The leading industry attorney for Oklahoma's farmers & shops providing medical cannabis, Ron Durbin; went public last night with the breaking new of a 5-3 Oklahoma Supreme Court decision on a challenge to the SQ807 proposal to fully end the prohibition on cannabis possession and casual consumption.
The incredible and somewhat implausible scenario came when a jailed Tulsa political figure wrote a petition to the court using pencil and note paper. Paul Tay was denied access to the jail library during the challenge 'window' of 10 days after SQ808 was filed with the Oklahoma Secretary of State.
None the less, Tay made what durbin called a very coherent and compelling argument that the federal supremacy clause ought to force the disqualification of the ballot proposal even before the signature-gathering is allowed to proceed.
While Durbin detailed his respect for Tay's legal prowess, Durbin was very concerned that the Tay rationale would extend, if it prevailed; to further strike down the entire medical application of marijuana(cannabis).
The high court decision, and the various opinions, are published here.
Tay did set a precedent for a pauper's claim and waiver of filing fee. Additionally, Tay's case also established a possible waiver of filing in legal format, due to his incarceration limits.
The Court's published decision..
2020 OK 57, 118582 Decided 06/23/2020¶0
This is an original proceeding to determine the legal sufficiency of State Question No. 807, Initiative Petition No. 423. The petition seeks to create a new article to the Oklahoma Constitution, Article 31, for the purpose of legalizing, regulating, and taxing the use of marijuana by Oklahoma adults.
Petitioner Paul Tay filed this protest alleging the petition is unconstitutional because it violates the federal supremacy provisions of Article VI, clause 2 of the United States Constitution and Article 1, Section 1 of the Oklahoma Constitution. Petitioner alleges the proposed measure is preempted by existing federal statutes including the Controlled Substances Act, 21 U.S.C. §§ 801-904, the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968, and Section 280E of the Internal Revenue Code, 26 U.S.C. § 280E.
Because the United States Supreme Court has not addressed this question, the Supremacy Clause permits us to perform our own analysis of federal law. Upon our review, we hold Petitioner has not met his burden to show clear or manifest facial constitutional infirmities because he has not shown State Question No. 807 is preempted by federal law. On the grounds alleged, the petition is legally sufficient for submission to the people of Oklahoma.
This should terrify every medical marijuana patient and business. You can thank the authors and people behind 806 and 807 for risking the entire medical marijuana program. As you know, they withdrew 806 and filed 807. Paul Tay challenged 807 on the basis of the Supremacy Clause arguing that since its federally illegal to possess medical marijuana, the state can’t consider a ballot petition that would be contrary to federal law. The Oklahoma Supreme Court is made up of 9 Justices.
In a VERY CLOSE VOTE, as outlined below, they ruled that the Supremacy Clause does not kill SQ807. Now, we all know that I think 807 is garbage and should be thrown in the trash. I’m just glad that the Oklahoma Supreme Court did not kill it on this issue. If they had, 788 WOULD BE DEAD!!!! These people are risking it all, for what I ask you? Nothing!!!
Please let’s ensure that they don’t get the signatures needed so we don’t have to challenge it further. Anyone running a petition on the issue of medical marijuana is risking 788 entirely. Vote went as follows:
¶44 Gurich, C.J., Kauger, Winchester, Edmondson and Combs, JJ., concur;
¶45 Darby, V.C.J., Kane (by separate writing) and Rowe (by separate writing), JJ., dissent;
¶46 Colbert, J., not participating.
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