Earlier this week, the Oklahoma Supreme Court ruled a petition to legalize recreational marijuana is legally sufficient by a vote of 5-3.
With this ruling, the petitioners, Ryan Kiesel and Michelle Tilley can begin the process of obtaining signatures to get State Question 807 on the ballot.
The two filed SQ 807 with the Secretary of State of Oklahoma. SQ 807 proposes for submission to the voters the creation of a new constitutional article, Article 31, which would legalize, regulate and tax the use of marijuana by adults under Oklahoma law. Notice of the filing was published on January 3, 4, and 8, 2020.
Within 10 business days, Paul Tay challenged the constitutionality of SQ 807. Petitioner alleged the proposed amendment by article is unconstitutional because it violates the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2, as well as Okla. Const., art. 1, § 1, which provides the United States Constitution is the supreme law of the land. Specifically, Petitioner contended SQ 807 is preempted by the Controlled Substances Act (CSA.
Justices Noma Gurich, Yvonne Kauger, James R. Winchester, James E. Edmondson and Douglas Combs were the five who agreed with Kiesel an Tilley.
Justices Richard Darby, M. John Kane IV and Dustin Rowe disagreed.
Justice Tom Colbert did not participate.
Justices voting for the constitutionality of the State Question, said “In considering federal law questions, the Supremacy Clause requires this court adhere to decisions of the United States Supreme Court. We have previously declared unconstitutional various initiative petitions and state laws that infringed upon rights the United States Supreme Court has expressly determined are guaranteed by the United States Constitution. We have also followed United States Supreme Court precedent on federal questions in diverse areas such as Indian law and application of the Commerce Clause. However, the United States Supreme Court has never addressed preemption of state marijuana laws under federal statutes such as the CSA.”
Tay argued this uncertainty concerning federal preemption of state marijuana regulations should compel this court to declare SQ 807 unconstitutional.
The opposite is true. The burden is on a protestant to demonstrate a proposed initiative is clearly and manifestly unconstitutional on its face.
This court acknowledges the lack of controlling federal precedent has created uncertainty concerning the interplay between state regulatory schemes permitting marijuana use and existing federal law.
The five justices deciding SQ 807 said the court decided a similar issue with SQ 788, which legalized medical marijuana.
“The people of Oklahoma have spoken once on this interplay between state regulations and existing federal law in the approval and implementation of SQ 788, Oklahoma’s legalization of medical marijuana. We have confronted that uncertainty, and considered the question in depth by examining the parameters of SQ 807, the language of federal statutes such as the CSA, and principles of preemption under the Supremacy Clause. Based on the above analysis, Petitioner has failed to meet his burden of demonstrating that SQ 807 is clearly or manifestly unconstitutional. We hold therefore that State Question No. 807, is legally sufficient for submission to the people of Oklahoma.” Justices dissenting didn’t agree.
Justices Kane and Darby said, “Any suggestion this court should find SQ 807 is not preempted because the federal government is aware of the widespread state legalization of medical and/or recreational marijuana but has declined to enforce the CSA is irrelevant. Congress creates federal laws. The executive branch is responsible for enforcing those laws. This branch is charged with interpreting the laws in a way which gives effect to the intent of Congress. Congressional intent is clear: the production, sale and use of marijuana for any purpose is prohibited, and any state law which permits such acts is preempted.”
He continued, “Despite a shift in public opinion and many states legalizing medical and/or recreational marijuana, Congress has continued to classify marijuana as a Schedule I drug and prohibit all production, sale and use of it. In Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 518, 533 (Or. 2010), the Supreme Court of Oregon aptly noted “whatever the wisdom of Congress’s policy choice to categorize marijuana as a Schedule I drug, the Supremacy Clause requires that we respect that choice when, as in this case, state law stands as an obstacle to the accomplishment of the full purposes of the federal law.”
Justice Rowe said, “¶7 SQ 807’s proposed constitutional amendments clearly present a substantial obstacle to Congress’s objectives expressed in the CSA to control the production, sale and use of controlled substances. Therefore, SQ 807 is preempted by federal law.”
With this ruling, Kiesel and Tilley can start the process of collecting signatures.
If signatures are gathered, the proposed language would legalize and regulate marijuana for persons 21 and older and imposed a 15-percent excise tax on marijuana sales.
“This measure adds a new article to the constitution, which would generally legalize, regulate and tax marijuana for persons aged 21 and older under state law (but not alter the rights of medical marijuana licensees). Specifically, it protects the personal use of marijuana for those 21 and older, while establishing quantity limits, safety standards and other restrictions. It maintains prohibitions on impaired driving and distribution to, or use by, those younger than 21. It would not affect employers’ ability to restrict marijuana use by employees. Property owners generally may restrict marijuana on their property. The Oklahoma Marijuana Authority would license, regulate and administer the article pursuant to specified requirements. It permits municipalities, upon popular vote, to limit or prohibit retail licenses. It imposes a 15-percent excise tax on sales (not applicable to medical marijuana) to fund the authority, localities where sales occur, schools (for programs to prevent substance abuse and improve student retention and performance) and drug-addiction treatment programs, while ensuring such funds must add to, and not replace, existing funding. It provides a judicial process for people to seek modification, reversal, redesignation or expungement of certain prior marijuana-related judgments and sentences. Its provisions are severable and would take effect in 90 days,” the proposed ballot language reads.