COMMONWEALTH OF MASSACHUSETTS

Supreme Judicial Court

FOR THE COMMONWEALTH OF MASSACHUSETTS

NO. SJC-12106

JOSEPHINE HENSLEY & OTHERS

Plaintiffs/Appellants

v.

ATTORNEY GENERAL

and

SECRETARY OF THE COMMONWEALTH

Defendants/Appellees

ON RESERVATION AND REPORT FROM THE SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTRY

BRIEF OF PLAINTIFFS/APPELLANTS

John Sofis Scheft, Of Counsel

BBO No.548369

BELLOTTI LAW GROUP, P.C.

The Schrafft Center, Suite 128

529 Main Street

Boston, MA 02129-1125

Email: john@ledimensions.com

Office: (617) 225-2100

Cell preferred: (781)859-9249

Dated: May 13, 2016

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TABLE OF CONTENTS TABLE OF CONTENTS............................................ i

TABLE OF AUTHORITIES ...................................... iii

QUESTIONS PRESENTED ......................................... 1

PROCEDURAL HISTORY .......................................... 1

STATEMENT OF FACTS .......................................... 2

SUMMARY OF ARGUMENT ........................................ 12

ARGUMENT ................................................... 16

I. THE ATTORNEY GENERAL’S SUMMARY OF PETITION 15-27 IS CONSTITUTIONALLY DEFICIENT BECAUSE IT FAILS TO TELL VOTERS ABOUT THE TYPE OF DRUGS TO BE LEGALIZED, AND PROVIDES INACCURATE AND INADEQUATE INFORMATION ABOUT WHO WILL BE LICENSED TO SELL THESE DRUGS FOR PROFIT ............................. 16

A. Concentrated Marijuana Never Mentioned ...... 19 B. Food Products Never Mentioned ............... 28 C. Misinformation About Preferential Licensing Plan .............................. 31

II. PETITION 15-27 DOES NOT CONTAIN A “UNIFIED STATEMENT OF PUBLIC POLICY” BECAUSE IT PLACES CITIZENS IN THE UNTENABLE POSITION OF VOTING TO BOTH LEGALIZE MARIJUANA AND IMPOSE A PREFERENTIAL LICENSING SYSTEM THAT TURNS NON-PROFIT, MEDICAL MARIJUANA TREATMENT CENTERS INTO PROFIT-MAKING BUSINESSES. AS A RESULT, THE PETITION VIOLATED ARTICLE 48 AND SHOULD NOT HAVE BEEN CERTIFIED BY THE ATTORNEY GENERAL ............................... 37

III. IN THE EVENT THAT THIS COURT DOES NOT DECERTIFY

INITIATIVE PETITION 15-27, IT SHOULD REQUIRE THAT THE ATTORNEY GENERAL AMEND THE BALLOT QUESTION TITLE, “YES” AND “NO” STATEMENTS, AND SUMMARY IN A MANNER THAT MAKES THEM NO LONGER MISLEADING TO VOTERS ............................................. 47

ii

A. Title & Statements .......................... 48 B. Summary ..................................... 51

CONCLUSION ................................................. 52

CERTIFICATE OF COMPLIANCE .................................. 53

CERTIFICATE OF SERVICE ..................................... 53

iii

TABLE OF AUTHORITIES

CASES Abdow v. Attorney Gen., 468 Mass. 478 (2014)....... 39,40,42-44 Albano v. Attorney Gen., 437 Mass. 156 (2002)............... 44 Associated Industries of Mass. v. Sec. of the Commonwealth, 413 Mass. 1 (1992)....................... 29 Carney v. Attorney General, 447 Mass. 218 (2006)... 14,15,37-47 Cohen v. Attorney Gen., 357 Mass. 564 (1970)................ 42 Commonwealth v. Fernandes, 30 Mass. App. Ct. 335 (1991)..... 22 Commonwealth v. Fontaine, 402 Mass. 491 (1988).............. 22 Commonwealth v. Nissenbaum, 404 Mass. 575 (1989)............ 22 Commonwealth v. Voris, 38 Mass. App. Ct. 377 (1995)......... 22 Commonwealth v. Weeks, 13 Mass. App. Ct. 194 (1982)......... 20 Evans v. Sec. of Commonwealth, 306 Mass. 296 (1940)......... 17 First v. Attorney Gen., 437 Mass. 1025 (2002)............ 17,32 Heilman et al. v. Attorney Gen., SJ-2012-0211............... 34 Hurst v. State Ballot Law Comm’n, 427 Mass. 825 (1998)...... 16 Opinions of the Justices, 271 Mass. 582 (1930)..... 16,18,24,31 Opinions of the Justices, 357 Mass. 787 (1970).............. 35 Massachusetts Teachers Ass’n v. Sec. of the Commonwealth, 384 Mass. 209 (1981)...... 17,18,35,37,48,49 Mazzone v. Attorney Gen., 432 Mass. 515 (2000).............. 45 Sears v. Treasurer & Receiver Gen., 327 Mass. 310 (1951).................................. 12,13,16,18,28,36 Tobias v. Sec. of the Commonwealth, 419 Mass. 665 (1995).... 16

iv

United States v. Lochan, 674 F.2d 960 (1st Cir. 1982) ....... 22 Yankee Atomic Electric Co. v. Sec. of the Commonwealth, 402 Mass. 750 (1988)............................. 24,26,39 STATUTES Chapter 369 of the Acts of 2012....................... 36,40,44 Chapter 369 of the Acts of 2012, §§ 1, 9, 13 and 15........ 40 Chapter 369 of the Acts of 2012, § 1(H)..................... 33 Chapter 369 of the Acts of 2012, § 1(K)..................... 33 Chapter 369 of the Acts of 2012, § 2(H)...................... 6 Chapter 369 of the Acts of 2012, § 9(A)..................... 33 Chapter 369 of the Acts of 2012, § 13....................... 33 Chapter 1071 of the Acts of 1971, § 1.................... 19,20 Mass. Gen. Laws ch. 54, § 53.......................... 15,47,48 Mass. Gen. Laws ch. 54, § 54................................ 48 Mass. Gen. Laws ch. 93A, § 7................................ 49 Mass. Gen. Laws ch. 94...................................... 43 Mass. Gen. Laws ch. 94, §§ 186-195.......................... 28 Mass. Gen. Laws ch. 94C, § 1 ................. 4,20,22,23,25,27 Mass. Gen. Laws ch. 94C, § 2............................. 20,26 Mass. Gen. Laws ch. 94C, § 31............................ 19,20 Mass. Gen. Laws ch. 94G ................................... 3-8 Mass. Gen. Laws ch. 270, § 3................................ 28

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CONSTITUTION OF THE COMMONWEALTH OF MASSACHUSETTS Article 48, The Initiative, Part II, § 3 as amended by art. 74, § 3.................................. 16,37,48 CODE OF MASSACHUSETTS REGULATIONS 105 CMR 725.004............................................. 33 105 CMR 725.105(B)(1)....................................... 33 105 CMR 725.105(E).......................................... 33 105 CMR 725.105(L)(8)....................................... 33 105 CMR 725.110(A)(1)....................................... 34 SECONDARY SOURCES American Heritage Dictionary................................ 48 Black’s Law Dictionary 960 (8th ed. 2004) ................... 38 Colorado Department of Revenue, “Marijuana Equivalency in Portion and Dosage”, http://smartcolorado.org/ thc-potency/(published August 2015; reviewed on April 19, 2016)........................................ 27 Dea.gov, http://www.dea.gov/druginfo/drug data

sheets/Marijuana.pdf (reviewed on April 18, 2016)...... 21 DPH Medical Marijuana Regulations, http://www.mass. gov/eohhs/docs/dph/regs/105cmr725.pdf.................. 34 Drugs.com, http://www.drugs.com/illicit/hashish.html (reviewed on April 17, 2016)........................ 21,22 Feulner, E., “Going to Pot: Advocates are Understating The Health Risks of Smoking Marijuana.” Washington Times.com. September 7, 2015 http://www.washingtontimes.com/news/2015/sep/7/ ed-feulner-marijuana-health-risks-understated/......... 22

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“Marijuana Edibles Pose Threat to Colorado Adults and Children Alike”, http://www.narconon.org/blog/ Marijuana-edibles/marijuana-edibles-pose-threats- Colorado-adults-children-alike/ (reviewed on April 19, 2016).............................................. 29 Mass.gov, http://www.mass.gov/ago/government-resources/ initiatives-and-other-ballot-questions/current- petitions-filed.html (reviewed on April 28, 2016)...... 25 Mcrlabs.com, http://mcrlabs.com/ (reviewed on April 19, 2016).............................................. 30 National Institute on Drug Abuse (NIDA), Drug Facts: Marijuana (March 2016), https://www.drugabuse.gov/ publications/drugfacts/marijuana (reviewed on May 3, 2016).................................................. 27 National Institute on Drug Abuse, Table of Marijuana Potency, http://medicalmarijuana.procon.org/view. additional-resource.php?resourceID=191 (reviewed on April 19, 2016)..................................... 27 National Organization for the Reform of Marijuana Laws, http://norml.org/laws/item/massachusetts-penalties-2 (reviewed on April 17, 2016)........................... 21 State Ballot Questions Petitions, Secretary of the Commonwealth, www.sec.state.ma.us/ele.................. 46 Washington State Liquor and Cannabis Board, http://www.liq.wa.gov/mj-education/general-info (reviewed on April 19, 2016)........................ 21,29

1

QUESTIONS PRESENTED

I. Did the Attorney General’s misleading summary of

Initiative Petition 15-27, which purportedly legalizes

marijuana, invalidate the signature gathering process to

place this measure before the voters in 2016?

II. Did the lack of a “unified statement of public policy” in

Petition 15-27 result in it being an unconstitutional

“logrolling” initiative that should not have been

certified by the Attorney General in the first place?

III. If this Court decides that Petition 15-27 may be placed

before the voters in 2016, should the Petition’s title,

“yes” and “no” statements, and summary be redrafted by

the Attorney General, subject to the Court’s approval, so

they no longer mislead the voters?

PROCEDURAL HISTORY

Plaintiff Josephine Hensley is joined by 58 other

Massachusetts voters. Statement of Agreed Facts

(hereinafter SAF) ¶¶1-2, which appears in the Joint

Appendix (hereinafter JA) at 25.

By complaint filed in the Supreme Judicial Court of

Suffolk County, Plaintiffs sought relief in the nature of

certiorari and mandamus to quash the certification of

Petition 15-27 by the Attorney General, and to enjoin the

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Secretary of the Commonwealth from placing it on the 2016

ballot. JA at 1.

On joint motion, the Single Justice reserved and

reported the case for consideration by the full Court. JA

at 145. The Single Justice directed the parties to file an

agreed statement of facts with the full Court, and for

Plaintiffs Counsel to explain the late filing of this

action. Id. at 146-147 (Affidavit of Counsel).

STATEMENT OF FACTS A. The Petition

The language of Initiative Petition 15-27 appears in

House Bill No. 3932 (hereinafter H3932). JA at 107.1

Title and purpose. Its title is “The Regulation and

Taxation of Marijuana Act.” H3932 at lines 1 and 9-10.

The law’s claimed purpose is to control the production

and distribution of marijuana “in a manner similar to

alcohol and to make marijuana legal for adults 21 years of

age or older.” Id. lines 2-4. It hopes to reduce the

illicit market and raise revenue. Id. lines 5-7.

1 H3932 appears in the Joint Appendix at 107-144. For ease of reference in the rest of this brief, we refer to line numbers within H3932 rather than sections, which are harder to locate. H3932 has the same language as the original version contained in Petition 15-27, which appears in JA at 31-56.

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Regulatory entities. Upon passage, a new agency, the

Cannabis Control Commission (CCC), will have “sole

regulatory authority” over commercial businesses. The

Treasurer appoints CCC members. Id. lines 15-18, 666-668.

Another entity, the Cannabis Advisory Board (CAB),

will “study and make recommendations on the regulation of

marijuana and marijuana products.” The Governor appoints

the CAB’s fifteen members. Id. lines 44-46; 669-673.

In addition to sales tax, the Commissioner of Revenue

will collect a 3.75% excise tax on “marijuana or marijuana

product sales.” Municipalities may impose a local sales tax

of up to 2%. Id. lines 79-93.

Commercial system. A proposed statute, G.L. Chapter

94G, establishes three, new commercial operators:

• Cultivators,

• Manufacturers, and

• Retailers.

Their activities occur at licensed “establishments” and

involve marijuana and related products. Id. lines 151-160;

167-169.2

Definitions of marijuana and products. Under Chapter

94G, “Marijuana” is defined as:

“all parts of any plant of the genus Cannabis, . . . whether growing or not; the seeds thereof;

2 Testing facilities are licensed too. Id. lines 165-166.

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and resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin including tetrahydrocannabinol as defined in section 1 of chapter 94C of the General Laws . . . .” Id. lines 134-138.3

Note the explicit reference to an existing law, 94C, § 1,

and its current definition of tetrahydrocannabinol (THC).

Under 94G, “Marijuana products”:

“have been manufactured and contain marijuana or an extract from marijuana, including concentrated forms of marijuana and products composed of marijuana and other ingredients that are intended for use or consumption, including edible products, beverages, topical products, ointments, oils and tinctures.” Id. lines 161-164.

Note how the definition of marijuana products includes food

and beverages.

A later section of the proposed law exempts marijuana

from the coverage of Massachusetts food safety laws [id.

lines 220-2244], then makes the Cannabis Control Commission

(CCC) solely responsible for the safety of edible products

[id. lines 307-310].

3 The definition goes on to exclude stalks and plant fiber, hemp, and the weight of other ingredients mixed with marijuana. H3932 at lines 139-145. 4 Although the Petition states that marijuana or marijuana products are not exempt from Chapter 94 food safety statutes, the next line of the section, in effect, exempts marijuana by stating that it may not be considered “an adulterant” under food safety laws when processed in accordance with 94G regulations. Id. lines 220-224.

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Regulatory authority. The CCC, in consultation with

the Cannabis Advisory Board (CAB), may establish

regulations for licensing; site security; preventing

underage access; recordkeeping and inventory tracking;

packaging and labeling; sample testing; marketing and

advertising. The CCC is also given investigation and civil

enforcement authority. Id. lines 271-351; 380-386; 387-393;

394-415.5

Licensing preference for medical marijuana owners.

Chapter 94G declares that it should “not be construed to

affect [the law] relating to the medical use of marijuana.”

Id. lines 217-219. Later on, the proposed law mandates that

the CCC issue licenses, on a priority basis, to medical

marijuana treatment center owners in the first year

licenses are granted. Id. lines 448-450.6

Specifically, prior to an initial application deadline

of October 1, 2017, 75 licenses in each category —

cultivator, manufacturer and retailer — are set aside for

medical marijuana treatment center owners. Id. lines 681-

5 Also see other site security regulations for business premises at id. lines 564-584. 6 Specifically, the law would take effect on December 15, 2016. The CCC must begin accepting applications by October 1, 2017, and the preference for medical marijuana owners concerning cultivation, product and retail licenses extends through January 1, 2018. Compare id. lines 695 (date of effect); 676-680 (application receipt); 448 (end of preference).

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683. Other, non-medically connected applicants have to wait

and possibly enter a lottery. Id. lines 451-454; 687-694.

The Petition imposes a preferential licensing plan and

mandates that the CCC allow present and future owners 7 of

medical marijuana treatment centers to conduct medical and

commercial operations “at a shared location.” Id. lines

361, 371-373.8

Even if the CCC fails to promulgate regulations, it

will not derail the transformation of non-profit medical

marijuana treatment centers 9 into for-profit businesses

catering to consumers 21 and over. Id. lines 658-665.10

At the local level, while Chapter 94G permits some

control over all marijuana establishment owners [id. lines

225-270; 416-461], it handcuffs municipalities in their

treatment of medical marijuana owners. Specifically, local

7 Under the title, “experienced marijuana establishment operator,” the Petition includes current owners of a medical marijuana treatment center and applicants for a medical marijuana license who receive a “provisional registration” from the Department of Public Health (DPH) before this initiative takes effect. Id. lines 120-126. 8 The CCC must also permit the exchange of seeds or plant products between medical marijuana treatment centers and other commercial establishments. Id. lines 374-378. 9 See Chapter 369 of the Acts of 2012, § 2(H) (“Medical marijuana treatment center” shall mean a not-for-profit entity”). 10 If the CCC fails to adopt regulations by January 1, 2018, “each medical marijuana treatment center may begin to possess, cultivate . . . and [] deliver, sell or otherwise transfer marijuana to any person who is at least 21 years of age until the [CCC] adopts regulations.” Id. 660-663.

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governments may not enact any zoning ordinance or bylaw

that prevents commercial activities in any area where a

medical marijuana treatment center conducts the same

activity. Id. lines 231-234.

Local governments may not even limit the number of

marijuana businesses in their community to fewer than the

number of treatment centers. Id. lines 243-245.

Personal use. Finally, the Petition allows people age

21 and over to purchase, possess and use one ounce or less

of marijuana or 5 grams or less of “marijuana concentrate,”

which is defined as “resin extracted from any part of the

plant of the genus Cannabis.” Id. lines 463-469; 508-511.11

Adults may possess “accessories” in order to cultivate

or consume these drugs. Id. lines 512-518.

In their home, adults may possess up to 10 ounces of

marijuana. The household may also contain a maximum of 12

plants (although only 6 plants may be attributed to any one

adult). Id. lines 470-473.

Evidence that an adult legally consumes, possesses or

cultivates marijuana, or works in a marijuana

establishment, may not be the basis for adverse child

welfare decisions — unless there is clear and convincing

11 Adults may also transfer the same amount to other adults, as long as they do not publicize the exchange. Id. lines 476-479.

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evidence that these activities created an unreasonable risk

of danger to the child. Id. at 493-500.

B. The Summary

Petition 15-27 has 8,459 words. The Article 48 Summary

prepared by the Attorney General contains 524 words.12

The Summary is the only information about this

Petition that appeared on the form used to gather the

signatures required to place this measure on the November

2016 ballot. SAF ¶5. Also see JA at 97 (summary) and 101

(voter signature form).

Given the constitutional importance of the Summary, it

is presented here in its entirety13:

[1] The proposed law would permit the possession, use, distribution, and cultivation of marijuana in limited amounts by persons age 21 and older and would remove criminal penalties for such activities. It would provide for the regulation of commerce in marijuana, marijuana accessories, and marijuana products and for the taxation of proceeds from sales of these items. [2] The proposed law would authorize persons at least 21 years old to possess up to one ounce of marijuana outside of their residences; possess up to ten ounces of marijuana inside their residences; grow up to six marijuana plants in their residences; give one ounce or less of marijuana to a person at least 21 years old without payment; possess, produce or transfer

12 Microsoft “word count” feature was utilized on both documents, and any other document where a word count is provided. 13 Although not included in the original version, paragraph numbers are included here for ease of reference.

