| Opinion: | Tay v. Green, 2022 OK 37 |
| Subject matter: | Initiative Petition |
| Date Decided: | April 19, 2022 |
| Trial Court: | N/A |
| Route to this Court: | Original Jurisdiction |
| Facts: | State Question 818 proposes a new article (Article 31) to the Oklahoma Constitution. This new article would 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 timely filed a challenge to SQ 818. Petitioner challenges the constitutionality of SQ 818 on three grounds: (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. |
| Standard of Review: | The Court must review the Question to ensure it complies with the Oklahoma Constitution. The Court must determine if there are clear and manifest constitutional infirmities. The Petitioner bears the burden of proof. |
| Analysis: | SQ 818 is not preempted by 18 U.S.C. § 1960, which penalizes “[w]hoever knowingly conducts, manages, supervises, directs, or owns all or part of an unlicensed money transmitting business.” SQ 818 does not concern a money transmitting business under the definition provided by 31 U.S.C. § 5330 (2018 & Supp. 2020). Lastly, McGirt does not preempt SQ 818 because the Major Crimes Act does not identify marijuana possession or marijuana use by Indians as crimes giving the federal government exclusive jurisdiction. The signatures and elections in Indian country are valid. Under Article 1, § 3, Oklahoma has not waived its political or police power over activities occurring in Indian country within its boundaries. Currey v. Corp. Comm’n of Okla.,1979 OK 89, ¶ 22. Oklahoma citizens residing in Indian country retain the right to participate in elections, and the right to sign an initiative petition is enclosed in that. McGirt does not take those rights away. The gist is sufficient. The gist informs voters that the proposition regards medical marijuana, and briefly and accurately explains the effect of all substantive numbered sections of SQ 818 which will impact Oklahoma medical-marijuana law. |
| Outcome: | Challenge denied. SQ 818 is legally sufficient for submission to the people of Oklahoma. |
| Vote: | 6-3; Darby, C.J., Kauger, Winchester, Edmondson, Combs, AND Gurich, JJ. (author), 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. |
| Other: | Justices Kane and Rowe concur and dissent for reasons similar to those they each expressed in 2022 OK 30, which concerned SQ 817. |