Tay v. Green

• Decision Date: 19 April 2022
• Docket Number: 119927,119984
• Citation: 2022 OK 37
• Parties: PAUL TAY, Petitioner, v. JED GREEN and KRISTOPHER MASTERMAN, Respondents.
• Court: Oklahoma Supreme Court

2022 OK 37

PAUL TAY, Petitioner, v. JED GREEN and KRISTOPHER MASTERMAN, Respondents.

Nos. 119927, 119984

Supreme Court of Oklahoma

April 19, 2022

ORIGINAL PROCEEDING TO DETERMINE THE CONSTITUTIONAL VALIDITY OF STATE QUESTION NO. 818, INITIATIVE PETITION NO. 432.

Paul Tay, Tulsa, Oklahoma, pro se Petitioner.

Stephen Cale, Cale Law Office, Tulsa, Oklahoma, for Respondents.

¶0 This original proceeding declares a challenge against the legal sufficiency of State Question No. 818, Initiative Petition No. 432. State Question 818, Petition No. 432 seeks to create a new article to the Oklahoma Constitution, Article 31, which would (1) replace the Oklahoma Medical Marijuana Authority with a new state agency-the "Oklahoma State Cannabis Commission" and define its duties; and (2) expand the statutory framework regarding regulation and taxation of medical marijuana. Petitioner, Paul Tay, alleges that State Question No. 818, Petition No. 432 is unconstitutional for three reasons: (1) it is preempted by federal law; (2) signatures gathered on and elections held on tribal land would be invalid; and (3) its gist is insufficient. We hold Petitioner has failed to establish clear or manifest facial unconstitutionality. State Question No. 818, Initiative Petition No. 432 is legally sufficient for submission to Oklahomans for voting.

STATE QUESTION NO. 818, INITIATIVE PETITION NO. 432 IS LEGALLY SUFFICIENT.

GURICH, J.

Facts & Procedural History

¶1 On October 7, 2021, Respondents, Jed Green and Kristopher Masterman, filed two state questions with the Oklahoma Secretary of State: (1) State Question No. 817, Initiative Petition No. 431 (SQ 817); and (2) State Question No. 818 Initiative Petition No. 432 (SQ 818). SQ 817 proposed creation of a new constitutional article, Article 32, which would legalize, regulate, and tax recreational use of marijuana by adults of age 21 years or older under Oklahoma law. ^[1] SQ 818 proposed creation of a new constitutional article, Article 31, to phase-out the Oklahoma Medical Marijuana Authority (OMMA) and establish the "Oklahoma State Cannabis Commission" (OSCC); define the OSCC's duties; provide for taxation of medical marijuana and medical-marijuana product sales and the exemption of hemp products therefrom; direct OSCC collections and expenditures; regulate licensing; provide personal rights and protections against arrest, disciplinary action, or discrimination based on Article-31 authorized activities; and grant the Legislature authority to amend specific provisions of Article 31. ^[2]

¶2 The Secretary of State published notice of the initiative petition filings on October 13, 2021. Petitioner timely challenged both on October 18, 2021, in accordance with 34 O.S.2021, § 8(B), https://govt.westlaw.com/okjc (follow hyperlink titled "General Provisions"). Between January 14th and February 17th, 2022, Petitioner filed ten motions for summary or declaratory judgment. ^[3] On February 28, 2022, Petitioner filed a notice of intention to appeal and a request for a stay of signature gathering. ^[4]

Standard of Review

¶3 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, ¶ 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 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." Id. ¶ 12, 468 P.3d at 388 (internal citation omitted). The protestant bears the burden of proof. Id., 468 P.3d at 388 (internal citations omitted).

Analysis

¶4 Petitioner argues SQ 818 is unconstitutional because its subject matter has been preempted by federal law; signatures gathered in Indian country and elections held in Indian country would be invalid; and SQ 818's gist does not warn of federal criminal consequences. ^[5] We disagree and conclude Petitioner failed to present a clear or manifest showing of unconstitutionality.

Federal law does not preempt SQ 818

¶5 Petitioner claims the following federal statutes and case law preempt and render SQ 818 facially unconstitutional: (1) the Controlled Substances Act (CSA), codified at 21 U.S.C §§ 801-- 904; (2) the Racketeer Influenced and Corrupt Organizations Act (RICO), codified at 18 U.S.C. §§ 1961 --1968; (3) federal law prohibiting unlicensed money transmitting businesses, codified at 18 U.S.C. § 1960 (2018); and (4) McGirt v. Oklahoma, 591 U.S.__, 140 S.Ct. 2452 (2020).

