The highest court in Oklahoma is asking proponents of a medical marijuana initiative expected to appear on the state’s 2018 ballot whether the whole thing is a futile exercise because of federal prohibition.
“The parties are directed to file briefs in this matter addressing the following issue,” Oklahoma Supreme Court Chief Justice Douglas Combs wrote in a surprise one-page order filed this week. “Whether this proposed Initiative Petition is void on its face in relation to federal law?”
The filing is part of a case in which the medical cannabis measure’s proponents sued state Attorney General Scott Pruitt over the proposed ballot title his office drafted.
The initiative “legalizes the licensed use, sale and growth of marijuana in Oklahoma,” Pruitt’s proposed ballot language begins, not mentioning the fact that the measure only does so for valid medical patients until later in the text.
Advocates collected enough signatures to qualify the measure for the 2016 ballot but, because they weren’t happy with what they saw as Pruitt’s attempt to mislead voters over what the initiative would actually do, they sued. There wasn’t enough time to resolve the dispute prior to the ballot printing deadline, so the question will appear on Oklahoma’s next statewide ballot, likely the 2018 midterm election.
But now the case has seemed to broaden in scope, with Supreme Court requesting written arguments over whether the state even has the power to legalize medical cannabis in the first place.
The measure’s proponents are working with the American Civil Liberties Union of Oklahoma to craft a response, and seem confident about their ability to shepherd the measure to consideration by voters.
Calling the Court request “somewhat unusual,” Chip Paul of Oklahomans for Health said in a Facebook post that the development “in no way affects our ballot worthiness.”
“While the court has asked for some unusual information, we believe the Court will act in accordance with federal guidance and already established state laws and interactions,” he said.
Twenty-eight states and the District of Columbia already have comprehensive medical marijuana laws on the books, and several others have enacted more limited programs allowing certain patients to use non-psychoactive cannabidiol extracts.
While all state-legal marijuana use and sales are technically illegal under federal law, it is well-established Constitutional doctrine that the federal government cannot force state officials to enforce its national laws. A dicier question that hasn’t been fully addressed by courts, however, concerns whether the feds should be able to stop state officials from granting licenses for federally-illegal activity or receiving tax revenue generated by it.
The Obama administration, in its second term, has taken a largely hands-off approach to local marijuana laws, allowing states to implement their own policies mostly without federal interference. But some advocates are concerned that could change under the new administration that will take power in January.
Pruitt himself, for example, who has been tapped by Trump as the next administrator of the U.S. Environmental Protection Agency, previously sued neighboring Colorado over its legal marijuana law. The U.S. Supreme Court refused to hear the case.
The Oklahoma Supreme Court wants Pruitt to file his response to the question of whether the state has the ability to legalize medical marijuana under federal law within 30 days, after which time the measure’s proponents will have 20 days to respond.
Photo Courtesy of Allie Beckett.