Petition for Writ of Certiorari — Paul Tay, Petitioner v. Michelle Diane Tilley Nichols, et al.
Supreme Court briefDec 1, 2022
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APPENDIX
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Appendix A
Decision of the Oklahoma Supreme Court, Tay v. Tilley et al. No. 120657
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ORIGINAL
*1053479713*
IN THE si IPRFMF mi IRT OF THF STATE OF OKLAHOMA
Rec'd (date)- q-ito- aa-------------Posted
PAUL TAY
Mailed
Petitioner,
Distrib
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Respondents.
No: 120:657
no
Publish
MICHELLE DIANE TILLEY
NICHOLS and MICHELLE JONES
sirn'isaagL,
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SEP I 6 2022
JOHN D. HADDEN
CLERK
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ORIGINAL PROCEEDING TO DETERMINE CHALLENGE TO THE VALIDITY OF THE
SIGNATURES FOR INITIATIVE PETITION NO. 434, STATE QUESTION 820
Petitioner filed an original proceeding to challenge the validity of the signatures to
Initiative Petition No. 434, State Question 820 on grounds that signatures collected on
Tribal lands are void.
Original jurisdiction is assumed. See Rule 1.194, Oklahoma
Supreme Court Rules, Tit. 12, ch. 15, App. 1. Petitioner’s challenge is hereby denied. 34
O.S. 2021, § 8(K).
APPLICATION TO ASSUME ORIGINAL JURISDICTION IS GRANTED; THE
CHALLENGE IS DENIED
FACTS AND PROCEDURAL HISTORY
On January 4, 2022, Respondents/Proponents Michelle Diane Tilley Nichols and
Michelle Jones filed Initiative Petition No. 434, State Question 820 seeking to add new
provisions to Title 63 that would legalize, regulate, and tax adult-use marijuana.
A timely protest was filed on January 24, 2022, challenging the gist and the
constitutionality of the proposed measure. 34 O.S. 2021, § 8(C). On March 28, 2022, this
Court assumed original jurisdiction and issued a written opinion holding that State Question
820 embraces only one subject in conformance with Okla. Const, art. V, § 57, the gist was
not misleading, and State Question 820 was legally sufficient for submission to the people
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of Oklahoma. See In Re: State Question No. 820 Initiative Petition No. 434, 2022 OK 30
5-7, 507 P.3d 1251.
Proponents began gathering signatures for Initiative Petition No. 434, State
Question 820 on May 3, 2022, and completed the signature-gathering process within the
confines of the 90-day deadline set forth in 34 O.S. 2021, § 8(E).
On July 5, 2022, proponents of Initiative Petition No. 434, State Question
820submitted to the Secretary of State 118 boxes of petition pamphlets.
In accordance with 34 O.S. 2021, § 8(H), the Secretary of State counted 23,043
signature sheets bound in 116 volumes. Volumes 1 through 115 each contained 200
signature sheets and Volume 116 contained 43 signature sheets.
Of the 23,043 signature sheets submitted, 1,178 signature sheets were disqualified
as one sheet contained duplicate signatures, one sheet was attached with another to the
same petition pamphlet, and 1,176 sheets contained incomplete signature circulator
information and/or notary public addresses. See Secretary of State’s Certification in Case
No. 120,641, filed August 22, 2022
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Okla. Const, art. V, § 2 requires that a legislative measure proposed by citizens
have the signatures of 8 percent of legal voters based upon the last general election for
the office of Governor. The Legislature derives the number of "legal voters" from the “total
number of votes cast for the state office receiving the highest number of votes cast at the
last general election.” 34 O.S. 2021, § 8(H)(2).
The Secretary of State certified that 117,257 signatures were verified and matched
to the Oklahoma Voter Registration files for Initiative Petition No. 434, State Question 820
and affirmed the State Election Board's certification that 1,186,385 votes were cast in the
November 2018 general election for Governor and 8% of the total number of votes cast is
94,911. See Secretary of State’s Certification, p. 2.
Proponents’ suggested ballot title was submitted to the Attorney General on July 5,
2022. On July 12, 2022, the Attorney General notified the Secretary of State that the
proposed ballot title did not comply with the law and filed a rewritten ballot title in
accordance with 34 O.S. 2021, § 9(D). This Court issued an order on August 25, 2022,
finding the signatures on the Petition numerically sufficient. 34 O.S. 2021, § 8(l).
In accordance with 34 O.S. 2021, § 8(l), this Court directed the Secretary of State
to publish notice of the filing of the signed petitions and their apparent sufficiency along
with the text of the rewritten ballot title and the right of any citizen to object to the
sufficiency of signatures or the ballot title within 10 business days.
According to the Secretary of State’s Proof of Publication filed September 1,2022,
the required notice was published in three newspapers of statewide circulation on
Wednesday, August 31, 2022.
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STANDARD OF REVIEW
When an initiative petition is challenged, the signatures on the petition are
presumed to be valid, and the challenger has the burden of overcoming that presumption.
In re: Initiative Petition No. 317, State Question No. 556,1982 OK 78,
28,648 P.2d 1207.
“The law presumes the validity and regularity of the official acts of public officers within the
line of their official duties." In Re Initiative Petition No. 23, State Question No. 38, 1912 OK
611,113, 127 P. 862.
ANALYSIS
Petitioner challenges the validity of signatures to Initiative Petition No. 434, State
Question 820 on grounds that signatures collected on Tribal lands are void.
Petitioner premises his challenge on an 1856 Treaty between the United States and
the Creek Nation and Seminole Nation which, according to Petitioner, prohibits the
government from engaging in political activities on treaty land. Petitioner also cites
Oklahoma v. Castro-Huerta, __ U.S.
142 S.Ct. 2486 (June 29, 2022), for his
proposition that federal law preempts state jurisdiction and signatures to Initiative Petition
No. 434, State Question 820 collected in Indian Country are invalid.
Petitioner raised similar arguments in Tay v. Green, 2022 OK 37, 508 P.3d 431,
where Petitioner challenged the legal sufficiency of Initiative Petition No. 432, State
Question 818. That measure sought to create a new Article in the Oklahoma Constitution
to legalize, regulate, and tax adult-use marijuana and expand the regulatory framework for
medical marijuana.
The Court rejected Petitioner’s arguments, and we held that signatures collected
and elections in Indian Country are valid:
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McGirt does not disenfranchise Oklahoma citizens residing in
Indian country from the right to participate in state elections,
which includes the right to sign an initiative petition.
Id. at H 9. Here too, Petitioner states that all persons located on treaty land are subject to
Tribal law and "ineligible to participate in [the] Oklahoma electoral process.” Application,
at 3.
Neither the 1856 Treaty between the United States and the Creek Nation and
Seminole Nation nor the U.S. Supreme Court’s decision in Oklahoma v. Castro-Huerta,__
142 S.Ct. 2486 (June 29, 2022), affect our previous analysis. Well-settled
U.S.
principles of claim preclusion bar Petitioner’s present challenge. See State ex rel. Tal v.
City of Oklahoma City, 2002 OK 97,
20, 61 P.3d 234.
Because the same arguments were raised in Tay v. Green, 2022 OK 37, 508 P.3d
431, considered by the Court, and rejected, we find Petitioner’s challenge to the validity of
the signatures to Initiative Petition No. 434, State Question 820 is without merit and should
be denied.
The Court further finds the challenge is frivolous and warrants the imposition of
sanctions under 34 O.S. 2021, § 8(L).
Petitioner has a history of filing original proceedings in this Court, many of which had
no legitimate legal basis. A pauper’s affidavit accompanied all of Petitioner’s filings.
Petitioner was admonished that future filings lacking in merit would result in the revocation
of Petitioner's pauperis status or other sanctions. See Tay v. Honorable Mayor George
Theron (G.T.) Bynum, etal.. Case No. 119,411 (order dated May 17,2021). Yet, Petitioner
continues to file matters in this Court lacking in merit or without a good faith legal basis,
including this proceeding.
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Pursuant to 34 O.S. 2021, § 8(L) and the Court’s inherent authority, Petitioner’s
pauperis status is hereby revoked. Winters v. City of Oklahoma City, 1987 OK 63,740 P.2d
724 (affirming imposition of sanctions for party’s oppressive litigation conduct). Unless
Petitioner establishes that he is in immediate danger of serious physical injury, Petitioner
shall be required to pay the cost deposit under 20 O.S. 2021 ,§15 before filing any other
matter in this Court.
34 O.S. 2021, § 8(K) requires this Court to resolve objections to the signature count
or ballot title “with dispatch." Due to the exigencies related to the element of time affecting
this matter, the ordinary 20-day period to file a petition for rehearing is shortened. See,
e.g. In Re: Initiative Petition No. 426, State Question No. 810, 2020 OK43, H 31,465 P.3d
1244; Steele v. Pruitt, 2016 OK 87, H 19, 378 P.3d 47.
Any petition for rehearing under Rule 1.13, Oklahoma Supreme Court Rules, Tit. 12,
ch. 15, App. 1, must be filed no later than 10:00 a.m., September 20, 2022.
DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 16TH
DAY OF SEPTEMBER, 2022.
CHIEF
Darby, C.J., Winchester, Edmondson, Combs and Gurich, JJ., concur;
Kane. V.C.J., Kauger, Rowe (by separate writing) and Kuehn, JJ., concur in part; dissent
in part.
Kane, V.C.J., with whom Kauger, J., joins, concurring in part; dissenting in part
I dissent to the imposition of sanctions against the challenger
under 34 O.S. 2021 § 8(L).
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Appendix B
"Decision oH-he Ok-lahoma-Supreme-Court Tay v. Green, 508 P.3d 431 (2022)
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2022 OK 38
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
PAUL TAY,
Petitioner,
Recfd (date)jj^/
APR 1 9 2022
Posted
Mailed_______
V.
FILED
SI ‘-REME CO'JRT
STAVE OF GKLAf i’OivlA
4A
Distrib
JED GREEN and
Publish_J<3es
5
KRISTOPHER MASTERMAN,
-JOHN D. HADDEN- CLERK
No. 119,984
(comp, w/119,927)
FOR OFFICIAL
PUBLICATION
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Respondents.
ORIGINAL PROCEEDING TO DETERMINE THE CONSTITUTIONAL
VALIDITY OF STATE QUESTION NO. 819, INITIATIVE PETITION
NO. 433.
If 0 This original proceeding determines the legal sufficiency of State Question
No. 819, Initiative Petition No. 433, which seeks to create a new article to the
Oklahoma Constitution, Article 32, which would legalize, regulate, and tax the
recreational use of marijuana by adults age 21 years and older. Petitioner, Paul
Tay, alleges that State Question No. 819, Petition No. 433 is unconstitutional for
four reasons: (1) it is preempted by federal law; (2) signatures gathered on and
elections held on tribal land would be invalid; (3) it violates the doctrine of non
retroactivity in post-conviction proceedings; and (4) the proposed gist is
insufficient. Upon review, we hold Petitioner has not established clear or manifest
facial unconstitutionality regarding the proposition’s provisions; however, because
the gist is insufficient and misleading with respect to Section 5, we invoke the
severability clause in Section 9 and strike Section 5 and any reference to the
stricken provision in the gist. State Question No. 819, Initiative Petition No. 433, as
severed, is legally sufficient for submission to Oklahomans for voting.
STATE QUESTION NO. 819, INITIATIVE PETITION NO. 433, AS SEVERED, IS
LEGALLY SUFFICIENT.
Paul Tay, Tulsa, Oklahoma, pro se Petitioner.
Stephen Cale, Cale Law Office, Tulsa, Oklahoma, for Respondents.
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Gurich, J.
Facts & Procedural History
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On October 28, 2021, Respondents Jed Green and Kristopher Masterman,
filed State Question No. 819, Initiative Petition No. 433 (SQ 819) with the
Oklahoma Secretary of State. SQ 819 proposed creation of a new constitutional
article, Article 32, which would legalize, regulate, and tax the recreational use of
marijuana by adults age 21 years and older. The Oklahoma Secretary of State
published notice of the filing on November 4, 2021. Petitioner timely brought this
challenge on November 5, 2021, in accordance with 34 O.S.2021, § 8(B),
https://qovt.westlaw.com/okic (follow hyperlink titled “General Provisions ).
1
Between January 14th and February 17th, 2022, Petitioner filed ten motions for
1 This proceeding is companion with Petitioner’s similar challenge to State Question No. 818, Initiative
Petition No. 432.
