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Massachusetts Cannabis Overhaul Could Prompt Legal Challenge

July 21, 2017
A cannabis overhaul bill is currently on the desk of Gov. Charlie Baker, pictured here at a ceremony in Boston. Some worry a key provision in the measure could be unconstitutional. (Elise Amendola/AP)
Massachusetts Gov. Charlie Baker is expected to sign a cannabis overhaul bill that the state Legislature sent to his desk on Thursday, but one Republican lawmaker is already warning that one of the bill’s provisions could invite a lawsuit.

The bill, H.3818, would effectively repeal and replace the law that voters passed in November to legalize adult-use cannabis. Cannabis would still be legal for adults 21 and older, but with new regulatory tweaks. The legislation would set a higher cannabis tax than what voters approved, merge government oversight of medical and adult-use systems, impose restrictions on advertising and change how cities and towns can ban retail cannabis stores and other facilities.


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Sens. Sonia Chang-Diaz and Linda Dorcena Forry tweeted this short video to explain the impact of the measure:

The bill’s approval marks a milestone for lawmakers, who have been at loggerheads for weeks over cannabis regulations and only recently struck a compromise.


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Even that compromise may not stand, though. According to the state Senate’s top Republican, Sen. Bruce E. Tarr of Gloucester, changes to how cities and counties ban cannabis facilities would set a “very dangerous precedent” and could spark a legal challenge.

“A group of people in Massachusetts will have their right to vote extinguished.”
Sen. Bruce E. Tarr (R-Gloucester)

Under the law passed by voters in November, local voters were given the option of banning or otherwise restricting cannabis in their respective city or town. The Legislature’s new bill takes some of that control away from voters and puts it in the hands of elected officials.

Specifically, in municipalities that voted in favor of legalization, a vote would still be required to ban or severely limit cannabis businesses. But in cities and towns that voted against the measure, local officials could enact limits themselves.

“A group of people in Massachusetts will have their right to vote extinguished by virtue of the way they voted on a ballot question,” Tarr said on the Senate floor (“with incredulity,” according to the Boston Globe).

Tarr warned that by disenfranchising those voters, lawmakers could risk a constitutional challenge down the road that could potentially lead to “the incapacitation of this lawsuit.”


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Outside lawyers have reportedly questioned whether the provision might violate guarantees of equal protection of the law but that wasn’t enough to sway most lawmakers. Sen. William N. Brownsberger (D-Belmont), dismissed the worries as “nonsense.”

A spokeswoman for the governor has said that Baker “appreciates the Legislature’s work on this bill and will carefully review it in the coming days.”


The Associated Press contributed to this report.

Ben Adlin's Bio Image

Ben Adlin

Ben Adlin is a Seattle-based writer and editor who specializes in cannabis politics and law. He was a news editor for Leafly from 2015-2019. Follow him on Twitter: @badlin

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  • cars0153

    typical mass politicians going against the will of the voters. what is not well known is the day after Christmas 6 of them voted to delay the law. Where were the rest of them?
    You can be assured the ones who voted for this change will not get my vote come election time. It’s not this bill, it could have been anything that voters voted for.
    In addition they now help the black market continue to do business as usual.
    What is sad is the state’s budget is in the red. If they allowed this to go forward as voted on millions of dollars wouldn’t have been lost in tax revenue!
    Band of idiots at the state house except the governor

  • Starmaykr

    They should be tried in court for their crimes against the people of Massachusetts. Crimes against our Democratic principle of “Majority Rule”. The first crime was not implementing the results of the first ballot initiative by not having even half of the Medical Marijuana Dispensaries we were supposed to have by now. We voted it into law and they broke the law! In an open door, open election we voted for 12%. TWELVE PERCENT!. What right do they have to go into their “closed room” to alter the results of a legal ballot initiative? We voted for a three person oversight board not a five man board with the Governor. That was not what we voted for. Trump won a four year term,by the same logic we could possibly go into a dark closed room a decide he can actually only serve a three year term. I am from Boston. What has been written into law by a ballot initiative should only be altered by another ballot initiative. 20% is a crime that drives away all of this Out-of- State money (from all of the surrounding saps who were not smart enough to legalize it). 20% is a crime that drives people back to the same black market the new law would have killed,Dead, if not for this criminal rate increase. I say we let each local community decide what is best for themselves not these ‘closed door’, dark room, bureaucrats in Boston.

    • FlunkedAgain

      In Colorado, they put Marijuana Legalization in the State Constitution.

  • FlunkedAgain

    Does Massachusetts have an Official Stoner Party yet?

    Didn’t the Ballot Initiative send the Professional Politicians a message?

    People voted to Defund Organized Crime, so why are the politicians voting to keep it viable?

    • lovingc

      When you put idiots in charge you get idiocy.

  • jake101goodale

    That “compromise” is clearly a constitutional violation. That being said I would wait to challenge it until cannabis shops are already set up. When it is ruled unconstitutional the law will either be rewritten to give town officials the power or the voters the power. If pot shops are already set up it will be to late for town officials to act if they get the power. If the voters get the power whatever, they would only be 2 years behind towns that already had cannabis shops; which isn’t a deal breaker.

  • lovingc

    Tarr warned that by disenfranchising those voters, lawmakers could risk a constitutional challenge down the road that could potentially lead to “the incapacitation of this lawsuit.”
    Within the criminal justice system, incapacitation is the response used when a person has committed a crime. By incapacitating the convicted offender, we prevent the individual from committing future crimes because he is removed from society and locked up or restrained somehow.
    I believe this is not the proper usage of this strange word.

  • F Michael Addams

    …Tarr…shouting from the bleachers again…he make take off his shirt and wave it around..

  • Chaz Man

    This is a prime example of liberal state democrat politicians. They always end up being authoritarian jackasses that care nothing about the voters. It’s always about lining their own pockets with our money.