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hemp; or make or transfer items related to marijuana use, storage, cultivation, or processing. [3] The measure would create a Cannabis Control Commission of three members appointed by the state Treasurer which would generally administer the law governing marijuana use and distribution, promulgate regulations, and be responsible for the licensing of marijuana commercial establishments. The proposed law would also create a Cannabis Advisory Board of fifteen members appointed by the Governor. The Cannabis Control Commission would adopt regulations governing licensing qualifications; security; record keeping; health and safety standards; packaging and labeling; testing; advertising and displays; required inspections; and such other matters as the Commission considers appropriate. The records of the Commission would be public records. [4] The proposed law would authorize cities and towns to adopt reasonable restrictions on the time, place, and manner of operating marijuana businesses and to limit the number of marijuana establishments in their communities. A city or town could hold a local vote to determine whether to permit the selling of marijuana and marijuana products for consumption on the premises at commercial establishments. [5] The proceeds of retail sales of marijuana and marijuana products would be subject to the state sales tax and an additional excise tax of 3.75%. A city or town could impose a separate tax of up to 2%. Revenue received from the additional state excise tax or from license application fees and civil penalties for violations of this law would be deposited in a Marijuana Regulation Fund and would be used subject to appropriation for administration of the proposed law. [6] Marijuana-related activities authorized under this proposed law could not be a basis for adverse orders in child welfare cases absent clear and convincing evidence that such

10

activities had created an unreasonable danger to the safety of a minor child. [7] The proposed law would not affect existing law regarding medical marijuana treatment centers or the operation of motor vehicles while under the influence. It would permit property owners to prohibit the use, sale, or production of marijuana on their premises (with an exception that landlords cannot prohibit consumption by tenants of marijuana by means other than by smoking); and would permit employers to prohibit the consumption of marijuana by employees in the workplace. State and local governments could continue to restrict uses in public buildings or at or near schools. Supplying marijuana to persons under age 21 would be unlawful. [8] The proposed law would take effect on December 15, 2016.

C. Title and “Yes” or “No” Statements

If Petition 15-27 appears on the 2016 ballot, the

Attorney General and Secretary of the Commonwealth will

have prepared certain voter information materials. These

are: (1) a “ballot question title” — a short title that

appears in the Information for Voter’s Guide published by

the Secretary — and (2) “fair and neutral one sentence

statements describing the effect of a yes or no vote” —

which appear in the Guide and on the November ballot.14

Title. The Attorney General has submitted, “Marijuana

Legalization,” for the ballot question title. SAF ¶10. The

Plaintiffs proposed, “The Legalization of Hashish, Food

14 Process described at http://www.mass.gov/ago/government-resources/initiatives-and-other-ballot-questions/.

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Products with Tetrahydrocannabinol (THC), and Marijuana.”

The Attorney General’s title is two words; the Plaintiffs’

is ten words. JA at 15.

Statements. For a “yes” statement, the Attorney

General submitted for publication: “A YES vote would allow

the possession, use, distribution, and cultivation of

marijuana, including tetrahydrocannabinol (THC), in limited

amounts by persons 21 and older, and would provide for the

regulation and taxation of commercial sale of such

marijuana, marijuana accessories, and marijuana products."

The Plaintiffs recommended: “A YES VOTE would allow

the possession, use, distribution, and cultivation of

hashish and marijuana in limited amounts by persons age 21

and older, and would provide for the regulation and

taxation of hashish and marijuana, their accessories, and

all edible food products containing the controlled

substance known as tetrahydrocannabinol (THC).” SAF ¶¶10-

11. The Attorney General’s “yes” version is 43 words; the

Plaintiffs’ is 51 words.

As for the “no” statement, the Attorney General

submitted for publication: “A NO VOTE would make no change

in current laws relative to marijuana.” Plaintiffs

countered with: “A NO VOTE would make no change in current

laws relative to hashish and marijuana, and food product

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health and safety.” SAF ¶12. The Attorney General’s word

count is 13; Plaintiffs’ is 21.

SUMMARY OF ARGUMENT

Plaintiffs seek to decertify ballot initiative 15-27,

“The Regulation and Taxation of Marijuana Act,” which is

largely designed to create a statewide, commercial system

that cultivates and processes cannabis products for sale to

people 21 and over.

The people of the Commonwealth, in adopting Article

48, appreciated the solemnity of legislating through the

popular initiative. “Failure to comply mean[s] that no

valid law [may be] enacted, no matter how great the popular

majority . . . Only by preserving this fundamental

principle can constitutional government be preserved.”

Sears v. Treasurer & Receiver Gen., 327 Mass. 310, 321

(1951).

In this case, Plaintiffs bring two defects of

constitutional magnitude to the attention of the Supreme

Judicial Court. Id. at 322 (“It would be astonishing and

intolerable if safeguards so carefully inserted in art. 48

could be disregarded without consequences.”)

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A. Misleading Summary (Appellant Brief 16-36).

The Attorney General must create a “fair, concise”

summary for signature-gathering papers and the ballot

itself. Id. at 323. The summary of initiative 15-27 failed

the “fairness” mandate of Article 48 because it did not

accurately or completely answer two fundamental questions

that a voter would naturally have about the proposed law:

What drugs will actually be legalized? (Brief 19-30).

The summary’s answer: Only marijuana and related products.

This limited information appeared even though the

Attorney General knew, or should have known, from the

language of the petition itself that, in addition to

marijuana (a Class D substance), merchants would be allowed

to process, manufacture and sell:

• Concentrated marijuana with high levels of

tetrahydrocannabinol (THC). THC is a Class C

hallucinogenic substance under Massachusetts law, better

known as “hashish”; and

• Food and beverages (including cookies, ice cream, candy

and soda) containing marijuana and THC. This would be the

first time in the history of the Commonwealth that

commercial, non-medical food products would be allowed to

contain controlled substances.

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Who will obtain the licenses to create and sell these

products? (Brief 31-36). The summary responds by mentioning

the licensing body, the Cannabis Control Commission, but

never mentions that current and future owners of medical

marijuana treatment centers would be permitted to sell

products to consumers at the same location where they have

been exclusively licensed to provide non-profit services to

chronically ill patients. The impact on the voter of this

omission is compounded by the summary’s false claim that

the proposed law will not affect existing law regarding

medical marijuana treatment centers.

B. Unrelated Subjects (Brief 37-46).

The Attorney General may only certify a petition

containing related, mutually dependent subjects. “[T]he

relatedness limitation is . . . intended to avoid confusion

at the polls and to permit citizens to exercise a

meaningful choice when voting to accept or reject a

proposed law.” Carney v. Attorney General, 447 Mass. 218,

220 (2006).

“To clear the relatedness hurdle, the initiative

petition must express an operational relatedness among its

substantive parts that would permit a reasonable voter to

affirm or reject the entire petition as a unified statement

of public policy.” Id. at 230-231.

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In this case, although styled as an initiative to

legalize marijuana, the Petition is, in fact, an effort to

mandate that a new state agency, the Cannabis Control

Commission (CCC), confer preferred licensing status on the

owners of medical marijuana treatment centers in conflict

with state law and regulations promulgated by a separate

government agency, the Department of Public Health (DPH).

By coupling a broad popular appeal (legalize

marijuana) with a narrow industry preference (transition

medical marijuana owners into for-profit sales), Petition

15-27 fails to present a “unified statement of public

policy” which, in the past, has been referred to as

“logrolling.” Id. at 227-228. This type of disconnected

appeal should not have been certified by the Attorney

General in the first place.

C. Voter Information (Brief 47-52).

In the event that this Court does not decertify the

Petition, the final section of the Plaintiffs’ brief

provides recommendations on how to amend the title, “yes”

and “no” statements, and summary that will appear in the

Voter’s Guide and on the ballot printed by the Secretary of

the Commonwealth. See G.L. c. 54, § 53.

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ARGUMENT

I. THE ATTORNEY GENERAL’S SUMMARY OF PETITION 15-27 IS CONSTITUTIONALLY DEFICIENT BECAUSE IT FAILS TO TELL VOTERS ABOUT THE TYPE OF DRUGS TO BE LEGALIZED, AND PROVIDES INACCURATE AND INADEQUATE INFORMATION ABOUT WHO WILL BE LICENSED TO SELL THESE DRUGS FOR PROFIT.

Article 48 requires that the Attorney General prepare

a “fair, concise summary” of an initiative petition. Art.

48, The Initiative, Part II, § 3, as amended by art. 74, §

3. Tobias v. Sec. of the Commonwealth, 419 Mass. 665, 669-

671 (1995)(history behind current standard).

A fair summary ensures that citizens who sign papers

to place the measure on the ballot “have before their eyes

and in their minds . . . an impartial statement of the

dominant and essential provisions of the proposed law.”

Opinion of the Justices, 271 Mass. 582, 589 (1930).

This constitutional “safeguard” was “carefully

inserted” into Article 48 and may not be disregarded

“without consequences.” Sears v. Treasurer and Receiver

Gen., 327 Mass. 310, 322 (1951). An unfair summary

invalidates the signature-gathering process to place the

initiative on the ballot, and even an enacted law “no

matter how great the popular majority may have been in its

favor.” Id. at 321. See Hurst v. State Ballot Law Comm’n,

427 Mass. 825, 828 (1998)(“guarantee[] that all signatories

see a fair and complete summary . . . guards against the

17

possibility that the public will be misled by those

campaigning for a referendum.”).

Because the Attorney General’s summary is such a

critical component “[i]n the practical operation of the

initiative process, it is desirable that determinations be

made before the people vote rather than after.”

Massachusetts Teachers Ass’n v. Sec. of the Commonwealth,

384 Mass. 209, 230 (1981).

“Obviously, an element of discretion is involved in

the preparation of a summary — what to include, what to

exclude, and what language to use. The exercise of

discretion by the Attorney General . . . should be given

weight in any judicial analysis.” Id. At the same time, the

summary “will be invalidated where, in the context of the

entire proposal, it is significantly misleading and likely

to have a major impact on voters.” First v. Attorney Gen.,

437 Mass. 1025, 1026 (2002).

The Supreme Judicial Court has held that a

significantly misleading summary:

• Provides inaccurate information about an important

provision in the proposed law. Evans v. Sec. of

Commonwealth, 306 Mass. 296, 300-301 (1940)(summary

erroneously stated the formula by which property taxes

would be computed and the scope of a separate excise tax;

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these mistakes could not be dismissed “as relating to a

minor detail of the law”). Massachusetts Teachers Ass’n.,

384 Mass. at 234(in dicta, Court pointed out that a

blatant mistake, like listing the wrong year upon which

the property tax rate would be based, would have caused

the summary to be misleading).

• Fails to mention important provisions in the initiative.

Sears, 327 Mass. at 325 (deficient summary did not

mention that the initiative would repeal existing law and

create new support payments to elders and would be funded

in part by taxes on meals, racing and liquor licenses; no

mention of eligibility standards or medical care

provisions). Opinion of the Justices, 271 Mass. at. 587-

592 (summary of proposed law for compulsory vehicle

insurance fund did not explain that the registrar would

collect the funds and the Treasurer would disburse them).

• Provides incomplete information about important

provisions. Id. at 591 (while summary mentioned that

vehicle accidents would be investigated, it did not say

that the registrar was responsible in all cases of

personal injury; summary mentioned “fixed rates” but did

not explain the term).

In the case at bar, the Attorney General’s summary is

uniquely deficient in all three ways.

19

A. Concentrated Marijuana Never Mentioned

Voters are led to believe in the Attorney General’s

summary that initiative 15-27 will only legalize

“marijuana.” No other controlled substance is mentioned.

See Summary, supra at pages 8-10.

This is wrong. In fact, the initiative will legalize

the sale, cultivation, possession and use of “concentrated

marijuana” — better known legally and popularly as

“hashish” — a Class C controlled substance.

As the Chief Law Enforcement Officer of the

Commonwealth, the Attorney General knows that, under

Massachusetts law for over 40 years, Marijuana has been

defined under G.L. c. 94C, § 31 as: “CLASS D . . . Unless

specifically excepted or unless listed in another schedule,

any material, compound, mixture, or preparation, which

contains . . . Mari[j]uana.” [emphasis added] Chapter 1071

of the Acts of 1971, § 1 at pages 1021, 1043.

Section 31 lists, in its description of CLASS C, “any

material, compound, mixture, or preparation, which contains

any quantity of the following hallucinogenic substances, or

which contains any of their salts, isomers, and salts of

isomers . . . within the specific chemical designation: . .

. (15) Tetrahydrocannabinols [THC].” In short, Class C

20

covers THC in all of its forms and preparations. G.L. c.

94C, § 31. Chapter 1071, supra. at 1042-1043.15

The only THC item exempt from Class C coverage,

according to 94C, § 1, is marijuana with an “established .

. . concentration of delta-9 tretrahydrocannibinol [of] two

and one-half per cent [or less].” Id. at 1023.

In other words, any time marijuana exceeds a THC

concentration of 2.5%, it becomes a Class C drug in

Massachusetts known by its street name “hashish.” See,

e.g., Commonwealth v. Weeks, 13 Mass. App. Ct. 194, 194 n.1

(1982)(defendant indicted for possession of Class C with

intent to distribute — “tetrahydrocannabinols . . . more

commonly known as ‘liquid hash’ or ‘hash oil’”).

The difference between a Class C and Class D drug is

significant. The placement of THC in Class C reflects

“current scientific knowledge” regarding its “potential for

abuse.” G.L. c. 94C, § 2. For THC to be in Class C versus

marijuana in Class D, the Commissioner of Public Health had

to decide that THC is more addictive and dangerous. G.L. c.

94C, § 2 (basis for Commissioner’s drug classifications).

15 Marijuana became a Class D drug in 1971, and THC was defined as a Class C “hallucinogenic substance[]” that same year in 94C, § 31. Chapter 1071 of the Acts of 1971, § 1 at pages 1042-1043 [only difference is THC was listed in subsection (16) and it is in subsection (15) today].

21

This would be important information for a voter.

“Hashish” has long been the name used to describe

concentrated forms of marijuana. According to Drugs.com:

“Hashish is a potent form of cannabis (marijuana) produced by collecting and compressing trichomes, the most potent material from cannabis plants. Trichomes are the fine growths on cannabis plants that produce a sticky resin . . . . The main active chemical in marijuana is THC (delta-9-tetrahydrocannabinol). Marijuana's effects on the user depend on the strength or potency of the THC it contains. Hashish contains the same active ingredients as marijuana, like THC and other cannabinoids, but with higher concentrations.”16

Even long-time proponents of legalization are aware of

the different treatment that marijuana and concentrated

extracts like “hashish” and “hash oil” receive under

Massachusetts law. In a section on its website entitled

“Massachusetts Laws & Penalties,” the National Organization

for the Reform of Marijuana Laws (NORML) distinguishes

between marijuana and hash. See

http://norml.org/laws/item/massachusetts-penalties-2

(reviewed on April 17, 2016).

16 See http://www.drugs.com/illicit/hashish.html (reviewed on April 17, 2016). Also see http://www.liq.wa.gov/mj-education/general-info (website of Washington State Liquor and Cannabis Board; distinguishing between marijuana and hashish and hash oil) (reviewed April 19, 2016). http://www.dea.gov/druginfo/drug_data_sheets/Marijuana.pdf (reviewed on April 18, 2016).

22

The difference between “marijuana” (Class D) and its

concentrated forms (aka “hashish” in Class C) has also been

understood by prosecutors like the Attorney General for a

long time.17 See, e.g., Commonwealth v. Fernandes, 30 Mass.

App. Ct. 335, 336 (1991). Commonwealth v. Nissenbaum, 404

Mass. 575, 576 (1989) (possession of hashish). Commonwealth

v. Fontaine, 402 Mass. 491, 492 n.1 (1988) (possession of

Class C substance, hashish, with intent to distribute).

Commonwealth v. Voris, 38 Mass. App. Ct. 377 (1995).18

Even without this legal and social context, the plain

language of initiative 15-27 alerted the Attorney General

to the proponents’ plan to do more than legalize marijuana,

as that controlled substance has been defined for over 40

years in our law and in our common consciousness. See G.L.

c. 94C, § 1. Drugs.com, supra. note 16.19

17 A Westlaw search for “hash” and “hashish” reveals 44 Massachusetts references. See results at Addendum at 3-5. 18 Federal law is equally clear. "Hashish is a schedule I substance if it contains tetrahydrocannabinols (THC), 21 U.S.C. 812, Schedule I (c)(17), which is the 'active ingredient' in hashish." United States v. Lochan, 674 F.2d 960, 969 (1st Cir. 1982). 19 Feulner, E. “Going to Pot: Advocates are Understating the Health Risks of Smoking Marijuana.” Washington Times.com. September 7, 2015 (many older adults do not realize that today’s marijuana is very different from the allegedly harmless joint passed around a party in the 1970s or 1980s; today’s pot is much more potent). http://www.washingtontimes.com/news/2015/sep/7/ed-feulner-marijuana-health-risks-understated/

23

Consider four obvious clues in 15-27:

• The initiative defines marijuana and refers to G.L. c.

94C, § 1 and tetrahydrocannabinol (THC), but places no

limits on THC concentration levels. H3932 at lines 134-

138.

• The initiative describes “marijuana products” as being

“manufactured” and containing “an extract from marijuana,

including concentrated forms of marijuana and products.”

[emphasis added] Id. lines 161-164. “Ointments, oils and

tinctures” are also included products. Id.

• The initiative explains that “manufacture” means “to

compound, blend, extract, infuse or otherwise make or

prepare a marijuana product.” [emphasis added] Id. lines

132-133. The initiative further regulates the

manufacturing process when it involves gas and liquids,

including alcohol. Id. lines 189-192.

• The initiative explicitly distinguishes “marijuana” from

“marijuana concentrate” in the section on personal

possession. Id. lines 463-469 (may possess an ounce of

marijuana, but only 5 grams of concentrate). And it

defines “marijuana concentrate” as “resin extracted from

any part of the plant,” which mirrors the earlier

definition of “marijuana products” for commercial sale.

Compare id. lines 508-511 with lines 161-164.

24

The language of initiative 15-27, in isolation, would

bring anyone of normal intelligence to the conclusion that

more than marijuana in its natural state is being legalized

and commercialized. Terms like “cannabis,” “manufacture,”

“concentrate,” “extract,” “oils and tinctures,” “by gas or

liquid,” do this on their own. Id. This language would

likely persuade even a novice draftsman to tell voters that

marijuana and “marijuana concentrate” will be produced and

sold.

But not just anyone is directed to prepare a summary

for the voters. At the Constitutional Convention which gave

birth to the Article 48 process, the Attorney General was

chosen, as “one learned in law and under a high official

responsibility,” to provide a written description for the

people. Opinion of the Justices, 271 Mass. at 588. Implicit

in that trust was the expectation that the Attorney General

could and would bring a level of sophistication in

understanding what is actually being proposed, and

communicating its relative importance to the voters. Id. at

589 (“an impartial statement of the dominant and essential

provisions of the proposed law”). Also see Yankee Atomic

Electric Co. v. Sec. of the Commonwealth, 402 Mass. 750,

755 and 758 (1988) (inconsistent with Attorney General’s

25

discretion and judgment “to limit [her]self to a strictly

facial analysis of proposed petitions”).

Aside from the language of petition 15-27, what makes

the Attorney General’s oversight more unacceptable is the

fact that she had the benefit of seeing other initiative

petitions during this election cycle. In addition to 15-27,

the Attorney General certified three other “marijuana

legalization” petitions (15-23, 15-24, 15-25).

http://www.mass.gov/ago/government-resources/initiatives-

and-other-ballot-questions/current-petitions-filed.html

(reviewed April 28, 2016). Addendum to Appellants’ Brief

(hereinafter Addendum) at 6, 21 and 42.

Each of these petitions explicitly — in the first page

and a half, and with identical language — amend the

definition of marijuana and tetrahydrocannabinol (THC) in

G.L. c. 94C, § 1. See, e.g., Petition 15-23, SECTION 4

(deleting “except when it has been established that the

concentration of delta-9 tetrahydrocannabinol in said

marihuana exceeds two and one-half per cent”). Id. at 7.

The Attorney General must have been aware of this

language because she certified and wrote summaries for all

three petitions. Id. at 18, 38, 49. This is just the kind

of official, easily obtained, information that an Attorney

General would be expected to rely on in her Article 48

26

decision making. Yankee Atomic Electric Co., 402 Mass. at

759 n.7.

While the Attorney General is not expected to hold

“extensive hearings” on a proposed initiative, it seems

more than reasonable to expect that she be familiar with

basic laws, like the one that has classified controlled

substances for over 40 years. Id. at 758-759 n.7. The

strict THC dividing line — 2.5% — that distinguishes

between Class C and Class D substances is well known, with

Class C being recognized as more addictive and harmful.

G.L. c. 94C, § 2.