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summary or declaratory judgment.2 On February 28, 2022, Petitioner filed a notice
of intention to appeal and a request for a stay of signature gathering.3
Proposed Measure
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Proposed-ArtiGle-~32-~contains-eleven (11) sections. Section. 1 safeguards
medical-marijuana patient, caregiver, and business licensees against any limiting
construction of Article 32.
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Section 2 grants personal rights and protections. Section 2 establishes the
right “to grow, purchase, transport, transfer, receive, prepare and consume
marijuana and marijuana products,” subject to form and quantity limitations. It also
permits the purchase,
possession
and use of marijuana paraphernalia.
Additionally, Section 2 provides general protections against arrest, prosecution,
penalty, discipline, or discrimination by state and local government based solely
2 From January 14, 2021 to January 18, 2021, Petitioner filed eight motions for summary or declaratory
iudament based on state elections in Indian country, preemption, logrolling, limitations of medical marijuana
licenses under OAC 310: 681-1-3, and interpretation of Article 1, § 3 of the Oklahoma Constitution.
Petitioner’s amended application for this Court to assume original jurisdiction raises each issue, except
loorollinq On February 10, 2022, Petitioner filed another motion for summary or declaratory judgment
based on state interests in Indian country; Petitioner had also raised this issue in his amended application.
On February 17 2022, Petitioner moved for summary or declaratory judgment, asking the Court to take
judicial notice of federal case law to aid its interpretation of Article 1, § 3 of the Oklahoma Constitution
Petitioner had opportunity to present his claims in this Court. We deny Petitioner’s motions which request
the same relief as his amended application. To the extent Petitioner raises any new challenge by way of
motion, it is untimely under 34 O.S. § 8(B), which provides:
It shall be the duty of the Secretary of State to cause to be published, in at least one
newspaper of general circulation in the state, a notice of such filing and the apparent
sufficiency or insufficiency of the petition, and shall include notice that any citizen or citizens
of the state may file a protest as to the constitutionality of the petition, by a written notice
to the Supreme Court and to the proponent or proponents filing the petition. Any such
protest must be filed within ten (10) business days after publication. A copy of the protest
shall be filed with the Secretary of State.
3 We also deny Petitioner’s request for a stay.
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on conduct permitted under Article 32. It expands on these general protections
with regard to employment, medical care, parental rights, licensure rights, and due
process and equal protection rights. Further, Section 2 protects financial-service
providers Troirrlia'bility"'s'o'lely"fo'rprovidtng services to any marijuana business
licensed by the State of Oklahoma. It also requires the marijuana regulatory
agency to comply with privacy laws. Lastly, Section 2 addresses local and
homegrow rights: it prohibits additional licensing or fees related to homegrows;
limits local-government regulation thereof; allows landlords to restrict homegrows;
allows landlords and businesses to restrict indoor smoking or vaping of marijuana
or marijuana products—but not other forms of lawful possession or consumption;
and prohibits any statute, ordinance, or regulation regarding vaping or smoking
cannabis that is more restrictive than those regarding tobacco use.
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Section 3 authorizes the medical-marijuana regulatory agency to regulate
recreational marijuana and authorizes medical-marijuana business licensees to
commence recreational-marijuana business of the same business-license type
without additional fee, license, or registration requirements. Moreover, Section 3
establishes when and to whom dispensaries may begin recreational-marijuana
sales and requires the marijuana regulatory agency to adopt regulations
authorizing residential delivery.
T15
Section 4 establishes a framework for taxes and expenditures. It charges an
excise tax of fifteen percent (15%), subject to lowering by the Oklahoma
legislature, on marijuana and marijuana products purchased by persons who are
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not patient or caregiver licensees. On products purchased by patient or caregiver
licensees, Section 4 imposes a seven percent (7%) excise tax, which incrementally
drops to zero percent (0%) over one year. Further, Section 4 instructs the
‘OkrahbmaTaX"Commission~(0TC)~to collect and~direct taxes to a fund-managed—
by the marijuana regulatory agency. It requires the agency to use the tax revenue
to pay operational costs and allocates remaining revenue amongst various
organizations, programs, and funds for certain expenditures. Subject to state or
federal action permitting interstate or international export of marijuana and
marijuana products, Section 4 instructs the OTC to collect a three percent (3%)
wholesale tax and deposit the tax revenue in the State General Revenue Fund.
II6
Section 5 regards retroactivity. It requires the Oklahoma Department of
Corrections to publish within 180 days a list of persons currently incarcerated for
marijuana-related state-court convictions, it permits currently incarcerated persons
whose conduct would be allowed under Article 32 to request resentencing,
modification, or reversal. It allows like persons who have completed their
sentences to request dismissal, expungement, and vacatur of their conviction.
Further, it requires the court to presume satisfaction of the criteria for the request
and "without delay resentence or reverse the conviction,as legally invalid, modify
the judgment and sentence, or expunge and vacate the charges.” Moreover, it
states that expungement "shall automatically restore" firearm-ownership and
voting rights. By its terms, Section 5 is applicable to juvenile cases “as if the
juvenile had been of legal age at the time of the offense.” Lastly, it safeguards
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petitioners from any construction that would diminish or abrogate other available
rights or remedies or limit legislative authority regarding same.
TJ7
Section 6 sets state protocol should the federal government legalize
marijuanar It provides that Oklahoma’s restrictions would-not exceed- federal
restrictions and Oklahoma’s quantity limitations would be raised to the federal
maximum. It also provides that the Oklahoma Bureau of Narcotics and Dangerous
Drugs will retain its enforcement authority, subject to the legislature’s authority to
change the responsible agency. Finally, Section 6 states that if the federal
government allows interstate transfer, Oklahoma will, too, and authorizes the
legislature and governor to permit same.
HI 8
Section 7 provides for judicial review and instructs that all rules or
regulations made pursuant to Article 32 must comply with the Oklahoma
Administrative Procedures Act. Section 8 empowers the legislature to modify
specific provisions of Article 32 by supermajority vote and others by simplemajority vote. Section 9 is a severability clause. Section 10 provides that Article 32
will be effective immediately upon passage. Section 11 contains a list of definitions.
Standard of Review
HI 9
Oklahoma citizens “may protest the sufficiency and legality of an initiative
petition." In re State Question No. 807. Initiative Petition No. 423, 2020 OK 57, HI
11, 468 P.3d 383, 388 (per curiam) (internal citations omitted). Upon protest, the
Court must review the petition to ensure its compliance “with the rights and
restrictions established by the Oklahoma Constitution, legislative enactments, and
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this Court’s jurisprudence.” id, 468 P.3d at 388 (internal citations omitted). The
Court’s pre-election review is restricted to determining whether the proposed
measure contains “clear or manifest facial constitutional infirmities,” and the
pfdtesfant' bears the burden'of'proof. ld1j 12, 468 P.3d at 388 (internal citations
omitted).
Analysis
10 To the extent we addressed preemption and the validity of state elections in
Indian country in companion case No. 119,927, we apply our holdings therein, and
reject Petitioner’s identical arguments.4 We review the following issues: federal
preemption by provisions of (1) the Gun Control Act of 1968 codified at 18 U.S.C.
§ 922(d)(3), (g)(3) (2018); (2) federal racketeering law, codified at 18 U.S.C. §
1956(a) (2018); § 1957 (2018); and (3) gist sufficiency.5
Federal law does not preempt SQ 819.
11 An exercise of state police power will not be found “preempted by federal
action unless that is the clear and manifest purpose of Congress.” In re State
Question No. 807, 2020 OK 57, U 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.
4 Tay v. Green, 2022 OK____ P 3d
5 As noted, Petitioner also argued that Section 5 of SQ 819 violates the doctrine of non-retroactivity in postconviction proceedings. Ultimately, we will sever Section 5 because the gist insufficiently and misleadingly
fails to describe its effects upon Oklahoma law. Therefore, we will not review this additional challenge to
Section 5.
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12 We first consider the provisions of section 9226 and conclude that it does
not preempt SQ 819.7 Congress did not expressly preempt States’ ability to
6 Petitioner anchored his preemption argument upon the following provisions of 18 U.S.C. § 922:
(d) It shall be unlawful for any person to sell or otherwise dispose of any firearm or
ammunition to any person knowing or having reasonable cause to believe that such
person—
(3)
is an unlawful user of or addicted to any controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802))[.]
(g) It shall be unlawful for any person—
(3) who is an unlawful user of or addicted to any controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802))
[...]
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce,
any firearm or ammunition; or to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.
7 SQ 819 addresses firearm-ownership rights in two sections.
Section 2 provides, in part;
(19) No conduct permitted under this Article shall be the basis for the denial revocation or
suspension of any state-issued license, including drivers' licenses, concealed carry
permits, occupational or professional licensing.
[•••]
(21) No licensee of the agency responsible for regulating marijuana shall be denied the
right to own, purchase, possess or use a firearm, ammunition, or firearm accessories
solely on the basis of conduct permitted under this Article.
(22) No state or local agency, municipal or county governing authority shall restrict, revoke,
suspend or otherwise infringe upon the right of a person to own, purchase or possess
a firearm, ammunition, or firearm accessories or any related firearm license or
certification solely on the basis of conduct permitted under this Article.
(23) No state or local agency, municipal or county governing authority shall enforce or
assist in enforcing a federal law that prohibits or restricts firearm use or ownership
solely on the basis of conduct permitted under this Article.
Section 5 provides, in part;
(5)
Nothing in this section shall be construed to diminish or abrogate any rights or
remedies otherwise available to the petitioner or applicant. The provisions of this
section shall apply equally to juvenile cases as if the juvenile had been of legal age at
the time of the offense. A completed expungement shall automatically restore the
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legislate gun-control laws in the Gun Control Act of 1968, 18 U.S.C. §§ 921 931
(2018) (the GCA); nor did Congress implicitly convey its intent to occupy the field
of gun control therein.8 A direct and positive conflict exists where “compliance with
both federal and statriawris^physicai impossibility . . . or where-state law stands
as an obstacle to the accomplishment and execution of Congress' full purposes
and objectives.” id,
21,468 P.3d at 390 (interna! citations omitted). Though SQ
819 would authorize conduct subject to federal prosecution, compliance with state
law and § 922(d)(3) and (g)(3) would be possible because SQ 819 does not
mandate possession of firearms or ammunition by recreational-marijuana users.
See id.
23-24, 468 P.3d at 390-91 (analyzing, under the physical-impossibility
standard, whether actual conflict would exist between proposed state law and the
Controlled Substances Act (CSA)). Further, SQ 819 does not impede the
accomplishment and execution of Congress' purposes in enacting the GCA.
Congress passed the GCA “to strengthen Federal Controls over interstate and
foreign commerce in firearms and to assist the States effectively to regulate
firearms traffic within their borders.” H.R. Rep. No. 1577, at 2 (1968) as reprinted
person's rights to possess and use firearms. A completed expungement of marijuana
related felony convictions shall also automatically restore the person’s right to vote.
21 U.S.C. § 927 provides:
No provision of this chapter shall be construed as indicating an intent on the part of the
Congress to occupy the field in which such provision operates to the exclusion of the law
of any State on the same subject matter, unless there is a direct and positive conflict
between such provision and the law of the State so that the two cannot be reconciled or
consistently stand together.
9
in 1968 U.S.C.C.A.N. 4410, 4411. SQ 819 does not attempt to alter or weaken the
GCA or limit enforcement of federal law by federal agents.9 Any immunity created
by SQ 819 applies to prosecution under state law, not federal law. Further, it
—applies to"possess:jop'anrd uSe™0f~marijuana and marijuana- products, noHo-otheractivities addressed by the GCA. Moreover, because the federal government
cannot force States to criminalize recreational marijuana possession or use, it
cannot prevent States from decriminalizing recreational marijuana possession or
use.
(
9 Because § 922 references the CSA, we note that SQ 819 similarly does not impede the accomplishment
and execution of Congress’ purposes in enacting the CSA. See In re_State Question No. 807. 2020 OK 57,
26-27, 30, 34, 468 P.3d at 391-93 (concluding same regarding a similar proposition). A contrary
conclusion would violate principles of federalism. See Priqq v. Pennsylvania, 41 U.S. 539, 541 (1842) C[l]t
might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states
are bound to provide means to carry into effect the duties of the national government, nowhere delegated
or instructed to them by the Constitution ”). The anti-commandeering doctrine bars Congress from
appropriating state power for federal purposes. See generally Prigg, 41 U.S. 539, Printz v. United States,
138 S.Ct. 1461 (2018). Congress may greatly depend
521 U.S. 898 M997V Murphy v. NCAA. _ U.S.
.States
to
police
and
regulate
controlled
substances
under the standards established by the CSA, but a
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State's decision to do so according to a different, yet complementary state standard, does not frustrate
Congress’ purposes in enacting the CSA.
