Tay v. Green
| Citation | 2022 OK 38 |
| Decision Date | 19 April 2022 |
| Docket Number | 119927,119984 |
| Parties | PAUL TAY, Petitioner, v. JED GREEN and KRISTOPHER MASTERMAN, Respondents. |
| Court | Supreme Court of Oklahoma |
THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.
ORIGINAL PROCEEDING TO DETERMINE THE CONSTITUTIONAL VALIDITY OF STATE QUESTION NO. 819, INITIATIVE PETITION NO. 433.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.
¶ 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.
¶ 1 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://govt.westlaw.com/okjc (follow hyperlink titled "General Provisions"). [1] Between January 14th and February 17th, 2022, Petitioner filed ten motions for 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]
¶ 2 Proposed Article 32 contains eleven (11) sections. Section 1 safeguards medical-marijuana patient, caregiver, and business licensees against any limiting construction of Article 32.
¶3 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 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 from liability solely for providing 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.
¶4 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.
¶5 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 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 Oklahoma Tax Commission (OTC) 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.
¶6 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 petitioners from any construction that would diminish or abrogate other available rights or remedies or limit legislative authority regarding same.
¶7 Section 6 sets state protocol should the federal government legalize marijuana. 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.
¶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 simple-majority 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.
¶ 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, ¶ 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," and the protestant bears the burden of proof. Id. ¶ 12, 468 P.3d at 388 (internal citations omitted).
¶ 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, ¶ 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.
¶12 We first consider the provisions of section 922 [6] and conclude that it does not preempt SQ 819. [7] Congress did not expressly preempt States' ability to legislate gun-control laws in...
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Tay v. Green
...of the Initiative Petition because it references, relies on and interrelates to Section 5 which we previously struck in Tay v. Green , 2022 OK 38 , 2022 WL 1175312 ;2) striking the phrase "and individual criminal record expungement" from the gist at issue because we removed the criminal rec......