What must have been abundantly clear to the Attorney

General, when initiative 15-27 was presented to her, was

that its proponents were attempting to legalize all forms

of “Cannabis” with its active ingredient, THC. H3932 at

line 134, 137.20

From a voter’s perspective, knowing that “marijuana

concentrate” or “hashish” is part of the legalization plan

is not a point of academic interest. For example,

Colorado's hashish has an average potency of 17% THC, while

20 It is telling that initiative drafters called their regulatory agency the “Cannabis Control Commission,” not the “Marijuana Control Commission.” H3932 at lines 15-17.

27

concentrates have an average potency of 62% THC. 21 These

refined oils, wax and resins bear no resemblance to the

plant-like mixture commonly thought of as “marijuana.” 22, 23

They pose a higher risk of addiction to those who consume

them.24

While the ballot initiative is obviously intended to

allow for the sale, distribution and use of “marijuana

concentrate” or “hashish” [compare H3932 lines 134-138 with

G.L. c. 94C, § 1], the voters were given no information

from the Attorney General that they were being asked to

place more potent drugs than “marijuana” on the ballot.

21 http://smartcolorado.org/thc-potency/ (reviewed April 19, 2016) citing and providing a link to a report by the Colorado Department of Revenue entitled “Marijuana Equivalency in Portion and Dosage” (published August 2015). 22 See Addendum at 1 for pictures of popular varieties. 23 Even taking into account the overall increase in THC in marijuana since the 1970s, today’s marijuana does not come close in potency to the manufactured “marijuana concentrates” sanctioned by the initiative, but unnoticed by the Attorney General. See http://medicalmarijuana.procon.org/view.additional-resource.php?resourceID=191 (reviewed April 19, 2016). This website presents a table of marijuana potency, 1975-2003, from the Annual Reports (Nov. 9. 1999 to Nov. 8, 2003) of Mahmoud A. ElSohly, PhD, Director of the National Institute on Drug Abuse (NIDA) Marijuana Project at the National Center for Natural Products Research, School of Pharmacy, University of Mississippi. The table reveals marijuana potency of 1.08% in the 1970s; 2.83% in the 80s; 3.76% in the 90s; and 5.73% in the 2000s. 24 National Institute on Drug Abuse (NIDA), Drug Facts: Marijuana. March 2016. This publication has a list of references in support of its findings and information. See https://www.drugabuse.gov/publications/drugfacts/marijuana (reviewed May 3, 2016).

28

Wouldn’t a voter, in the words of the Supreme Judicial

Court, “have a natural interest in knowing this”? Sears,

327 Mass. at 325.

B. Food Products Never Mentioned

The Attorney General’s 524 word summary also fails to

mention that marijuana businesses will be allowed to sell

edible products, including soda, candy, ice cream and

cookies containing the hallucinogenic substance THC.

Summary, supra. at 8-10.

Manufacturing food products is a heavily regulated

industry in Massachusetts. See G.L. c. 94, §§ 186-195 which

include, inter alia, product quality and safety, testing

procedures, and criminal penalties for violators that

introduce harmful ingredients and drugs into our food

supply. Also see G.L. c. 270, § 3 (no person may introduce

any harmful substance or drug into any food).

Introducing a known hallucinogenic substance like THC

into food products represents a dramatic change in how food

is created, policed, inspected, and distributed in the

Commonwealth. See, e.g., G.L. c. 94, § 186. Yet, the

Attorney General’s summary did not even hint at this

seismic proposal in petition 15-27.

The words “food,” “edible products”, “beverages”, or

“food safety,” do not appear in the summary even though

29

they are mentioned in the initiative. Compare H3932 lines

161-164; 220-224 with Summary, supra. at 8-10.

Again, this is not the kind of technical oversight

dismissed by this Court in prior summary challenges. See,

e.g., Associated Industries of Mass. v. Sec. of the

Commonwealth, 413 Mass. 1, 12 (1992)(leaving out citations

to federal law or statement “as amended” was not important

in summary of initiative proposing an excise tax on oil and

hazardous materials).

Edible products with THC are dangerous for adults25 and

children (who mistakenly ingest innocent-looking, but THC-

infused, candy, cookies and sodas). 26 After reviewing THC

potency in Massachusetts medical marijuana and Colorado

cannabis edibles, leafy substances, and concentrates, it is

25 “Marijuana-infused food products can be made with the dried, useable marijuana or with concentrated cannabis oil. Edibles made with concentrates tend to be higher in THC and therefore stronger. In addition, it can take up to two hours to feel the effects, making it easier to consume too much. The effects from consuming edibles also last longer, impairing the user for a longer period of time.” http://www.liq.wa.gov/mj-education/general-info (website of Washington State Liquor and Cannabis Board) (reviewed April 19, 2016). 26 See Addendum at 2 for some pictures of the myriad of edible products currently sold with THC. See “Marijuana Edibles Pose Threats to Colorado Adults and Children Alike” at http://www.narconon.org/blog/marijuana-edibles/marijuana-edibles-pose-threats-colorado-adults-children-alike/ (reviewed April 19, 2016).

30

clear that over 90% of cannabis products to be legalized

will exceed a 2.5% THC threshold.27

Finally, the Attorney General may argue that she

adequately informed the voters about “marijuana

concentrate” (aka “hashish”) and THC-infused food and

beverages, by using the term “marijuana products” in the

summary. Summary ¶¶1 (commerce in marijuana products), 4

(sale of marijuana and marijuana products for consumption),

5 (marijuana and marijuana products to be taxed).

Common sense tells this Court that the word “products”

hardly conveys to the voter that higher strength drugs and

food and beverages are part of the legalization and

commercialization agenda. Arguably, the term “edible

products” may have sufficed, but the voters were not even

given this oblique clue about the initiative’s aims.

Summary, infra. at 8-10.

27 It is appropriate to consider the strength of marijuana being sold for medical purposes in Massachusetts as an indicator of the type of marijuana that will be sold for recreational purposes under the proposed ballot initiative. After all, the initiative gives licensing preference to existing medical treatment centers and exempts them from regulations that might require that they use separate locations for their medical versus recreational business. H3932 at lines 448-450 and 371-373. For an example of a testing service showing the higher rates of THC, see http://mcrlabs.com/ (reviewed April 19, 2016).

31

C. Misinformation About Preferential Licensing Plan

The Attorney General’s summary contains wrong

information. It tells every voter: “The proposed law would

not affect existing law regarding medical marijuana

treatment centers.” Summary ¶7. That statement alone

misleads voters about an important issue. It is easy to

conceive of voters who might approve legalization only if

the medical system remains uncompromised. They are falsely

assured. On the other hand, there may be voters who would

endorse a plan that incorporates existing medical marijuana

centers. They are denied accurate information as well.

Of course, the possible political positions a voter

could or should adopt are irrelevant. That is for the

political arena. But the misinformation itself is hard to

reconcile: How can anyone, “learned in law,” read

initiative 15-27 and not deduce that it will impact “the

existing law regarding medical marijuana treatment

centers”? Id. Opinion of the Justices, 271 Mass. at 588.

The Attorney General’s summary was most likely drawn

from this statement in initiative 15-27:

“(g) Relation to medical use of marijuana. This chapter shall not be construed to affect the provisions of chapter 369 of the acts of 2012, relating to the medical use of marijuana as enacted by the people in the state election in 2012.” [H3932 lines 217-219].

32

This claim was re-drafted in the summary as:

“The proposed law would not affect existing law regarding medical marijuana treatment centers.” Summary ¶7.

There are two substantial errors in the Attorney

General’s rendering. First, 15-27 states that it will not

affect “the medical use of marijuana.” The summary mentions

that “medical marijuana treatment centers” will not be

affected. Id. There is a big difference between reporting

that a law will not impact use (correct version) and

stating that it will not affect the very institutions

involved in its implementation (wrong version). This is a

significant mistake, not a squabble over the Attorney

General’s choice of words. See, e.g., First v. Attorney

Gen., 437 Mass. at 1026-1027.

Second, this mistake exacerbated voter ignorance

because it was contrary to a mountain of evidence, in the

language of the petition, that 15-27 would deeply impact

the law concerning medical marijuana treatment centers.

Consider that, upon enactment, 15-27 guarantees a

commercial licensing preference and set aside for marijuana

treatment center owners. H3932 at lines 681-683, 120-126.

This preference exists even if regulators do not act. Id.

lines 658-665.

33

15-27 also declares that treatment center owners

cannot be stopped by new state regulators from conducting

commercial, profit-generating sales in the same building

where they now, under existing law, are restricted to

serving qualified patients on a non-profit basis. Id. lines

361, 371-373. Compare Chapter 369 of the Acts of

2012 28(Addendum at 51), § 1(H) (medical marijuana treatment

centers are non-profit entities that only dispense to

qualifying patients or caregivers); § 1(K) (qualifying

patient has been diagnosed with a debilitating medical

condition); § 9(A) [treatment centers must register with

Department of Public Health (DPH)]; § 13 (DPH authorized to

issue regulations). 29 Also see, e.g., 105 CMR

725.105(E)(medical marijuana packaging restrictions

prohibit images other than the medical center’s 30 logo);

725.105(L)(8)(no advertising material allowed which

“encourages or represents the use of marijuana for any

28 After it was enacted by the voters, the “medical marijuana law” was not codified into any particular chapter of the General Laws. Instead, it was enacted as a freestanding statute, referred to by its session law title. 29 As a specific example of regulatory conflict, compare 105 CMR 725.105(B)(1)(non-organic pesticide prohibited in medical marijuana operation) with H3932, lines 361, 379 (Cannabis Control Commission shall not prohibit businesses from using inorganic cultivation methods). 30 A medical marijuana treatment center, in DPH regulations, is referred to as a “registered marijuana dispensary (RMD).” 105 CMR 725.004.

34

purpose other than to treat a debilitating medical

condition . . . [or] encourages or represents the

recreational use of marijuana”); 725.110(A)(1)(no entry

into a treatment center unless the person is a patient,

caregiver, dispensary agent, or approved vendor or

visitor).31

Finally, 15-27 places commercial zoning limits on

local officials concerning new marijuana businesses, based

on their previous decisions about where to site medical

marijuana treatment centers. Id. lines 231-234, 243-245.

Although a local government may have had very different

reasons for permitting a health care facility to take up

residence in a certain part of the community, that same

community’s hands are largely tied when faced with that

health care facility’s decision to transform itself into a

purveyor of recreational controlled substances like

marijuana, marijuana concentrate or “hashish,” and food and

beverages with THC.

The need to accurately describe a drug distribution

infrastructure had been impressed on the Attorney General

several years before initiative 15-27 landed on her desk.

In June of 2012, in Heilman et al. v. Attorney Gen., SJ-

31 DPH’s medical marijuana regulations appear at http://www.mass.gov/eohhs/docs/dph/regs/105cmr725.pdf

35

2012-0211, Justice Cordy, sitting as the Single Justice in

Suffolk County, ordered the Attorney General to amend the

“yes” statement because it omitted any description of the

“system for [the] production and distribution [of medical

marijuana], either at centers established in the

Commonwealth or at homes of qualifying patients.” Id. at 5

in Memorandum of Decision, Cordy, J. Addendum at 60.

Given what happened before the Single Justice in

relation to the initiative on medical marijuana, the

Attorney General should have been prepared this election

cycle, in evaluating 15-27, to be clear and accurate about

the distribution infrastructure that was being proposed to

the voters. Amazingly, the opposite happened.

The fundamental question for this Court is: How do

licensing preferences, license set asides, zoning benefits,

and a regulatory safe harbor — all in relation to current

and future medical marijuana treatment center owners — get

translated by the Attorney General into the statement “no[]

affect [on] existing law regarding medical marijuana

treatment centers”? Summary ¶7. This summary misstep is

more than “a matter of degree.” Massachusetts Teachers

Ass’n, 384 Mass. at 230 citing Opinions of the Justices,

357 Mass. 787, 800 (1970). It was a basic flaw that,

along with other issues brought to the Court’s attention,

36

rendered the summary constitutionally inadequate to inform

the voters.

As a final point, the Attorney General may not

successfully argue that she lacked room in her summary to

deal with these issues. The initiative which gave birth to

the medical marijuana law, Chapter 369 of the Acts of 2012,

contained 2,382 words and comprised 255 lines of text. The

Attorney General’s summary in that case contained 608

words. Addendum at 51, 57. In contrast, Petition 15-27,

appearing in H3932, contains 8,459 words, comprising 695

lines of text. Yet, the summary for this initiative

contains 524 words. See supra. at 8.

For two other petitions filed this election cycle

concerning marijuana, the Attorney General’s summaries

reached 603 and 701 words. See initiatives 15-23 and 15-24,

Addendum at 18 and 38. In short, there is always enough

room in the summary to properly inform and educate the

voters being asked to place a measure on the ballot, and

“[i]t would be astonishing and intolerable if safeguards so

carefully inserted in art. 48 could be disregarded without

consequences.” Sears, 327 Mass. at 322.

37

II. PETITION 15-27 DOES NOT CONTAIN A “UNIFIED STATEMENT OF PUBLIC POLICY” BECAUSE IT PLACES CITIZENS IN THE UNTENABLE POSITION OF VOTING TO BOTH LEGALIZE MARIJUANA AND IMPOSE A PREFERENTIAL LICENSING SYSTEM THAT TURNS NON-PROFIT, MEDICAL MARIJUANA TREATMENT CENTERS INTO PROFIT-MAKING BUSINESSES. AS A RESULT, THE PETITION VIOLATED ARTICLE 48 AND SHOULD NOT HAVE BEEN CERTIFIED BY THE ATTORNEY GENERAL.

Article 48 limits an initiative petition to subjects

“which are related or which are mutually dependent.” Art.

48, II (The Initiative), § 3 as amended by art. 74. To

satisfy the relatedness requirement, the “initiative must

be framed in a manner that will permit a reasonable voter

to affirm or reject the entire petition as a unified

statement of public policy.” Carney v. Attorney Gen., 447

Mass. 218, 230-31 (2006) [emphasis added].32

The key inquiry: “Do the similarities of an

initiative’s provisions dominate what each segment provides

separately, so that the petition is sufficiently coherent

to be voted on ‘yes’ or ‘no’ by the voters? . . . This

question is not susceptible to bright-line analysis.” Id.

at 226.

In Carney, the Attorney General certified an

initiative petition that would have (i) strengthened

penalties for animal cruelty and (ii) abolished pari-mutuel

32 As late as 1981, the Court remarked that there had been “little discussion in reported opinions concerning the ‘related subjects’ limitation.” Massachusetts Teachers Ass’n v. Sec. of the Commonwealth, 384 Mass. 209, 219.

38

dog racing. Id. at 220-221. The Attorney General found that

both provisions satisfied the Article 48 relatedness

requirement because they “generally promot[ed] the more

humane treatment of dogs.” Id. at 224.

The Court disagreed:

“The voter who favors increasing criminal penalties for animal abuse should be permitted to register the clear preference without also being required to favor eliminating pari-mutuel dog racing. Conversely, the voter who thinks that the criminal penalties for animal abuse statutes are strong enough should not be required to vote in favor of extending the reach of our criminal laws because he favors abolishing pari-mutuel dog racing.” Id. at 231.

In rejecting the petition in Carney, this Court was

especially concerned about the possibility of “logrolling.”

Id. at 227. “Logrolling” is defined as “[t]he legislative

practice of including several propositions in one measure .

. . so that the legislature or voters will pass all of

them, even though these propositions might not have passed

if they had been submitted separately.” Id. at 219 n. 4

citing Black’s Law Dictionary 960 (8th ed. 2004).

An indicator that the petitioners were logrolling in

Carney was the fact that they had lost previously on an

initiative that only sought to ban dog racing. Id. at 222.

Six years after their defeat, the proponents submitted a

new initiative that attempted to ban dog racing and

39

increase penalties for animal cruelty. In Carney, the

losers wanted to become initiative winners by tying their

narrow cause (stop dog racing) to a broader public

consciousness (be nice to animals, especially dogs). Also

see Abdow v. Attorney Gen., 468 Mass. 478, 502 (2014).33

The assumption one might draw from Carney is that

logrolling is for losers, but the interesting phenomenon we

see in petition 15-27 is that logrolling is sometimes used

by winners to further advance their narrow interests.

Since there is no “bright-line test,” this Court

should consider the particular background behind 15-27.

Carney, 447 Mass. at 226. See Yankee Atomic Electric Co.,

402 Mass. at 755 (“Exercise of legal judgment involves, to

some extent at least, applying legal principles to facts

even when considering ‘pure’ questions of law”34).

In 2012, the proponents of medical marijuana succeeded

in getting the voters to pass their initiative petition —

33 Abdow emphasized the impact, in the Court’s Carney decision, of the similarity of both initiative petitions: “Very significantly, the latter provision was identical to an initiative petition that had been submitted to, and narrowly rejected by, the voters six years earlier.” Id. at 502 (citation omitted). 34 The specific issue in Yankee Atomic was whether the petition would result in an unconstitutional taking of private property without compensation, an excluded subject under Art. 48. 402 Mass. at 753-754. The standard of review, however, is referenced by the Court in relation to other certification activities undertaken by the Attorney General. Id. at 757-758.

40

Chapter 369 of the Acts of 2012. Their initiative told the

voters that the brand new, medical marijuana system would

be limited to qualifying patients with debilitating

diseases, their personal caregivers and hospice workers;

that it would uphold patient confidentiality; that it would

be regulated exclusively by the Department of Public Health

(DPH); and that services would be provided by non-profit,

medical marijuana treatment centers that would only serve

patients diagnosed and certified by licensed physicians.

Chapter 369 at §§ 1, 9, 13 and 15.

Less than three years later, the petition at the

center of this case, 15-27, was drafted and submitted to

the Attorney General for certification. Compare id. at § 16

(medical marijuana law takes effect on January 1, 2013)

with SAF ¶3 (15-27 submitted in August 2015). See Abdow,

468 Mass. at 502 (timing is important in assessing

logrolling under Carney test).

For the owners of medical marijuana treatment centers,

15-27 transforms their health care institutions into

profit-making, marijuana businesses, with first crack at

licenses for cultivation, manufacturing and sales. With

petition 15-27, the medical marijuana owners avoid the

Department of Public Health and get the Cannabis Control

41

Commission and its industry-weighted advisory board. 35 The

owners escape non-profit status and conduct for-profit

sales in the same building where they convinced communities

they would practice health care. All of these 15-27

provisions were previously pointed out, supra. at 5-7.36

Rather than risk placing this protectionist idea

before the voters, who might reject transforming a health

care institution that they had just approved three years

prior, the petitioners in 15-27 lashed their economic

agenda to the cause of personal freedom and the

legalization of marijuana. This is how winners logroll.

35 “Neither the Attorney General nor this court is required to check common sense at the door.” Carney, 447 Mass. at 232. It will not escape the Court’s notice that the CAB’s membership restrictions provide an obvious majority to commercial rather than public safety advocates. Nine CAB members must have direct links to marijuana cultivation, retail sales, manufacturing, testing, medical dispensaries, medical and recreational consumption, and legal services for these activities. A distinct minority of six members represent public health, law enforcement, and social welfare concerns. H3932 at lines 45-52. 36 More specifically, H3932 lines 448-450 (Cannabis Control Commission to issue licenses to marijuana treatment center owners on a priority basis in first year); 361, 371-373 (must let treatment center owners carry on commercial operations at the same location where they engage in medical services); 231-234 (limitation on local governments when zoning medical treatment centers who transition to commercial sales); 15-18, 44-52 (Cannabis Commission has “sole regulatory authority” over marijuana commercial activity and is advised by a board with a majority of commercially connected members; no mention or authority given to Department of Public Health in the new commercial system).