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Likewise, SQ 819 is not preempted by 18 U.S.C. § 1956(a)10 and § 195711.
Petitioner does not explain his claim that § 1957 preempts SQ 819, but he asserts
SQ 819 conflicts with § 1956(a) because it will require state officials to participate
in money laundering~through~itS"excise-tax provisions. In 20207-Petitioner-made a
similar argument in his challenge to SQ 807; the Court determined that
“government 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, 468 P.3d at 394. The same is true
with respect to § 1956(a) and § 1957. Moreover, Petitioner assumes the State
1018 U.S.C. § 1956(a)(1) provides:
Whoever, knowing that the property involved in a financial transaction represents the
proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial
transaction which in fact involves the proceeds of specified unlawful activity—
(A)(i) with the intent to promote the carrying on of specified unlawful activity; or
(ii) with intent to engage in conduct constituting a violation of section 7201 or 7206 of
the Internal Revenue Code of 1986; or
(B) knowing that the transaction is designed in whole or in part—
(i) to conceal or disguise the nature, the location, the source, the ownership, or the
control of the proceeds of specified unlawful activity; or
(ii) to avoid a transaction reporting requirement under State or Federal law,
shall be sentenced to a fine of not more than $500,000 or twice the value of the property
involved in the transaction, whichever is greater, or imprisonment for not more than twenty
years, or both. For purposes of this paragraph, a financial transaction shall be considered
to be one involving the proceeds of specified unlawful activity if it is part of a set of parallel
or dependent transactions, any one of which involves the proceeds of specified unlawful
activity, and all of which are part of a single plan or arrangement.
” § 1957 punishes anyone who, in certain circumstances, “knowingly engages or attempts to engage in a
monetary transaction in criminally derived property of a value greater than $10,000 and is derived from
specified unlawful activity." § 1957(a).
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would be involved in a transaction involving “specified unlawful activity.” §
1956(a)(1); § 1957(a). Section 1956(c)(7) defines “specified unlawful activity.
”12
That definition references the CSA—first, regarding offenses against a foreign
nation for financrartran's'a'ction's" in theUnited States, § 1956(c)(7)(B-)(t), andsecond, regarding “any act or acts constituting a continuing criminal enterprise.” §
1956(c)(7)(C). But the CSA provides immunity to “any duly authorized officer of
any State, territory, political subdivision thereof, the District of Columbia, or any
possession of the United States, who shall be lawfully engaged in the enforcement
of any law or municipal ordinance relating to controlled substances. 21 U.S.C. §
885(d) (2018). Therefore, the State’s enforcement of Article 32 would not meet the
definition of “specified unlawful activity.”
fl14 Further, the illegality of an activity does not bar its taxation. In re State
Question No. 807, 2020 OK 57, H 39, 468 P.3d at 395 (collecting cases). Because
the State’s excise tax would be lawful, so would its appropriation of tax revenue.
Id
40, 468 P.3d at 395 (“[l]t is axiomatic that if the states and federal government
are permitted to tax illegal activity, they are permitted to use the resulting
revenue.”). Thus, § 1956(a) and § 1957 do not preempt SQ 819.
Challenge to the Gist
1J15 Under 34 O.S.2021, § 3, https://qovt.westlaw.com/okic (follow hyperlink
titled “General Provisions”), “[a] simple statement of the gist of the proposition shall
12 § 1957(f)(3) defines the term “specified unlawful activity’1 by “the meaning given in section 1956.”
12
be printed on the top margin of each signature sheet.” The gist statement “must be
brief, descriptive of the effect of the proposition, not deceiving but informative and
revealing of the design and purpose of the petition.” In re Initiative Petition No. 344,
Sfafe-Question Nor63Q^199Q QK^75-. 5114. 797 P:2d 326,- 330; see also ln-re-State------Question No. 820. Initiative Petition No. 434, 2022 OK 30, fl 6, __ P.3d __
(declaring the ‘“gist must present an outline, or rough sketch, of what the initiative
petition will accomplish,'” informing prospective signers “of the ‘potential effects’ so
those signers understand the changes that would be made to Oklahoma's statutory
code.” (internal citations omitted)). The proposed gist follows:
The Oklahoma Marijuana Regulation and Right to Use Act
This constitutional amendment: grants the right to use marijuana to
persons 21 years of age and older; establishes individual patient,
professional, privacy, employment, medical, parental, student,
firearm ownership, state-licensure, and due process rights, has a
fiscal impact and pays for itself with taxes on marijuana sales; sets a
tax rate of 15% on marijuana sales, except for persons with a medical
marijuana patient or caregiver license; directs surplus revenue to pay
for education, local and military veterans mental health programs,
programs for families with disabled children, rural water infrastructure,
law enforcement training, research, marijuana waste clean-up, and
agricultural damage insurance and individual criminal record
expungement; adapts to future federal legalization of marijuana,
including a 3% wholesale export tax; allows persons with minor
marijuana convictions to apply for resentencing, vacatur and/or
expungement; provides for judicial review, severability and
provides definitions of terms used in this amendment; becomes
effective upon passage and provides time for implementation.
(emphasis added).
H 16 Petitioner argues that SQ 819’s gist is insufficient and misleading because
it does not warn voters of federal criminal consequences for marijuana possession
13
and use. We rejected Petitioner’s argument regarding SQ 818 because the gist
sufficiently explained changes to be made to Oklahoma law. Likewise, we reject
Petitioner’s argument that the gist must describe federal consequences. However,
we'conclucle'the'gistlnsafficiently informs voters of Section'5’s-effect*omOklahoma
law.
H 17 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. As written, the
gist misleads potential signatories to believe SQ 819 adheres to established
judicial process. In reality, it does not provide for a procedure whereby the State
may object to resentencing, modification, reversal, dismissal, expungement, or
vacatur. Section 5(4) provides: “Upon receiving a petition, the court shall
presume the petitioner satisfies the criteria . . . and without delay resentence or
reverse the conviction as legally invalid, modify the judgment and sentence, or
expunge and vacate the charges. >’13 Similarly, the gist misleads potential
13 Recently, this Court upheld the sufficiency of the gist of State Question No. 820, Initiative Petition No.
434__a proposition that also seeks to legalize, regulate, and tax adult-use marijuana. See In re: State
Question No. 820. Initiative Petition No. 434.2022 OK 30, _ P.3d _. There, the gist sufficiently described
the effect of SQ 820’s retroactivity provisions, id, H 6,__P.3d at__ The gist explained: “It would provide a
judicial process for people to seek modification, reversal, redesignation, or expungement of certain prior
marijuana-related judgments and sentences." This explanation was sufficient because SQ 820 did not
attempt to bypass the established judicial process regarding modification, reversal, redesignation, or
expungement. With respect to any qualifying “person currently serving a sentence for conviction
. who
would not have been guilty of an offense or who would have been guilty of a lesser offense under this Act
had it been in effect at the time of the offense.” SQ 820 would require the court to “presume the petitioner
satisfies the criteria [for resentencing, modification, or reversal} and without delay" grant the request “unless
the State opposes the petition or alleges that granting the petition would pose an unreasonable risk of
danger to an identifiable individual’s safety." If the State objects, SQ 820 provides that the petitioner is
14
signatories about its effect on a petitioner’s firearm-ownership and voting rights.
The gist explains that SQ 819 “establishes individual . . . firearm ownership . . .
rights” but does not address voting rights nor the process for restoring either the
possession T5rfifearms“drvoting eights. Section-5(5)-provides;“A-completedexpungement [of marijuana related felony convictions] shall automatically restore
the person’s rights to possess and use firearms. A completed expungement of
marijuana related felony convictions shall also automatically restore the person s
right to vote.” Not only does this provision deviate from established practice by
automatically restoring these significant rights, it further delegates authority to the
trial court dependent only upon a completed expungement. Moreover, restoration
is absolute, unqualified, and does not take into account whether a petitioner has
other non-marijuana-related felony convictions.14 The above-mentioned omissions
“entitled to a hearing on the record, including the opportunity to question witnesses and present evidence"
and "ftlhe State shall bear the burden of proving, by clear and convincing evidence, that the petitioner does
not satisfy the criteria [for resentencing, modification, or reversal] or that granting the petition would pose
an unreasonable risk of danger to an identifiable individual if alleged.” With respect to any qualifying “person
who has completed his or her sentence for a conviction . . . [and] who would not have been guilty of an
offense or who would have been guilty of a lesser offense under this Act had it been in effect at the time of
the offense ” the judicial process to “have a conviction dismissed, expunged, and vacated as legally invalid
or redesignated as a civil infraction" is the same, except that “[u]nless requested by the applicant, no hearing
is necessary . . .
Unlike SQ 820. SQ 819 would not provide judicial process for the State to rebut the
presumption or otherwise oppose the granting of the petition—a significant deviation from established
judicial process under Oklahoma law..
14 SQ 820 did not address voting rights. Though it addressed firearm-ownership rights, its effect thereon is
much different than that of SQ 819. In keeping with the trial courts' power and authority, SQ 820 did not
automatically restore firearm-ownership rights upon the filing of a judicial order, like expungement. Further,
its effect on firearm-ownership rights was prospective only:
A person shall not be denied by the state or local government the right to own, purchase
or possess a firearm, ammunition, or firearm accessories based solely on conduct that is
addressed and permitted by this Act. No state or local agency, municipal or county
governing authority shall restrict, revoke, suspend or otherwise infringe upon the right of a
person to own, purchase, or possess a firearm, ammunition, or firearm accessories or any
related firearms license or certification based solely on conduct that is addressed and
15
and scant explanations regarding fundamental deviations from established
practice, render the gist deceitful and insufficiently informative with respect to the
affect of Section 5 on Oklahoma law.15 Under the severability clause in Section 9,
'the Court severs"Section”5'16^and' strikes~the~portion~of^the gist referencing’its
provisions. 17
TJ18 The remaining gist, although not all-encompassing,18 informs potential
signatories “‘of what the measure is generally intended to do”’ without “‘the taint of
misleading terms or deceitful language.”’ In re Initiative Petition No. 426, State
Question No. 810. 2020 OK 44,
6, 7, 465 P.3d 1259, 1262, 1263; see also.jn
re Initiative Petition No. 409. State Question-No. 785. 2016 OK 51, U 3, 376 P.3d
250, 252 (“The gist ... is ‘not required to contain every regulatory detail so long
as its outline is not incorrect.”’ (internal citation omitted)). Thus, we assume original
permitted by this Act.
15 The misleading nature of the gist is compounded by including reference to “judicial review," following the
portion of the gist that references Section 5.
16 The Court may view as severable any provisions that are not "integral parts of the petition.” In re Initiative
Petition No. 315, State Question No. 553. 1982 OK 15, fl 5, 649 P.2d 545, 548. An integral part of a
proposition is a part “which could not be severed without defeating the whole.” In re Initiative Petition No.
358. State Question No. 658. 1994 OK 27, fj 11, 870 P.2d 782, 787. Because the proposition would not be
defeated without Section 5, Section 5 is severable under Section 9. Section 9(1) provides:
The provisions hereof are severable, and if any part or provision hereof shall be void,
invalid, or unconstitutional, the decision of the court so holding shall not affect or impair
any of the remaining parts or provision hereof, and the remaining provisions hereof shall
continue in full force and effect.
17 The Court strikes the following portion of the gist: “allows persons with minor marijuana convictions to
apply for resentencing, vacatur and/or expungement."
18 The gist does not mention impairment testing, workplace policy, and legislative-amendment procedure.
16
jurisdiction and hold SQ 819, as severed, is legally sufficient for submission to
Oklahomans for voting.
INITIATIVE PETITION NO. 819, STATE QUESTION NO. 433, BY SEVERING
SECTION 5 AND PORTIONS OF THE GIST REFERENCING SECTION 5, IS
LEGALLY SUFFICIENT TO SUBMIT TQ-THE-PEOPLE OF OKLAHOMA.
