Why House Republicans won’t get special session to fix bugs they see in Minnesota marijuana law

House Republicans have renewed a call for a special session to fix issues with the legislation that made Minnesota the 23rd state to legalize recreational marijuana.

They’re not likely to be successful, partly because majority DFLers don’t often agree to requests made by minority Republicans but mostly because what Republicans see as bugs, DFLers see as features. While there might be fine-tuning needed on the sweeping legalization law, they can wait until the regular session next February, DFL leaders have said.

House Republicans have now sent two formal letters to Gov. Tim Walz and the DFL leaders of the House and Senate asking for a fix-it-now session. The flaws in the bill, they argue, are these:

• Public smoking: House File 100 made Minnesota just the fourth legal marijuana state where public smoking and vaping of cannabis is allowed, absent any local ordinances prohibiting it.
• Penalties for minors: Sponsors had tried to lift all penalties for juvenile use and possession, an attempt that likely failed only because they weren’t aware of an obscure state law that assigns a petty misdemeanor punishment when an act is illegal but lacks a stated penalty. It also reduced the sanction for sales of two ounces or less to minors by other minors to a petty misdemeanor.
• DWI: Unlike with alcohol, there is currently no roadside breath test for marijuana impairment. If a driver refuses an alcohol breath test, there are legal consequences, but the new law provides no such consequences for refusing marijuana sobriety testing. 
• Head start for tribes: The law made way for tribes to immediately sell cannabis at retail to anyone 21 or older – both tribal and non-tribal members — 18 months before such sales will be ready off reservation.

“HF 100 is poorly crafted, inconsistent, and in need of immediate remedy to avoid preventable damage,” wrote Rep. Peggy Scott, R-Andover, and 29 other GOP House members. “Please don’t let partisan allegiances get in the way of resolving issues that are important to parents, law enforcement, and community leaders across our state.”

Walz and bill sponsors rejected a similar request made July 28 and are rejecting this one as well. While attacking the request as an attempt to “use fearmongering and misinformation to stall the implementation of the bill,” lead Senate sponsor Lindsey Port, DFL-Burnsville, has said the new law will likely need annual updates and fixes. But the regular session is timely enough for that, she said.

Sponsors have said they intended to allow public consumption, intended to stand clear of tribes exercising their sovereignty on the issue and couldn’t require cooperation on roadside testing because there isn’t a marijuana test comparable to the alcohol breathalyzer test. While Port said she intended to lift sanctions for minors using or possessing cannabis, House sponsor Zack Stephenson, DFL-Coon Rapids, said Tuesday he did not think the bill did that, nor was it his intention.

“It was my intent to continue to make it unlawful to be used and possessed by minors,” he said. “I thought there would be a consequence for minors. One of the goals of the bill is to limit cannabis access to minors.”

Scott wrote that the Legislature should be clear and not rely on an existing law not contained in the legalization bill.

“Without reinstatement of clear consequences, law enforcement is left to wonder whether the default penalty is a viable avenue for punishing minor consumption — and whether the equivalent of a parking ticket is really a deterrent,” she and the others wrote.

“Legal consequences are a significant and important deterrent from youth addiction and can help avoid more grave issues later in life. This legislation deliberately took away an important tool for parents, law enforcement and local communities to keep kids from harming themselves and others.”

And Scott said Tuesday that having a lesser penalty for minors who sell to other minors than what an adult selling to a minor would face will lead illicit dealers to use minors as the sales crew.

Port last week issued a seemingly contradictory statement, first that lifting of penalties for juvenile use and possession was intentional but also that penalties remain in law.

“Criminalizing young adults for possession maintains a cycle of harm,” Port wrote. “A legal market, with age verification, testing, labeling, and education requirements is the best path forward for Minnesotans …

“Additionally, with the passage of HF 100, the penalty for possession by an individual under 21 is a petty misdemeanor, despite Republican misinformation that there is no possible legal consequence,” Port wrote.

The juvenile penalties were meant to be removed when HF 100 jettisoned all criminal penalties for adult possession and use, Port and legislative staff have said. While there was a line in the bill that stated use and possession would not be legal for those under 21, the section lacked a reference to a penalty.

“The state law is silent on folks who are under 21,” House research attorney Ben Johnson told lawyers and law students during the continuing legal education seminar last month. “It is not a protected right in statute, something that you are automatically allowed to do. However, there’s no specific prohibition and there’s certainly no criminal penalties.”

But another section of existing law, not amended by HF 100, contains a default petty misdemeanor penalty for illegal acts lacking a stated penalty. A petty misdemeanor is punishable by a fine of no more than $300 but no jail time. It is considered an offense but not a crime.