42

Abdow, 468 Mass. at 503 (although not dispositive,

“[e]vidence of differing motivations is relevant to the

relatedness analysis, because it might bear on the

likelihood of ‘logrolling’”).37

Logrolling was a deep concern of the legislators who

spent weeks debating Article 48 in 1917 and 1918. Carney,

447 Mass. at 226-227 citing Cohen v. Attorney Gen., 357

Mass. 564, 571 (1970). At the time, one member of the

Commission on Initiative and Referendum predicted that,

without some control, logrolling would be rampant. In his

words, initiative proposals would become “full of tricks

and jokers, as alluring a combination of what is popular

with what is desired by selfish interests as the proposers

of the measures may choose.” Id. at 227 citing 2 Debates in

the Massachusetts Constitutional Convention 1917-1918 at

11-12. His concern, eloquently stated, manifests itself

almost 100 years later in petition 15-27.

If the 15-27 petitioners believe that the voters

should legislate a solution to the problem of marijuana

access for recreational purposes, Article 48 requires that

voters be entitled to make such a decision without also

37 It is telling that the treatment accorded to medical marijuana owners is not mentioned as a purpose or intent of 15-27, yet it is obviously a prominent feature of the initiative. See H3932 at lines 2-7.

43

being forced to render simultaneous judgment on the wisdom

of transforming the non-profit, medical marijuana system.

Carney commands this because a reasonable Massachusetts

voter should never be placed in the “untenable position of

casting a single vote on two or more dissimilar subjects.”

Abdow, 468 Mass. at 499.

Another factor in the Carney petition’s demise was its

“radically diverse ‘mixture of criminal law and

administrative overhaul.’” Id. at 503 citing Carney, 447

Mass. at 231. Carney noted the incongruous impact of an

initiative that affects criminal law (higher penalties for

animal cruelty) and administrative law too (shut down a

heavily regulated industry). Similar to Carney, initiative

15-27 mixes changes to the criminal law with

“administrative overhaul.” Id.

On the one hand, 15-27 repeals criminal law related to

the cultivation, distribution and possession of marijuana.

See, e.g., H3932 at lines 463-479. On the other hand, 15-27

nullifies administrative law in the heavily regulated

health care system and substitutes its own industry

regulators. See supra. note 35. To make matters more

disconnected, 15-27 also rejects longstanding food safety

laws under G.L. Chapter 94, and gives those

44

responsibilities to the new industry regulators. See H3932

at lines 220-224, 307-310.

The detailed subterfuge of 15-27 harkens back to what

another member at the original Consititutional Convention

warned. The risks of logrolling increase with the

complexity of a proposed law. Carney, 447 Mass. at 227

citing 2 Debates at 701. This is true in petition 15-27,

which comprises 695 lines of text, codified in 32 pages.

See H3932, JA at 107-144. Compare Abdow, 468 Mass. at 511

(initiative to stop casinos, slots and greyhound simulcast

wagering contained three, short sections). Albano v.

Attorney Gen., 437 Mass. 156, 158 n. 4 (2002)(entire

petition was one paragraph).

In fact, the initiative petition which created the

medical marijuana program is significantly shorter than

initiative 15-27, which is largely designed to undo it for

the benefit of its current and future group of treatment

center owners. Compare Chapter 369 of the Acts of 2012

(entire law is 2,382 words, comprising 255 lines of text),

Addendum at 51, with H3932 (entire law is 8,459 words,

comprising 695 lines of text), JA, supra. 107-144.

The petitioners behind 15-27 will probably emphasize

that their proposed law exhibits “operational relatedness

among its substantive parts.” Carney, 447 Mass. at 230-231.

45

On the surface, their argument may have some appeal. After

all, their initiative legalizes marijuana; allows people 21

and over to possess it and buy it; and regulates the

merchants who perform these functions, including medical

marijuana operators.

But this argument conspicuously avoids the other,

equally important component of the Carney test. The manner

in which the proposed law will “operate” has to be a

“unified statement of public policy” that average citizens

may affirm or reject at the ballot box. This is the

protection that the voters deserve against logrolling. Id.

It is hardly a “unified statement of public policy”

when an initiative like 15-27 bestows preferential

treatment on present and future owners of medical marijuana

treatment centers under the guise of marijuana

legalization. This is the same reason why, in Carney, this

Court called a foul on an initiative that abolished a

specific, regulated industry under the guise of animal

protection. Id. at 231. Compare, e.g., Mazzone v. Attorney

Gen., 432 Mass. 515, 529 (2000)(goal of expanding drug

treatment services through courts passed the “relatedness”

test because, as the Attorney General certified, it was

“fairly” funded).

46

The Carney Court effectively explains why the Attorney

General’s “gatekeeping” on the relatedness issue is so

important to Article 48: “Unlike a legislator, the voter

has no opportunity to modify, amend, or negotiate the

sections of a law proposed by popular initiative. He or she

cannot sever the unobjectionable from the objectionable.”

447 Mass. at 229-230.

This is the crux of the constitutional violation here.

The language of 15-27, had it been filed with the

Legislature, could have been referred to a committee,

subjected to hearings, and amended to remove its more

blatant, protectionist features. Maybe, in time, it would

have been enacted or rejected.38

As an initiative petition, 15-27 must be assessed by

the Attorney General, the last “gatekeeper” before it is

certified and presented to the people in a signature-

gathering process. See generally State Ballot Question

38 At the Constitutional Convention in 1917-1918, while expressing his concern about logrolling in the initiative process, Mr. Luce remarked: “But, sir, you now invite self-seekers who cannot get their legislation through the General Court to turn to the people whom they may wheedle or deceive into granting the privileges that our representatives never would permit. I have time to refer but incidentally to the measures that become law through the blind wording of titles or to catchy provisions.” Carney, 447 Mass. at 227 n.20 (citations omitted).

47

Petitions (published by Sec. of Commonwealth,

www.sec.state.ma.us/ele, revised Aug. 2015) at 3-5.

To carry out this gatekeeping function, the Attorney

General must “scrutinize the aggregation of laws proposed

in the initiative petition for its impact at the polls.”

Carney, 447 Mass. at 226. Unfortunately, the Attorney

General failed to recognize that 15-27 is a proposed law

“full of tricks and jokers, as alluring a combination of

what is popular with what is desired by selfish interests.”

Id. at 227 (citation omitted).

Because initiative 15-27 does not “permit a reasonable

voter to affirm or reject the entire petition as a unified

statement of public policy” [id. at 230-231], Article 48

prohibits its certification as a matter of law.

III. IN THE EVENT THAT THIS COURT DOES NOT DECERTIFY

INITIATIVE PETITION 15-27, IT SHOULD REQUIRE THAT THE ATTORNEY GENERAL AMEND THE BALLOT QUESTION TITLE, “YES” AND “NO” STATEMENTS, AND SUMMARY IN A MANNER THAT MAKES THEM NO LONGER MISLEADING TO VOTERS.

To help educate voters, the law directs the Attorney

General to prepare three pieces of information:

• Title. A title for the ballot question, which appears in

the Voter Guide sent by the Secretary of the Commonwealth

to citizens prior to the election. G.L. c. 54, § 53.

48

• “Yes” and “No” Statements. Two sentences describing the

impact of a “yes” or “no” vote, which appear in the Voter

Guide and on the ballot. Id.

• Summary. A more detailed summary, which also appears in

the Voter Guide and on the ballot. Art. 48, The

Initiative, Part II § 3.

This fabric of voter information — the title, statements

and summary — are the only officially neutral sources of

information prepared for citizens. 39 Now is the time to

correct any deficiencies because the Secretary of the

Commonwealth has not yet printed these items. SAF ¶14.

Massachusetts Teachers Ass’n, 384 Mass. at 229-230.

A. Title & Statements

Under G.L. c. 54, § 53, the Supreme Judicial Court may

grant relief by issuing an order to the Attorney General

and Secretary of the Commonwealth if it is clear that the

title and/or statements are misleading. 40 American Heritage

Dictionary defines “mislead”:

“1. To lead or guide in the wrong direction. 2. To lead into error or wrongdoing in action or thought; influence badly . . . Synonyms: misleading, deceptive, delusive. Misleading is

39 G.L. c. 54, § 54 directs that proponents and opponents of an initiative be given 150 words to state their point of view. These statements go in the Voter Guide, but do not appear on the ballot. 40 An action under § 53 must be brought by fifty voters. Plaintiffs in this case number 59 voters. SAF ¶¶1-2.

49

the most nonspecific of these terms; it makes no clear implication regarding intent. Deceptive applies almost exclusively to surface appearance, and may imply deliberate misrepresentation. Delusive stresses calculated misrepresentation or sham.”

Although the more stringent standard of “deceptive”

intent has long populated our jurisprudence, 41 the

Legislature avoided it in fashioning a remedy under Section

53 because of the likelihood that an incomplete or faulty

description of a ballot initiative – even one drafted in

good faith – might sabotage the will of the electorate.

Since the misleading nature of these three components

may be gleaned by referencing the language of the ballot

question itself, this Court is in a good position to assess

and correct any deficiency. Massachusetts Teachers Ass’n,

348 Mass. at 229-230.

Instead of “Marijuana Legalization” as the title for

initiative 15-27, a more accurate title is:

Legalization of Hashish, Food Products with Tetrahydrocannabinol (THC), and Marijuana.

The reasons in support of this version were discussed

supra. in Part I, at 19-31, and need not be repeated here.

For a “yes” statement, the Attorney General submitted

for publication: “A YES vote would allow the possession,

41 See, e.g., G.L. c. 93A, s. 7 (requiring proof of unfair and deceptive conduct on the part of commercial businesses engaged in what amounts to consumer fraud).

50

use, distribution, and cultivation of marijuana, including

tetrahydrocannabinol (THC), in limited amounts by persons

21 and older, and would provide for the regulation and

taxation of commercial sale of such marijuana, marijuana

accessories, and marijuana products." SAF ¶¶10-11.

The Plaintiffs more accurate statement is:

A YES VOTE would allow the possession, use, distribution, and cultivation of hashish and marijuana in limited amounts by persons age 21 and older, and would provide for the regulation and taxation of hashish and marijuana, their accessories, and all edible food products containing the controlled substance known as tetrahydrocannabinol (THC).

The Plaintiffs only add 9 words to the Attorney General’s

version. The reasons for the Plaintiffs’ recommendation

were discussed supra. in Part I, at 19-31.

One issue does merit separate emphasis, however. The

Attorney General’s formulation contains the phrase,

“cultivation of marijuana, including tetrahydrocannabinol

(THC), in limited amounts by persons 21 and older.” While

the Attorney General will maintain that the phrase “in

limited amounts” modifies “persons 21 or older,” the

Plaintiffs disagree and feel that the average voter will

believe that the words, “in limited amounts,” modifies THC.

This conclusion would be highly misleading because, as this

Court well knows, initiative 15-27 does not limit the

51

“concentration” of THC in marijuana products and edibles.

It is the “concentration” of THC, not the amount of the

drug, that makes its inclusion in concentrated marijuana,

hashish, and edibles so powerful, and places it in Class C

under Massachusetts law. See supra. at 26-28, especially

notes 21,23 and 24.

As for the “no” statement, the Attorney General

submitted for publication: “A NO VOTE would make no change

in current laws relative to marijuana.” SAF ¶12.

Plaintiffs propose:

A NO VOTE would make no change in current laws relative to hashish and marijuana, and food product health and safety.

Plaintiffs add 8 words to the Attorney General’s version.

B. Summary

The oversights and inaccuracies of the summary were

the subject of Part I of this brief, supra. at 19-36. To

facilitate this Court’s order to re-draft the summary,

Plaintiffs recommend that this Court view the Joint

Appendix at 21-22. The edited summary is written in the

neutral style required of the Attorney General and includes

52

the information missing from the initial summary done by

that office.42

CONCLUSION

For the foregoing reasons, the Plaintiffs request that

this Court enter an order declaring that Petition 15-27

does not meet the requirements of Article 48 to be placed

on the ballot. Consequently, Plaintiffs further request

that this Court enjoin the Attorney General and the

Secretary of the Commonwealth from placing this measure on

the November 2016 State election ballot.43

Respectfully submitted, JOSEPHINE HENSLEY & OTHERS

Plaintiffs

By: _______________________________ John Sofis Scheft (BBO No.548369), Of Counsel

BELLOTTI LAW GROUP, P.C. The Schrafft Center, Suite 128

529 Main Street Boston, MA 02129-1125

Email: john@ledimensions.com Office: 617) 225-2100 Cell: (781)859-9249

42 The document was edited in the “track changes” function, so this court will be able to see exactly what changes the Plaintiffs proposed. 43 Alternatively, Plaintiffs request that this Court order the Attorney General and the Secretary of the Commonwealth to amend the voter education materials described in section III, supra., to make them less misleading to the voters.

53

CERTIFICATE OF COMPLIANCE

I hereby certify that the above brief complies with

the rules of court that pertain to the filing of briefs,

including, but not limited to: Mass. R. App. P. 16(f);

Mass. R. App. P. 16(e); Mass. R. App. P. 16(f); Mass. R.

App. P. 16(h); Mass. R. App. P. 17; and Mass. R. A. P. 20.

________________________________ John Sofis Scheft (BBO # 548369)

Counsel for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that I filed with the Court one

original of the above brief. On _________________________,

I transmitted two copies to counsel for each party via U.S.

Mail, postage pre-paid.

________________________________ John Sofis Scheft (BBO # 548369)

Counsel for Plaintiffs

ADDENDUM

Note: The first two pages of the Addendum, which feature

pictures of marijuana concentrate and edible products were

furnished to counsel by Dr. Kevin Sabet, President of Smart

Approaches to Marijuana (SAM). To learn more about SAM, go to

https://learnaboutsam.org/

Page 1 of 63Page 1 of 66

Page 2 of 63Page 2 of 66

1. Com. v. Nissenbaum Supreme Judicial Court of Massachusetts, Hampden. April 12, 1989 404 Mass. 575 536 N.E.2d 592

2. Com. v. Truax Supreme Judicial Court of Massachusetts, Worcester. March 25, 1986 397 Mass. 174 490 N.E.2d 425

3. Com. v. Bousquet Supreme Judicial Court of Massachusetts, Bristol. July 05, 1990 407 Mass. 854 556 N.E.2d 37

4. Com. v. Johnson Supreme Judicial Court of Massachusetts, Berkshire. May 20, 1991 410 Mass. 199 571 N.E.2d 623

5. Com. v. Melendez-Diaz Appeals Court of Massachusetts, Suffolk. February 03, 2010 76 Mass.App.Ct. 229 921 N.E.2d 108

6. Com. v. Saleh Supreme Judicial Court of Massachusetts, Hampden. December 17, 1985 396 Mass. 406 486 N.E.2d 706

7. Com. v. Feyenord Appeals Court of Massachusetts, Worcester. October 01, 2004 62 Mass.App.Ct. 200 815 N.E.2d 628

8. Com. v. Vasquez Supreme Judicial Court of Massachusetts, Hampden. March 26, 2010 456 Mass. 350 923 N.E.2d 524

9. Com. v. Madera Appeals Court of Massachusetts, Essex. January 22, 2010 76 Mass.App.Ct. 154 2010 WL 188736

10. Com. v. Miller Supreme Judicial Court of Massachusetts, Bristol. April 24, 1972 361 Mass. 644 282 N.E.2d 394

11. Com. v. Fiore Appeals Court of Massachusetts, Hampden. April 24, 1980 9 Mass.App.Ct. 618 403 N.E.2d 953

12. Com. v. Podgurski Supreme Judicial Court of Massachusetts, Norfolk. June 02, 1982 386 Mass. 385 436 N.E.2d 150

13. Com. v. Rugaber Supreme Judicial Court of Massachusetts, Hampden. February 26, 1976 369 Mass. 765 343 N.E.2d 865

14. Com. v. Weeks Appeals Court of Massachusetts, Bristol. February 11, 1982 13 Mass.App.Ct. 194 431 N.E.2d 586

15. Com. v. MacDonald Supreme Judicial Court of Massachusetts, Middlesex. March 18, 2011 459 Mass. 148 945 N.E.2d 260

Page 3 of 63Page 3 of 66

16. Com. v. Rodriguez Supreme Judicial Court of Massachusetts, Suffolk. April 27, 2010 456 Mass. 578 925 N.E.2d 21

17. Com. v. Shea Appeals Court of Massachusetts, Plymouth. November 09, 1989 28 Mass.App.Ct. 28 545 N.E.2d 1185

18. Com. v. Feyenord Supreme Judicial Court of Massachusetts, Worcester. September 02, 2005 445 Mass. 72 833 N.E.2d 590

19. Com. v. Sendele Appeals Court of Massachusetts, Suffolk. November 14, 1984 18 Mass.App.Ct. 755 470 N.E.2d 811

20. Com. v. Ramirez Appeals Court of Massachusetts, Essex. February 27, 2003 57 Mass.App.Ct. 475 784 N.E.2d 632

21. Com. v. Voris Appeals Court of Massachusetts, Middlesex. April 07, 1995 38 Mass.App.Ct. 377 647 N.E.2d 1224

22. Com. v. Scalise Supreme Judicial Court of Massachusetts, Berkshire. September 15, 1982 387 Mass. 413 439 N.E.2d 818

23. Com. v. Fontaine Supreme Judicial Court of Massachusetts, Worcester. June 08, 1988 402 Mass. 491 524 N.E.2d 75

24. Com. v. Brown Supreme Judicial Court of Massachusetts, Middlesex. August 07, 1984 392 Mass. 632 467 N.E.2d 188

25. Com. v. Aiello Appeals Court of Massachusetts, Middlesex. June 23, 2000 49 Mass.App.Ct. 496 730 N.E.2d 897

26. Com. v. Fernandes Appeals Court of Massachusetts, Plymouth. March 26, 1991 30 Mass.App.Ct. 335 568 N.E.2d 604

27. Com. v. Dolby Appeals Court of Massachusetts, Berkshire. December 01, 2000 50 Mass.App.Ct. 545 738 N.E.2d 1147

28. Com. v. Camerano Appeals Court of Massachusetts, Worcester. March 26, 1997 42 Mass.App.Ct. 363 677 N.E.2d 678

29. Com. v. Flaherty Supreme Judicial Court of Massachusetts, Franklin. February 03, 1971 358 Mass. 817 266 N.E.2d 875

30. RYO Cigar Ass’n, Inc. v. Boston Public Health Com’n Appeals Court of Massachusetts, Suffolk. July 26, 2011 79 Mass.App.Ct. 822 950 N.E.2d 889

Page 4 of 63Page 4 of 66

31. Com. v. Helme Supreme Judicial Court of Massachusetts, Bristol. February 24, 1987 399 Mass. 298 503 N.E.2d 1287

32. Fontaine v. Chief of Police of Lancaster Appeals Court of Massachusetts. December 20, 2002 56 Mass.App.Ct. 1116 780 N.E.2d 488

33. Com. v. Billups Appeals Court of Massachusetts, Hampden. March 04, 1982 13 Mass.App.Ct. 963 432 N.E.2d 105

34. Society of Jesus of New England v. Boston Landmarks Com’n Supreme Judicial Court of Massachusetts, Suffolk. December 31, 1990 409 Mass. 38 564 N.E.2d 571

35. Com. v. Bennett Supreme Judicial Court of Massachusetts, Barnstable. January 08, 1997 424 Mass. 64 674 N.E.2d 237

36. Com. v. Rostad Supreme Judicial Court of Massachusetts, Hampshire. July 10, 1991 410 Mass. 618 574 N.E.2d 381

37. Matter of Tobin Supreme Judicial Court of Massachusetts, Suffolk. February 16, 1994 417 Mass. 81 628 N.E.2d 1268

38. Com. v. Costa Supreme Judicial Court of Massachusetts, Barnstable. November 01, 1971 360 Mass. 177 274 N.E.2d 802

39. Com. v. Yelle Appeals Court of Massachusetts, Hampden. March 12, 1985 19 Mass.App.Ct. 465 475 N.E.2d 427

40. Com. v. McColl Supreme Judicial Court of Massachusetts,Suffolk. May 23, 1978 375 Mass. 316 376 N.E.2d 562

41. Com. v. Antobenedetto Supreme Judicial Court of Massachusetts, Middlesex. July 25, 1974 366 Mass. 51 315 N.E.2d 530

42. Com. v. Lawrence Appeals Court of Massachusetts, Berkshire. July 26, 2007 69 Mass.App.Ct. 596 870 N.E.2d 636

43. Com. v. Frank Supreme Judicial Court of Massachusetts, Bristol. January 12, 2001 433 Mass. 185 740 N.E.2d 629

44. Matter of Scott Supreme Judicial Court of Massachusetts, Suffolk. February 21, 1979 377 Mass. 364 386 N.E.2d 218

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15-23.doc 1

Initiative Petition for a Law ending marihuana prohibition for persons 21 years of age or older

BE IT ENACTED by the People, and by their authority, as follows:

SECTION 1 Short title

This act shall be known and may be cited as the Marijuana Regulation and Taxation Act.