DARBY, C.J., KAUGER, WINCHESTER, EDMONDSON, COMBS, AND
GURICH, JJ., CONCUR;
KANE, V.C.J. DISSENTS (BY SEPARATE WRITING);
ROWE, J. CONCURS IN PART; DISSENTS IN PART (BY SEPARATE
WRITING), KUEHN, J., CONCURS IN PART; DISSENTS IN PART.
17
*10 5 19 13 6 3 9 *
2022 OK 38
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
(date! Y / 9' ^
PAUL TAM____
Posted
JL-
Mailed
)
Petitioner,
APR 19 2022
JOHN D. HADDEN
CLERK
)
Distrib
yes,.
)
.Publish
v.
ft.
pa*
SUPREMECOURT
STAi E OF GKLAnO.viA
JED GREEN and KRISTOPHER
MASTERMAN,
M691119,984
(comp, w/119,927)
)
)
)
Respondents.
FOR OFFICIAL
PUBLICATION
)
ROWE, J., concurring in part, dissenting in part:
111
I concur with the Court’s decision to assume original jurisdiction. I
must dissent, however, from the Court’s holding that State Question No. 819,
Initiative Petition No. 433 (“SQ 819") is constitutionally sufficient to submit to the
people of Oklahoma for the same reasons I set forth in In re State Question No.
820, Initiative Petition 434, 2022 OK 30. SQ 819 is preempted by federal law and,
thus, conflicts with the Oklahoma Constitution
112
The right to an initiative petition is the first power reserved for the
people of Oklahoma under Article 5, § 2 of the Oklahoma Constitution.1 Our prior
Article V, § 2 of the Oklahoma Constitution states:
The first power reserved by the people is the initiative, and eight per centum of the legal
voters shall have the right to propose any legislative measure, and fifteen per centum of
the legal voters shall have the right to propose amendments to the Constitution by
petition, and every such petition shall include the full text of the measure so proposed.
The second power is the referendum, and it may be ordered (except as to laws
1
decisions make clear that the right of initiative is precious and warrants zealous
protection. In re State Question No. 807, Initiative Petition 423, 2020 OK 57, fl 10,
468 P.3d 383, 388-89. The right of initiative, however, is not absolute; any citizen
may^pFotesTthe sufficiency orlegality~of~ah~initiative petition. Id. fl i t, 468 P~3d'at
389. When such a protest is made, this Court must review the petition to determine
whether it complies with the Oklahoma Constitution, legislative enactments, and
our own jurisprudence. Id.
fl3
Article 1, § 1 of the Oklahoma Constitution states, “The State of
Oklahoma is an inseparable part of the Federal Union, and the Constitution of the
United States is the supreme law of the land." Likewise, the federal Supremacy
Clause set out in the second paragraph of Article VI of the United States
Constitution states:
This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound
thereby, any Thing in the Constitution or Laws of any state to the
Contrary notwithstanding.
Pursuant to these provisions, when a potential conflict between state and federal
law arises, the state law is preempted. In re State Question 807, 2020 OK 57, fl
17 468 P.3d at 390. Federal law has identified three forms of preemption that may
necessary for the immediate preservation of the public peace, health, or safety), either by
petition signed by five per centum of the legal voters or by the Legislature as other bills
are enacted. The ratio and per centum of legal voters hereinbefore stated shall be based
upon the total number of votes cast at the last general election for the Office of Governor.
2
arise from federal action: express preemption, field preemption, and conflict
preemption. Id. ^j17, 468 P.3d at 389.
Express preemption occurs when a federal statute includes a
provision stating that it displaces state law and defining the extent to
whicfT~sfate~Iaw~ is~ preempted:^ Field' preemption occurs when
Congress expresses an intent to occupy an entire field, such that even
complementary state regulation in the same area is foreclosed.
Finally, conflict preemption occurs when there is an actual conflict
between state and federal law.
Id. (internal citations omitted).
||4
The Controlled Substances Act ("CSA”), 21 U.S.C. §§ 801-904, the
federal law which governs the use and trafficking of controlled substances,
including marijuana, explicitly addresses the issue of federal preemption of state
law:
No provision of this subchapter shall be construed as indicating an
intent on the part of the Congress to occupy the field in which that
provision operates, including criminal penalties, to the exclusion of
any State law on the same subject matter which would otherwise be
within the authority of the State, unless there is a positive conflict
between that provision of this subchapter and that State law so that
the two cannot consistently stand together.
21 U.S.C. § 903. Section 903 makes clear that the CSA was not intended to
occupy the field to exclusion of state law with respect to regulating the use and
trafficking of controlled substances. However, Section 903 does provide that the
CSA preempts state law in instances where a “positive conflict” arises.
IP
A “positive conflict” arises either when it is impossible to comply with
both federal and state law, or where state law stands as an obstacle to the
accomplishment and execution of Congress’s full purposes and objectives. See
3
Hillsborough City, Fla. v. Automated Med Labs, Inc., 471 U.S. 707, 713 (1985).
Even if the changes proposed in SQ 819 were to become law, it does not appear
that compliance with state and federal law would be impossible. SQ 819 does not,
forinstance” contain-any m an da tes th a two u I d require Oklahomans "to violafe'the
provisions of the CSA.
The passage of SQ 819 would, however, clearly present an obstacle
to the accomplishment and execution of Congress’s full purposes and objections
expressed in the CSA. The purpose of the CSA was “to conquer drug abuse and
to control the legitimate and illegitimate traffic in controlled substances.” Gonzalez
v. Raich, 545 U.S. 1, 12 (2005). Marijuana is considered a Schedule l controlled
substance under the CSA. 21 C.F.R. § 1308.11 (d)(23). It is illegal for any person
to manufacture, distribute, or dispense marijuana and also illegal for any person to
possess marijuana with the intent to manufacture, distribute, or dispense it. 21
U.S.C. §§ 841(a)(1), 844(a).
1J7
If SQ 819’s proposed
amendments become law, there will
unquestionably be a proliferation in the cultivation, manufacture, distribution,
dispensation, and recreational use of marijuana in Oklahoma. These outcomes
are hardly hypothetical. With these activities sanctioned and licensed by the State
of Oklahoma, it would be virtually impossible for federal law enforcement to
accomplish Congress's objective in the CSA to control the production, sale, and
use of controlled substances.
4
TJ8
When we confronted this issue in the past, it was asserted that the
CSA could not be understood as preempting state laws which legalize trafficking
in marijuana because that would mean the CSA violates the anti-commandeering
doctrine:~~See~fri re'State'Questiorr80772020' OK 57,‘468 P:3d~383: Th'e~anticommandeering doctrine operates as a limit on federal preemption. “We have
always understood that even where Congress has the authority under the
Constitution to pass laws requiring or prohibiting certain acts, it lacks the power to
directly compel the States to require or prohibit those acts.”
Murphy v. Natl
Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1477 (2018) (quotation omitted).
H9
The CSA does not violate the anti-commandeering doctrine by
preempting state laws which undermine its purpose and objectives. The CSA
contains no direct mandate for the states to adopt drug enforcement regulations
which mirror its provisions; the CSA merely prohibits certain conduct on behalf of
individuals. Congress anticipated that states would adopt regulatory schemes that
are generally complementary to federal law, even if not perfectly consistent with
the CSA. Sanctioning activity that is proscribed by federal law, however, is in no
sense complementary.
1(10
SQ 819's proposed amendments clearly present a substantial
obstacle to Congress’s objectives expressed in the CSA to control the production,
sale, and use of controlled substances. SQ 819 is preempted by federal law and,
thus, fails to comply with the Oklahoma Constitution. Accordingly, I cannot find
that it is fit for submission to the people of Oklahoma.
5
Appendix C
Decision of the Oklahoma Supreme Court Tay v. Kiesel, 468 P.3d 383 (2020)
■
4 *
2020 OK 57
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
IN RE: STATE QUESTION No. 807,
INITIATIVE PETITION No. 423
)
)
)
PAUL TAY,
)
Rec’d (date)^23_2^
JUN 2 3 2020
JOHN O
olbr7°en
Petitioner,
Posted__
Mailed
v.
70
Distrib__
RYAN KIESEL and
MICHELLE TILLEY,
Publish
es
np
)
No. 118,582
FOR OFFICIAL
PUBLICATION
)
Respondents.
)
ORIGINAL PROCEEDING TO DETERMINE THE CONSTITUTIONAL
VALIDITY OF STATE QUESTION NO. 807, INITIATIVE PETITION NO.
423
^|0 This is an original proceeding to determine the legal sufficiency of State
Question No. 807, Initiative Petition No. 423. The petition seeks to create a new
article to the Oklahoma Constitution, Article 31, for the purpose of legalizing,
regulating, and taxing the use of marijuana by Oklahoma adults. Petitioner Paul
Tay filed this protest alleging the petition is unconstitutional because it violates the
federal supremacy provisions of Article VI, clause 2 of the United States
Constitution and Article 1, Section 1 of the Oklahoma Constitution. Petitioner
alleges the proposed measure is preempted by existing federal statutes including
the Controlled Substances Act, 21 U.S.C. §§ 801-904, the Racketeer Influenced
and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, and Section 280E of the
Internal Revenue Code, 26 U.S.C. § 280E. Because the United States Supreme
Court has not addressed this question, the Supremacy Clause permits us to perform
our own analysis of federal law. Upon our review, we hold Petitioner has not met
1,
his burden to show clear or manifest facia! constitutional infirmities because he has
not shown State Question No. 807 is preempted by federal law. On the grounds
alleged, the petition is legally sufficient for submission to the people of Oklahoma.
STATE QUESTION NO. 807, INITIATIVE PETITION NO. 423 IS
LEGALLY SUFFICIENT FOR SUBMISSION TO THE PEOPLE OF
OKLAHOMA
Paul Tay, Tulsa, Oklahoma, pro se Petitioner.
D. Kent Meyers and Melanie Wilson Rughani, Crowe & Dunlevy, Oklahoma City,
Oklahoma, for Respondents.
PER CURIAM:
I.
FACTS AND PROCEDURAL HISTORY
V
On December 27, 2019, Respondents Ryan Kicsel and Michelle Tilley
(Respondents) filed State Question No. 807, Initiative Petition No. 423 (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, & 8, 2020. Within ten business days,
Petitioner Paul Tay (Petitioner) brought this original proceeding pursuant to the
provisions of 34 O.S. Supp. 2015 § 8(b)1, challenging the constitutionality of SQ
Tide 34 O.S. Supp. 2015 § 8(b) provides:
2
807.
Petitioner alleges tine 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 that the
United States Constitution is the supreme law of the land. Specifically, Petitioner
contends SQ 807 is preempted by the Controlled Substances Act (CSA), 21 U.S.C.
§§ 801-904, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. §§ 1961-1968, and Section 280E of the Internal Revenue Code, 26 U.S.C. §
280E (2018).
II.
THE PROPOSED MEASURE
12
The proposed Article 31 contains seventeen (17) sections. Section 1
provides for definitions used throughout Article 31. Section 2 contains limitations,
noting Article 31 does not affect or limit laws that govern use by minors under
twenty-one (21) years of age or use in certain circumstances or locations. Section
3 provides Article 31 will not limit the rights and privileges of medical marijuana
patients, or the rights of employers and governments except in the ways provided.
It shall be the duty of the Secretary of State to cause to be published, in at least one
newspaper of general circulation in the state, a notice of such filing and the apparent
sufficiency or insufficiency of the petition, and shali include notice that any citizen or
citizens of the state may file a protest as to the constitutionality of the petition, by a
written notice to the Supreme Court and to the proponent or Respondents filing the
petition. Any such protest must be filed within ten (10) business days after publication. A
copy of the protest shali be filed with the Secretary' of State.
Section 4 legalizes the personal use of marijuana. Section 4 declares
the possession and use of certain amounts of marijuana to be not unlawful and not
an offense under state law. It also provides similar status to personal cultivation of
marijuana plants. In addition, Section 4 provides certain protections for personal
use in such areas as parental rights, parole, privacy, eligibility in public assistance,
and possession of firearms,
Section 5 creates civil fines and penalties for
violations of the possession and use restrictions found in Article 31, primarily in
Section 4.
Section 6 renames the Oklahoma Medical Marijuana Authority to the
Oklahoma Marijuana Authority (Authority) and gives it power over licensing for
the commercial cultivation and sale of marijuana. Section 7 requires the Authority
to promulgate rules and regulations for implementation and enforcement of Article
31. Section 7 also sets out comprehensive areas that must be addressed by those
regulations, including labelling, security, inspection, and testing procedures.