Walz, too, claimed the bill included juvenile penalties without mentioning the intent of sponsors or that the existence of a separate statute thwarted that intent.

“My feelings are very strong on this,” he said after an event Tuesday celebrating funding help for nursing homes. “The folks putting out misinformation concerning the cannabis bill just need to stop this. Cannabis was not legal for minors before the law change and it’s not legal now.”

Walz said the intent of sponsors “will always be there” but “the interpretation and the operationalizing of this will always be with our agencies, and there is no intention of taking that away from minors. It is simply illegal for them to use it.” 

Public consumption of marijuana by smoking or vaping was a surprise to many who followed the bill closely. Both the bill and the staff reports on the bill contained a sentence that said consumption of marijuana by those 21 and older on private property and private residences. The bill report listed what those same residents can legally do, including “use cannabis flower and cannabinoid products in private areas.” That is similar language as is used in 19 other recreational marijuana states.

But by later stating that it was illegal to smoke or vape cannabis “at any location where smoking is prohibited under section 144.414,” the bill legalized most public smoking. That section of law is the Minnesota Clean Indoor Air Act, which already bans smoking of anything — tobacco and marijuana explicitly — in indoor areas where employees or others could be exposed to secondhand smoke. But anywhere tobacco smoking is allowed, cannabis smoking is allowed. That late discovery has sent local governments scrambling to adopt their own ordinances controlling cannabis use in public.

Lobbyists who followed the bill closely on both sides of the issue admitted to being surprised at the public consumption aspects. But one of the leaders of MN Is Ready claimed that the failure to know about the public use section was the fault of others.

“A few members of the press have mildly grumped that they were led to believe public use would not be allowed,” wrote Leili Fatehi of Blunt Strategies. “Just like that one time THC edibles got accidentally legalized on purpose, no one is hiding anything, guys — read the bill.”

Walz said local governments can make public smoking and vaping illegal — something the bill provides for but with not more than a petty misdemeanor as a penalty.

Scott, who voted against HF100 along with all but three Republicans in the House, said she thinks that DFL claims of transparency are untrue. The bills had many hearings in multiple committees but it also had 12 major rewrites and grew in length with each alteration.

If opponents had known about the public use permission and intentions to lift juvenile punishments, they certainly would have raised those issues in debate, Scott said. They didn’t. But her major concern is that possession and use was legalized more than 18 months before a legal supply will be available, at least outside some tribal reservations.

“It gives an open period of time for the illicit market to get set up and get its teeth into it,” she said. 

Special session?

A special session on cannabis is unlikely due both to the politics of the issue and the history of special sessions. While they are talked about a lot, they are rarely convened.

There are two types of special sessions in Minnesota, those that are called when a regular session doesn’t quite finish state budgets on time and those convened later in the year for emergencies and special circumstances. A third reason is exceedingly rare, but did happen in 2020 and 2021: monthly sessions called to give legislators an opportunity to reject each 30-day extension of pandemic-related emergency powers.

The session-extenders are much more common than the standalone emergency sessions, but both get plenty of conversation among lawmakers and special interests. As recently as 2021, Walz and legislative leaders talked about a special session to deliver rebate checks to some taxpayers, fund drought relief for farmers and send emergency aid to hospitals and nursing homes. It didn’t happen, partly because Walz and Senate Republicans couldn’t reach a formal agreement that they wouldn’t torpedo more of the governor’s commissioners (something done twice during those monthly COVID sessions).

Those monthly sessions did prove fruitful in adopting measures such as restaurant aid and a large bonding bill in the fall of 2020. But had lawmakers not been in session anyway, it isn’t clear there would have been an opportunity to pass either if a special session deal was needed.

That’s often the problem. Even if legislative leaders and governors agree that a session is needed — something not in place on cannabis — they need to agree to limit the agenda and get out of St. Paul quickly. Governors can call special sessions but only the House and Senate can end them. 

Other than extensions of regular sessions and the monthly COVID sessions, how common are emergency special sessions in Minnesota? According to the Minnesota Legislative Reference Library, the last special session that didn’t fall into those categories came in 2013 to approve disaster relief funding. Even that need went away when lawmakers decided to fill up the disaster fund during regular sessions.

To find an emergency special session not related to disaster funding, the library has to go back to 1997 when funding for a Twins stadium was finally approved.

Editor’s Note: Peter Callaghan wrote this story for MinnPost.com, which was originally posted on Aug. 9.

Callaghan covers the state government for MinnPost.

MinnPost is a nonprofit, nonpartisan media organization whose mission is to provide high-quality journalism for people who care about Minnesota.