TAY V. GREEN, 2022 OK 38

Opinion:Tay v. Green, 2022 OK 38
Subject matter:Initiative Petition
Date Decided:April 19, 2022
Trial Court:N/A
Route to this Court:Original Jurisdiction
Facts:State Question 819 seeks to create a 32nd article to the Oklahoma Constitution. This article would legalize, regulate, and tax the recreational use of marijuana by adults age 21 years and older. Petitioner timely brought his challenge to SQ 819. 
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:The Court rejected the identical arguments concerning preemption and the validity of state elections in Indian country that appear in the companion case, Tay v. Green, 2022 OK 37. State law is not “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. Here, Congress neither expressly preempted nor conveyed an intent to occupy the field. Additionally, the legislation does not directly conflict because it is possible to follow both laws at once. 

SQ 819 is not preempted by RICO, either. “[G]overnment entities are not subject to the criminal law provisions of RICO because they cannot form the necessary malicious intent for the predicate acts.” In re State Question No. 807, 2020 OK 57, ¶ 38. Further, Petitioner assumes the state would be involved in a specified unlawful activity as prohibited by the Controlled Substance Act, but the CSA provides immunity to officers and governments that are “lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.” 21 U.S.C. § 885(d) (2018).

The gist of 819 is insufficient to sufficiently inform Oklahoma voters of SQ 819’s impact on state law. The gist fails to describe two significant effects of Section 5: (1) the bypass of judicial process for resentencing, modification, reversal, dismissal, expungement, or vacatur; and (2) the automatic and absolute restoration of firearm-ownership and voting rights upon completed expungement. Restoration is absolute, unqualified, and does not take into account whether a petitioner has other non-marijuana-related felony convictions. The gist does not sufficiently inform about the restoration of rights. However, outside of section 5, the gist does sufficiently inform citizens. The Court decided to sever Section 5 and all mentions of it in other sections, and that by doing so, SQ 819 is legally sufficient to submit to the citizens of Oklahoma. 
Outcome:Challenge denied; SQ 819 is legally sufficient, as severed, to submit to the citizens 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; Dissents in part (By separate writing).
Other: A petition for rehearing or clarification was granted, allowing respondents to strike section 4(15) because it mentioned section 5, to strike the phrase “and individual criminal record expungement” from the gist because section 5 is severed, and directing the proponents of the measure, who have the duty to submit the measure to the Oklahoma Secretary of State, to submit a revised measure which complies with the Court’s opinion in Tay v. Green, 2022 OK 38. 

J. Kane dissents for reasons set forth in In re State Question No. 820, Initiative Petition No. 434, 2022 OK 30. J. Kuehn dissents because she believes federal law preempts, relying on reasoning similar to In re State Question No. 820