Section 8 provides protections for licensees, declaring conduct
authorized by Article 31 as not unlawful under Oklahoma law. Section 8 further
notes that contracts will not be unenforceable on the basis marijuana is prohibited
by federal law, and professionals will not be subject to discipline in Oklahoma for
providing advice to licensees based on federal law prohibitions. Section 9 provides
4
for various restrictions on licensees, concerning areas such as location, security
and the need to comply with Authority inspection.
16
Section 10 allows local governments, subject to the provisions of
Section 4 and 8, to regulate the time, place, and manner of business licensed under
Article 31. However, Section 10 also prevents local governments from prohibiting
licensees in their jurisdictions after the next election, from prohibiting
transportation of marijuana, and from adopting unduly burdensome regulations or
ordinances.
V
Section 11 imposes an excise tax of fifteen percent (15%) on the gross
receipt of sales of marijuana by licensees to consumers. Section 11 also permits
the Legislature to alter the excise tax rate after November 3, 2024, and requires the
Oklahoma Tax Commission (OTC) to both collect the tax and establish rules and
procedures for collection. Section 12 creates the Oklahoma Marijuana Revenue
Trust Fund (Fund) to receive the proceeds from the excise tax. Section 12 also
provides for percentage-based distribution of that revenue after costs for running
the Authority are deducted. Revenue from the Fund will be distributed in the
following manner: 1) four percent (4%) to the political subdivisions where the
retail sales occurred; 2) forty-eight percent (48%) to grants for public schools; and
3) forty-eight percent (48%) to provide grants to agencies and non-profit
5
organizations to increase access to drug addiction treatment services. Section 12
also contains provisions to prevent legislative undercutting of funding in those
areas due to the new revenue from the Fund.
V
Section 13 provides for judicial review of rules and regulations
adopted by the Authority pursuant to the Oklahoma Administrative Procedures Act
(APA). Section 14 requires the Authority to publish an annual report concerning
licensees, any actions taken against them, revenues and expenses of the Authority,
and revenue collected by the OTC.
119
Section 15 provides for retroactive application of Article 31. Section
15 allows those convicted of once-criminal conduct made lawful by Article 31 to
petition for resentencing, reversal of conviction and dismissal, or modification of
their judgment and sentence. Section 15 also creates a procedure for the State to
oppose such a petition, including based on an unreasonable risk of danger to an
identifiable individual’s safety. Section 16 is a severability clause, and Section 17
notes Article 3 l’s effective date will be ninety (90) days after it is approved by the
people of Oklahoma.
III.
STANDARD OF REVIEW
6
VO
“The first power reserved by the people is the initiative,” which
includes “the right to propose amendments to the Constitution by petition....”
Okla. Const, art. 5, § 2; In re: Initiative Petition No. 420, State Question No. 804,
2020 OK 9, f 12,___P.2d
; In re Initiative Petition No. 409, State Question No.
85, 2016 OK 51, f2, 376 P.3d 250. This Court has repeatedly noted that the right
of initiative is precious, and one which the Court must zealously preserve to the
fullest measure of the spirit and letter of the law. In re: Initiative. Petition No. 420,
2020 OK 9 at f!2; Okla. Oil & Gas Ass n v. Thompson, 2018 OK 26,1|4,414 P.3d
345; In re Initiative Petition No. 382, State Question No. 729, 2006 OK 45,1J3, 142
P.3d 400.
nil
However, while the right of initiative is zealously protected by the
Court, it is not absolute. In re: Initiative Petition No. 420, 2020 OK 9 at 5] 13; Okla.
Oil & Gas Ass’n, 2018 OK 26 at ^[5. Any citizen of Oklahoma may protest the
sufficiency and legality of an initiative petition. In re: Initiative Petition No. 420,
2020 OK 9 at fl3; In re Initiative Petition No. 409, 2016 OK 51 at \2\ In re
Initiative Petition No. 384, State Question No. 731, 2007 OK 48, <|2, 164 P.3d 125.
Upon such a protest, it is the duty of this Court to review the petition to ensure that
it complies with the rights and restrictions established by the Oklahoma
Constitution, legislative enactments, and this Court's jurisprudence.
7
In re:
Initiative Petition No. 420, 2020 OK 9 at 1[13; (n re: Initiative Petition No. 384,
2007 OK 48 at f2.
12
Pre-election review of an initiative petition under 34 O.S. Supp. 2015
§ 8 is confined to determining whether there are “clear or manifest facial
constitutional infirmities” in the proposed measure. In re: Initiative Petition No.
420, 2020 OK 9 at f 13 (quoting In re: Initiative Petition No. 358, State Question
No. 658, 1994 OK 27, f7, 870 P.2d 782).
Further, because the right of the
initiative is so precious, the Court has held that ;[all doubt as to the construction of
pertinent provisions is resolved in favor of the initiative. The initiative power
should not be crippled, avoided, or denied by technical construction by the courts.”
In re: Initiative Petition No. 420, 2020 OK 9 at fl2; In re Initiative Petition No.
403, State Question No. 779, 2016 OK 1, %3, 367 P.3d 472. Thus, a protestant
bears the heavy burden of demonstrating the required clear or manifest
constitutional infirmity. In re: Initiative Petition No. 420, 2020 OK 9 at H14; In re
Initiative Petition No. 362, State Question No. 669, 1995 OK 77,
12, 899 P.2d
1145.
IV.
ANALYSIS
A. Principles of Federal Preemption and the Anticoinmandeering Doctrine
8
1(13
Petitioner’s argument rests on the interpretation and application of the
federal supremacy provisions of the United States Constitution2 and the Oklahoma
Constitution.3 Petitioner asserts SQ 807 is preempted because it conflicts with
existing federal legislation concerning controlled substances such as marijuana.
The federal government, acting through Congress, has the power to preempt state
law pursuant to the Supremacy Clause. Cipollone v. Liggett Group, Inc505 U.S.
504, 516, 112 S.Ct. 2608, 120 L.Hd.2d 407 (L992); Craft v. Graebel-Oklahoma
Movers, Inc., 2007 OK 79, TJ11, 178 P.3d 170. State taw and state constitutional
provisions must also yield to the United States Constitution. See Okla. Coalition
for Reproductive Justice v. Cline, 2012 OK 102, f2, 292 P.3d 27; In re initiative
Petition No, 349, State Question No. 642, 1992 OK 122,1(12-13, 838 P.2d 1.
1(14
With respect to both the United States Constitution and federal
statutes enacted by Congress, this Court is governed by the decisions of the United
States Supreme Court and must pronounce rules of law that conform to extant
Supreme Court jurisprudence. Holloway v. UNUM Life Ins. Co. of America, 2003
2 U.S. Const, art. VI, cl. 2 provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof: and all Treaties made, or which shall be made, under (he Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any state to the Contrary
notwithstanding.
Okla. Const., art. 1. § I reinforces the federal Supremacy Clause, and provides: “The State of Oklahoma
is an in separable part of the Federal Union, and the Constitution of the United States is the supreme law
of the land.
9
OK 90. H15, 89 P.3d 1022; Bogart v. CapRock Communications Corp2003 OK
38, 1|13. 69 P.3d 266; Cline, 2012 OK 102 at 1J12 (“Because the United States
Supreme Court has spoken, this Court is not free to impose its own view of the
law...”).
1J15
However, subject to decisions of the United States Supreme Court we
are free to promulgate judicial decisions grounded in our own interpretation ot
federal law. Holloway, 2003 OK 90 at 1il5; Bogart, 2003 OK 38 at f|13. The
Supreme Court of the United States has yet to directly address federal law
preemption of state marijuana regulation.
Because the United States Supreme
Court has not considered this question we are free to make our own determination
on preemption and indeed have a duty to do so since the question has been placed
before us. That is a freedom we do not have where the United States Supreme
Court has pronounced clear rules on federal questions, such as an individual’s right
to abortion protected by the United States Constitution. See, e.g., In re Initiative
Petition No. 395, State Question No. 761, 2012 OK 42, 286 P.3d 637; In re
Initiative Petition No. 349, State Question No. 642, 1992 OK 122, 838 P.2d 1. An
individual’s constitutional right to an abortion is hardly the only area in which this
Court has determined it is bound by United States Supreme Court precedent on
federal questions. For example, in Lewis v. Sac and Fox Tribe of Okla. Housing
10
Auth., 1994 OK 20,1|5, 896 P.2d 503, the Court noted its jurisdiction to adjudicate
certain civil actions concerning Indian matters was limited by opinions of the
United States Supreme Court addressed to the question. In Cities Service Gas Co.
Okla. Tax Com’n, 1989 OK 69, ^7, 774 P.2d 468, the Court noted it was
obligated to apply the United States Supreme Court’s four pronged test to decide
whether state taxes on interstate commerce were permissible under the commerce
clause. In Bailess v. Paukune, 1953 OK 349, 254 P.2d 349, the Court overruled a
prior decision concerning interpretation of the General Allotment Act of February
8, 1887, on remand from an appeal to the United States Supreme Court, because
that Court’s interpretation was binding.
<[16
Petitioner asserts SQ 807 is constitutionally infirm because it conflicts
with federal legislation.
When it comes to the preemptive effect of federal
legislation, the purpose of Congress is the ultimate touchstone. Altrici Group; Inc.
v. Good, 555 U.S. 70, 76, 129 S.Ct. 538, 172 L.ed.2d 398 (2008). Consideration of
any issues arising under the Supremacy Clause starts with the assumption that the
historic police powers of the States are not preempted by federal action unless that
is the clear and manifest purpose of Congress. Altria Group, Inc., 555 U.S. at 78;
Cipollone, 505 U.S. at 516; Rice v. Santa Fe Elevator Corp., 331 U.S 218, 230, 67
S.Ct. 1146, 91 L,Ed. 1447 (1947).
The preemption doctrine is thus not an
11
independent grant of legislative power to the Congress but rather a rule of decision
applied in the case of an apparent conflict between federal and state law. Murphy
v. Natl. Collegiate Athletic Ass ’n,
U.S.
, 138 S.Ct. 1461, 1479 (2018). See
Armstrong v. Exceptional Child Center, Inc575 U.S. 320, 324-25, 135 S.Ct.
1378, 191 L.Ed.2s 471 (2015).
5(17
There are three varieties of preemption that may arise from federal
action: express preemption, field preemption, and conflict preemption. Murphy,
138 S.Ct. at 1480. See English v. General Elec. Co., 496 U.S. 72, 78-79. 1 10 S.Ct.
2270, 110 L.Ed.2d 65 (1990). Express preemption occurs when a federal statute
includes a provision stating that it displaces state taw and defining the extent to
which state law is preempted. See Dan \s City Used Cars, Inc. v. Eelkey, 569 U.S.
251, 256, 133 S.Ct. 1769, 185 L.Ed.2d 909.
Field preemption occurs when
Congress expresses an intent to occupy an entire field, such that even
complementary state regulation in the same area is foreclosed. Arizona v. U.S.,
567 U.S. 387, 401, 132 S.Ct. 2492, 1.83 L.Ed.2d 351 (2012).
Finally, conflict
preemption occurs when there is an actual conflict between state and federal law.
See Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 120 S.Ct. 1913, 146
L.Ed.2d 914. Despite nuances in how they arise, these forms of preemption all
function in essentially the same way:
12
Congress enacts a law that imposes restrictions or confers rights on
private actors; a state law confers rights or imposes restrictions that
conflict with the federal law; and therefore the federal law takes
precedence and the state law is preempted.
Murphy, 138 S.Ct. at 1480.
18
While the Supremacy Clause and the preemption doctrine may
effectively prevent States from regulating areas controlled by federal law, '‘even
where Congress has the authority under the Constitution to pass laws requiring or
prohibiting certain acts, it lacks the power directly to compel the States to require
or prohibit those acts.”
Murphy at 1477.
Known as the anticommandecring
doctrine, this principle means that even a particularly strong federal interest does
not enable Congress to command a state government to enact state regulation or
enable it to compel a state to enact and enforce a federal regulatory scheme. See
id. at 1466-77; New York v. United Swi.es. 505 U.S. 144, 161 & 178, 112 S.Ct.
2408, 120 L.ed.2d 120(1992).
B. SQ 807 is not preempted by the Controlled Substances Act, 21 U.S.C. §§
801 - 904.
|19
Petitioner argues several federal provisions effectively preempt SQ
807. First, Petitioner argues SQ 807 is unconstitutional because it is preempted by
the provisions of the Controlled Substances Act (CSA), 21 U.S.C. §§ 801 - 904.
