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Filing # 79854404 E-Filed 10/25/2018 11:16:00 AM. IN THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA CIRCUIT CIVIL DIVISION FLORIGROWN, LLC, and VOICE of FREEDOM, INC., Plaintiffs, ve Case No. 2017-CA-002549 FLORIDA DEPARTMENT OF HEALTH, OFFICE OF MEDICAL MARIJUANA USE, et al., Defendants. MOTION OF FLORIDA HOUSE OF REPRESENTAT! TO INTERVENE AS AN ADDITIONAL DEFENDANT To grow, distribute, or dispense marijuana constitutes a serious felony offense under existing federal drug laws. Florida voters added the Medical Marijuana Amendment (“MMA”) to the Florida Consti ion, but that new state drug policy cannot override federal policy on the same subject. This case turns on the ineluctable point that under the United States Constitution, federal law truly is the supreme law of the land and prevails over conflicting state law. Implementation of the MMA, then, must account for any conflict with federal law. The Legislature took such conflicts into account when it enacted the tightly controlled regulatory scheme now reflected in section 381.986 of the Florida Statutes. The plaintiffs’ challenge to that statute—and this Court’s orders adumbrating the statute’s invalidity—do not. The Florida Constitution vests all of the State’s legislative power in the Legislature. The MMA did not diminish that power. In section 381.986’s scheme, the Legislature exercised its policymaking prerogative to carefirlly implement the MMA and preserve the will of the voters against federal invalidation. The statute establishes a closely regulated medical marijuana production and dispensary regime that follows the U.S. Department of Justice’s guidance (in place at the time the statute was adopted) for how a State could avoid federal criminal enforcement against medical marijuana activities. The Legislature acted appropriately and within its constitutional sphere to implement the MMA under these unusual circumstances. Nonetheless, in its October 5 order, this Court improvidently characterized section 381.986 as an unconstitutional attempt by the Legislature “to provide guidance” to the Department of Health on implementation of the MMA, suggesting that the Legislature “incorrectly” told the Department what to do “by statute,” in violation of the Florida Constitution. This characterization fails to consider the MMA’s conflict with federal drug policy. In fact, the Court fails to mention existing federal drug policy at all. A determination by this Court that section 381.986 is invalid will put the viability of the entire MMA policy—as enacted by Florida’s voters into the State’s Constitution—in jeopardy. And such a determination will put entities like the plaintiffS at greater risk of federal criminal prosecution. The Florida House of Representatives, as one half of this State’s policymaking branch, is well situated to respond to the plaintiffs and the Court in defense of section 381,986, Notably, the MMA gives implementation authority—not policymaking authority—to the Department of Health, and the Florida Constitution’s strict, express separation of powers precludes this Court from exercising policymaking authority. That leaves the Legislature with the sole constitutional authority to make the necessary policy choices for how to implement the MMA within the limits of an otherwise conflicting and superseding federal drug policy. Section 381.986 reflects those legislative choices, and the House should be allowed to defend those choices here. It bears noting that this Court, like the Legislature, is duty bound to follow both federal and state law. See Art, VI, cl. 2, U.S. Const, (making federal law “the supreme Law of the Land” and binding state judges to follow it, “any Thing in the Constitution or Laws of any state to the Contrary notwithstanding”); see also Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 367 (1990) (“Federal law is enforceable in state courts . .. because the [U.S.] Constitution and [federal] laws passed pursuant to it are as much laws in the States as laws passed by the state legislature.”), To assert that the Florida Constitution is the “law of the land” or the “supreme law of our government” is neither entirely accurate nor analytically complete. The Court must abide by federal drug policy when interpreting and applying the MMA. Indeed, the Court must reconcile the MMA’s conflict with federal drug policy before it reviews section 381.986's validity under the MMA. Put differently, it is not enough for the Court, or the plaintiffs, to simply rely on the MMA’s language to invalidate the Legislature's implementing policy when the MMA itself facially conflicts with federal law. This Court must consider section 381.986's validity vis-a-vis the MMA, but with an eye toward the prevailing federal policy and the federal government's stated priorities—just as the Legislature did when it crafted the statute in the first place. ‘The House seeks to intervene here to defend the Legislature’s prudent effort at striking the necessary, delicate balance between implementation of the voter-adopted MMA policy, on the one hand, and conflicting federal drug policy, on the other. Indeed, the House has a direct interest in preserving, from judicial encroachment, the Legislature’s constitutional prerogative to address such a conflict and effectuate the voters’ will to the extent federal law will allow, eet COMES NOW, the Florida House of Representatives, pursuant to Rule 1.230 of the Florida Rules of Civil Procedure, and moves this Court for leave to intervene as an additional defendant. In support of this motion, the House states as follows: