Oklahoma Supreme Court Upholds Marijuana Legalization Ballot Initiative Following Legal Challenge By Competing Campaign

The Oklahoma Supreme Court has rejected a lawsuit challenging a marijuana legalization initiative that activists are pursuing for the November ballot.

The suit was brought against the New Approach PAC-backed campaign in January by another activist, Jed Green, who is the director of a separate campaign that filed its own pair of 2022 cannabis initiatives late last year.

In a ruling posted on March 28, the state’s highest court found that Green’s two claims—that the New Approach measure is unconstitutional under a single-subject law for ballot initiatives and that the summary (or “gist”) that would be presented to voters is misleading—are unfounded.

“State Question No. 820 is legally sufficient for submission to the people of Oklahoma. Petitioner Jed Green has failed to meet his burden in establishing that State Question No. 820 is clearly or manifestly unconstitutional and that the gist of State Question No. 820 is misleading,” a majority of the justices said. “The Court assumes original jurisdiction and denies Petitioner’s challenge to the constitutionality and sufficiency of State Question No. 820.”

Green, director of Oklahomans for Responsible Cannabis Action (ORCA), tried to assert that the competing initiative violated the state Constitution’s single-subject rule because, as drafted and contested, it dealt with criminal justice issues like expungements, in addition to legalizing cannabis for adult use.

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The justice said that State Question No. 820 “embraces only one subject, adult-use marijuana.”

“It is hard to conceive how retroactive application of the legalization of certain uses of marijuana is not germane to the legalization of marijuana.” they wrote. “In fact, it is not only germane but directly related to adult-use marijuana as section 15 merely changes the temporal application of the proposed legislation, from prospective to retroactive.”

That interpretation is welcome news for the New Approach campaign, which filed a revised version of its initiative that excluded the expungements language as a back-up in case the Court upheld the single-subject challenge.

“We were obviously very grateful that the Court found that our petition was ready to go forward, and that they’re going to let the people of Oklahoma decide whether or not marijuana should be legalized for adult use here,” campaign spokesperson Michelle Tilley told Marijuana Moment.

Now that the ruling has been issued, it will be a matter of weeks before the secretary of state’s office is expected to set a date for activists to begin signature gathering. They will be pursuing the original, broader initiative and withdrawing the separate back-up version.

Paradoxically, while the expungements-related single subject issue was a cornerstone of Green’s legal contest, ORCA’s own reform measure also includes a similar criminal justice component.

Green told Marijuana Moment that his group was “really encouraged to see that the challenge to single subject was cleared—we view that as a good thing, as it bodes well for other state questions that are out there.”

With respect to Green’s challenge to the proposed “gist” of the New Approach measure, the Court went point-by-point through the summary that would appear on the ballot and determined that it “satisfactorily informs signers of the contours” of the measure.

Tilley previously told Marijuana Moment that it was “disappointing” that Green’s campaign would “mischaracterize” the provisions of her measure.

Green, for his part, said that the intent of the legal challenge to the New Approach initiative wasn’t to create barriers to reform from a competing campaign.

Meanwhile, ORCA’s own proposals have separately faced legal challenges filed by yet another cannabis activist in the state. One case is currently before the state Supreme Court, but it’s unclear when the justices will take it up.

Here’s what the New Approach initiative would achieve: 

The measure would allow adults 21 and older to purchase and possess up to one ounce of cannabis, grow up to six mature plants and six seedings for personal use. The current Oklahoma Medical Marijuana Authority would be responsible for regulating the program and issuing cannabis business licenses.

A 15 percent excise tax would be imposed on adult-use marijuana products, with revenue going to an “Oklahoma Marijuana Revenue Trust Fund.”

The funds would first cover the cost of administrating the program and the rest would be divided between municipalities where the sales occurred (10 percent), the State Judicial Revolving Fund (10 percent), the general fund (30 percent), public education grants (30 percent) and grants for programs involved in substance misuse treatment and prevention (20 percent).

People serving in prison for activity made legal under the measure could “file a petition for resentencing, reversal of conviction and dismissal of case, or modification of judgment and sentence.” Those who’ve already served their sentence for such a conviction could also petition the courts for expungement.

Here’s what the ORCA initiatives would do: 

The campaign’s recreational legalization proposal would allow adults 21 and older to possess up to eight ounces of marijuana that they purchase from retailers, as well as whatever cannabis they yield from growing up to 12 plants for personal use.

Marijuana sales would be subject to a 15 percent excise tax, and the initiative outlines a number of programs that would receive partial revenue from those taxes. The money would first cover implementation costs and then would be divided to support water-related infrastructure, people with disabilities, substance misuse treatment, law enforcement training, cannabis research and more.

The measure also lays out pathways for resentencing and expungements for those with marijuana convictions.

ORCA’s second initiative focuses on remodeling the state’s existing medical cannabis program.

Oklahoma voters approved medical cannabis legalization at the ballot in 2018. Unlike many state medical marijuana programs, it does not require patients have any specific qualifying conditions; doctors can recommend cannabis for any condition they see fit.

The campaign wants to revamp the program with an initiative that would establish the Oklahoma State Cannabis Commission (OSCC) to oversee all areas of the medical marijuana system. It would also set a seven percent excise tax on medical cannabis sales, with revenue supporting marijuana research, rural impact and urban waste remediation, agriculture development, mental health response programs, substance misuse treatment and more.

Gov. Kevin Stitt (R) claimed in his State of the State speech earlier this year that voters were mislead when they passed the initiative to legalize medical marijuana in the state, arguing that the measure may require legislative reform.

The governor said that the ballot question passed by voters “was misleading, and it has tied our hands as we regulate the industry.”

Meanwhile, the Oklahoma House of Representatives approved a bill last month to decriminalize low-level possession of psilocybin and promote research into the therapeutic potential of the psychedelic, sending it to the Senate.

With respect to cannabis reform, Oklahoma Rep. Scott Fetgatter (R) said in an op-ed for Marijuana Moment that was published last month that states should legalize cannabis, but he wants to see the legislature craft thoughtful regulations for an adult-use program, rather than leave it to voters at the ballot.

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