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

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 GENERALS 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

A.

Title & Statements .......................... 48

B.

Summary ..................................... 51

CONCLUSION ................................................. 52
CERTIFICATE OF COMPLIANCE .................................. 53
CERTIFICATE OF SERVICE ..................................... 53

ii

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 Commn, 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 Assn 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

iii

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

iv

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
Blacks 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

Marijuana Edibles Pose Threat to Colorado Adults and

Children Alike, http://www.narconon.org/blog/
Marijuana-edibles/marijuana-edibles-pose-threatsColorado-adults-children-alike/ (reviewed on April
19, 2016).............................................. 29
Mass.gov, http://www.mass.gov/ago/government-resources/
initiatives-and-other-ballot-questions/currentpetitions-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

vi

QUESTIONS PRESENTED
I. Did

the

Attorney

Initiative

Petition

Generals
15-27,

misleading

which

summary

purportedly

of

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 Petitions title,
yes and no statements, and summary be redrafted by
the Attorney General, subject to the Courts approval, so
they no longer mislead the voters?

PROCEDURAL HISTORY
Plaintiff

Josephine

Massachusetts
(hereinafter

voters.
SAF)

1-2,

Hensley

is

Statement
which

joined
of

appears

by

58

other

Agreed

Facts

in

Joint

the

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

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

Plaintiffs

of

Counsel

facts
to

with

explain

the
the

full
late

Court,

and

filing

of

for
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 laws claimed purpose is to control the production
and

distribution

of

marijuana

in

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.

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.
2

Regulatory entities. Upon passage, a new agency, the

Cannabis

Control

regulatory

Commission

authority

over

(CCC),

will

commercial

have

sole

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 CABs 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.

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.

3

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 220-224 4 ], then makes the Cannabis Control Commission
(CCC) solely responsible for the safety of edible products
[id. lines 307-310].

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.
4

Regulatory
the

Cannabis

regulations
underage

authority.

The

Advisory

Board

for

access;

packaging

and

licensing;

CCC,

consultation

(CAB),

site

recordkeeping

labeling;

in

and

sample

may

establish

security;

preventing

inventory

testing;

with

tracking;

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 6815

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).
5

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

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

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.
6

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,

establishment,

may

not

or
be

works
the

basis

in

marijuana

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.
7

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
Petition

Summary
that

is

appeared

the
on

only
the

information
form

used

to

about
gather

this
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 entirety 13:
[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.
8

hemp; or make or transfer

marijuana
use,
storage,
processing.

items related
cultivation,

to
or

[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
9

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
December 15, 2016.

law

would

take

effect

on

C. Title and Yes or No Statements

If
Attorney
have

Petition
General

prepared

15-27
and

certain

appears

on

the

2016

Secretary

of

the

Commonwealth

voter

information

ballot,

materials.

the
will

These

are: (1) a ballot question title a short title that

appears in the Information for Voters 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

14

of

Hashish,

Food

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

10

Products with Tetrahydrocannabinol (THC), and Marijuana.

The Attorney Generals title is two words; the Plaintiffs
is ten words. JA at 15.
Statements.

For

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 1011.

The Attorney Generals 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
11

health and safety. SAF 12. The Attorney Generals 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
principle
Sears

v.

can

Only

by

preserving

constitutional

Treasurer

&

this

fundamental

be

preserved.

government

Receiver

Gen.,

327

Mass.

310,

321

defects

of

(1951).
In

this

case,

Plaintiffs

bring

two

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.)

12

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

The
summary

Attorney
for

General

must

create

signature-gathering

fair,

papers

and

concise

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 summarys answer: Only marijuana and related products.
This

limited

information

Attorney

General

knew,

language

of

petition

the

or

appeared

even

should

have

itself

that,

though

known,
in

from

addition

the
the
to

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

to process, manufacture and sell:

Concentrated

marijuana

tetrahydrocannabinol

with

(THC).

high

THC

is

levels
a

Class

of
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.

