State Questions - What Is this Petition They Want Me to Sign?

“[T]he people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature.” By these words, enacted as part of Section 1 of Article 5 of the Oklahoma Constitution in 1907, the citizens of the new State of Oklahoma reserved for themselves the powers of the initiative petition.

The initiative petition allows citizens to propose either new laws or amendments to the state Constitution. To get initiative items on a ballot, the proponents must, among other things, obtain signatures from registered voters; the number of signatures must equal or be greater than eight percent of the total number of votes cast at the last gubernatorial election. Once the signatures are submitted and verified, then the matter is submitted on a ballot as a State Question, and either approved or disapproved by the voters.

There are three initiative petitions currently circulating, which if approved can be submitted as State Questions in the November 8 general election. Each of them involves the regulation of marijuana, and so each bear discussion to sort out which is which.

State Question 818, if approved, would create a new Article 31 to the Oklahoma Constitution. This new article would:

1) Create a new state agency, the Oklahoma State Cannabis Commission (OSCC), which would replace the Oklahoma Medical Marijuana Authority (OMMA), the current agency that regulates medical marijuana use. The OSCC would be governed by a 20-member board, at least 9 of which would be marijuana licensees (such as patients, caregivers, growers, etc.).

2) Limit taxation of all retail medical marijuana sales to 7%, barring any additional county or municipal sales taxes. In the event recreational marijuana use is legalized, then the tax on medical marijuana sales is eliminated, while nonmedical marijuana sales can be taxed up to 15%.

3) Fix requirements and rates for various kinds of marijuana licenses (grower, processor, dispensary, handling, caregiver, patient, etc.). These amounts would not be able to be modified without a constitutional amendment.

4) Fix new limits on how much marijuana can be possessed by a patient licensee, generally higher than those permitted under current law.

5) Bar criminal prosecution for possession of marijuana for those without a medical license of up to one and a half ounces of marijuana, eight grams of concentrate, or eight ounces of topical, suppository or edible marijuana, or any number of paraphernalia (smoking pipes, rolling papers, etc.). Anyone found with those amounts of marijuana could only be given an administrative fine of not more than $400.00.

6) Bar the use of a positive test for delta 9 tetrahydrocannabinol, also known as THC, the main active ingredient in marijuana, in any prosecution for Driving Under the Influence or any other crime. Any prosecution for such would have to be supported by an evaluation which must be video recorded to be used as evidence.

7) Expand the bars on discrimination against marijuana users, including provision of healthcare, employment, parental rights, public benefits, education or extracurricular activities. Among other provisions, students with medical licenses would be permitted to use marijuana while at school.

8) Bar local regulation of permitted growing of marijuana within a home.

This State Question would go into effect immediately upon passage. Overall, the enactment of this State Question would substantially relax current regulation of medical marijuana within Oklahoma, and by placing it in the Constitution, would bar the Oklahoma legislature from modifying the terms of these provisions without a vote of the people. The full provisions of the legislation can be found on the Oklahoma Secretary of State’s website at https://www.sos.ok.gov/documents/questions/818.pdf. The proponent of this State Question is Oklahomans for Responsible Cannabis Action (ORCA), a pro-marijuana organization whose website proclaims its purpose to be to “support the growth and development of the Oklahoma Cannabis community.”

ORCA is also circulating a second initiative petition, State Question 819. If approved, that would enact another new article, Article 32, to the Oklahoma Constitution. If approved, State Question 819 would:

1) Legalize possession, growing, transportation, and use of marijuana by anyone 21 or older, without any need for licensing. The amount that could be possessed or grown without a license would initially be limited to: 12 plants, one ounce of concentrate, 72 ounces of edible marijuana or marijuana for topical use, eight ounces of marijuana suppositories, and eight ounces of commerciallysold marijuana.

Those amounts would be cumulative (i.e., a person could possess all the above amounts). The legislature would be able to increase those amounts, but not to decrease them.

2) Bar the use of positive THC tests for criminal prosecutions, in the same manner as State Question 818.

3) Bar discrimination in the same manner as State Question 818.

