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Friday, December 16, 2016

Missouri Voters Have No Right to Legalize Marijuana, Prosecutor Argues

Posted By on Fri, Dec 16, 2016 at 6:23 AM


In the wake of the surprising failure of a medical marijuana initiative to make the 2016 Missouri ballot, a state prosecutor is now trying to prevent any future attempts to legalize weed via public vote.

The cannabis legalization group New Approach Missouri is targeting 2018 to legalize marijuana in the state, hoping to place a constitutional amendment on the state ballot. Other activists have the same idea, and presently more than a dozen pot initiatives have been submitted to Missouri Secretary of State Jason Kander for certification for the 2018 election cycle.

But in a lawsuit filed last week, Cole County Prosecuting Attorney Mark Richardson argued that Kander needs to toss those initiatives in the trash.

"The Missouri Constitution is explicitly subject to the Constitution of the United States," the lawsuit states. And since the federal government still considers marijuana a Schedule I drug lacking "any accepted medical use," Richardson's lawsuit asks a judge to declare these state-level marijuana legalization initiatives unconstitutional.

Prosecutors fighting any loosening of marijuana laws — even for medical purposes — is nothing new. But Richardson's preemptive strike against a statewide vote appears to be.

"This is the first I’ve heard of prosecutors trying to keep something off of the ballot," says Washington University law professor Peter Joy.

Joy says there may be legal cover for what Richardson is doing, but that doesn't make it right.

"Prosecutors are elected and given a certain amount of discretion, and I think this is within the bounds of what they’re permitted to do," he says. "The question is whether this is something they really should be doing. It’s interesting that prosecutors have decided to basically silence the public on this issue."

If a judge sides with Richardson, the decision could deal a harsh blow to future legalization efforts in Missouri. Absent a vote of the people, it's hard to see Missouri following the other states steadily turning green. The state legislature is dominated by conservatives. Aside from an extremely limited measure allowing access to hemp oil for children with untreatable forms of epilepsy, lawmakers have so far rejected attempts at broad legalization measures, even for medical use.

And even if the legislature did pass a bill to legalize weed, it appears likely state prosecutors would pounce on the same constitutional issue raised in Richardson's lawsuit, taking legal action to stop it from becoming law.

Earlier this year, a dozen Missouri prosecutors — including Jennifer Joyce of St. Louis city, Bob McCulloch of St. Louis County and Jean Peters-Baker of Jackson County — submitted an affidavit claiming that marijuana addiction "destroys children's lives." Just last month, the Missouri Association of Prosecuting Attorneys unsuccessfully lobbied the Missouri Association of Counties to pass a resolution opposing "any legislative efforts" to legalize or decriminalize weed in Missouri.

Richardson, who is the incoming president of the Missouri Association of Prosecuting Attorneys, did not return a message left with his office.

Richardson's lawsuit drew immediate condemnation from New Approach Missouri political director John Payne, who called the attempt to kill marijuana initiatives before they are certified a "frivolous" effort that "flies in the face of overwhelming precedent."

"Furthermore, as an attorney, Richardson almost certainly knows this and is wasting tax dollars and the court's time in an effort to stall the initiative process," Payne said.

At present, it's unclear how the lawsuit will affect the certification process for the proposed initiatives, if at all. Secretary of State Jason Kander is on the record supporting medical marijuana legislation, but a spokeswoman for the office tells Riverfront Times that it's important the initiative certification process remain impartial.

"Our office does not assess the constitutionality or substance of any petition when processing them," Spokeswoman Stephanie Fleming in an email responding to our questions about Richardson's lawsuit. "We will continue to provide the same objective review to all petitions received by our office."

In a poll conducted this past summer by Public Policy Polling, 62 percent of Missourians said they would vote yes on a ballot issue to legalize marijuana for medical purposes. Between signature gathering problems and proactive blocks like the one Richardson is attempting, the question is whether they'll ever get the chance.

Follow Danny Wicentowski on Twitter at @D_Towski. E-mail the author at

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