The CSA governs the use and trafficking of controlled substances, including
13
marijuana. Marijuana is a Schedule I controlled substance pursuant to the CSA,
and thus it is illegal under federal law for any person to manufacture, distribute, or
dispense, marijuana, and also illegal under federal law for any person to possess
marijuana with intent to manufacture, distribute, or dispense it. See 21 U.S.C. §§
841(a)(1) & 844(a) (2018).
Petitioner asserts this prohibition renders SQ 807
facially unconstitutional.
«J2Q
The CSA contains an explicit preemption provision. Title 21 U.S.C. §
903 (2018) provides:
No provision of this subchapter shall be construed as indicating an
intent on the part of the Congress to occupy the field in which that
provision operates, including criminal penalties, to the exclusion ot
any State law on the same subject matter which would otherwise be
within the authority of the Slate, unless there is a positive contlicL
between that provision of this subchapter and that State law so that the
two cannot consistently stand together.
Section 903 states that the CSA’s provisions do not expressly preempt state law
and are not intended to exclusively occupy any field to the exclusion of state law.
Thus, of the three types of preemption only conflict preemption is relevant.
1j2l
Federal courts have interpreted the “positive conflict" language used
in Section 903 to mean that state laws are preempted only in cases of actual
conflict with federal law such that compliance with both federal and state law is a
physical impossibility, see Hillsborough County, Fla.
14
v.
A uto.
Medical
Laboratories, Inc., 471 U.S. 707, 713, 105 S.Ct. 2371, 85 L.Ed.2d 714, or where
state law stands as an obstacle to the accomplishment and execution of Congress’
full puiposes and objectives. Freightliner Corp. v. Myrick, 514 U.S. 280, 287, 115
S.Ct. 1483, 131 L.Ed.2d 385 (1995).
^[22
Petitioner first argues SQ 807 explicitly states an intention to usurp
the supremacy of the CSA. This is incorrect. SQ 807 does not mention the CSA,
nor does it state any intent to comprehensively regulate all controlled substances to
the exclusion of the CSA.
However, Petitioner correctly notes that SQ 807
effectively provides limited immunity from prosecution under state law for
possession and distribution of marijuana. The decision to exercise that immunity
by either possessing and using marijuana as a consumer or taking advantage of the
licensing scheme for production and distribution, could subject individuals to
federal prosecution under the CSA. Petitioner argues this makes compliance with
both federal and state law impossible.
TJ23
The physical impossibility standard is a high burden.
Federal
precedent suggests that anything short of explicitly conflicting commands to act
one way and also act the opposite way is insufficient to satisfy that burden. See
Wyeth v. Levine, 555 U.S. 555, 571-73, 581, 129 S.Ct. 1187, 173 L,Ed.2d 51
(2009); Barnett Bank, N.A. v. Nelson, 517 U.S. 25, 31, 116 S.Ct. 1103, 134
)5
L.Ed.2d 237 (1996). Respondents assert that SQ 807 does not create a situation
where compliance with both federal and state law' is impossible. SQ 807 contains
no affirmative mandate that individuals use marijuana or that they grow it for
commercial distribution. Oklahomans, Respondents argue, “can elect to refrain
from using cannabis and, thus, be fully compliant with both federal and state law.
f24
In Wyeth, the Supreme Court determined physical impossibility was a
demanding defense” that did not apply where a state law required a drug
manufacturer to change its warning labels after they had been approved by the
FDA because there was no evidence to suggest the FDA would object to the
amended warning label. 555 U.S. 555 at 571-73. In a more factually relevant
scenario, in Barnett Bank, N.A., the Court did not find physical impossibility in a
scenario where a federal statute authorized the sale of insurance and a slate statute
forbade the same sale of insurance. 517 U.S. 25 at 31. The Court noted the “two
statutes do not impose directly conflicting duties on national banks-as they would,
for example, if the federal law' said, ‘you must sell insurance/ while the state law7
said, ‘you may not/” Id. In the present matter, the proposed Article 31 contains
no mandate that requires Oklahomans to violate any provision of the CSA. Thus,
‘‘Respondents/Proponenis Ryan Kiesel and Michelle Tilley’s Brief in Response lo Protest Challenging
Constitutionality of Initiative Petition No. 423, February 18, 2020, p. 5.
16
it is not facially physically impossible to comply with both state law and the CSA,
were SQ 807 to be adopted.
Tj25
Petitioner additionally contends SQ 807 stands as an obstacle to the
accomplishment and execution of Congresses’ purposes in enacting the CSA. That
is also a high threshold to meet. See Chamber of Commerce ofU.S. v. Whiting,
563 U.S. 582, 607, 131 S.Ct. 1968, 563 U.S. 582 (2011). “What is a sufficient
obstacle is a matter of judgment, to be informed by examining the federal statute as
a whole and identifying its purpose and intended effects.” Id. at 373.
^|26
The manifest purpose of the CSA was “to conquer drug abuse and to
control the legitimate and illegitimate traffic in controlled substances.” Gonzales
v. Raich, 545 U.S. 1, 12, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). SQ 807 does not
purport to limit or prevent federal authorities from enforcing federal law. SQ 807
instead would alter how Oklahoma regulates marijuana and would provide a form
of limited immunity under state law for users and producers that satisfy the
measure’s requirements.
Further, the federal government lacks the power to
compel Oklahoma, or any other state, to enforce the provisions of the CSA or to
criminalize possession and use of marijuana under state law. See Murphy v. Nat 7
Collegiate Athletic Ass’n, 138 S.Ct. 1461, 1475-79, 200 L.Ed.2d 854 (2018)
(discussing and applying the anticommandeering doctrine).
17
*|27
Petitioner argues one of the purposes of the CSA was to bring the
United States into compliance with various treaty obligations, including the Vienna
Convention on Psychotropic Substances. See 21 U.S.C. § 801a (2018). In support
of his argument, Petitioner cites old decisions of the United States Supreme Court
that struck down state laws inconsistent with U.S. treaty obligations and
established the supremacy of the federal government. See Ware v. Hylton, 3 U.S.
199, 1 L.Ed. 568 (1796) (holding treaty provisions are binding as U.S. domestic
law and take precedence over state law); M’Culloch v. Maryland, 17 U.S. 316, 4
L.Ed. 579 (1819) (holding state action may not impede valid constitutional
exercises by the federal government). However, beyond conclusory statements
Petitioner makes no argument as to how exactly SQ 807 prevents the U.S. from
complying with its treaty obligations as reinforced in the CSA.
*128
‘“The case for federal preemption is particularly weak where
Congress has indicated its awareness of the operation of state law in a field of
federal interest, and has nonetheless decided to stand by both concepts and to
tolerate whatever tension there [is] between them.’”
Wyeth, 555 U.S. at 575
(quoting Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166-67
109 S.Ct. 971, 103 L.Ed.2d 118 (1989).
Respondents argue the CSA was never
intended to coerce the states to follow or adopt its specific regulatory scheme, and
18
the states are free to engage in their own complementary regulation of controlled
substances, even if that regulation differs in scope and standards.
1[29
Respondents’ argument is supported by the anticommandeering
doctrine and the recent decision of the Supreme Court of the United States in
Murphy. In that case, the Court invalidated a federal law that prohibited states from
authorizing sports gambling schemes. Specifically, the challenged provision of the
Professional Amateur Sports Protection Act (PASPA) made it unlawful for a state
to sponsor, operate, advertise, promote, license, or authorize by law or compact
gambling and betting on competitive sporting events. Murphy, 138 S.Ct. at 1470.
The Court concluded that a state repealing an existing ban on sports gambling
constituted “authorization” of that activity, but that the PASPA provision at issue
was an unconstitutional violation of the anticommandeering doctrine because it
unequivocally dictated what a state legislature could and could not do.
Id. at
f!478. However, the Murphy Court noted that the anticommandeering doctrine
and preemption require separate analysis. Notably, because the challenged PASPA
provision did not impose any restrictions on private actors, the Court determined
federal preemption was not implicated. Id. at 1481.
1(30
The posture of this case is distinct from Murphy. Clearly Congress
lacks the power to enact a law ordering a state legislature to refrain from enacting a
19
law licensing the growing and use of marijuana for individual consumption. See
id. at 1482.
That is not what the CSA does.
Rather, unlike the challenged
provisions of PASPA, the CSA’s restrictions are directed at private individuals.
Still, Murphy is useful by analogy to reinforce the limits of the CSA’s intended
scope and the limits of its preemption. In enacting the CSA, Congress specifically
chose to leave room for state regulation of controlled substances, likely in part
because its ability to compel the states is limited (per Murphy) but also because it
relied on the states to voluntarily shoulder the burden of policing and regulating
controlled substances. See 21 U.S.C. § 903 (2018). The fact that Oklahoma might
choose to do so in a far less restrictive way than the CSA does not mean doing so
inherently frustrate the CSA’s overarching purposes.
H31
The reasoning of the Supreme Court of Arizona concerning its
medical marijuana statute is instructive on that point:
The state-law immunity AMMA provides does not frustrate the
CSA’s goals of conquering drug abuse or controlling drug traffic.
Like the people of Michigan, the people of Arizona 'chose to part
ways with Congress only regarding the scope of acceptable medical
use of marijuana.’ Ter Beek, 846 N.W.2d at 539.
Reed-Kaliher v. Hoggat, 237 Ariz. 119, 1)23, 347 P.3d 136 (2015). By adopting
SQ 807, the people of Oklahoma would be going farther than the people of
Arizona, but they would still simply be parting ways with Congress on the scope of
20
acceptable marijuana use and how unacceptable use is to be penalized. Use by
those under 21, in public, and under other conditions, would remain prohibited.
Further, SQ 807 also makes no attempt to impede federal enforcement of the CSA
where marijuana is concerned.5
1'32
Not all states are in agreement. The Supreme Court of Oregon relied
on Michigan Canners and Freezers Ass 'n, Inc. v. Agricultural Marketing and
Bargaining Bd, 467 U.S. 461, 104 S.Ct. 2518, 81 L.Ed.2d 399 (1984) in finding
Oregon’s medical marijuana statute was preempted by federal law in Emerald Steel
Fabricators, Inc. v. Bureau of Labor and Industries, 230 P.3d 5 1 8 (Oregon 2010).6
At a glance, Michigan Canners and Freezers Ass ’ny might appear to be controlling.
In that case the Supreme Court concluded Michigan’s Agricultural Marketing and
Bargaining Act was preempted by the federal Agricultural Fair Practices Act
5 While the potential for such enforcement remains, the reality is that the Justice Department has shown
little interest of late in using federal resources to enforce federal marijuana prohibitions in the states that
have legalized its use. At his confirmation hearing. Attorney General William Bar noted: ’‘[t]o the extent
that people are complying with state laws on distribution and production, we’re not going to go after
that.” Brian Tashman, When We Learnedfrom William Barr's Confirmation Hearing, AC'LU. Jan. 16,
2019. littps:/Avw\v.aclu.org/blog/civiMiberlies/executive-branch/what-we-leamed-wi]lia)n-barrsconfirmation-hearing. In each budget cycle since FY 2014, Congress has passed an appropriate rider
preventing the Department of Justice from using taxpayer funds to prevent the states from “implementing
their own laws that authorize the use, distribution, possession, or cultivation of marijuana. See Pub. L.
No. 116-6, div. C, Section 537, 133 Stat. 138 (2019); United Slates v. McIntosh, 833 F.3d I 163, 1 178 (9ln
Cir. 2016).
Also, in People v. Crouse, 2017 CO 5, 388 P.3d 39, the Supreme Court of Colorado determined a
specific provision of Colorado’s medical marijuana scheme requiring law enforcement officers to return
medical marijuana seized from an individual later acquitted of a state drug charge was preempted by the
CSA because it would require state police officers to violate federal law. People concerns a distinct
factual scenario not directly implicated by Petitioner’s challenge to SQ 807.
21
because the former stood as an obstacle to the accomplishment of the latter’s
purpose.
P3
Michigan’s law gave food producer’s associations the option to
obtain from the state the right to act as the exclusive bargaining agent for all
producers of a particular commodity. Id. at 466. Doing so would interfere with
producers’ freedom to bring their products to market individually or through an
association, as guaranteed by the Agricultural Fair Practices Act. See id. at 464-65.