4) Bar local regulation of marijuana as authorized by this provision; any regulation on smoking or vaping of marijuana would be no more restrictive than those on tobacco.

5) Authorize licensed dispensaries to sell to anyone 21 or older without any licensing requirements.

6) Set a maximum tax on marijuana sales to those without medical marijuana licenses at 15 percent, and bars counties and municipalities from imposing additional sales taxes. Counties and municipalities would be able to require an annual $100 registration fee for businesses selling marijuana.

7) Allow those who are currently serving sentences for conduct that is legalized by this provision to be released and allow those who have completed sentences for conduct that is legalized by this provision to get their sentences vacated and ex punged, thus clearing their record.

Once again, by placing these terms in the Constitution, the Oklahoma legislature would largely be barred from modifying the terms of these provisions without a vote of the people. The full provisions of the legislation can be found on the Oklahoma Secretary of State’s website at https://www.sos.ok.gov/documents/ questions/819.pdf.

Finally, there is State Question 820. This question’s proponent is a Washington, D.C.-based political action committee named New Approach PAC, whose purpose, stated in its filings with the Internal Revenue Service, is “[t]o support the reform of marijuana laws and progressive causes, including but not limited to, support of state ballot initiatives and candidates.”

If approved, this would enact a series of statutes to be known as the Adult Use Marijuana Regulation Act, which would:

1) Legalize possession, growing, transportation, and use of marijuana by anyone 21 or older, without any need for licensing. The amount that could be possessed or grown without a license would be limited to: one ounce of marijuana, eight grams (equivalent to 0.28 ounces) of concentrate, and 12 plants (six mature, and six seedlings) per person with a limitation of 24 plants (12 mature and 12 seedlings) per private residence.

2) Bar discrimination in child custody, public assistance, and firearm possession or use for permitted marijuana activities.

3) Bar criminal prosecution for some cultivation or use of marijuana which is otherwise prohibited by the act, subjecting violators to an administrative fine only.

4) Allow the OMMA to license and regulate growth, distribution and sale of marijuana to those without a medical marijuana license.

5) Bar the sale of marijuana at any location not permitted by the OMMA, bar sales within 1000 feet of a school (as barred by current law), and bar sale from the same facility which also sells either tobacco or alcohol.

6) Impose a 15 percent sales tax on marijuana sales, in addition to any state or local sales taxes.

7) Allow those who are currently serving sentences for conduct that is legalized by this provision so be released and allows those who have completed sentences for conduct that is legalized by this provision to get their sentences vacated and expunged, essentially clearing their record.

If approved, State Question 820 would go into effect 90 days after its approval. The full provisions of the legislation can be found on the Oklahoma Secretary of State’s website at https://www.sos.ok.gov/documents/ questions/820.pdf.

While both would effectively legalize non-medical marijuana, the conflicts between State Questions 819 and 820 led ORCA to file a protest of State Question 820 with the Oklahoma Supreme Court.

In a 5-4 decision in March, the Court declared that State Question 820 was legally sufficient and allowed it to proceed. Thus, if all three provisions get sufficient signatures, Oklahoma voters will be deciding all three on November 8. The deadline for all three to get those signatures runs in August.

Here are the keys to evaluating all three provisions: State Question 818 only deals with medical marijuana, expanding the protections of existing laws and moving them into the Oklahoma Constitution to protect them from legislative interference. Neither 819 nor 820 will impact the legality of medical marijuana or its regulation, except that approval of either or both will end taxation of medical marijuana sales.

Meanwhile, State Questions 819 and 820 both deal with recreational marijuana, but their provisions conflict in several respects. The biggest differences are that State Question 819 provides broader protections for recreational marijuana use (in amounts, activities, etc.), while placing those protections in the Oklahoma Constitution to protect them from the legislature.

Meanwhile, 820 provides lesser protections for recreational marijuana, and only enacts a series of statutes, which can be modified by the legislature at any time. If all three are enacted, then 819's provisions will override 820's when they conflict.

If this seems complicated, that’s because it is. Hopefully, armed with this information, the discerning voter can decide which, if any, of these petitions to sign as we continue our struggle as a state to figure out exactly what we want to do with marijuana use.