13

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 summarys false claim that
the proposed law will not affect existing law regarding
medical marijuana treatment centers.
B. Unrelated Subjects (Brief 37-46).
The

Attorney

containing

General

related,

may

mutually

only

certify

dependent

petition

subjects.

[T]he

relatedness limitation is . . . intended to avoid confusion

at

the

polls

meaningful

and

choice

to

permit

citizens

when

voting

to

to

accept

or

exercise

reject

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.
14

In

this

case,

although

styled

as

an

initiative

to

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

mandate

that

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

marijuana)

with

broad

narrow

popular

industry

appeal

preference

(legalize
(transition

medical marijuana owners into for-profit sales), Petition

15-27

fails

policy

to

which,

logrolling.
appeal

should

present
in

Id.
not

the
at

unified

past,

227-228.

have

been

has

statement
been

This

type

certified

of

referred
of
by

public
to

as

disconnected
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
Voters Guide and on the ballot printed by the Secretary of
the Commonwealth. See G.L. c. 54, 53.

15

ARGUMENT
I.

THE ATTORNEY GENERALS 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, 669671 (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 Commn,
427 Mass. 825, 828 (1998)(guarantee[] that all signatories
see a fair and complete summary . . . guards against the
16

possibility that the public will be misled by those

campaigning for a referendum.).
Because the Attorney Generals 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 Assn 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;
17

these mistakes could not be dismissed as relating to a

minor detail of the law). Massachusetts Teachers Assn.,
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. 587592 (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 Generals summary is

uniquely deficient in all three ways.

18

A. Concentrated Marijuana Never Mentioned

Voters are led to believe in the Attorney Generals
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

Commonwealth,

Chief
the

Law

Enforcement

Attorney

General

Officer
knows

of

that,

the
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

19

[THC].

In

short,

Class

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

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,

concentration

of

Massachusetts

known

any

2.5%,
by

time

marijuana

it

becomes

its

street

exceeds

Class

name

THC

drug

hashish.

in
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

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 Commissioners 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].
20

This
Hashish

would
has

be
long

important
been

information

the

name

for

used

to

voter.

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

extracts

treatment

like

hashish

that
and

marijuana
hash

and

oil

concentrated

receive

under

Massachusetts law. In a section on its website entitled

Massachusetts Laws & Penalties, the National Organization
for

the

between

Reform

of

Marijuana

marijuana

Laws
and

(NORML)

distinguishes

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/mjeducation/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).
21

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

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
todays marijuana is very different from the allegedly
harmless joint passed around a party in the 1970s or 1980s;
todays pot is much more potent).
http://www.washingtontimes.com/news/2015/sep/7/ed-feulnermarijuana-health-risks-understated/
22

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 134138.

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

compound, blend, extract, infuse or otherwise

to

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

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.
23

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

understanding

what

bring
is

level

actually

of

sophistication

being

proposed,

in
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 Generals

24

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 Generals 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

legalization

certified

petitions

three

(15-23,

other

marijuana

15-24,

15-25).

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

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
25

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

759 n.7.
While the Attorney General is not expected to hold
extensive

hearings

on

proposed

initiative,

it

seems

more than reasonable to expect that she be familiar with

basic laws, like the one that has classified controlled
substances
strict

for

THC

over

40

dividing

years.

line

Id.

2.5%

at

758-759
that

n.7.

The

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

voters

perspective,

knowing

that

marijuana

concentrate or hashish is part of the legalization plan

is

not

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.
26

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, todays 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.additionalresource.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).
27

Wouldnt

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 Generals 524 word summary also fails to
mention that marijuana businesses will be allowed to sell
edible

products,

cookies

including

containing

the

soda,

candy,

hallucinogenic

ice

cream

substance

and
THC.

Summary, supra. at 8-10.

