PORTLAND, Maine — Maine’s attorney general told a roomful of prosecutors in Augusta on Sept. 16 that she was concerned Question 1 on November’s ballot would effectively make it legal for minors to possess up to 2.5 ounces of marijuana.
But two weeks later, in a voter guide published Oct. 3, Attorney General Janet Mills made no mention of that concern.
Then this week, less than a month before Election Day, the state’s top legal adviser and prosecutor, who has expressed reservations about legalizing marijuana, publicized the concern in a television interview.
“Their timing of this is disturbing and the change in position is disturbing, and that’s what has us confused and disheartened,” said Scott Anderson, a Portland attorney the Yes on 1 campaign retained to respond to the analysis by Mills.
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News of the AG’s analysis prompted opponents of the question to call for supporters, including former Cumberland County Sheriff and Democratic Senate candidate Mark Dion of Portland, to rescind support of the question. Dion, who did not respond to a voicemail Friday, had not issued a response to that request.
The referendum question would repeal a section of law defining the penalties for having up to 2.5 ounces of marijuana, both for adults over 21 and for minors. Mills and other prosecutors said the question does nothing to replace those penalties for people under 21, taking the teeth out of any enforcement efforts.
What Mills characterized as a fatal flaw, the Secretary of State’s Office described as an easy legislative fix.
Kristen Muszynski, spokeswoman for the Secretary of State, said the Legislature could address the bill’s impact on other parts of state statute if it passes on Nov. 8.
“It appears clear that the intent of the legislation applies to persons 21 and over,” Muszynski said. “If there’s oversights or discrepancies then it’s something that the Legislature could address quite easily.”
Muszynski added that her office does not attempt to interpret the ballot questions. It compiles input from the attorney general, state treasurer, Office of Fiscal and Program Review, and supporters and opponents to inform voters through a written voter guide that it publishes online and sends to municipalities and libraries across the state.
James Burke, a clinical professor of law at the University of Maine, said he has not read or analyzed the full 30-page bill, but said the issue appears to present a technical problem often seen when drafting legislation.
“This is not, in my view, an uncommon problem with statutes,” Burke said. “Laws are so complex that often there are what are called technical revisions that have to be done when an unseen and unexpected hiccup occurs after a law is passed.”
Technical fixes generally aren’t controversial, Burke said. They can get heated, however, as with the case of a 2013 energy bill where a missing “and” reignited debate over state energy policy.
Where the AG and prosecutors see a flaw, supporters see a distraction.
In notes prepared on the citizen-initiated bill and sent to the Bangor Daily News Thursday, Mills wrote that its repeal of one subsection of Maine law — Title 22 section 2383, subsection 1 — “makes it lawful for juveniles of any age to possess and consume a ‘useable amount of marijuana.’”
“Nothing in this bill makes it unlawful for a child to possess marijuana — there are no penalties,” Mills wrote.
The section repealed defines penalties for having up to 2.5 ounces of marijuana. Anderson, representing supporters, said he takes issue with Mills’ language, as the law would still define marijuana possession by minors as illegal.
“[The AG’s office] is not saying the question is going to create some confusion about penalties, they’re saying that it’s going to be legal [for minors to have marijuana],” Anderson said. “That’s what we’re responding to, and that is completely wrong.”
Chris Almy, the district attorney for Penobscot County, said the practical consequence of the referendum, as written, is that police won’t have a way to ticket minors for possession or use of marijuana under 2.5 ounces.
“The way they wrote it, there’s no statute that we could use to prosecute someone for possession or use of marijuana who is under 21,” Almy said.
If it passes, Almy said, “the legislature is going to have to hustle and get something in place,” but he said he and colleagues are concerned lawmakers will be reluctant to alter a bill passed directly by the voters.
“If its intent was to prohibit the use or possession [by minors], then it’s flawed,” Almy said. “There’s no enforceable mechanism to do that and I won’t prosecute because there’s nothing there.”
While marijuana remains illegal under federal law, Almy said “there’s no way” federal prosecutors would pursue charges against minors found with 2.5 ounces or less of marijuana. Possession over 2.5 ounces is a crime defined in the state’s criminal code on drugs. Possession of less than that amount is a civil offense.
Almy said he first became aware that the bill repealed and did not replace those civil penalties for minors during a Sept. 16 meeting in Augusta with fellow district attorneys and Attorney General Mills.
Mills’ office said the voter guide isn’t the place for her to point this out.
The AG’s conclusion about Question 1 is missing from the voter guide published Oct. 3 by the Secretary of State’s Office, per state law.
“It would make it permissible under state law for a person 21 years of age or older to possess, grow, cultivate, process, transfer or purchase up to certain specified amounts of marijuana,” that summary of the bill’s intent and content states.
Timothy Feeley, a spokesman for the AG’s office, wrote in an email that “the voter guide is not intended to be the Attorney General’s opportunity to point out every defect in an initiated bill.”
“It has traditionally been just a general summary of the sponsor’s intent and that was hewed to here,” Feeley wrote. “The AG’s comments about the impact of repealing a section of law that is cross referenced elsewhere did not seem appropriate for that document.”
In announcing issuance of the voter guide Oct. 3, the Secretary of State’s Office wrote the guide “is intended to provide as much information as possible on these complex issues so that voters have the opportunity to educate themselves before casting a ballot.”