Oklahoma Supreme Court Review; State Questions 818, 819, and 820 - July 6, 2022

State Question 818

State Question 818 proposes a new article (Article 31) to the Oklahoma Constitution. This new article would replace the Oklahoma Medical Marijuana Authority with a new state agency–the “Oklahoma State Cannabis Commission” and define its duties; and (2) expand the statutory framework regarding regulation and taxation of medical marijuana. Petitioner timely filed a challenge to SQ 818. Petitioner challenges the constitutionality of SQ 818 on three grounds: (1) it is preempted by federal law; (2) signatures gathered on and elections held on tribal land would be invalid; and (3) its gist is insufficient.

State Question 818 proposes a new article (Article 31) to the Oklahoma Constitution. This new article would replace the Oklahoma Medical Marijuana Authority with a new state agency–the “Oklahoma State Cannabis Commission” and define its duties; and (2) expand the statutory framework regarding regulation and taxation of medical marijuana. Petitioner timely filed a challenge to SQ 818. Petitioner challenges the constitutionality of SQ 818 on three grounds: (1) it is preempted by federal law; (2) signatures gathered on and elections held on tribal land would be invalid; and (3) its gist is insufficient.

SQ 818 is not preempted by 18 U.S.C. § 1960, which penalizes “[w]hoever knowingly conducts, manages, supervises, directs, or owns all or part of an unlicensed money transmitting business.” SQ 818 does not concern a money transmitting business under the definition provided by 31 U.S.C. § 5330 (2018 & Supp. 2020). Lastly, McGirt does not preempt SQ 818 because the Major Crimes Act does not identify marijuana possession or marijuana use by Indians as crimes giving the federal government exclusive jurisdiction.

The signatures and elections in Indian country are valid. Under Article 1, § 3, Oklahoma has not waived its political or police power over activities occurring in Indian country within its boundaries. Currey v. Corp. Comm’n of Okla.,1979 OK 89, ¶ 22. Oklahoma citizens residing in Indian country retain the right to participate in elections, and the right to sign an initiative petition is enclosed in that. McGirt does not take those rights away.

The gist is sufficient. The gist informs voters that the proposition regards medical marijuana, and briefly and accurately explains the effect of all substantive numbered sections of SQ 818 which will impact Oklahoma medical-marijuana law.

OUTCOME: Challenge denied. SQ 818 is legally sufficient for submission to the people of Oklahoma.

State Question 819

State Question 819 seeks to create a 32nd article to the Oklahoma Constitution. This article would legalize, regulate, and tax the recreational use of marijuana by adults age 21 years and older. Petitioner timely brought his challenge to SQ 819.

The Court must review the Question to ensure it complies with the Oklahoma Constitution. The Court must determine if there are clear and manifest constitutional infirmities. The Petitioner bears the burden of proof.

The Court rejected the identical arguments concerning preemption and the validity of state elections in Indian country that appear in the companion case, Tay v. Green, 2022 OK 37. State law is not “preempted by federal action unless that is the clear and manifest purpose of Congress.” In re State Question No. 807, 2020 OK 57, ¶ 16, 468 P.3d at 389. Congress communicates that purpose in three ways: (1) expressly, (2) by conveying its intent to occupy a field, or (3) by enacting legislation that directly conflicts with state law. Here, Congress neither expressly preempted nor conveyed an intent to occupy the field. Additionally, the legislation does not directly conflict because it is possible to follow both laws at once.

SQ 819 is not preempted by RICO, either. “[G]overnment entities are not subject to the criminal law provisions of RICO because they cannot form the necessary malicious intent for the predicate acts.” In re State Question No. 807, 2020 OK 57, ¶ 38. Further, Petitioner assumes the state would be involved in a specified unlawful activity as prohibited by the Controlled Substance Act, but the CSA provides immunity to officers and governments that are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” 21 U.S.C. § 885(d) (2018).

The gist of 819 is insufficient to sufficiently inform Oklahoma voters of SQ 819’s impact on state law. The gist fails to describe two significant effects of Section 5: (1) the bypass of judicial process for resentencing, modification, reversal, dismissal, expungement, or vacatur; and (2) the automatic and absolute restoration of firearm-ownership and voting rights upon completed expungement. Restoration is absolute, unqualified, and does not take into account whether a petitioner has other non-marijuana-related felony convictions. The gist does not sufficiently inform about the restoration of rights. However, outside of section 5, the gist does sufficiently inform citizens. The Court decided to sever Section 5 and all mentions of it in other sections, and that by doing so, SQ 819 is legally sufficient to submit to the citizens of Oklahoma.

A petition for rehearing or clarification was granted, allowing respondents to strike section 4(15) because it mentioned section 5, to strike the phrase “and individual criminal record expungement” from the gist because section 5 is severed, and directing the proponents of the measure, who have the duty to submit the measure to the Oklahoma Secretary of State, to submit a revised measure which complies with the Court’s opinion in Tay v. Green, 2022 OK 38.

OUTCOME: Challenge denied; SQ 819 is legally sufficient, as severed, to submit to the citizens of Oklahoma.

State Question 820

State Question 820 would legalize, regulate, and tax the personal use of marijuana by adults. It would allow the Oklahoma Medical Marijuana Authority to regulate this marijuana use. A 15% excise tax would be imposed, with the proceeds funding the Authority and the surplus going to schools, courts, localities, the General Fund, and drug treatment programs. SQ 820 would establish limits, standards, and restrictions on marijuana. Petitioner Jed Green filed two challenges. Mr. Green first argued that SQ 820 violated Article V, Section 57 of the Oklahoma Constitution because it embraces multiple subjects. Second, Mr. Green challenged the gist of SQ 820 for being misleading.

In order for the Oklahoma Supreme Court to block this initiative, a heavy burden must be met in order to establish constitutional insufficiency and any doubt “is resolved in favor of the initiative” petition.

Concerning the first challenge, the Court ruled there was only one subject: adult-use marijuana. The “retroactive application of the legalization of certain uses of marijuana” is related to adult-use marijuana, so there is only subject covered. Secondly, the gist of SQ 820 is not misleading. It explains the purpose, impacts, restrictions, and limits of SQ 820. It puts signers on notice that 820 allows for personal use of marijuana, that the Oklahoma Medical Marijuana Authority will regulate it, that local governments have some regulatory powers, and of the retroactive provision. Mr. Green failed to point to anything not outlined by SQ 820. The Court determined that Mr. Green failed to meet his burden in establishing that State Question No. 820 is clearly or manifestly unconstitutional and that the gist of State Question No. 820 is misleading.