Manufacturing

food

products

is

heavily

regulated

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

include, inter alia, product quality and safety, testing
procedures,
introduce

and
harmful

criminal

penalties

ingredients

and

for

violators

that

into

food

drugs

our

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 Generals 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
28

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 adults 25 and
children (who mistakenly ingest innocent-looking, but THCinfused, candy, cookies and sodas).
potency

in

Massachusetts

medical

26

After reviewing THC

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/marijuanaedibles/marijuana-edibles-pose-threats-colorado-adultschildren-alike/ (reviewed April 19, 2016).
29

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 initiatives 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).
30

C. Misinformation About Preferential Licensing Plan

The

Attorney

Generals

summary

contains

wrong

information. It tells every voter: The proposed law would

not

affect

treatment

existing

centers.

law

regarding

Summary

7.

medical

That

marijuana

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 Generals 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].

31

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

Generals 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

stating

law

will

not

it

will

that

impact
not

use

affect

(correct
the

very

version)

and

institutions

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

significant

mistake,

not

squabble

over

the

Attorney

Generals 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

Consider

concerning
that,

medical

upon

marijuana

enactment,

treatment

15-27

centers.

guarantees

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.

32

15-27

also

declares

that

treatment

center

owners

cannot be stopped by new state regulators from conducting

commercial,

profit-generating

where

now,

they

under

sales

existing

in

law,

the

same

building

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

qualifying
patient

has

non-profit
patients
been

or

entities

that

caregivers);

diagnosed

with

only
1(K)

dispense

to

(qualifying

debilitating

medical

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

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

regulations).

725.105(E)(medical

29

Also

marijuana

see,

e.g.,

packaging

105

restrictions

prohibit images other than the medical centers

725.105(L)(8)(no
encourages

or

advertising
represents

the

28

material
use

of

CMR

30

allowed
marijuana

logo);
which

for

any

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.
33

purpose

other

condition

than
.

recreational

use

to

treat

[or]

of

debilitating

encourages

marijuana);

or

medical

represents

725.110(A)(1)(no

the
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
communitys hands are largely tied when faced with that
health care facilitys 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

DPHs medical marijuana regulations appear at

http://www.mass.gov/eohhs/docs/dph/regs/105cmr725.pdf
34

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
relation

what
to

the

happened

before

initiative

the

on

Single

medical

Justice

marijuana,

in
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]

treatment
more

than

existing

centers?
a

law

Summary

matter

of

regarding
7.

This

degree.

medical
summary

marijuana
misstep

Massachusetts

is

Teachers

Assn, 384 Mass. at 230 citing Opinions of the Justices,

357 Mass. 787, 800 (1970).

It

was

basic

flaw

that,

along with other issues brought to the Courts attention,

35

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 Generals 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 Generals 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.

36

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
initiatives 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
Assn v. Sec. of the Commonwealth, 384 Mass. 209, 219.
37

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 Blacks 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

38

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 Courts 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.
39

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

40

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 Courts notice that the CABs
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).
41

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.
42

being forced to render simultaneous judgment on the wisdom

of transforming the non-profit, medical marijuana system.
Carney

commands

this

because

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 petitions 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
health

administrative

care

regulators.

system
See

and

supra.

law

in

the

substitutes
note

35.

To

heavily

regulated

its

own

industry

make

matters

more

disconnected, 15-27 also rejects longstanding food safety

laws

under

G.L.

Chapter

43

94,

and

gives

those

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.
44

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

all, their initiative legalizes marijuana; allows people 21
and

over

merchants

to
who

possess
perform

it

and

these

buy

it;

functions,

and

regulates

including

the

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).

45

The Carney Court effectively explains why the Attorney

Generals 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 signaturegathering 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 selfseekers 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).
46

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.

47

G.L. c. 54, 53.

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.
correct

any

Commonwealth

39

Now is the time to

deficiencies

because

the

has

printed

these

not

yet

Secretary
items.

of
SAF

the
14.

