Green v. Nichols (In re State Question No. 820)

• Decision Date: 28 March 2022
• Docket Number: 120,170
• Citation: 507 P.3d 1251
• Parties: IN RE: STATE QUESTION NO. 820, INITIATIVE PETITION NO. 434 Jed Green, Petitioner/Protestant, v. Michelle Diane Tilley Nichols and Michelle Anne Jones, Respondents/Proponents.
• Court: Oklahoma Supreme Court

507 P.3d 1251

IN RE: STATE QUESTION NO. 820, INITIATIVE PETITION NO. 434Jed Green, Petitioner/Protestant,

v.Michelle Diane Tilley Nichols and Michelle Anne Jones, Respondents/Proponents.

No. 120,170

Supreme Court of Oklahoma.

FILED MARCH 28, 2022

ORDER

Richard Darby, CHIEF JUSTICE

¶1 Original jurisdiction is assumed. Okla. Const. art. VII, § 4 ; 34 O.S.2021, § 8, https://govt.westlaw.com/okjc (follow hyperlink titled "General Provisions"); In re Initiative Petition No. 409, State Question No. 785 , 2016 OK 51, ¶ 2, 376 P.3d 250, 252. Petitioner Jed Green challenges the legal sufficiency of State Question No. 820, Initiative Petition No. 434. Upon review, we hold that State Question No. 820 is constitutionally sufficient and its gist sufficiently informs signers of its intentions for the initiative petition to be submitted to the people of Oklahoma.

¶2 On January 4, 2022, Respondents/Proponents Michelle Diane Tilley Nichols and Michelle Anne Jones filed State Question No. 820, Initiative Petition 434, seeking to add new provisions to Title 63 that would legalize, regulate, and tax adult-use marijuana. Petitioner/Protestant Jed Green filed a timely petition to challenge State Question No. 820 on January 24, 2020. See 34 O.S.2021, § 8(b). Mr. Green raises two pertinent challenges to State Question No. 820. He first argues that State Question No. 820 violates Article V, Section 57 of the Oklahoma Constitution as it embraces multiple subjects, specifically that section 15 of State Question No. 820 embraces criminal justice reform, not adult-use marijuana. Mr. Green also challenges the gist of State Question No. 820, claiming that it is misleading.

¶3 State Question No. 820 would legalize the personal use of marijuana for adults, aged 21 and over, by adding a new act to Title 63 of the Oklahoma Statutes. It would also place an excise tax of 15% on the gross receipt of marijuana sales and direct the Oklahoma Medical Marijuana Authority to regulate adult-use marijuana according to the proposed statutory requirements laid out in State Question No. 820. The gist of SQ 820 explains its proposals as follows:

This measure is intended to generally legalize, regulate and tax adult-use marijuana under state law (but not alter the rights of medical marijuana patients or licensees). Specifically, it would protect the personal use of marijuana for persons aged 21+, while establishing quantity limits, safety standards, and other restrictions and penalties for violations thereof. It would not affect an employer's ability to restrict marijuana use by employees or prevent property owners from prohibiting or restricting marijuana-related conduct on that property in most cases. It also would not affect federal law regarding marijuana. It would vest in the Oklahoma Medical Marijuana Authority the power to license and regulate conduct under the Act and administer and enforce the Act pursuant to specified requirements. Local governments could regulate the time, place, and manner of operation of businesses licensed pursuant to this Act, but not limit the number or completely prohibit such businesses. It would restrict business licenses to established medical marijuana licensees for the first two years. It would impose a 15% excise tax on sale to consumers (not applicable to medical marijuana) to fund the Authority, with the surplus directed to localities where sales occur (10%), to the General Revenue Fund (30%), to the courts (10%), to the schools (for programs to prevent substance abuse and improve student retention and performance) (30%), and to drug additional treatment programs (20%). It would provide a judicial process for people to seek modification, reversal, redesignation, or expungement of certain prior marijuana-related judgments and sentences. It would provide for severability and an effective date.