SECTION 2 Declaration of policy; purposes

It is the policy of this commonwealth to secure the fundamental right of persons 21 years of age and older to acquire, possess, consume and cultivate marihuana for their personal use and that of their household members and adult guests, and to direct its limited resources toward suppressing the availability of marihuana to persons under 21 years of age.

The purposes of this act are to: advance the policy of the commonwealth; establish uniform statewide regulation of the cultivation of cannabis and of commerce involving marihuana by persons 21 years of age and older; prevent interference with parental rights due solely to the lawful conduct of a parent or child’s caregiver relative to marihuana; provide persons who lawfully consume marihuana while off duty equal treatment with those who consume alcoholic beverages in employment practices; provide equal treatment of those who consume marihuana by smoking with tobacco users by residential landlords, provide equal treatment of those who consume marihuana by smoking in public with those who consume alcoholic beverages in public; provide opportunity for domestic farms and manufactures; and, encourage scientific research into the uses of the produce of the cannabis plant as medicine and other products.

SECTION 3 Construction

This act shall be liberally construed to accomplish its policy and purposes.

It shall be construed to apply retroactively where retroactive application is constitutionally authorized.

It shall not be construed to:

alter the drug-free school provisions of section 37H of chapter 71 of the General Laws;

permit the operation while impaired by the consumption of marihuana of a motor vehicle, aircraft, watercraft, recreation vehicle or snow vehicle as provided in chapters 90 and 90B of the General Laws;

permit the operation of any commercial activity within 300 feet of the real property comprising a public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school, whether or not in session, or within 100 feet of a public park or public playground;

bar landlords of residential housing from prohibiting the smoking of marihuana, provided that the smoking of tobacco is also prohibited, or from prohibiting the cultivation of marihuana or extraction of resin from marihuana by a tenant and members of the tenant’s household for their own use;

alter the provisions of section 22 of chapter 270 of the General Laws relative to smoking in public places and other enumerated places except as provided herein;

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15-23.doc 2

limit any of the rights, privileges or immunities recognized or established by an “Act for the Humanitarian Medical Use of Marijuana”, chapter 369 of the acts of 2012; or

except as provided herein limit the application of the state tax code, laws concerning the adulteration and misbranding of food, other consumer protection laws, laws concerning agriculture and conservation, regulation of trade and public safety.

SECTION 4 Amendments to the Controlled Substances Act

Chapter 94C is amended as follows:

The first sentence of the definition of marihuana in Section 1 is amended by inserting after the words “any part of the plant” the following words—

“that contain tetrahydrocannabinol”.

The first sentence of the definition of marihuana in Section 1 is further amended by inserting at the end of the sentence after the word “resin”, the following words—

“that contain tetrahydrocannabinol”.

Section 1 is further amended by amending the definition of “Tetrahydrocannabinol” by striking the words—

“except when it has been established that the concentration of delta-9 tetrahydrocannabinol in said marihuana exceeds two and one-half per cent”.

Chapter 94C is further amended by inserting the following sections 31A–31G:

Section 31A Cultivation, possession and transportation of marihuana for private use

This chapter shall not apply to the acquisition, possession, consumption, cultivation and transportation of marihuana by persons over the age of 21, or to 2 or more such persons who do not share a single household who agree to use land or buildings owned or rented by one 1 or more such persons for the cultivation of marihuana for their personal use and that of their household members and guests over the age of 21, provided that the places of cultivation and storage comply with section 31C and that when transported in a motor vehicle such marihuana shall be secured in sealed packaging, or not in the passenger area of the vehicle, as defined in section 24I of chapter 90 of the General Laws.

A violation of this section’s provision for transportation shall subject an offender to a civil fine of up to $300.

No municipality shall enact any bylaw or ordinance, rule or regulation that prohibits the use by lawful occupants 21 years of age or older of residential property in the exercise of their right to cultivate marihuana, possess it for their personal use and that of their household members and guests 21 years of age and older or to 2 or more such persons who do not share a single household who agree to use land or buildings owned or rented by one 1 or more such persons that imposes additional requirement upon such use.

No municipality shall enact any bylaw, ordinance or regulation that imposes any penalty greater than that imposed upon those possessing an open container of alcoholic beverage in public, for publicly consuming marihuana or for displaying an open container of marihuana or marihuana product in public, and any such ordinance or bylaws shall in the

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15-23.doc 3

first instance be enforced by the noncriminal disposition process in section 21D of chapter 40 of the General Laws.

Section 31B Cultivation, possession and storage of marihuana and marihuana products for sale, sales tax

Except as provided herein, this chapter shall not apply to the cultivation or possession of marihuana with intent to sell, or the selling or transport of marihuana possessed with the intent to sell by any person, provided that the places of cultivation and storage comply with section 31C, retail sales and advertising are conducted in accordance with Section 31D and that when transported in a motor vehicle such marihuana shall be secured in sealed packaging, or not in the passenger area of the vehicle, as defined in section 24I of chapter 90 of the General Laws.

The provisions of sections 186, 187, 188-190, 192 and 193 of chapter 94 of the General Laws in the case of food shall apply to marihuana and marihuana products being offered for sale; however, marihuana shall not be considered for purposes hereof a poisonous or deleterious substance.

The provisions of chapter 64H shall apply to the retail sale of marihuana. The provisions of 64I shall apply to the storage, use or other consumption in the commonwealth of marihuana. In municipalities that have adopted chapter 64L said tax shall apply to retail sales of meals prepared with marihuana as an ingredient.

Of the tax collected less all amounts allowed as refunds and abatements, 12.5% shall be credited to the Agricultural Resolve and Security Fund established in section 2III and 12.5% shall be credited to the Commonwealth Substance Abuse Prevention and Treatment Fund established in section 2BBBB of chapter 29 and spent for the purposes thereof subject to appropriation by the legislature.

Section 31C Preventing access to marihuana by persons under 21 years of age

Whoever is authorized by this chapter to cultivate or possess marihuana shall:

cultivate inside a building or room within a building, greenhouse or outside behind 6-foot fencing that is locked when the owner or authorized person over the age of 21 is not present, on private property leased or owned by them and that the growing plants are not visible to the naked eye 6 feet 6 inches above the ground at the property line with abutting public or private property; and

store harvested plants and marihuana in a locked room or container when the owner or other lawfully authorized adult is not present.

A violation of this section shall be punished by a civil fine of up to $300.

Any person 21 years of age or older who fails to comply with the provisions of this section and as a result of such noncompliance a person under the age of 21, not his spouse, who was a foreseeable trespasser or guest acquires marihuana shall be punished by a fine of not more than $2,000 or by imprisonment for not more than 1 year or both.

SECTION 31D Prevention of persons under the age of 21 from accessing marihuana from retailers and regulation of advertising:

(A) Retailers, cannabis cafés and clubs shall

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15-23.doc 4

(a) deny persons under the age of 21 access to rooms in which marihuana or marihuana products are served, displayed for sale by verifying by means of valid government-issued photographic identification that each person entering the sales room is 21 years of age or older and repeating the verification prior to sale—no such verification is required for any person who appears 27 years of age or older—and, if employing 6 or more persons, shall undertake an in-house secret shopper program consisting of at a minimum, 6 visits per year to the establishment by a person retained by the establishment, where a person poses as a customer in order to ensure compliance by the employees with laws prohibiting the entry and sale of marihuana or marihuana products to persons under 21 years of age, with each visit made on a different day and at a different time, and, where practical, to a different outlet employee;

(b) not use vending machines or any other electronic or mechanical device to effectuate sales of marihuana or marihuana products;

(c) not use self-service displays of marihuana or marihuana products;

(d) not display marihuana or marihuana products exposed for sale to persons outside the sales room;

(e) implement and operate a training program for all employees who handle exchanges of marihuana or marihuana products regarding compliance with laws prohibiting the sale of marihuana or marihuana products to juveniles and minors;

(f) post a copy of the penalties set forth in subdivision (1) of section 24 of chapter 90 for driving under the influence and for the sale, delivery or furnishing marihuana or marihuana products to a juvenile or minor. Said copies shall be posted conspicuously by the owner or person in charge of the respective establishment.

(g) place purchases in sealed containers;

(h) affix to all packages containing marihuana a label in boldface font of not less than 10 points, with these warnings, in boldface: “For adults only. Keep out of reach of children”, “May be habit-forming”, “It is a crime to operate a motor vehicle, recreational vehicle, boat or aircraft if impaired by consumption of this product” and “This product must be stored in a locked container when you are not present.”

(B) Advertising

(a) Outdoor advertising of marihuana or marihuana products, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of the establishment, in any location that is within a 1,000-foot radius of any public playground, playground area in a public park, elementary school or secondary school is prohibited.

(b) Point-of-sale advertising of marihuana or marihuana products outside of the sales room may be placed on the premises, provided that no portion of such advertising is placed lower than 5 feet from the floor of any retail establishment which is located within a 1,000-foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment.

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(c) No signs or other printed matter advertising any brand or kind of marihuana or marihuana product shall be displayed on the exterior or interior of any licensed premises where such a brand or kind of marihuana or marihuana product is not regularly and usually kept for sale.

(d) The use of vehicles equipped with either radio or loudspeakers for the advertising of marihuana or marihuana products is prohibited. The use of radio or loudspeaker equipment in any licensed premises for the purpose of attracting attention to the sale of marihuana or marihuana products therein is also prohibited.

Any retailer that violates the provisions of this section shall be subject to a civil penalty of $300 but not to any other form of criminal or civil punishment or disqualification.

Section 31E Types of marihuana businesses authorized

“Cannabis café”, an establishment licensed as a common victualler or innholder pursuant to section 2 of chapter 140 licensed by the municipal licensing authority to engage in retail sale of marihuana including foods prepared with marihuana as an ingredient for consumption by customers on the premises by smoking, eating or otherwise ingesting marihuana. No cannabis café shall be granted an on-premises alcoholic beverage license, nor permit the consumption of alcoholic beverages on the premises or permit consumption of marihuana by patrons that the manager of the cannabis café knows or has reason to know recently consumed alcoholic beverages prior to entering the premises.

“Club”, an exclusively social or fraternal association or corporation, not organized for private profit, owning, hiring or leasing land, buildings, or space in a building of such extent and character as may be suitable and adequate for the reasonable and comfortable use and accommodation of its members and their guests for the consumption on the premises by smoking, eating or otherwise ingesting marihuana and the sharing of marihuana licensed by the local licensing authority, provided that its affairs and management are conducted by a board of directors, executive committee, or similar body chosen by the members at its annual meeting. No club shall be granted an on-premises alcoholic beverage license, nor permit the consumption of alcoholic beverages on the premises or permit consumption of marihuana by patrons that the manager of the club knows or has reason to know recently consumed alcoholic beverages prior to entering the premises. Such club shall file with the local licensing authority annually within 3 months after January 1st in each year a list of the names and residences of its officers, together with the amount of salary or compensation received by each employee engaged in the handling of marihuana.

“Marihuana farm”, a parcel of 5 acres or more or a parcel of 2 acres or in an area zoned for agriculture, horticulture, floriculture or viticulture as set forth in the first paragraph of section 3 of chapter 40A of the General Laws G.L. c. 40A, on which a farmer intends to cultivate cannabis with the intent to sell at retail or wholesale marihuana.

“Marihuana farmer’s market”, a public market for the primary purpose of connecting and mutually benefiting Massachusetts marihuana farmers, communities, and adult shoppers while promoting and selling products grown and raised by participating farmers.

“Marihuana products producer”, a person or business entity licensed by the department of public health, which license shall be granted if the applicant establishes that it will prepare,

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test, package and label the “marihuana products” it produces by extraction from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant; such products are commonly called hashish, hash oils and edibles, in conformance with the department’s regulations for MMTCs as amended from time to time.

“Medical marijuana treatment center” or “MMTC”, a not-for-profit entity established pursuant to Chapter 369 of the Acts of 2012 and department of public health regulations. A MMTC may register as a retailer and collect sales tax only from adults not registered as a patient.

“Retailer”, a person or business entity offering to sell to persons 21 years of age or older at retail raw marihuana and marihuana products who has registered each location at which sales are conducted with the commissioner of the department of revenue in accordance with section 67 of chapter 62C. Such registration shall specify as the tax type “sales tax on marihuana.”

Section 31F Local bylaws and ordinances regulating marihuana farms, marihuana farmers’ markets, marihuana product producers, retailers, cannabis cafes and clubs

No municipality shall enact any bylaw or ordinance, rule or regulation that imposes additional requirements or fees upon:

marihuana farms than imposed upon any other farm engaged in horticulture;

marihuana farmers registered as retailers joining with other marihuana farmers so registered and holding a marijuana farmer’s market on an appropriate site, except that the municipal licensing authority may require a daily fee for a license to hold such a farmer’s market, not to exceed $100;

marihuana products producers than imposed upon any other food processing use;

retailers than those imposed upon sellers of tobacco products;

cannabis cafés or clubs beyond those imposed upon common victuallers licensed to sell alcoholic beverages for on-premises consumption, however a municipality may limit the number of such licenses issued in the municipality to the number of licenses it may issue for the sale of alcoholic beverages for on-premises consumption.

Section 31G Municipal Taxes on cannabis cafés and clubs

Municipalities may levy, assess and collect on or before June 30 of each year from:

cannabis cafés an excise at the rate of 0.75 per cent of such taxpayer’s gross receipts in the prior calendar year; and

clubs an excise at the rate of $25 for each person who was a member during the prior 12 months as of May 1 preceding.

Section 32L is amended by inserting after the word “program” in the third sentence–

“, substance abuse evaluation”.

Section 32M as amended by section 34 of chapter 84 of the acts of 2013 is amended by adding the following paragraph–

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Such an offender shall also undergo a substance abuse evaluation conducted by a licensed alcohol and drug counselor as defined in section 1 of chapter 111J, and a report of the evaluation shall be provided to the parents or legal guardian and to the offender if over the age of 16.

Section 32N is amended by adding the following paragraph:

The police department issuing the citation on behalf of the municipality in which the offense occurred, or the municipality shall, if the civil fine is not paid when due, enforce collection of the civil fine using the procedure authorized by section 21 of chapter 218. The offender in such action shall be deemed to have waived all defenses except sufficiency of the service of the citation and the right of appeal provided in section 23 of chapter 218. The court shall not impose a filing fee for such action. The court shall award the municipality $300 in damages together with interest at the rate of 12 percent per annum from the twenty-first day after the citation issued.

Chapter 94C is further amended by inserting the following sections 32O–32Q:

Section 32O Sale, distribution or delivery of marihuana to person under 21 years of age

(1) Any person 21 years of age or older who sells, distributes or delivers marihuana to a person they know or should know is under 21 years of age, not his or her child, grandchild, ward or spouse shall be punished by a fine of not more than $3,000 or by imprisonment for not more than 2 years or both.

(2) Any person convicted of violating subsection (1) of this section after one or more prior convictions, or of any offense of any other jurisdiction, federal, state, or territorial, which is the same as or necessarily includes the elements of said offense, shall be imprisoned in state prison for not more than 5 years or a house of correction for not more than 2 years, or a fine of not less than $3,000 nor more than $5,000 or both such fine and imprisonment.

Section 32P Allowing marihuana consumption by underage guests

Any person 21 years of age or older who knowingly allows a person under 21 years of age, except for the spouse, wards, children and grandchildren of the person being charged, to consume marihuana on premises or property owned or controlled by the person charged shall be punished by a fine of not more than $2,000 or by imprisonment for not more than 1 year or both.

Section 32Q Administering marihuana to another without that person’s knowledge and consent

Whoever intentionally administers marihuana or causes marihuana to be ingested by a person without that person’s knowledge and consent, or whoever intentionally leaves unattended marihuana in a public place shall be punished by a term of imprisonment in the state prison for not less than two and one-half nor more than 5 years or by imprisonment in a jail or house of correction for not less than 1 nor more than two and one-half years and a fine of not less than $500 nor more than $10,000.

Section 32R Delivery of marihuana as prima facie evidence of sale

The delivery of marihuana in or from a building, booth, stand or other place, except a private dwelling-house, or in or from a private dwelling-house if any part of it or its

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dependencies is used as an inn, eating house or shop of any kind, or in or from any other place of common resort, such delivery in any case being to a person not a resident therein, shall be prima facie evidence that such delivery is a sale.

Section 32S Issuance of search warrant for marihuana kept or deposited contrary to law

Search warrants may issue upon the application of 2 persons of full age under oath setting forth the facts upon which they rely for their belief that marihuana described in the application is kept or deposited by a person named therein in the place specified therein and intended for sale contrary to law. In all other respects such application, warrant and execution shall comply with the provisions of sections 1, 2, 2A, 2B and 3 of chapter 276.

Section 32T Search of dwelling-house and associated real property for marihuana

A warrant shall not issue for the search of a dwelling-house or real property associated with it, if no inn, tavern, store, grocery, eating house or place of common resort is kept therein, unless affiant states under oath that upon personal knowledge or reliable information from an identified person that marihuana has been sold therein or taken therefrom for the purpose of being sold, either by the occupant, or with the occupant’s consent or permission, contrary to law, within 2 weeks previous to the filing of the application. In all other respects such application, warrant and execution shall comply with the provisions of sections 1, 2, 2A, 2B, 3 and 3A of chapter 276.

SECTION 5 Amendment to the term “misbranded” as used in Section 187 of chapter 94

Section 187 of chapter 94 of the general laws is hereby amended by striking the words ”cannabis” and “marihuana” following the words, “Fifth, if it is for use by man and contains any quantity of the narcotic or hypnotic substance”.

SECTION 6 Inquiry of defendant convicted of driving under influence of intoxicating liquor or marihuana as to establishment serving alcohol or marihuana

The first paragraph of section 24J of chapter 90 of the General Laws is hereby amended by inserting after the word “liquor” the words “or marihuana”.

The first paragraph of section 24J is further amended by inserting after the words “served alcohol” in the first paragraph the words “or marijuana”.

The first paragraph of section 24J is further amended by inserting after the words “alcohol on the premises” the words “or marihuana on the premises”.

The second paragraph of section 24J is amended by inserting after the word “shall” the words “in the case of alcohol”.

The second paragraph of section 24J is amended by inserting after the word “commission,” the words “or in the case of marijuana to the local licensing authority and”.

SECTION 7 Chapter 139 abatement of common nuisances

Section 14 of chapter 139 of the general laws is hereby amended by inserting after the word “thirty-eight” the words—“illegal keeping or sale of marihuana, as defined in chapter 94C,”.

SECTION 8 Employment of persons under 21 years of age prohibited

Section 62 of chapter 149 of the General Laws is hereby amended as follows:

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(a) inserting after the word “bottled” in clause (13) — “or if under the age of 21 in the cultivating of cannabis or harvesting of cannabis or the production and packaging of marihuana products”; and

(b) inserting after the word “liquors” in clause (14) —“or if under the age of 21 marihuana or marihuana products”.