¶6 Twice, this Court has held that the CSA and RICO do not preempt the proposed measures in SQ 818. See In re State Question 807, 2020 OK 57, ¶¶ 19-40, 468 P.3d at 390-95 (holding that similar proposition, SQ 807, did not violate the supremacy clauses of the Oklahoma or United States Constitution; the CSA does not preempt Oklahoma's power to legalize, tax, and regulate marijuana; and neither legalizing or taxing marijuana sales violates RICO); see also In re State Question No. 813. Initiative Petition No. 429, 2020 OK 79. ¶ 7, 476 P.3d 471, 473 (applying holdings from In re State Question 807 and rejecting Petitioner's recurrent arguments). We apply our prior holdings and again reject Petitioner's repeated arguments.

¶7 The federal law prohibiting unlicensed money transmitting businesses does not preempt SQ 818, 18 U.S.C. § 1960 penalizes "[w]hoever knowingly conducts, manages, supervises, directs, or owns all or part of an unlicensed money transmitting business." The statute references 31 U.S.C. § 5330 (2018 & Supp. 2020), which defines "money transmitting business" as follows:

any business other than the United States Postal Service which-

(A) provides check cashing, currency exchange, or money transmitting or remittance services, or issues or redeems money orders, travelers' checks, and other similar instruments or any other person who engages as a business in the transmission of currency, funds, or value that substitutes for currency, including any person who engages as a business in an informal money transfer system or any network of people who engage as a business in facilitating the transfer of money domestically or internationally outside of the conventional financial institutions system;

(B) is required to file reports under section 5313; and

(C) is not a depository institution (as defined in section 5313(g)).

SQ 818 does not concern a money transmitting business and is thus not preempted by §1960.

¶8 Finally, the Supreme Court of the United States' decision in McGirt does not preempt SQ 818. Petitioner attempts to equate violations of the CSA to major crimes governed by the Major Crimes Act and subject to exclusive federal jurisdiction for crimes committed in Indian country. But, the Major Crimes Act does not identify marijuana possession or marijuana use by Indians among the specific offenses subject to exclusive federal jurisdiction, 18 U.S.C. § 1153 (2018), and cannot form the basis for preemption.

Signatures and elections in Indian country are valid

¶9 Petitioner claims Article 1, § 3 of the Oklahoma Constitution renders signatures gathered and elections held in Indian country invalid, relying on McGirt. Petitioner is wrong. Article 1, § 3 provides in part:

The people inhabiting the State do agree and declare that they forever disclaim all right and title in or to any unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indian, tribe, or nation, and that until the title to any such public land shall have been extinguished by the United States, the same shall be and remain subject to the jurisdiction, disposal, and control of the United States.

Okla. Const, art. 1, § 3 (emphasis added). Under Article 1, § 3, Oklahoma has not waived its political or police power over activities occurring in Indian country within its boundaries. ^[6] Currey v. Corp. Comm'n of Okla., 1979 OK 89, ¶ 22, 617 P.2d 177, 180 (internal citation omitted). Further, the portion of Article 1, § 3 regarding jurisdiction "envisions undiminished and not exclusive jurisdiction." Id. ¶ 23, 617 P.2d at 181. 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. Okla. Const, art. 5, § 2; In re State Question No 807, 2020 OK 57, ¶ 10, 468 P.3d at 387.

The gist is legally sufficient

¶10 The gist of SQ 818 follows:

The Oklahoma Medical Marijuana Enforcement and Anti-Corruption Act

This constitutional amendment: regulates cannabis, hemp marijuana and plant based medicine; creates a state agency, the Oklahoma State Cannabis Commission; audits the current medical marijuana program; delegates powers to the Governor, Legislature and the Commission; establishes the Commission Board, its membership and meeting requirements, and its relationships with state agencies; has a fiscal impact and pays for itself with taxes on marijuana sales and fees on businesses and individuals; establishes those taxes, licenses, license requirements and fees; directs surplus revenue to pay for education, local and military veterans mental health programs, law enforcement, research, marijuana waste clean-up, and agricultural insurance; provides licensed marijuana businesses with tax deductions, and some hemp businesses with limited tax credits; adapts to federal legalization of marijuana; provides guidelines for consumer protection and establishes individual patient,

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