¶4 Mr. Green's challenge is governed by 34 O.S.2021, § 8, https://govt.westlaw.com/okjc (follow hyperlink titled "General Provisions"). The people of Oklahoma have a constitutional right to propose constitutional amendments and legislation by initiative petition; the right of initiative is one the Court "zealously" safeguards. In re: State Question No. 813, Initiative Petition No. 429 , 2020 OK 79, ¶ 6, 476 P.3d 471, 473 ; In re Initiative Petition No. 382, State Question No. 729 , 2006 OK 45, ¶¶ 3-4, 142 P.3d 400, 403-04. "[I]t 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." In re: State Question No. 807, Initiative Petition No. 423 , 2020 OK 57, ¶ 11, 468 P.3d 383, 388. Mr. Green bears a heavy burden to establish constitutional insufficiency and any doubt "is resolved in favor of the initiative" petition. Id. ¶ 12, 468 P.3d at 388.

¶5 Initiative petitions must comply with all requirements set out in the Constitution, including Article V, § 57, or the single subject rule, which applies to proposed legislation by initiative. In re Initiative Petition No. 382 , 2006 OK 45, ¶ 8, 142 P.2d at 405. If the provisions of State Question No. 820 are "germane, relative and cognate" to its common theme, the proposed legislation embraces one subject. Id. ¶ 9, 142 P.3d at 405. Mr. Green first contends that State Question No. 820 violates the single subject rule in that in concerns both adult-use marijuana and criminal justice reform, namely in section 15 which provides for retroactive application of the conduct State Question No. 820 seeks to legalize.¹ State Question No. 820 embraces only one subject, adult-use marijuana. It is hard to conceive how retroactive application of the legalization of certain uses of marijuana is not germane to the legalization of marijuana. In fact, it is not only germane but directly related to adult-use marijuana as section 15 merely changes the temporal application of the proposed legislation, from prospective to retroactive.

¶6 Mr. Green next contends that State Question No. 820's gist is misleading.² The gist of an initiative petition must be "free from the taint of misleading terms or deceitful language" and inform signers of the initiative petition of the "potential effects" so those signers understand the changes that would be made to Oklahoma's statutory code. In re Initiative Petition No. 409, State Question No. 785 , 2016 OK 51, ¶ 3, 376 P.3d 250, 252 (cleaned up). "A gist must present an outline, or rough sketch, of what the initiative petition will accomplish to fully inform potential signatories." In re State Question No. 813 , 2020 OK 79, ¶ 8, 476 P.3d at 473. The gist of State Question 820 informs signers of what State Question No. 820 seeks to implement by statutory change. The gist of State Question No. 820 informs signers that it seeks to legalize, regulate, and tax adult-use marijuana. It alerts signers that the state question does not impact medical marijuana rights, allows personal use of marijuana, and sets limits on the legal use of marijuana. The gist outlines that employers and landowners can restrict marijuana use and the Oklahoma Medical Marijuana Authority would administer the proposed legislative act and regulate adult-use marijuana. The gist explains the power of local governments to regulate marijuana use and sale, and the gist sets out how marijuana taxation would fund the State. Finally, the gist notes the retroactive provision to apply to conduct no longer criminalized. Mr. Green does not point out any other provisions in the initiative petition that the gist fails to outline. Therefore, State Question No. 820's gist satisfactorily informs signers of the contours of State Question No. 820.³

¶7 State Question No. 820 is legally sufficient for submission to the people of Oklahoma. Petitioner Jed Green has failed to meet his burden in establishing that State Question No. 820 is clearly or manifestly unconstitutional and that the gist of State Question No. 820 is misleading. The Court assumes original jurisdiction and denies Petitioner's challenge to the constitutionality and sufficiency of State Question No. 820.

DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 28^TH DAY OF MARCH, 2022.

CONCUR: Darby, C.J., Kauger, Winchester, Edmondson, and Gurich, JJ.

CONCUR IN PART, DISSENT IN PART: Combs, Rowe (by separate writing), and Kuehn, JJ.

DISSENT: Kane, V.C.J., (by separate writing).

ROWE, J., concurring in part, dissenting in part:

¶1 I concur with the Court's decision to assume original jurisdiction. I must dissent, however, from the Court's holding that State Question No. 820, Initiative Petition No. 434 ("SQ 820") is constitutionally sufficient to submit to the people of Oklahoma. SQ 820 is preempted by federal law and, thus, conflicts with the Oklahoma Constitution.

¶2 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 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, ¶ 10, 468 P.3d 383, 388-89. The right of initiative, however, is not absolute; any citizen may protest the sufficiency or legality of an initiative petition. Id . ¶ 11, 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 . ¶3 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

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