SECTION 9 Protection and care of children

Chapter 119 of the general laws is hereby amended by inserting the following new section:

Section 86 In any administrative action or proceeding relating to the care and protection of a child under this chapter the presence of marihuana metabolites in a newborn’s bodily fluids, or conduct by a person caring for a child related to marihuana permitted under chapter 94C shall not form the sole or primary basis for supporting an allegation of neglect or abuse or for any action by the department or the basis for proceedings before the juvenile court.

SECTION 10 Custody of children (divorce)

Section 31 of chapter 208 of the general laws is amended by adding at the end of the paragraph that begins: “In making an order or judgment relative to the custody of children” the following sentence:

A parent’s conduct related to marihuana permitted under chapter 94C shall not be considered misconduct.

SECTION 11 Award of custody, criteria (children born out of wedlock)

Section 10 (a) of chapter 209C of the general laws is amended by adding at the end the following paragraph:

In making an order or judgment relative to custody or visitation, a parent’s or other person’s conduct related to marihuana permitted under chapter 94C shall not be considered a factor contrary to the best interest of the child.

SECTION 12 Employment practices

Section 4 of chapter 151B is hereby amended by inserting the following new subsection 4E:

For a public or private employer failing to treat adult off-duty consumption of marihuana in the same manner as they treat off-duty consumption of alcoholic beverages in their employment practices, unless the employer proves that failing to treat such activities equally would cause loss of a monetary benefit under federal law or regulations.

SECTION 13 Providing banking services to entities lawfully engaged in marihuana commerce in the commonwealth

The commissioner of banks shall promulgate rules and regulations establishing standards relative to the provision of banking services by banks or credit unions under his supervision for the provision of banking services to entities authorized to engage in marihuana commerce under chapter 94C of the general laws. Such regulations to be established by June 30, 2017.

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SECTION 14 Expungement of marihuana offenses from the databases of the Criminal Justice Information System and Criminal Offender Record Information System

The Department of Criminal Justice Information Services shall expunge from all databases maintained by it records of violations or alleged violations of section 34 of chapter 94C by persons 21 years of age or older at the time of the offense and of violations or alleged violations of section 32C of chapter 94C by persons 21 years of age or older at the time of the offense alleging cultivation of marihuana.

SECTION 15 Effective dates

This act shall be effective the day following the state secretary’s receipt from the governor and council of their determination of an affirmative vote on the question as provided by G.L. c. 54, § 115. We the undersigned state under the pains and penalties of perjury that we have personally read the final text of this proposed statute, fully subscribe to its contents, are qualified voters of the commonwealth at the addresses printed below our names, and freely and voluntarily agree to be one of its original signers as required by Amendment Article 48 of the Constitution of the Commonwealth of Massachusetts. _________________________________ Lester Grinspoon 130 Seminary Ave, Apt. 207, Auburndale, MA 02466 _________________________________ Madeline Webster 96 Melrose Street, Arlington, MA 02474 _________________________________ William H. Downing 14 Avon Street, Reading, MA 01867 _________________________________ Steven S. Epstein 55 West Street, Georgetown, MA 01833 _________________________________ Andy Gaus 382 Riverway, Apt. B, Boston, MA 02115

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_________________________________ Jeffrey Morris 1 Repton Place, #1122, Watertown, MA 02472 _________________________________ Scott A. Mortimer 59 Marlboro St., Newburyport, MA 01950 _________________________________ Marvin N. Cable 73 Bridge Street. Unit 6 Northampton, MA 01060 _________________________________ William Flynn 3 Oakland Street, Salem, MA 01970 _________________________________ Linda L. B. Noel 555 Lincoln Street, Franklin, MA 02038 _________________________________ James M. Pillsbury 10 Yorks Rd., Framingham, MA 01701 _________________________________ Kathryn Rifkin 18 Meadowbrook Road, Bedford, MA 01730 _________________________________ Graham Steele 144 Wheeler St, Gloucester, 01930 _________________________________ Jeanne M. Sauro 35 Meadowlark Lane, Franklin, MA 02038

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_________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address

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SUMMARY OF NO. 15-23

The proposed law would permit the cultivation,

distribution, possession, and use of marijuana by persons age 21

and older within Massachusetts and would remove existing

criminal penalties for such activities. It would regulate sales

of marijuana and marijuana products and taxation of proceeds.

Under the proposed law, municipalities could license

cannabis cafés or private clubs to sell marijuana and marijuana

products for consumption on the premises, but these

establishments could not sell alcoholic beverages for

consumption on the premises, could not allow consumption of

alcoholic beverages on the premises, and could not allow

consumption of marijuana on the premises by any person who the

licensee has reason to believe has consumed alcoholic beverages

before entering. The proposed law would authorize marijuana

farms, locally licensed marijuana farmers’ markets, and

marijuana products producers licensed by the state Department of

Public Health. Retailers could sell marijuana and marijuana

products at registered locations. A licensed medical marijuana

treatment center could also sell marijuana at retail.

The proposed law would allow municipalities to limit public

use of marijuana to the same extent that they limit open

containers of alcoholic beverages in public. Municipalities

could not treat marijuana providers differently than other

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farms, markets, food processors, or sellers of tobacco or

alcoholic beverages. Licenses for cannabis cafés and clubs

would be limited to the number of licenses issued by the

municipality for on-premises consumption of alcoholic beverages.

Marijuana retail sales would be subject to the existing state

sales tax, with 12.5% of tax revenues credited to the

Agricultural Resolve and Security Fund and 12.5% credited to the

Commonwealth Substance Abuse Prevention and Treatment Fund.

Cities and towns could impose annual taxes on vendors of

marijuana for on-premises consumption of .75% of gross revenues

and could assess an annual excise of $25 per club member on

private clubs that dispense marijuana.

The proposed law would make it a crime to deliver marijuana

to a person under 21 who is not the child, grandchild, ward, or

spouse of the defendant. The measure would impose criminal

penalties for knowingly allowing underage persons to consume

marijuana on premises owned or controlled by the defendant, for

intentionally causing the ingestion of marijuana without a

person’s consent, for leaving marijuana unattended in a public

place, and for failing to secure plants and marijuana from an

under-age person who is foreseeably present on the premises.

In addition, the measure would prohibit marijuana retailers

from allowing underage persons into rooms in which marijuana and

marijuana products are sold or displayed for sale, and from

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providing vending machines or self-service displays and would

require retailers to sell marijuana in sealed containers with

specified labelling. The proposed law would also restrict

outdoor and point-of-sale advertising of marijuana. Violations

of these provisions would be punishable by civil penalties. The

proposed law would prohibit the employment of persons under 21

in cultivating or selling marijuana or marijuana products.

The proposed law would provide that lawful conduct

regarding marijuana could not be the primary basis for

supporting allegations of abuse or neglect in child welfare

proceedings and would not constitute misconduct for the purpose

of awarding child custody or visitation rights. It would

prohibit employers from treating employees’ off-duty consumption

of marijuana differently from off-duty consumption of alcoholic

beverages, unless the employer establishes that federal monetary

benefits would be jeopardized as a result.

The measure would direct the state Commissioner of Banks to

issue regulations governing banking services to entities engaged

in marijuana commerce. The proposed law would apply

retroactively where constitutionally permissible and existing

records of certain adult offenses involving the use of marijuana

would be expunged.

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Initiative Petition for a Law ending marihuana prohibition for persons 21 years of age or older

BE IT ENACTED by the People, and by their authority, as follows:

SECTION 1 Short title

This act shall be known and may be cited as the Marijuana Regulation and Taxation Act.

SECTION 2 Declaration of policy; purposes

It is the policy of this commonwealth to secure the fundamental right of persons 21 years of age and older to acquire, possess, consume and cultivate marihuana for their personal use and that of their household members and adult guests, and to direct its limited resources toward suppressing the availability of marihuana to persons under 21 years of age.

The purposes of this act are to advance the policy of the commonwealth, to establish uniform statewide regulation of the cultivation of cannabis and of commerce involving marihuana, to prevent interference with parental rights due solely to the lawful conduct of a parent or child’s caregiver relative to marihuana, to provide persons who lawfully consume marihuana while off duty equal treatment with those who consume alcoholic beverages in employment practices, to provide equal treatment of those who consume marihuana by smoking with tobacco users by residential landlords, to provide opportunity for domestic farms and manufactures and to encourage scientific research into the uses of the produce of the cannabis plant as medicine and other products.

SECTION 3 Construction

This act shall be liberally construed to accomplish its policy and purposes.

It shall be construed to apply retroactively where retroactive application is constitutionally authorized.

It shall not be construed to:

alter the drug-free school provisions of section 37H of chapter 71 of the General Laws;

permit the operation while impaired by the consumption of marihuana of a motor vehicle, aircraft, watercraft, recreation vehicle or snow vehicle as provided in chapters 90 and 90B of the General Laws;

permit the operation of a marihuana farm, marihuana farmer’s market, marihuana product producer, retailer, cannabis café or club authorized by this act to be located within 300 feet of the real property comprising a public or private accredited preschool, accredited headstart facility, elementary, vocational, or secondary school, whether or not in session, or within 100 feet of a public park or public playground;

bar landlords of residential housing from prohibiting the smoking of marihuana, provided that the smoking of tobacco is also prohibited, or from prohibiting the cultivation of marihuana or extraction of resin from marihuana by a tenant and members of the tenant’s household for their own use;

alter the provisions of section 22 of chapter 270 of the General Laws relative to smoking in public places and other enumerated places except as provided herein;

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limit any of the rights, privileges or immunities recognized or established by an “Act for the Humanitarian Medical Use of Marijuana”, chapter 369 of the acts of 2012; or

except as provided herein limit the application of the state tax code, of laws concerning the adulteration and misbranding of food, other consumer protection laws, or laws concerning agriculture and conservation.

SECTION 4 Amendments to the Controlled Substances Act

Chapter 94C is amended as follows:

The first sentence of the definition of marihuana in Section 1 is amended by inserting after the words “any part of the plant” the following words—

“that contain tetrahydrocannabinol”.

The first sentence of the definition of marihuana in Section 1 is further amended by inserting at the end of the sentence after the word “resin”, the following words—

“that contain tetrahydrocannabinol”.

Section 1 is further amended by amending the definition of “Tetrahydrocannabinol” by striking the words—

“except when it has been established that the concentration of delta-9 tetrahydrocannabinol in said marihuana exceeds two and one-half per cent”.

Chapter 94C is further amended by inserting the following sections 31A–31C:

Section 31A Cultivation, possession and transportation of marihuana for private use

This chapter shall not apply to the acquisition, possession, consumption, cultivation and transportation of marihuana by persons over the age of 21, or to 2 or more such persons who do not share a single household who agree to use land or buildings owned or rented by one or more such persons for the cultivation of marihuana for their personal use and that of their household members and guests over the age of 21, provided that the places of cultivation and storage comply with section 31C and that when transported in a motor vehicle such marihuana shall be secured in sealed packaging, or not in the passenger area of the vehicle, as defined in section 24I of chapter 90 of the General Laws.

A violation of this section’s provision for transportation shall subject an offender to a civil penalty of up to $300 but not to any other form of criminal or civil punishment or disqualification. Enforcement shall be in a manner consistent with the provisions of section 21D of chapter 40 of the General Laws.

Section 31B Cultivation, possession and storage of marihuana for sale

No person shall cultivate or possess marihuana with intent to sell, or sell marihuana, or transport marihuana possessed with the intent to sell it, except as authorized by sections 50–53 and 62 and 63 of this chapter.

Section 31C Preventing access to marihuana by persons under 21 years of age

Whoever is authorized by this chapter to cultivate or possess marihuana shall:

cultivate inside a building or room within a building, greenhouse or outside behind 6-foot fencing that is locked when the owner or authorized person over the age of 21 is not

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present, on private property leased or owned by them and that the growing plants are not visible to the naked eye 6 feet 6 inches above the ground at the property line with abutting public or private property; and

store harvested plants and marihuana in a locked room or container when the owner or other lawfully authorized adult is not present.

A violation of this section shall be punished by a civil fine of up to $300.

Any person 21 years of age or older who fails to comply with the provisions of this section and as a result of such noncompliance a person under the age of 21, not his spouse, who was a foreseeable trespasser or guest acquires marihuana shall be punished by a fine of not more than $2,000 or by imprisonment for not more than 1 year or both.

Section 32L is amended by inserting after the word “program” in the third sentence–

“, substance abuse evaluation”.

Section 32M as amended by section 34 of chapter 84 of the acts of 2013 is amended by adding the following paragraph–

Such an offender shall also undergo a substance abuse evaluation conducted by a licensed alcohol and drug counselor as defined in section 1 of chapter 111J, and a report of the evaluation shall be provided to the parents or legal guardian and to the offender if over the age of 16.

Section 32N is amended by adding the following paragraph:

The police department issuing the citation on behalf of the municipality in which the offense occurred, or the municipality shall, if the civil fine is not paid when due, enforce collection of the civil fine using the procedure authorized by section 21 of chapter 218. The offender in such action shall be deemed to have waived all defenses except sufficiency of the service of the citation and the right of appeal provided in section 23 of chapter 218. The court shall not impose a filing fee for such action. The court shall award the municipality $300 in damages together with interest at the rate of 12 percent per annum from the twenty-first day after the citation issued.

Chapter 94C is further amended by inserting the following sections 32O–32Q:

Section 32O Sale, distribution or delivery of marihuana to person under 21 years of age

(1) Any person 21 years of age or older who sells, distributes or delivers marihuana to a person they know or should know is under 21 years of age, not his or her child, grandchild, ward or spouse shall be punished by a fine of not more than $3,000 or by imprisonment for not more than 2 years or both.

(2) Any person convicted of violating subsection (1) of this section after one or more prior convictions, or of any offense of any other jurisdiction, federal, state, or territorial, which is the same as or necessarily includes the elements of said offense, shall be imprisoned in state prison for not more than 5 years or a house of correction for not more than 2 years, or a fine of not less than $3,000 nor more than $5,000 or both such fine and imprisonment.

Section 32P Allowing marihuana consumption by underage guests

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Any person 21 years of age or older who knowingly allows a person under 21 years of age, except for the spouse, wards, children and grandchildren of the person being charged, to consume marihuana on premises or property owned or controlled by the person charged shall be punished by a fine of not more than $2,000 or by imprisonment for not more than 1 year or both.

Section 32Q Administering marihuana to another without that person’s knowledge and consent

Whoever intentionally administers marihuana or causes marihuana to be ingested by a person without that person’s knowledge and consent, or whoever intentionally leaves unattended marihuana in a public place shall be punished by a term of imprisonment in the state prison for not less than two and one-half nor more than 5 years or by imprisonment in a jail or house of correction for not less than 1 nor more than two and one-half years and a fine of not less than $500 nor more than $10,000.

Chapter 94C is further amended by inserting the following sections 50–63:

Section 50 Definitions

As used in sections 50–63, inclusive, the following words shall, unless the context clearly requires otherwise, have the following meanings:

“Cannabis café”, an establishment licensed as a common victualler or innholder pursuant to section 2 of chapter 140 and licensed pursuant to section 62 of this chapter to engage in retail sale of marihuana including foods prepared with marihuana as an ingredient for consumption by customers on the premises.

“Club”, an exclusively social or fraternal association or corporation, not organized for private profit, owning, hiring or leasing land, buildings, or space in a building of such extent and character as may be suitable and adequate for the reasonable and comfortable use and accommodation of its members and their guests for the sharing of marihuana licensed pursuant to section 63 of this chapter, provided that its affairs and management are conducted by a board of directors, executive committee, or similar body chosen by the members at its annual meeting. Such club shall file with the local licensing authority and the commissioner annually within 3 months after January 1st in each year a list of the names and residences of its officers, together with the amount of salary or compensation received by each employee engaged in the handling of marihuana.

“Commissioner”, the commissioner of the department of revenue.

“Marihuana farm”, a parcel of 5 acres or more or a parcel of 2 acres or in an area zoned for agriculture, horticulture, floriculture or viticulture as set forth in the first paragraph of section 3 of chapter 40A of the General Laws G.L. c. 40A, on which a farmer intends to cultivate cannabis registered with the commissioner of agricultural resources pursuant to section 51.

“Marihuana farmer”, a farmer who intends to sell marihuana seeds, plants or marihuana whether at wholesale to marihuana product producers or retailers, or to persons 21 years of age registered with the commissioner as a retailer in accordance with section 67 of chapter 62C.

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“Marihuana farmer’s market”, a public market for the primary purpose of connecting and mutually benefiting Massachusetts marihuana farmers, communities, and adult shoppers while promoting and selling products grown and raised by participating farmers.

“Marihuana product”, the subclass of marihuana as defined in section 1, being shorthand for the resin that contains tetrahydrocannabinol extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant; such products are commonly called hashish, hash oils and edibles.

“Marihuana products producer”, a person or business entity licensed by the department of public health under section 52 authorized to purchase marihuana at wholesale from a marihuana farmer for the purpose of manufacturing and selling marihuana products to a retailer.

“Medical marijuana treatment center” or “MMTC”, a not-for-profit entity established pursuant to Chapter 369 of the Acts of 2012 and department of public health regulations.

“Raw marihuana”, the plant severed from its roots, including the leaves and flowers, recognizable as vegetable matter.

“Retailer”, a person or business entity authorized to sell to persons 21 years of age or older at retail raw marihuana and marihuana products who has registered each location at which sales are conducted with the commissioner as required by section 53.

“Secret shopper program”, at a minimum, 6 visits per year to a retail sales outlet by a person retained by a retailer, where the person poses as a customer in order to ensure compliance by the outlet's employees with laws prohibiting the sale of marihuana or marihuana products to juveniles and minors, with each visit made on a different day and at a different time, and, where practical, to a different outlet employee.

Section 51 Marihuana farm registration to cultivate and registration to sell or offer for sale marihuana at wholesale or retail

No person shall cultivate marihuana for commercial purposes unless the land on which it is grown is registered with the department of agricultural resources as a marihuana farm under chapter 128, section 116 and the marihuana farmer is registered with the commissioner.

The marihuana farmer shall comply with all general laws applicable to the cultivation of plants intended as food for human consumption and shall prepare raw marihuana intended for sale to marihuana products producers, retailers or retailed directly to persons over the age of 21 as required by general law for the preparation of produce for human consumption.

Section 52 Marihuana products producer license, annual fee

No person shall engage in the business of a marihuana products producer unless each place of business is licensed by the department of public health, which license shall be granted if the applicant establishes that it will prepare, test, package and label its products in conformance with the department’s regulations for MMTCs as amended from time to time.

For the first year after the effective date of this act the annual fee for such a license shall be $1,500.00 for each place of business. Thereafter, pursuant to section 3B of chapter 7, the

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secretary of administration and finance shall establish the annual fee, but in no event shall it increase more than 50% from year to year.

Section 53 Registration of retailer with the department of revenue

No person shall engage in the business of retail sale of marihuana unless a registration shall have been issued to him for each place of business in accordance with section 67 of chapter 62C. Such registration shall specify as the tax type “sales tax on marihuana.”

A MMTC may register as a retailer and collect sales tax only from adults not registered as a patient.

Section 54 Prevention of persons under the age of 21 from accessing marihuana from retailers and regulation of advertising:

(A) Retailers shall

(a) deny persons under the age of 21 access to rooms in which marihuana or marihuana products are displayed for sale by verifying by means of valid government-issued photographic identification that each person entering the sales room is 21 years of age or older and repeating the verification prior to sale—no such verification is required for any person who appears 27 years of age or older—and, if employing 6 or more persons, shall undertake an in-house secret shopper program as a routine part of its business to test implementation and compliance with this age verification requirement;

(b) not use vending machines or any other electronic or mechanical device to effectuate sales of marihuana or marihuana products;

(c) not use self-service displays of marihuana or marihuana products;

(d) not display marihuana or marihuana products exposed for sale to persons outside the sales room;

(e) implement and operate a training program for all employees who handle exchanges of marihuana or marihuana products regarding compliance with laws prohibiting the sale of marihuana or marihuana products to juveniles and minors;

(f) post a copy of the penalties set forth in subdivision (1) of section 24 of chapter 90 for driving under the influence and for the sale, delivery or furnishing marihuana or marihuana products to a juvenile or minor. Said copies shall be posted conspicuously by the owner or person in charge of the respective establishment.

