William McDevitt, Wilson Elser Moskowitz Edelman & Dicker

Both Pennsylvania and New Jersey have governors who have expressed an interest in legalizing cannabis for recreational or “adult use.” Polls indicate public support for adult-use cannabis in both states. So, how’s legalization going?

It’s still a work in progress.

New Jersey’s Gambit

In March the New Jersey Senate pulled a vote on Senate Bill 830, a wide-ranging, heavily negotiated bill that would have made New Jersey the 11th state to allow recreational use. News outlets reported that the bill was expected to fail by fewer than five votes, and at a recent Philadelphia networking event one insider indicated that the bill was just one vote away from passing. Lobbyists and bill sponsors are working to persuade hold-out sponsors in advance of a possible May 2019 vote. If the necessary votes (21 in the New Jersey Senate and 41 in the Assembly) cannot be guaranteed by next month, proponents will need to introduce the bill in January 2020, and start the process over again.

New Jersey legislators have cited a variety of concerns over adult-use legalization, ranging from concerns about impaired driving, allocation of tax revenue and the continuing conflict caused by federal prohibition of marijuana. The scope and handling of cannabis-related expungements was a particular concern because under New Jersey law, distribution of between one and 80 ounces (five pounds) falls within the same statute and is a third-degree crime.

One proposed version of Senate Bill 830 would allow citizens to expunge convictions for third-degree cannabis-related offenses. Under that proposed provision, a person convicted of selling three ounces of marijuana could have that record stricken and would face less difficulty in obtaining credit, employment or housing. But technically, a person also could seek to expunge a conviction for the sale of up to 80 ounces of marijuana. This is the type of provision that might require additional revisions by basing expungement on the amount of cannabis at issue, limiting expungement petitions for distribution to fourth-degree offenses (less than one ounce) or some other compromise.

Pennsylvania’s Push

In Pennsylvania, House Bill 50, sponsored by Allegheny County Rep. Jake Wheatley Jr., proposes a revision of the 2016 Medical Marijuana Act that would allow adult use, generate an estimated $580 million in tax revenue (based on a report from the Pennsylvania auditor general) to be directed toward after-school programs and affordable housing, and provide for expungement of prior cannabis-related convictions. That bill, introduced in February 2019, is before the House Health Committee and is not scheduled for a vote. Wheatley introduced similar legislation, House Bill 2600, in the 2017−2018 session, but that bill was not moved out of the House Health Committee.

On March 19, Pennsylvania state senators Daylin Leach (Delaware/Montgomery counties) and Sharif Street (Philadelphia) released a Co-Sponsorship Memoranda outlining their intention to introduce Senate Bill 350, which the senators state will include provisions for legalizing cannabis use for anyone over 21 years of age, allowing individuals to cultivate up to six cannabis plants for personal use, automatically expunging or commuting cannabis-related criminal sentences, and opening licensing to allow unlimited home-growers, “micro-growers,” dispensaries and lounges. Leach and Street have not indicated when this bill will be introduced. Senator Leach, an author and sponsor of the 2016 Medical Marijuana Act, has previously introduced adult-use cannabis bills. Senator Street is the sponsor of currently pending Senate Bill 465 and Senate Resolution 49, both of which seek to increase access to banking and financial services for cannabis businesses. Both senators are up for reelection in 2020.

Of the 10 states where adult-use cannabis is legal, nine enacted this change through voter referendum. Pennsylvania ballot referendums take the form of constitutional amendments and require approval by a majority of both legislative chambers over two consecutive sessions. Each session runs for a year. The Pennsylvania Legislature has not introduced any proposed constitutional amendments on cannabis and none appear forthcoming. Under New Jersey law, a ballot referendum can be passed by a majority of both chambers overt two consecutive legislative sessions or by a 60 percent supermajority over one session. Thus, voters in the Garden State could see a ballot referendum twice as quickly as voters in the Keystone State. New Jersey’s legislators have not sought to introduce a ballot referendum, stating that this would be a “last resort.”

Although Pennsylvania is not putting cannabis on a ballot, the administration is actively soliciting voter input on adult-use marijuana. Lt. Gov. John Fetterman is conducting a listening tour through all 67 Pennsylvania counties at town hall meetings that are being recorded for later release. The tour is on a shoestring budget of $25,000 and relies heavily on social media to publicize the talks. The response has been generally favorable toward legalization, but Rep. Cris Dush (Jefferson) has accused Fetterman of providing pro-cannabis groups with advance notice of the town hall meetings. Fetterman’s office denies inviting any particular group to the town hall meetings other than local elected officials. Dush was given the opportunity to express his views at a recent meeting, but it is unclear whether he will appear at future events.

Dush’s anti-cannabis position is believed to be mirrored by a significant number of Pennsylvania legislators. Pennsylvania Auditor General Eugene DePasquale recently disclosed that many legislators find it difficult to support legalizing marijuana while the federal government continues to prohibit both medical and adult-use. Pennsylvania’s elected officials also share New Jersey’s concerns about impaired driving, limiting access to minors and use of tax revenues.

Cannabis legalization in Pennsylvania and New Jersey is a continuing process of negotiation and education within state legislatures. As the 2020 election approaches, the face of legalization may be affected as legislative supporters, opponents and sponsors seek support from their constituencies. The only constant appears to be the commitment of the cannabis community to continue to seek change.

William F. McDevittis a partner in the Philadelphia office of national law firm Wilson Elser Moskowitz Edelman & Dicker, where he is a member of the firm’s cannabis law practice. He can be reached at william.mcdevitt@wilsonelser.com.