Massachusetts Teachers Assn, 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.
48

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
intent

has

the
long

more

stringent

populated

our

standard

of

deceptive

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 Assn,
348 Mass. at 229-230.
Instead of Marijuana Legalization as the title for
initiative 15-27, a more accurate title is:

The

Legalization of Hashish, Food Products

Tetrahydrocannabinol (THC), and Marijuana.

with

reasons

discussed

in

support

of

this

version

were

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).
49

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 Generals
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

Generals

cultivation

of

formulation

marijuana,

contains

including

the

phrase,

tetrahydrocannabinol

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

the

Attorney

limited

General

amounts

will

maintain

that

modifies

persons

21

the
or

phrase

in

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

50

15-27

does

not

limit

the

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 Generals 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

Courts

Plaintiffs

recommend

order

that

to

this

re-draft
Court

the

view

summary,

the

Joint

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

neutral style required of the Attorney General and includes

51

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.
52

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

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

53

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 66
63

Page 2 of 66
63

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 66
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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 Assn, Inc. v. Boston Public Health Comn

Appeals Court of Massachusetts, Suffolk. July 26, 2011 79 Mass.App.Ct. 822 950 N.E.2d 889

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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 Comn

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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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 childs 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 tenants 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, 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 31A31G:
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 sections 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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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
(A)

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Prevention of persons under the age of 21 from accessing marihuana from

retailers and regulation of advertising:

Retailers, cannabis cafs and clubs shall

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(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 saleno such
verification is required for any person who appears 27 years of age or olderand, 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 caf, 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 caf 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 caf 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 farmers 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 departments 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 farmers market on an appropriate site, except that the
municipal licensing authority may require a daily fee for a license to hold such a farmers
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 cafs 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 cafs and clubs

Municipalities may levy, assess and collect on or before June 30 of each year from:
cannabis cafs an excise at the rate of 0.75 per cent of such taxpayers 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 32O32Q:
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 persons knowledge and

consent

Whoever intentionally administers marihuana or causes marihuana to be ingested by a

person without that persons 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 occupants
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 wordsillegal 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 newborns 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 parents 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 parents or other persons
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 secretarys 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 cafs 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 cafs 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
persons 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 childs
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 farmers market, marihuana product
producer, retailer, cannabis caf 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 tenants 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 31A31C:
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 sections 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
5053 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 32O32Q:
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

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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 persons knowledge and consent

Whoever intentionally administers marihuana or causes marihuana to be ingested by a

person without that persons 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 5063:
Section 50 Definitions
As used in sections 5063, inclusive, the following words shall, unless the context clearly
requires otherwise, have the following meanings:
Cannabis caf, 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 farmers 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 departments 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 governmentissued photographic identification that each person entering the sales room is 21 years
of age or older and repeating the verification prior to saleno such verification is
required for any person who appears 27 years of age or olderand, 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
occupants 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 cafs 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 cafs 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 cafs and clubs.
If a majority of votes cast on such question is in the affirmative, the city or town shall
license cannabis cafs and clubs in accordance with the provisions of this chapter.
In any city or town that has authorized the licensing of cannabis cafs 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 cafs 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 cafs 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 cafs 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 cafs the local licensing
authority shall grant licenses. No license shall be granted for more than 1 year and may be
renewed annually.
Cannabis cafs 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 caf 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 onpremises all-alcoholic-beverages license.
Upon approval of a license the licensing authorities shall set the hours during which the
caf 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 licensees 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 businesss 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 taxpayers 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 onpremises 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 members 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 tamperproof 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 clubs
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 farmers market on an appropriate site, except that the municipal licensing
authority may require a daily fee for a license to hold such a farmers 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 cafs 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 wordsillegal 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 newborns 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 parents 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 parents
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 employers 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 5053 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 secretarys
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 cafs 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 cafs 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 cafs 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
persons 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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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 childs 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 tenants 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 31A31C:
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 sections 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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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 32O32R:
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
consent

Administering marihuana to another without that persons knowledge and

Whoever intentionally administers marihuana or causes marihuana to be ingested by a

person without that persons 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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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
occupants 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 newborns 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 parents 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 parents or other
persons 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 employers 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 secretarys 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
persons 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.

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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 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
_____________