The Court concluded that “because the Michigan Act authorizes producers
associations to engage in conduct that the federal Act forbids, it ‘stands as an
obstacle to the—accomplishment and execution of the full purposes and objectives
of Congress.’” Id. at 478 (quoting Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct.
399, 85 L.Ed. 581 (1984)).
^34
However, we find Michigan Conners was properly distinguished by
the Supreme Court of Michigan in Ter Seek v. City of Wyoming, 846 N.W.2d 531
(Mich. 2014). There, the court explained:
The United States Supreme Court concluded that the Michigan Act
was preempted by the AFPA because the Michigan Act, by
compelling individual producers to effectively join and be bound by
the actions of accredited associations, “empowers producers'
associations to do precisely what the federal Act forbids them to do”
and “imposes on the producer the same incidents of association
22
membership with which Congress was concerned in enacting” the
AFPA. Id. at 478, 104 S.Ct. 2518. In other words, the AFPA
guaranteed individual producers the freedom to choose whether
to join associations; the Michigan Act, however, denied them that
right.
___________________
Such circumstances are not present here. Section 4(a) simply provides
that, under state law, certain individuals may engage in certain
medical marijuana use without risk of penalty. As previously
discussed, while such use is prohibited under federal law, § 4(a) does
not deny the federal government the ability to enforce that prohibition,
nor does it purport to require, authorize, or excuse its violation.
Granting Ter Beek his requested relief does not limit his potential
exposure to federal enforcement of the CSA against him, but only
recognizes that he is immune under state law for MMMA-compliant
conduct, as provided in § 4(a). Unlike in Michigan Canners, the
state law here does not frustrate or impede the federal mandate.
Id. at 539-40 (emphasis added).
1135
Based on the above analysis and the lack of a bright line rule
concerning conflict preemption in this area, we find Petitioner has not
demonstrated that SQ 807 is clearly or manifestly unconstitutional due to its
alleged preemption by the CSA. Like the people of Michigan and Arizona, the
voters of Oklahoma, should they adopt SQ 807, would be parting ways with
Congress only regarding the scope of acceptable use of marijuana. See Reed-
23
Kaliher v. Hoggatt, 237 Ariz. 119, H1f22-23, 347 P.3d 136 (2015); Ter Seek, 846
N.W.2d at 536-41.7
C. SQ 807 unlikely to result in State violation of the Racketeer Influenced
...... and Corrupt Organizations Act, 18 U.S.C. §§ 1961 - 1968.
p6
Petitioner also asserts SQ 807 is unconstitutional because it would
create a state-sponsored agency specifically to engage in criminal money
laundering by levying and collecting an excise tax on cannabis and creating a fund
to funnel that money to other agencies and non-profit entities.
Petitioner thus
asserts SQ 807 necessitates violation of The Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961 - 1968.
<|37
RICO prohibits persons from receiving income derived from a pattern
of racketeering activity, which includes uthe felonious manufacture, importation,
receiving, concealment, buying, selling, or otherwise dealing in a controlled
substance or listed chemical (as defined in Section 102 of the Controlled Substance
Act) punishable under any law' of the United States/’
18 U.S.C. § 1961(1 )(D)
(2018). RICO is to be read broadly. Sedima, S.P.R.L. v. Jmrex C.o., 473 U.S. 479,
497, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). RTCO also created a new civil cause
7 it should also be noted that one of the specific purposes of the CSA is to conquer drug abuse. See
Gonzales, 545 U.S. at 12. Much of the excise tax revenue that would be collected if SQ 807 is adopted
would be directed to programs specifically designed to combat drug abuse. That collection and funding
etYort would sci"ve to aid one of the primary' purposes of the CSA, not thwart it.
24
of action for any person injured in their business or property by reason of a
violation of its prohibitions. RJR Nabisco, Inc. v. European Cmty.y
U.S.
136 S.Ct. 2090, 2096, 195 L.Ed.2d 476 (2016). See 18 U.S.C. § 1964 (2018).
Petitioner, however, is not alleging a private RICO claim.8 Rather, he is asserting
SQ 807, if adopted, would result in an inevitable violation of RICO’s provisions.
Though petitioner does not specifically invoke the preemption doctrine, his
framing of this tension implies a form of conflict preemption.
H38
Respondents acknowledge that, like the CSA, RICO remains a
potential ongoing threat to any individuals engaged in the cannabis business.
However, Respondents also correctly note that Petitioner is not asserting SQ 807 is
unconstitutional because of RICO’s potential application to individual private
citizens. Rather, Petitioner argues SQ 807 is unconstitutional because it will force
the State of Oklahoma and its officials to engage in RICO violations through the
8 Respondent’s challenge Petitioner's standing to make such a claim, noting he has alleged no injury to
his own interests. However, wc need not consider that issue because Petitioner’s challenge is to the legal
sufficiency of SQ 807 and he is not seeking to invoke the private right of action created by 18 U.S.C. §
1964.
Thus far, many attempts bv private citizens to assert RICO violations by marijuana businesses have
failed. See Ainsworth v. Owenby, 326 F.Supp.3d 1111 (D. Oregon 2018): Bokaie v. Green Earth Coffee
LLC: 2018 WL 6813212 (N.D. Cali. 2018). But see Safe Streets Alliance v. Hickenlooper, 859 F.3d 865
(10th Cir. 2017). Of note, the Tenth Circuit in Safe Streets Alliance also concluded that the plaintiff
organizations had failed to allege any viable substantive right to enforce the preemptive provisions of the
CSA. thus implying that individuals may not possesses the option of challenging state marijuana laws in
federal court as preempted by the CSA. See 859 F.3d at 901-04.
25
excise tax provisions.9 Petitioner’s argument is flawed for several reasons. First.
government entities are not subject to the criminal law provisions of RICO because
they cannot form the necessary malicious intent for the predicate acts.
See
Lancaster Community Hosp. v. Antelope Valley Hosp. Dist,, 940 F.2d 397 (9th Cir.
1991).10 Further, state and local officials are granted immunity from the majority
of the provisions of the CSA that create the predicate acts for a RICO violation."
9 As Petitioner notes in his response:
9. All elements of probable cause to bring criminal felony charges against state officials
who promulgate IF5 423, if it becomes article 31, Oklahoma Constitution, exist under
[RICO].
Petitioner/Protestant’s Brief in Response to Respondents/Respondents Ryan Kiesel and Michelle
Tilley's Response, 119.
;0 The Second Circuit Court of Appeals has indicated it is possible to seek prospective injunctive relief
against a sovereign entity in a civil action pursuant to RICO. See Gingras v. Think Finance. Inc., 922
F.3d 112, 124-25 (2nd Cir. 2019). However, Petitioner is not seeking injunctive relief. He is arguing SQ
807 is facially unconstitutional because it would require the State to engage in criminal RICO violations.
Gingras is thus not directly applicable.
Title 21 U.S.C. § 885(d) (2018) provides;
F.xcept as provided in sections 2234 and 2235 of Title 18, no civil or criminal liability
shall be imposed by virtue of this suhehapter upon any duly authorized Federal officer
lawfully engaged in the enforcement of this subchapter, or upon any duly authorized
officer of any State, territory, political subdivision thereof, the District of Columbia, or
anv possession of the United States, who shall be lawfully engaged in the enforcement of
anv law or municipal ordinance relating to controlled substances.
In Smith v. Superior CY. 239 Cal.Rptr.3d. 256, 260 (Cal. App. Dep’t Super. Ct. 2018). a
California appellate court applied Section 885(d) and concluded the San Francisco Police
Department was immune from federal prosecution under the CSA when complying with
California law’ for the return of marijuana lawfully possessed under California law. Hut see
People v. Crouse, 2017 CO 5, 1'8. 388 P.3d 39 (holding slate law return provision to be
preempted by the CSA because an officer could not be ‘•lawfully engaged" in enforcement
activities under state law if state law required violation of federal law).
26
*\39
Petitioner's RICO argument is focused on the excise tax provisions of
SQ 807 that would result in the state handling tax revenue from the marijuana
industry and appropriating it for use.12 In addition to the specific limitations of
RICO itself when applied to a sovereign entity, Petitioner’s argument is flawed
because illegality of a given activity is not a bar to its lawful taxation. Petitioner
attempts to paint the excise tax provisions of SQ 807 as a form of racketeering.
Sections 11 and 12 of SQ 807 create an excise tax and revenue framework very
similar to the stale’s other existing excise taxes. The United States Supreme Court
has upheld the taxation of federally-unlawful activities on multiple occasions. See
Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 778, 114 S.Ct
1937, 128 L.Ed.2d 767; U.S. v. Sullivan, 274 U.S. 259, 263, 47 S.Ct. 607, 71 L.Ed.
1037 (1927). Kurth Ranch concerned the punitive nature of a tax on marijuana
specifically, and the Court explained:
As a general matter, the unlawfulness of an activity does not prevent
its taxation. Montana no doubt could collect its tax on the
possession of marijuana, for example, if it had not previously
punished the taxpayer for the same offense, or, indeed, if it had
assessed the tax in the same proceeding that resulted in his conviction.
12 Petitioner states:
State Question 807 would create a state-sponsored agency specifically to engage in
criminal felony RICO money laundering, by excise sales taxing cannabis purchases and
creating a trust fund to funnel excise sales tax receipts to other agencies and private non
profit entities.
Protest to Challenge the Constitutionality of State Question 907, Petitioner Number 423,119.
27
511 U.S. at 778 (internal citations omitted) (emphasis added). Multiple states have
taxed marijuana in various ways despite criminal prohibitions.
See State v.
Gvlledge, 896 P.2d 378 (Kan. 1995); State v. Garza, 496 N.\V.2d 448 (Neb.1993);
Sisson v. Triplett, 428 N.W.2d. 565 (Minn. 1988).
^140
The U.S. Government itself already collects taxes on marijuana
businesses that are illegal under federal law. See IRS, Taxpayers Trafficking in a
Schedule l or 11 Controlled Substance, Dec. 10, 2014, https://www.irs.gov/pub/irs
wd/201504011.pdf.
Title 26 U.S.C. § 280E (2018), which Petitioner cites in
support of his argument, actually supports the legal taxation of marijuana. Section
280E forbids marijuana businesses from deducting business expenses from their
gross income when calculating their federal income taxes, 13
Implicit in the
provision is the acknowledgement that marijuana businesses are otherwise paying
taxes on illegal activity,
Further, it is axiomatic that if the states and federal
government are permitted to tax illegal activity, they are permitted to use the
resulting revenue. Based on the above analysis, Petitioner has not shown that SQ
Specifically, 26 U.S.C. § 280E (2018) provides:
No deduction or credit shall be allowed for any amount paid or incurred during the
taxable year in carrying on any trade or business if such trade or business (or the
activities which comprise such trade or business) consists of trafficking in controlled
substances (within the meaning of schedule 1 and II of the Controlled Substances Act)
which is prohibited by l-'ederal law or the law of any State in which such trade or business
is conducted.
28
807 is clearly and manifestly unconstitutional because it would force the state and
state officials to engage in unlawful conduct that violates RICO by taxing
marijuana in Oklahoma. 14
V.
CONCLUSION
^[41
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 aiso 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.
|42
Petitioner argues that this uncertainty concerning federal preemption
of state marijuana regulations compels this Court to declare SQ 807
unconstitutional.
The opposite is true.
The burden is on a prolestant to
14 Though Respondents discuss the potential application of other federal statutes, such as 18 U.S.C. §5
1956 & 1957 (2018} (money laundering) and 18 U.S.C. § 1960 (2018) (prohibition of unlicensed money
transmitting business), those statutes are not discussed by Petitioner in his f ilings.
29
demonstrate that a proposed initiative is dearly and manifestly unconstitutional on
its face. In re: Initiative Petition No. 420, 2020 OK 9 at %14.
%43
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 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, Initiative Petition No. 423, is legally
sufficient for submission to the people of Oklahoma.
STATE QUESTION NO. 807, INITIATIVE PETITION NO. 423 IS
LEGALLY SUFFICIENT FOR SUBMISSION TO THE PEOPLE OF
OKLAHOMA
30
1J44
Gurich, C.J., Kauger, Winchester, Edmondson and Combs, JJ.,
concur;
1(45 Darby, V.C.J., Kane (by separate writing) and Rowe (by separate
writing), JJ., dissent;
----- 1)4.6. -Colbert, J.,-noLparticipating....... . -
i
31
..............