(g) place purchases in sealed containers;

(h) affix to all packages containing marihuana a label in boldface font of not less than 10 points, with these warnings, in boldface: “For adults only. Keep out of reach of children”, “May be habit-forming”, “It is a crime to operate a motor vehicle, recreational vehicle, boat or aircraft if impaired by consumption of this product” and “This product must be stored in a locked container when you are not present.”

(B) Advertising

(a) Outdoor advertising, including advertising in enclosed stadiums and advertising from within a retail establishment that is directed toward or visible from the outside of

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the establishment, in any location that is within a 1,000-foot radius of any public playground, playground area in a public park, elementary school or secondary school is prohibited.

(b) Point-of-sale advertising of marihuana or marihuana products outside of the sales room may be placed on the premises, provided that no portion of such advertising is placed lower than 5 feet from the floor of any retail establishment which is located within a 1,000-foot radius of any public playground, playground area in a public park, elementary school or secondary school, and which is not an adult-only retail establishment.

(c) The use of cartoon characters in any advertisement is prohibited.

(d) No signs or other printed matter advertising any brand or kind of marihuana or marihuana product shall be displayed on the exterior or interior of any licensed premises where such a brand or kind of marihuana or marihuana product is not regularly and usually kept for sale.

(e) The use of vehicles equipped with either radio or loudspeakers for the advertising of marihuana or marihuana products is prohibited. The use of radio or loudspeaker equipment in any licensed premises for the purpose of attracting attention to the sale of marihuana or marihuana products therein is also prohibited.

Any retailer that violates the provisions of this section shall be subject to a civil penalty of $300 but not to any other form of criminal or civil punishment or disqualification. Enforcement shall be in a manner consistent with the provisions of section 21D of chapter 40 of the General Laws.

Section 55 Tax on retail sales of marihuana

The provisions of chapter 64H shall apply to the retail sale of marihuana. The provisions of 64I shall apply to the storage, use or other consumption in the commonwealth of marihuana.

Section 56 Crediting of portion of taxes

Of the tax collected pursuant to section 55, less all amounts allowed as refunds and abatements, 12.5% shall be credited to the Agricultural Resolve and Security Fund established in section 2III and 12.5% shall be credited to the Commonwealth Substance Abuse Prevention and Treatment Fund established in section 2BBBB of chapter 29 and spent for the purposes thereof subject to appropriation by the legislature.

Section 57 Adulteration, misbranding applied to marihuana and marihuana products

The provisions of sections 186, 187, 188-190, 192 and193 of chapter 94 of the General Laws in the case of food shall apply to marihuana and marihuana products; however, marihuana shall not be considered for purposes hereof a poisonous or deleterious substance.

Section 58 Delivery of marihuana as prima facie evidence of sale

The delivery of marihuana in or from a building, booth, stand or other place, except a private dwelling-house, or in or from a private dwelling-house if any part of it or its dependencies is used as an inn, eating house or shop of any kind, or in or from any other

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place of common resort, such delivery in any case being to a person not a resident therein, shall be prima facie evidence that such delivery is a sale.

Section 59 Issuance of search warrant for marihuana kept or deposited contrary to law

Search warrants may issue upon the application of 2 persons of full age under oath setting forth the facts upon which they rely for their belief that marihuana described in the application is kept or deposited by a person named therein in the place specified therein and intended for sale contrary to law. In all other respects such application, warrant and execution shall comply with the provisions of sections 1, 2, 2A, 2B and 3 of chapter 276.

Section 60 Search of dwelling-house and associated real property for marihuana

A warrant shall not issue for the search of a dwelling-house or real property associated with it, if no inn, tavern, store, grocery, eating house or place of common resort is kept therein, unless one of the affiants states under oath that upon personal knowledge or reliable information from an identified person that marihuana has been sold therein or taken therefrom for the purpose of being sold, either by the occupant, or with the occupant’s consent or permission, contrary to law, within 2 weeks previous to the filing of the application. In all other respects such application, warrant and execution shall comply with the provisions of sections 1, 2, 2A, 2B and 3 of chapter 276.

Section 61 Municipalities that vote favorably on enacting the Marijuana Regulation and Taxation Act taken to have authorized local licensing of cannabis cafés and clubs, citizens petition for authorization or repeal

If a majority of the votes cast in a city or town in answer to the initiative question on the Marijuana Regulation and Taxation Act are in the affirmative, such city or town shall be taken to have authorized, until such time as such authority is repealed as provided in this section, the licensing of cannabis cafés and clubs in such city or town, in accordance with the provisions of this chapter.

If a majority of the votes cast in a city or town in answer to this initiative question are in the negative, the secretary of state shall, upon receipt of a petition signed by at least 10 per cent of the number of voters registered therein at the last preceding state election, cause to be placed on the ballot at the next succeeding biennial state election held not less than 60 days subsequent to the filing of such petition the following question:

Shall licenses be granted in this city (or town) for cannabis cafés and clubs.

If a majority of votes cast on such question is in the affirmative, the city or town shall license cannabis cafés and clubs in accordance with the provisions of this chapter.

In any city or town that has authorized the licensing of cannabis cafés and clubs, such authority may be repealed no sooner than 4 years after such authorization by a petition signed by at least 10 per cent of the number of voters registered therein at the last preceding state election. The state secretary shall upon receipt of such petition cause to be placed on the ballot at the next succeeding biennial state election held not less than 60 days subsequent to the filing of such petition the following question:

Shall licenses be granted in this city (or town) for cannabis cafés and clubs.

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If a majority of votes cast on such question is in the negative, the city or town shall cease licensing cannabis cafés and clubs in such city or town.

The forms for such petitions shall be obtained from said secretary and returned with the registrars’ certification within 80 days after they are obtained.

The local registrars of voters shall identify and certify the signatures in accordance with the provisions of section 7 of chapter 53 of the General Laws.

Section 62 Licenses of cannabis cafés authorizing sale of marihuana to be consumed on premises; suspension or revocation; hours of sale; liability insurance; excise tax on gross sales

In any municipality that approves the licensing of cannabis cafés the local licensing authority shall grant licenses. No license shall be granted for more than 1 year and may be renewed annually.

Cannabis cafés shall comply with section 54, to the extent applicable.

Notwithstanding the provisions of section 22 of chapter 270, the patrons may smoke marihuana and marihuana products in such licensed premises.

A cannabis café may allow a patron to retain and take off the premises only so much as may remain of marihuana or marihuana product purchased by them in conjunction with a meal and not totally consumed during such meal. Such remaining marihuana or marihuana product must be sealed in a one-time-use tamper-proof transparent bag, with a receipt affixed thereto that prominently displays the date of purchase of the meal and the purchase of the marihuana or marihuana product.

The local licensing authority may impose a fee no greater than that imposed on applicants for a license for an on-premises all-alcoholic-beverages license. It may also establish a process similar to but no more rigorous than that imposed on an applicant for an on-premises all-alcoholic-beverages license.

Upon approval of a license the licensing authorities shall set the hours during which the café may be open for business during which marihuana may be served, either generally or specially for each licensee; provided, however, that no license shall authorize operation between the hours of 2 a.m. and 8 a.m. and that no such licensee shall be barred from being open between the hours of 11 a.m. and 11 p.m.; provided, further, that any such licensee or the licensee’s manager shall not be prohibited from being on the licensed premises at any time; provided, further, that the employees, contractors or subcontractors shall not be prohibited from being upon such premises at any time for the purpose of cleaning, making renovations, making emergency repairs to or providing security for such premises or preparing food for the day's business or opening or closing the business in an orderly manner. The licensing authority shall not decrease the hours during which sales may be made by a licensee until after a public hearing concerning the public need for such decrease; provided, however, that a licensee affected by any such change shall be given 2 weeks notice of the public hearing.

The licensee shall cause to be displayed a copy of the certificate of licensure.

A license granted under this section may be suspended or revoked for cause by the local licensing authority after notice and a hearing; however, no action shall be taken on that

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account by such authority with respect to that business’s common victualler's license. A licensee aggrieved by the action of a local authority suspending or revoking such license may appeal within 30 days to the superior court division having jurisdiction in accordance with section 14 of chapter 30A.

The local licensing authorities may accept the surrender of a license issued under this section, but no refund of any fees paid shall be authorized.

No license issued under this section shall be subject to any condition or requirement varying the occupancy of the licensed premises as certified by any person or state or local agency charged with the administration or enforcement of the state building code or any of its rules or regulations.

A licensee may provide on-premises sample marihuana tasting; provided, however, that the licensee shall not solicit orders for off-premises consumption; and provided further, that any such tasting shall be limited to one-twentieth of a gram, and food shall be served in conjunction with any such tasting.

The licensee shall register the location with the commissioner under section 67 of chapter 62C. In addition to the tax imposed by section 59 on marihuana not infused into a meal and the tax on meals imposed by chapter 64H and if applicable 64L, there shall be levied, assessed and collected an excise at the rate of 0.75 per cent of such taxpayer’s gross receipts.

No license shall be issued or renewed under this section until the applicant or licensee provides proof of coverage under a liability bond or general liability insurance policy for bodily injury or death for a minimum amount of $100,000 on account of injury to or death of 1 person, and $200,000 on account of any 1 accident resulting in injury to or death of more than 1 person. Proof of the insurance coverage required by this section shall be made by filing a certificate of insurance in a form acceptable to the local licensing authority. The insurance shall be subject to sections 5 and 6 of chapter 175A of the General Laws.

The number of licenses issued in any city or town under this section and section 63 may not exceed the number of licenses it may issue for the sale of alcoholic beverages for on-premises consumption.

Section 63 Licenses of clubs where marihuana to be consumed on premises; suspension or revocation; hours of operation; liability insurance; excise tax on gross sales

In any municipality that approves the licensing of clubs the local licensing authority shall grant licenses. No license shall be granted for more than 1 year and may be renewed annually.

No club shall be granted an on-premises alcoholic beverage license, nor shall such club permit the consumption of alcoholic beverages on the premises or permit consumption of marihuana by members and their guests that the manager of the club knows or has reason to know recently consumed alcoholic beverages prior to entering the premises.

Cannabis clubs shall comply with section 54, to the extent applicable.

Notwithstanding the provisions of section 22 of chapter 270, the members and guests may smoke marihuana and marihuana products in such licensed premises.

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Club members and employees of the club may prepare foods from such marihuana for consumption by members and their guests on the premises.

The club must provide proper locked storage space for each member’s marihuana, and all marihuana consumed in the club must be brought to the club by individual members. Such marihuana is to be served and consumed only in areas that the local licensing authority approves in writing.

A club member may remove what remains of the marihuana that he or she may have brought to the club. Such remaining marihuana must be sealed in a one-time-use tamper-proof transparent bag, with a certificate affixed thereto signed by the club manager that prominently displays the date it was sealed, along with the name of the club member, and identifies the contents as the property of the named club member.

Clubs may host marihuana farmers’ markets.

The local licensing authority may impose a fee no greater than that imposed on applicants for a social or fraternal organization license for an on-premises all-alcoholic-beverages license. It may also establish a process similar to but no more rigorous than that imposed on an applicant for an on-premises all-alcoholic-beverages license.

Upon approval of a license the licensing authority shall specify what hours the club may be open to members and their guests to consume marihuana either generally or specially for each licensee; provided, however, that no license shall authorize operation between the hours of 2 a.m. and 8 a.m. and that no such licensee shall be barred from being open between the hours of 11 a.m. and 11 p.m.; provided, further, that members or the club’s manager, if any, shall not be prohibited from being on the licensed premises at any time; provided, further, that the employees, contractors or subcontractors shall not be prohibited from being upon such premises at any time for the purpose of cleaning, making renovations, making emergency repairs to or providing security for such premises or preparing food for members or opening or closing the club in an orderly manner. The licensing authority shall not decrease the hours during which marihuana may be consumed until after a public hearing concerning the public need for such decrease; provided, however, that a licensee affected by any such change shall be given 2 weeks notice of the public hearing.

The licensee shall cause to be displayed a copy of the certificate of licensure.

A license granted under this section may be suspended or revoked for cause by the local licensing authority. A licensee aggrieved by the action of a local authority suspending or revoking such license may appeal within 30 days to the superior court division having jurisdiction in accordance with section 14 of chapter 30A of the general laws.

The local licensing authorities may accept the surrender of a license issued under this section, but no refund of any fees paid shall be authorized.

No license issued under this section shall be subject to any condition or requirement varying the occupancy of the licensed premises as certified by any person or state or local agency charged with the administration or enforcement of the state building code or any of its rules or regulations.

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No license shall be issued or renewed under this section until the applicant or licensee provides proof of coverage under a liability bond or general liability insurance policy for bodily injury or death for a minimum amount of $100,000 on account of injury to or death of 1 person, and $200,000 on account of any 1 accident resulting in injury to or death of more than 1 person. Proof of the insurance coverage required by this section shall be made by filing a certificate of insurance in a form acceptable to the local licensing authority. The insurance shall be subject to sections 5 and 6 of chapter 175A of the General Laws.

In addition to the license fee the club shall pay to the municipal tax collector on or before June 30 of each year a tax of $25 for each person who was a member during the prior 12 months as of May 1 preceding.

Each license granted to a club shall count toward the number of on-premises marihuana licenses permitted by the last paragraph of section 62.

SECTION 5 Local bylaws and ordinances

No municipality shall enact any bylaw or ordinance, rule or regulation that imposes additional requirements upon:

marihuana farms than imposed upon any other farm engaged in horticulture;

marihuana farmers registered as retailers joining with other marihuana farmers so registered and holding a marijuana farmer’s market on an appropriate site, except that the municipal licensing authority may require a daily fee for a license to hold such a farmer’s market, not to exceed $100;

marihuana products producers than imposed upon any other food processing use, or additional requirements on retailers than those imposed upon sellers of tobacco products;

cannabis cafés or clubs beyond those imposed upon common victuallers licensed to sell alcoholic beverages for on-premises consumption.

No municipality shall enact any bylaw or ordinance, rule or regulation that prohibits the use by lawful occupants 21 years of age or older of residential property in the exercise of their right to cultivate marihuana, possess it for their personal use and that of their household members and guests 21 years of age and older or use by a cultivation cooperative or that imposes additional requirement upon such use.

No municipality shall enact any bylaw, ordinance or regulation that imposes any penalty greater than that imposed upon those possessing an open container of alcoholic beverage in public, for publicly consuming marihuana or for displaying an open container of marihuana or marihuana product in public, and any such ordinance or bylaws shall in the first instance be enforced by the noncriminal disposition process in section 21D of chapter 40 of the General Laws.

SECTION 6 Amendment to the term “misbranded” as used in Section 187 of chapter 94

Section 187 of chapter 94 of the general laws is hereby amended by striking the words ”cannabis” and “marihuana” following the words, “Fifth, if it is for use by man and contains any quantity of the narcotic or hypnotic substance”.

SECTION 7 Inquiry of defendant convicted of driving under influence of intoxicating liquor or marihuana as to establishment serving alcohol or marihuana

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The first paragraph of section 24J of chapter 90 of the General Laws is hereby amended by inserting after the word “liquor” the words “or marihuana”.

The first paragraph of section 24J is further amended by inserting after the words “served alcohol” in the first paragraph the words “or marijuana”.

The first paragraph of section 24J is further amended by inserting after the words “alcohol on the premises” the words “or marihuana on the premises”.

The second paragraph of section 24J is amended by inserting after the word “shall” the words “in the case of alcohol”.

The second paragraph of section 24J is amended by inserting after the word “commission,” the words “or in the case of marijuana to the local licensing authority and”.

SECTION 8 Marihuana farms; registration; fee, annual reports

Chapter 128 of the general laws is amended by adding the following section:

Section 116 Marihuana farms; registration; fee

Every marihuana farm as defined in section 51 of chapter 94C shall be registered with the commissioner, the fee for which shall be $100, and such registration shall expire on March 31st of the year following the date of issuance, unless sooner revoked.

Chapter 128 is further amended by adding the following section:

Section 116A Marihuana farms; reports

Annually on or before the 31st day of December all registered marihuana farms shall in a manner prescribed by the commissioner report their yield per acre by weight of seed and stalk, and the identity of each marihuana product producer and retailer, as defined in section 50 of chapter 94C, who purchased marihuana from them, the amount of marihuana sold to them by weight and the purchase price and the amount of marihuana by weight sold by the farm at retail and the purchase price.

SECTION 9 Chapter 139 abatement of common nuisances

Section 14 of chapter 139 of the general laws is hereby amended by inserting after the word “thirty-eight” the words—“illegal keeping or sale of marihuana, as defined in chapter 94C,”.

SECTION 10 Employment of persons under 21 years of age prohibited

Section 62 of chapter 149 of the General Laws is hereby amended as follows:

(a) inserting after the word “bottled” in clause (13) — “or if under the age of 21 in the cultivating of cannabis or harvesting of cannabis or the production and packaging of marihuana products”; and

(b) inserting after the word “liquors” in clause (14) —“or if under the age of 21 marihuana or marihuana products”.

SECTION 11 Protection and care of children

Chapter 119 of the general laws is hereby amended by inserting the following new section:

Section 86 In any administrative action or proceeding relating to the care and protection of a child under this chapter the presence of marihuana metabolites in a newborn’s bodily fluids,

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or conduct by a person caring for a child related to marihuana permitted under chapter 94C shall not form the sole or primary basis for supporting an allegation of neglect or abuse or for any action by the department or the basis for proceedings before the juvenile court.

SECTION 12 Custody of children (divorce)

Section 31 of chapter 208 of the general laws is amended by adding at the end of the paragraph that begins: “In making an order or judgment relative to the custody of children” the following sentence:

A parent’s conduct related to marihuana permitted under chapter 94C shall not be considered misconduct.

SECTION 13 Award of custody, criteria (children born out of wedlock)

Section 10 of chapter 209C of the general laws is amended by adding the following subsection:

(g) In making an order or judgment relative to visitation or custody of child, a parent’s conduct related to marihuana permitted under chapter 94C shall not be considered misconduct.

SECTION 14 Employment practices

Section 4 of chapter 151B is hereby amended by inserting the following new subsection 1E:

For a public or private employer’s failing to treat adult off-duty consumption of marihuana in the same manner as they treat off-duty consumption of alcoholic beverages in their employment practices, unless the employer proves that tolerating such activities would cause loss of a monetary benefit under federal law or regulations.

SECTION 15 Providing banking services to entities lawfully engaged in marihuana commerce in the commonwealth

The commissioner of banks shall promulgate rules and regulations establishing standards relative to the provision of banking services by banks or credit unions under his supervision for the provision of banking services to entities authorized to engage in marihuana commerce under chapter 94C of the general laws. Such regulations to be established by January 1, 2017.

SECTION 16 Retroactivity

The amendment in section 4 of this act inserting section 31A into chapter 94C of the general laws shall apply retroactively to:

(a) all unpaid citations for violation of section 32L of chapter 94C;

(b) all criminal actions pending in the courts of the commonwealth alleging a person 21 years of age or older at the time of offense violated section 34 of chapter 94C;

(c) all criminal actions pending in the courts of the commonwealth alleging a person 21 years of age or older at the time of offense violated section 32C of chapter 94C by means of cultivating marihuana where there is insufficient proof that the defendant intended to distribute it for profit; and,

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(d) all criminal actions pending in the courts of the commonwealth alleging a person 21 years of age or older at the time of offense violated section 40 of chapter 94C where the defendant was the customer and there is insufficient proof that the defendant intended to distribute it for profit.

