Tay v. Kiesel (In re State Question No. 807, Initiative Petition No. 423)

• Decision Date: 23 June 2020
• Docket Number: No. 118,582,118,582
• Citation: 468 P.3d 383
• Parties: IN RE: STATE QUESTION NO. 807, INITIATIVE PETITION NO. 423 Paul Tay, Petitioner, v. Ryan Kiesel and Michelle Tilley, Respondents.
• Court: Oklahoma Supreme Court

468 P.3d 383

IN RE: STATE QUESTION NO. 807, INITIATIVE PETITION NO. 423

Paul Tay, Petitioner,

v.Ryan Kiesel and Michelle Tilley, Respondents.

No. 118,582

Supreme Court of Oklahoma.

FILED JUNE 23, 2020

As Corrected June 25, 2020

I.

FACTS AND PROCEDURAL HISTORY

¶1 On December 27, 2019, Respondents Ryan Kiesel 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 807. Petitioner alleges the proposed amendment by article is unconstitutional because it violates the Supremacy Clause of the United States Constitution, U.S. Const. art. VI, cl. 2, as well as Okla. Const., art. 1, § 1, which provides 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

¶2 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.

¶3 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.

¶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.

¶5 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 for various restrictions on licensees, concerning areas such as location, security, and the need to comply with Authority inspection.

¶6 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.

¶7 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 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.

¶8 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.

¶9 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 31's effective date will be ninety (90) days after it is approved by the people of Oklahoma.

III.

STANDARD OF REVIEW

¶10 "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, ¶12, 458 P.3d 1088 ; In re Initiative Petition No. 409, State Question No. 785 , 2016 OK 51, ¶2, 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 ¶12, 458 P.3d 1088 ; Okla. Oil & Gas Ass'n v. Thompson , 2018 OK 26, ¶4, 414 P.3d 345 ; In re Initiative Petition No. 382, State Question No. 729 , 2006 OK 45, ¶3, 142 P.3d 400.

¶11 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 ¶13, 458 P.3d 1088 ; Okla. Oil & Gas Ass'n , 2018 OK 26 at ¶5, 414 P.3d 345. Any citizen of Oklahoma may protest the sufficiency and legality of an initiative petition. In re: Initiative Petition No. 420 , 2020 OK 9 at ¶13, 458 P.3d 1088 ; In re Initiative Petition No. 409 , 2016 OK 51 at ¶2, 376 P.3d 250 ; 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. In re: Initiative Petition No. 420 , 2020 OK 9 at ¶13, 458 P.3d 1088 ; In re: Initiative Petition No. 384 , 2007 OK 48 at ¶2, 164 P.3d 125.

¶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 ¶13, 458 P.3d 1088 (quoting In re: Initiative Petition No. 358, State Question No. 658 , 1994 OK 27, ¶7, 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 ¶12, 458 P.3d 1088 ; 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 ¶14, 458 P.3d 1088 ; 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 Anticommandeering Doctrine

¶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, Inc. , 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) ; Craft v. Graebel-Oklahoma Movers, Inc. , 2007 OK 79, ¶11, 178 P.3d 170. State law and state constitutional provisions must also yield to the United States Constitution. See Okla. Coalition for Reproductive Justice v. Cline , 2012 OK 102, ¶2, 292 P.3d 27 ; In re Initiative Petition No. 349, State Question No. 642 , 1992 OK 122, ¶12-13, 838 P.2d 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...