X? '
J
*1046938988*
2020 OK 57
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA
IN RE STATE QUESTION NO. 807,
INITIATIVE PETITION NO. 423
a
STATE OP O^.ahoj^
Posied
Ma|ed
7t
PAULTAY,
Petitioner,
Disjrib
Pujlish^^^s
)
v.
ORIGIN
7^
no
m 2 3 im
JOHN D. H/wo^IN
CLERK
No. 118,582
)
RYAN KIESEL and MICHELLE TILLEY,
Respondents.
)
FOR OFFICIAL PUBLICATION
)
)
Kane, J., with whom Darby, J. joins, dissenting:
1(1
A growing number of states wish to differ with the federal government as to
the regulation of marijuana. Before us is an attempt to have Oklahoma join these
states. The majority finds the petition is legally sufficient for submission to the
people, but I find the proposed measure stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress
and is, therefore, preempted by the Controlled Substances Act (CSA).1 I also part
with the majority’s reliance on the anticommandeering doctrine in support of their
conclusion that the proposed measure is not preempted by the CSA. I therefore
dissent.
i
1
I have no issue with the majority’s conclusion that compliance with both federal and state
law is not physically impossible.
Our preemption analysis begins with the assumption that the historic police
powers of the states are not superseded by federal law unless that is the clear and
manifest purpose of Congress. See Aitria Group, Inc. v. Good, 555 U.S. 70, 77
(2008); Section 9O3 oHhe-0S-A-sets forth Congress’s clear and manifest purpose
to preempt state law, specifically when “there is a positive conflict between [a
provision of the CSA and a state law] so that the two cannot consistently stand
together." 21 U.S.C.A. § 903 (current through P.L. 116-142)
Such “positive
conflict" exists either when it is physically impossible to comply with both state and
federal law or when state law “‘stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.”’ Hillsborough Cnty. v.
Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (quoting Hines v.
Davidowitz, 312 U.S. 52, 67 (1941)).
The United States Supreme Court has
previously found when state law authorizes conduct that federal law forbids, it
stands as an obstacle to the accomplishment and execution of the full purposes
and objectives of Congress. See Mich. Canners & Freezers Ass’n v. Agric. Mktg.
and Bargaining Bd., 467 U.S. 461,478 (1984) (citing Hines, 312 U.S. at 67).
fl3
We next look to the purposes and objectives of Congress in the CSA. The
United States Supreme Court has determined:
The main objectives of the CSA were to conquer drug
abuse and to control the legitimate and illegitimate traffic
in controlled substances. Congress was particularly
concerned with the need to prevent the diversion of drugs
from legitimate to illicit channels.
2
To effectuate these goals, Congress devised a closed
regulatory system making it unlawful to manufacture,
distribute, dispense, or possess any controlled
substance except in a manner authorized by the CSA.
The CSA categorizes all controlled substances into five
schedules. The drugs are grouped together based on
their accepted-medical-uses--the potential-for-abuse, and
their psychological and physical effects on the body.
Gonzales v. Raich, 545 U.S. 1, 12-13 (2005) (footnotes and citations omitted).
Congress has continued to classify marijuana as a Schedule I drug despite
extensive efforts to have it unclassified or reclassified. See 21 U.S.C.A. §
812(c)(10) (current through P.L. 116-142). Marijuana is classified as a Schedule I
drug based on Congress's belief that marijuana has high potential for abuse, there
is no accepted medical use, and there is a lack of accepted safety for use under
medical supervision. See id § 812(b)(1)(A)-(C).
production, sale, and use of marijuana.2
Federal law prohibits all
State Question 807 authorizes the
widespread production, sale, and use of marijuana
The proposed measure
affirmatively authorizes conduct the CSA expressly forbids. This clearly presents
an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress and is preempted.
fl4
The majority leans on this notion that state law immunity would not frustrate
the CSA‘s goals of conquering drug abuse or controlling drug traffic because, if SQ
807 is approved, Oklahoma would "simply be parting ways with Congress on the
2
The sole exception is using marijuana as part of a Food and Drug Administration
preapproved research study. See Gonzales v. Raich, 545 U.S. 1, 14 (2005) (citing 21 U.S.C. §
823(f)).
3
!
scope of acceptable marijuana use.” This notion of “scope of acceptable use”
comes from decisions on the legalization of medical marijuana, not recreational
marijuana. See Reed-Kaliher v. Hoggat, 347 P.3d 136, 141-142 (Ariz. 2015); Ter
Beek v. C/fy o/'Wyom/ngr846^NTW;2d'53T; 539"(f\/lichr20t4-). Congress is'clear
that there is no acceptable use of marijuana. The proposed measure makes the
scope of acceptable use extremely broad, permitting use by anyone 21 years of
age or older. This “parting of ways" leaves a gaping hole between Congress's
scope of acceptable use (none) and Oklahoma's (anyone 21 or older). If that is
not “a positive conflict” between the CSA and Oklahoma law “so that the two cannot
consistently stand together,” then what is? The majority’s decision makes the
already narrow preemption provision in 21 U.S.C.A. § 903 a complete nullity.
1J5
Some clarification as to preemption and the anticommandeering doctrine is
warranted.
The analysis employed by the majority blends consideration of
obstacle preemption with the anticommandeering doctrine and Murphy v. National
Collegiate Athletic Association,
U.S.
, 138 S. Ct. 1461 (2018), to bolster its
holding. Preemption is based on the Supremacy Clause and means that when
federal and state law conflict, federal law prevails and state law is preempted. See
id. at 1476.
{([E]very form of preemption is based on a federal law that
regulates the conduct of private actors, not the StatesMurphy, 138 S. Ct. at
1481 (emphasis added). The anticommandeering doctrine is based on the Tenth
Amendment and is a limit to Congress’s legislative powers. See id. at 1476.
Congress does not have the power to issue direct orders to the governments of
4
the states, id. In Murphy, the United States Supreme Court found there was no
federal preemption provision in PAPSA because PAPSA regulates states,
not private actors. Id. at 1481. The Murphy Court then found "there is simply no
way-to undeFStand-the-pFOvision-prohibitlng-state-authorization as anything otherthan a direct command to the States. And that is exactly what the
anticommandeering rule does not allow.” Murphy, 138 S. Ct. at 1481 (emphasis
added).
116
In sum, preemption is implicated when federal law regulates private actors;
the anticommandeering doctrine is implicated when federal law regulates the
states.
In Murphy, the Supreme Court found preemption was not implicated
Rather,
the
PAPSA
provision
anticommandeering doctrine.
regulated
the
states
and
violated
the
The Supreme Court did not find the PAPSA
provision regulated private conduct and that the state law did not stand as an
obstacle to the purposes of PAPSA and, therefore, was not preempted. That is an
important distinction. Because the United States Supreme Court found preemption
was not implicated in Murphy, they did not undergo an obstacle preemption
analysis. As a result, Murphy cannot support the majority’s holding that SQ 807
does not stand as an obstacle to the purposes of the CSA and, therefore, is not
preempted. Here, there is no question the CSA regulates the conduct of private
actors and that § 903 of the CSA is a preemption provision. Therefore, the only
inquiry is whether the proposed state law stands as an obstacle to the
5
accomplishment and execution of the full purposes and objectives of the CSA (not
whether the CSA violates the anticommandeering statute).3
117
Furthermore, any suggestion that this Court should find SQ 807 is not
preempted-beeause-the-fedeFal-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 that 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 that permits such acts is preempted. 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 a// 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.”
^8
I respectfully dissent.
3
In fact, the CSA does not violate the anticommandeering doctrine. The CSA regulates the
conduct of private actors, not the States
Therefore, the CSA does not implicate the
anticommandeering doctrine.
6
&
III
2020 OK 57
*10469 3' 8992*
IN THE SUPREME COURT OF THE STATE OF OKLAHOMA ORIGINAL
IN RE STATE QUESTION No. 807,
INITIATIVE PETITION No. 423
PAULTAY,
Petitioner,
v.
RYAN KIESEL and
MICHELLE TILLEY,
Respondents.
)
)
)
)
)
)
)
)
)
)
)
)
)
JtJN 2 3 2020
JOHN D. HADDEN
clerk
No. 118,582
Rec'd Idate) 6?'
FOR OFFICIAL
PUBLICATION
Posted_______
G
^ ^
Mailed_______
Disirib_______
Publish
>^es
Rowe, J., with whom Darby, VCJ., joins, dissenting:
I dissent from the Court’s opinion holding that State Question No. 807,
Initiative Petition No. 423 (“SQ 807”) is not preempted by federal law and legally
sufficient for submission to the people of Oklahoma.
1J2
The Controlled Substances Act (“CSA”), 21 U.S.C. §§ 801-904, which
governs the use and trafficking of controlled substances, explicitly addresses the
issue of federal preemption of state law:
No provision of this subchapter shall be construed as indicating an
intent on the part of the Congress to occupy the field in which that
provision operates, including criminal penalties, to the exclusion of
any State law on the same subject matter which would otherwise be
within the authority of the State, unless there is a positive conflict
between that provision of this subchapter and that State law so that
the two cannot consistently stand together.
no
21 U.S.C. § 903. As the Court notes in its opinion, a “positive conflict" arises either
when it is impossible to comply with both federal and state law, or where state law
stands as an obstacle to the accomplishment and execution of Congress’s full
purposes and objectives. See Hillsborough City, Fla. v. Automated Med Labs, Inc.,
471 U.S. 707, 713 (1985).
113
The Court correctly concludes that the proposed constitutional
amendments in SQ 807 contain no mandate that would require Oklahomans to
violate the provisions of the CSA. However, passage of SQ 807 would clearly
present an obstacle to the accomplishment and execution of Congress’s full
purposes and objections, expressed in the CSA. The purpose of the CSA was "to
conquer drug abuse and to control the legitimate and illegitimate traffic in controlled
substances." Gonzalez v. Raich, 545 U.S. 1,12 (2005). Marijuana is considered
a Schedule I controlled substance under the CSA. 21 C.F.R. § 1308.11 (d)(23). It
is illegal for any person to manufacture, distribute, or dispense marijuana and also
illegal for any person to possess marijuana with the intent to manufacture,
distribute, or dispense it. 21 U.S.C. §§ 841(a)(1), 844(a).
H4
If SQ 807’s proposed
amendments become law, there will
unquestionably be a proliferation in the cultivation, manufacture, distribution,
dispensation, and recreational use of marijuana in Oklahoma. These outcomes
are hardly hypothetical.
In a world where these activities are sanctioned and
licensed by the State of Oklahoma, it will become virtually impossible for federal
law enforcement, operating with limited resources, to accomplish Congress’s
objective in the CSA to control the production, sale, and use of controlled
substances.
Contrary to the Court’s analysis, reading the CSA as preempting state
laws which legalize andreguiate trafficking in marijuana would not run afoul of the
anti-commandeering doctrine. The anti-commandeering doctrine operates as a
limit on federal preemption.
"We have always understood that even where
Congress has the authority under the Constitution to pass laws requiring or
prohibiting certain acts, it lacks the power to directly compel the States to require
or prohibit those acts." Murphy v, Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461,
1477 (2018) (quotation omitted). The CSA contains no direct mandate for the
states to adopt drug enforcement regulations which mirror its provisions; the CSA
merely prohibits certain conduct on behalf of individuals. Congress anticipated
that states would adopt regulatory schemes that are generally complementary to
federal law, even if not perfectly consistent with the CSA. Sanctioning activity that
is proscribed by federal law, however, is in no sense complementary.
116
The Court likens the question before us to that addressed by the
United States Supreme Court in Murphy v. National Collegiate Athletic Association,
where the Court invalidated a federal law, the Professional Amateur Sports
Protection Act (PASPA), that prohibited states from authorizing or licensing
gambling on sporting events. Nat'l Collegiate Athletic Ass'n. 138 S. Ct. at 1470.
The Court found that PASPA violated the anti-commandeering doctrine because it
“unequivocally dictate[d] what a state legislature may and may not do." Id. at 1478.
PASPA, however, is distinguishable from the CSA in a number of important ways
First, PASPA did not make sports gambling a federal crime. Id. at 1471. This
meant that the burden of enforcing its provisions would fall exclusively on state
government, thus conscripting state law enforcement for federal purposes. Id.
Second, and most importantly, the CSA does not contain any provisions
unequivocally dictating what a state legislature may and may not do
V
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.
preempted by federal law
T|8
Accordingly, I respectfully dissent.
Therefore, SQ 807 is
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.