florida Constitutional cannot amend the U.S. Constitution," Levesque said. "At least in terms of the right of the people to amend their Constitution in a way that is not consonant with federal law, that right is there and I think it should be respected."

Levesque said the law would simply "piggyback" off of Florida's existing medical marijuana statute to remove restrictions limiting use to medical reasons.

When Justice Carlos Muniz probed Florida Senate General Counsel Jeremiah Hawkes about why the legislature should restrict Floridians' authority to put something in their Constitution that might eventually be permitted under federal law, he argued voters expect their decisions to be implemented immediately.

"If we're putting something in the Constitution that is unconstitutional, then, at some random moment in time, some act of Congress is going to change our Constitution," Hawkes said. "I don't think we put things in the Constitution that are conditional like that."

Jeremy D. Bailie of Weber of Crabb & Wein in St. Petersburg also opposed the amendment on behalf of Drug Free America Foundation, Florida Coalition Alliance, National Families in Action and Smart Approaches to Marijuana.

The court has yet to rule.

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