SECTION 17 Effective dates

Except for sections 50–53 and 62 and 63 of SECTION 4, which shall take effect on March 31, 2017, this act, including the provision in section 53 of SECTION 4 that MMTCs registered with the commissioner as a retailer, shall be effective the day following the state secretary’s receipt from the governor and council of their determination of an affirmative vote on the question as provided by G.L. c. 54, § 115.

SECTION 18 Severability

The provisions of this law are severable and if any clause, sentence, paragraph or section of this measure, or an application thereof, shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof but shall be confined in its operation to the clause, sentence, paragraph, section or application adjudged invalid.

We the undersigned state under the pains and penalties of perjury that we have personally read the final text of this proposed statute, fully subscribe to its contents, are qualified voters of the commonwealth at the addresses printed below our names, and freely and voluntarily agree to be one of its original signers as required by Amendment Article 48 of the Constitution of the Commonwealth of Massachusetts. _________________________________ Lester Grinspoon 130 Seminary Ave, Apt. 207, Auburndale, MA 02466 _________________________________ Madeline Webster 96 Melrose Street, Arlington, MA 02474 _________________________________ William H. Downing 14 Avon Street, Reading, MA 01867 _________________________________ Steven S. Epstein 55 West Street, Georgetown, MA 01833

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_________________________________ Andy Gaus 382 Riverway, Apt. B, Boston, MA 02115 _________________________________ Jeffrey Morris 1 Repton Place, #1122, Watertown, MA 02472 _________________________________ Scott A. Mortimer 59 Marlboro St., Newburyport, MA 01950 _________________________________ Marvin N. Cable 73 Bridge Street. Unit 6 Northampton, MA 01060 _________________________________ William Flynn 3 Oakland Street, Salem, MA 01970 _________________________________ Linda L. B. Noel 555 Lincoln Street, Franklin, MA 02038 _________________________________ James M. Pillsbury 10 Yorks Rd., Framingham, MA 01701 _________________________________ Kathryn Rifkin 18 Meadowbrook Road, Bedford, MA 01730 _________________________________ Graham Steele 144 Wheeler St, Gloucester, 01930

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_________________________________ Jeanne M. Sauro 35 Meadowlark Lane, Franklin, MA 02038 _________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address

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SUMMARY OF NO. 15-24

The proposed law would permit the cultivation,

distribution, possession, and use of marijuana by persons age 21

and older within Massachusetts and would remove existing

criminal penalties for such activities. It would regulate sales

of marijuana and marijuana products and taxation of proceeds.

Under the proposed law, voters of a city or town could vote

to approve the licensing of cannabis cafés and clubs in that

city or town. Such authorization could be repealed at a state

election held at least four years later. If so approved, cities

and towns could license cannabis cafés or private clubs to sell

marijuana and marijuana products for consumption on the

premises, but these establishments could not sell alcoholic

beverages for consumption on the premises, could not allow

consumption of alcoholic beverages on the premises, and could

not allow consumption of marijuana on the premises by any person

who the licensee has reason to believe has consumed alcoholic

beverages before entering.

The proposed law would authorize marijuana farms licensed

by the state Department of Agriculture, locally licensed

marijuana farmers’ markets, and marijuana products producers

licensed by the state Department of Public Health. Retailers

could sell marijuana and marijuana products at registered

locations. A licensed medical marijuana treatment center could

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also sell marijuana at retail.

The proposed law would allow cities and towns to limit

public use of marijuana to the same extent that they limit open

containers of alcoholic beverages in public. Cities and towns

could not treat marijuana providers differently than other

farms, markets, food processors, or sellers of tobacco or

alcoholic beverages. Licenses for cannabis cafés and clubs

would be limited to the number of licenses issued by the city or

town for on-premises consumption of alcoholic beverages.

Marijuana retail sales would be subject to the existing

state sales tax, with 12.5% of tax revenues credited to the

Agricultural Resolve and Security Fund and 12.5% credited to the

Commonwealth Substance Abuse Prevention and Treatment Fund.

Vendors of marijuana for on-premises consumption would pay

annually to the city or town .75% of their gross revenues.

Private clubs that dispense marijuana would pay annually to the

city or town $25 per club member.

The proposed law would make it a crime to deliver marijuana

to a person under 21 who is not the child, grandchild, ward, or

spouse of the defendant. The measure would also impose criminal

penalties for knowingly allowing underage persons to consume

marijuana on premises owned or controlled by the defendant, for

intentionally causing the ingestion of marijuana without a

person’s consent, for leaving marijuana unattended in a public

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place, and for failing to secure plants and marijuana from an

under-age person who is foreseeably present on the premises.

In addition, among other things, the measure would prohibit

marijuana retailers from allowing underage persons into rooms in

which marijuana and marijuana products are sold or displayed for

sale, and from providing vending machines or self-service

displays and would require retailers to sell marijuana in sealed

containers with specified labelling. The proposed law would

also restrict outdoor and point-of-sale advertising of

marijuana. Violations of these provisions would be punishable

by civil penalties. The proposed law would prohibit the

employment of persons under 21 in cultivating or selling

marijuana or marijuana products.

The proposed law would provide that lawful conduct

regarding marijuana could not be the primary basis for

supporting allegations of abuse or neglect in child welfare

proceedings and would not constitute misconduct for the purpose

of awarding child custody or visitation rights. It would

prohibit employers from treating employees’ off-duty consumption

of marijuana differently from off-duty consumption of alcoholic

beverages, unless the employer establishes that federal monetary

benefits would be jeopardized as a result.

The measure would direct the state Commissioner of Banks to

issue regulations governing banking services to entities engaged

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in marijuana commerce. The proposed law would apply

retroactively where constitutionally permissible, including to

unpaid civil citations for possession of one ounce of marijuana

or less and to pending criminal charges alleging possession or

cultivation of marijuana or distribution thereof where no profit

motive was involved.

The proposed law states that, if any of its parts were

declared invalid, the other parts would stay in effect.

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15-25.doc 1

Initiative Petition for a Law ending marihuana prohibition for persons 21 years of age or older

BE IT ENACTED by the People, and by their authority, as follows:

SECTION 1 Short title

This act shall be known and may be cited as the Ending Marihuana Prohibition For Personal Use By Persons 21 Years of Age Or Older Act.

SECTION 2 Declaration of policy; purposes

It is the policy of this commonwealth to secure the fundamental right of persons 21 years of age and older to acquire, possess, consume and cultivate marihuana for their personal use and that of their household members and adult guests, and to direct its limited resources toward suppressing the availability of marihuana to persons under 21 years of age.

The purposes of this act are to advance the policy of the commonwealth, to establish uniform statewide regulation of the exercise of their rights by persons 21 years of age or older, to prevent interference with parental rights due solely to the lawful conduct of a parent or child’s caregiver relative to marihuana, to provide persons who lawfully consume marihuana while off duty equal treatment with those who while off duty consume alcoholic beverages in employment practices, to provide equal treatment of those who consume marihuana by smoking with tobacco users by residential landlords and to provide equal treatment of those who consume marihuana in public with those with an open container of alcoholic beverages.

SECTION 3 Construction

This act shall be liberally construed to accomplish its policy and purposes.

It shall not be construed to:

alter the drug-free school provisions of section 37H of chapter 71 of the General Laws;

permit the operation while impaired by the consumption of marihuana of a motor vehicle, aircraft, watercraft, recreation vehicle or snow vehicle as provided in chapters 90 and 90B of the General Laws;

bar landlords of residential housing from prohibiting the smoking of marihuana, provided that the smoking of tobacco is also prohibited, or from prohibiting the cultivation of marihuana or extraction of resin from marihuana by a tenant and members of the tenant’s household for their own use;

alter the provisions of section 22 of chapter 270 of the General Laws relative to smoking in public places and other enumerated places; and,

limit any of the rights, privileges or immunities recognized or established by an “Act for the Humanitarian Medical Use of Marijuana”, chapter 369 of the acts of 2012.

SECTION 4 Amendments to the Controlled Substances Act

Chapter 94C is amended as follows:

The first sentence of the definition of marihuana in Section 1 is amended by inserting after the words “any part of the plant” the following words—

“that contain tetrahydrocannabinol”.

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The first sentence of the definition of marihuana in Section 1 is further amended by inserting at the end of the sentence after the word “resin”, the following words—

“that contain tetrahydrocannabinol”.

Section 1 is further amended by amending the definition of “Tetrahydrocannabinol” by striking the words—

“except when it has been established that the concentration of delta-9 tetrahydrocannabinol in said marihuana exceeds two and one-half per cent”.

Chapter 94C is further amended by inserting the following sections 31A–31C:

Section 31A Acquisition, cultivation, possession and transportation of marihuana for private use by persons 21 years of age and older

This chapter shall not apply to the acquisition, possession, consumption, cultivation and transportation of marihuana by persons over the age of 21, or to 2 or more such persons who do not share a single household who agree to use land or buildings owned or rented by 1 or more such persons for the cultivation of marihuana for their personal use and that of their household members and guests over the age of 21, provided that the places of cultivation and storage comply with section 31B and that when transported in a motor vehicle such marihuana shall be secured in sealed packaging, or not in the passenger area of the vehicle, as defined in section 24I of chapter 90 of the General Laws.

A violation of this section’s provision for transportation shall subject an offender to a civil fine of up to $300.

Section 31B Preventing access to marihuana by persons under 21 years of age

Whoever is authorized by section 31A to cultivate or possess marihuana shall:

cultivate inside a building or room within a building, greenhouse or outside behind 6-foot fencing that is locked when the owner or authorized person over the age of 21 is not present, on private property leased or owned by them and that the growing plants are not visible to the naked eye 6 feet 6 inches above the ground at the property line with abutting public or private property; and

store harvested plants and marihuana in a locked room or container when the owner or other lawfully authorized adult is not present.

A violation of this section shall be punished by a civil fine of up to $300.

Any person 21 years of age or older who fails to comply with the provisions of this section and as a result of such noncompliance a person under the age of 21, not his spouse, who was a foreseeable trespasser or guest acquires marihuana shall be punished by a fine of not more than $2,000 or by imprisonment for not more than 1 year or both.

Section 32L is amended by inserting after the word “program” in the third sentence–

“, substance abuse evaluation”.

Section 32M as amended by section 34 of chapter 84 of the acts of 2013 is amended by adding the following paragraph–

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15-25.doc 3

Such an offender shall also undergo a substance abuse evaluation conducted by a licensed alcohol and drug counselor as defined in section 1 of chapter 111J, and a report of the evaluation shall be provided to the parents or legal guardian and to the offender if over the age of 16.

Section 32N is amended by adding the following paragraph:

The police department issuing the citation on behalf of the municipality in which the offense occurred, or the municipality shall, if the civil fine is not paid when due, enforce collection of the civil fine using the procedure authorized by section 21 of chapter 218. The offender in such action shall be deemed to have waived all defenses except sufficiency of the service of the citation and the right of appeal provided in section 23 of chapter 218. The court shall not impose a filing fee for such action. The court shall award the municipality $300 in damages together with interest at the rate of 12 percent per annum from the twenty-first day after the citation issued.

Chapter 94C is further amended by inserting the following sections 32O–32R:

Section 32O Sale, distribution or delivery of marihuana to person under 21 years of age

(1) Any person 21 years of age or older who sells, distributes or delivers marihuana to a person they know or should know is under 21 years of age, not his or her child, grandchild, ward or spouse shall be punished by a fine of not more than $3,000 or by imprisonment for not more than 2 years or both.

(2) Any person convicted of violating subsection (1) of this section after one or more prior convictions shall be imprisoned in state prison for not more than 5 years or a house of correction for not more than 2 years, or a fine of not less than $3,000 nor more than $5,000 or both such fine and imprisonment.

Section 32P Allowing marihuana consumption by underage guests

Any person 21 years of age or older who knowingly allows a person under 21 years of age, except for the spouse, wards, children and grandchildren of the person being charged, to consume marihuana on premises or property owned or controlled by the person charged shall be punished by a fine of not more than $2,000 or by imprisonment for not more than 1 year or both.

Section 32Q Administering marihuana to another without that person’s knowledge and consent

Whoever intentionally administers marihuana or causes marihuana to be ingested by a person without that person’s knowledge and consent, or whoever intentionally leaves unattended marihuana in a public place shall be punished by a term of imprisonment in the state prison for not less than two and one-half nor more than 5 years or by imprisonment in a jail or house of correction for not less than 1 nor more than two and one-half years and a fine of not less than $500 nor more than $10,000.

Section 32R Search of dwelling-house and associated real property for marihuana

A warrant shall not issue for the search of a dwelling-house or real property associated with it, if no inn, tavern, store, grocery, eating house or place of common resort is kept therein, unless one of the applicant states under oath that upon personal knowledge or

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15-25.doc 4

reliable information from an identified person that marihuana has been sold therein or taken therefrom for the purpose of being sold, either by the occupant, or with the occupant’s consent or permission, contrary to law, within 2 weeks previous to the filing of the application. In all other respects such application, warrant and execution shall comply with the provisions of sections 1, 2, 2A, 2B, 3 and 3A of chapter 276.

SECTION 5 Local bylaws and ordinances

No municipality shall enact any bylaw or ordinance, rule or regulation prohibits the use by lawful occupants 21 years of age or older of residential property, or to 2 or more such persons who do not share a single household who agree to use land or buildings owned or rented by 1 or more such persons for the cultivation of marihuana for their personal use in the exercise of their right to cultivate marihuana, possess it for their personal use and that of their household members and guests 21 years of age and older or that imposes additional requirement upon such use.

No municipality shall enact any bylaw, ordinance or regulation that imposes any penalty greater than that imposed upon those possessing an open container of alcoholic beverage in public, for publicly consuming marihuana or for displaying an open container of marihuana or marihuana product in public, and any such ordinance or bylaws shall in the first instance be enforced by the noncriminal disposition process in section 21D of chapter 40 of the General Laws.

SECTION 6 Protection and care of children

Chapter 119 of the general laws is hereby amended by inserting the following new section:

Section 86 In any administrative action or proceeding relating to the care and protection of a child under this chapter the presence of marihuana metabolites in a newborn’s bodily fluids, or conduct by a person caring for a child related to marihuana permitted under chapter 94C shall not form the sole or primary basis for supporting an allegation of neglect or abuse or for any action by the department or the basis for proceedings before the juvenile court.

SECTION 7 Custody of children (divorce)

Section 31 of chapter 208 of the general laws is amended by adding at the end of the paragraph that begins: “In making an order or judgment relative to the custody of children” the following sentence:

A parent’s conduct related to marihuana permitted under chapter 94C shall not be considered misconduct.

SECTION 8 Award of custody, criteria (children born out of wedlock)

Section 10 (a) of chapter 209C of the general laws is amended by adding at the end the following paragraph:

In making an order or judgment relative to custody or visitation, a parent’s or other person’s conduct related to marihuana permitted under chapter 94C shall not be considered a factor contrary to the best interest of the child.

SECTION 10 Employment practices

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Section 4 of chapter 151B is hereby amended by inserting the following new subsection 1E:

For a public or private employer’s failing to treat adult off-duty consumption of marihuana in the same manner as they treat off-duty consumption of alcoholic beverages in their employment practices, unless the employer proves that tolerating such activities would cause loss of a monetary benefit under federal law or regulations.

SECTION 11 Retroactivity

The amendment in section 4 of this act inserting section 31A into chapter 94C of the general laws shall apply retroactively to:

(a) all unpaid citations for violation of section 32L of chapter 94C;

(b) all criminal actions pending in the courts of the commonwealth alleging a person 21 years of age or older at the time of offense violated section 34 of chapter 94C;

(c) all criminal actions pending in the courts of the commonwealth alleging a person 21 years of age or older at the time of offense violated section 32C of chapter 94C by means of cultivating marihuana where there is insufficient proof that the defendant intended to distribute it for profit; and,

(d) all criminal actions pending in the courts of the commonwealth alleging a person 21 years of age or older at the time of offense violated section 40 of chapter 94C where the defendant was the customer and there is insufficient proof that the defendant intended to distribute it for profit.

SECTION 12 Effective dates

This act shall be effective the day following the state secretary’s receipt from the governor and council of their determination of an affirmative vote on the question as provided by G.L. c. 54, § 115.

We the undersigned state under the pains and penalties of perjury that we have personally read the final text of this proposed statute, fully subscribe to its contents, are qualified voters of the commonwealth at the addresses printed below our names, and freely and voluntarily agree to be one of its original signers as required by Amendment Article 48 of the Constitution of the Commonwealth of Massachusetts. _________________________________ Lester Grinspoon 130 Seminary Ave, Apt. 207, Auburndale, MA 02466 _________________________________ Madeline Webster 96 Melrose Street, Arlington, MA 02474

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_________________________________ William H. Downing 14 Avon Street, Reading, MA 01867 _________________________________ Steven S. Epstein 55 West Street, Georgetown, MA 01833 _________________________________ Andy Gaus 382 Riverway, Apt. B, Boston, MA 02115 _________________________________ Jeffrey Morris 1 Repton Place, #1122, Watertown, MA 02472 _________________________________ Scott A. Mortimer 59 Marlboro St., Newburyport, MA 01950 _________________________________ Marvin N. Cable 73 Bridge Street. Unit 6 Northampton, MA 01060 _________________________________ William Flynn 3 Oakland Street, Salem, MA 01970 _________________________________ Linda L. B. Noel 555 Lincoln Street, Franklin, MA 02038 _________________________________ James M. Pillsbury 10 Yorks Rd., Framingham, MA 01701

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_________________________________ Kathryn Rifkin 18 Meadowbrook Road, Bedford, MA 01730 _________________________________ Graham Steele 144 Wheeler St, Gloucester, 01930 _________________________________ Jeanne M. Sauro 35 Meadowlark Lane, Franklin, MA 02038 _________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address _________________________________ Signature _________________________________ Print Name _________________________________ Print Address

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SUMMARY OF NO. 15-25

The proposed law would generally permit the cultivation,

possession, and use of marijuana by persons age 21 and older

within Massachusetts and would remove existing criminal

penalties for such activities.

Under the proposed law, cities and towns could not impose

additional requirements or restrictions on such personal use by

adults, but could limit public consumption of marijuana to the

same extent that they limit open containers of alcoholic

beverages in public.

The proposed law would make it a crime to deliver marijuana

to a person under 21 who is not the child, grandchild, ward, or

spouse of the defendant. The measure would impose criminal

penalties for knowingly allowing underage persons to consume

marijuana on premises owned or controlled by the defendant, and

for intentionally causing the ingestion of marijuana without a

person’s consent, for leaving marijuana unattended in a public

place, and for failing to secure plants and marijuana from an

under-age person who is foreseeably present on the premises.

The proposed law would provide that lawful conduct

regarding marijuana could not be the primary basis for

supporting allegations of abuse or neglect in child welfare

proceedings and would not constitute misconduct for the purpose

of awarding child custody or visitation rights. It would

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prohibit employers from treating employees’ off-duty consumption

of marijuana differently from off-duty consumption of alcoholic

beverages, unless the employer establishes that federal monetary

benefits would be jeopardized as a result.

The proposed law would apply retroactively where

constitutionally permissible, including to unpaid civil

citations for possession of one ounce of marijuana or less and

to pending criminal charges alleging possession or cultivation

of marijuana or distribution thereof where no profit motive was

involved.

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No. SJC-12106 __________________

JOSEPHINE HENSLEY & OTHERS

Plaintiffs/Appellants v.

ATTORNEY GENERAL and

SECRETARY OF THE COMMONWEALTH, Defendants/Appellees

______________________________

ON RESERVATION AND REPORT FROM THE SUPREME JUDICIAL COURT FOR SUFFOLK COUNTY _____________________

BRIEF OF PLAINTIFFS/APPELLANTS

_____________