Oklahoma Health Department Seeks Legal Advice after Amending Medical Marijuana Rules

When Oklahomans passed State Question 788 last month, they left the Oklahoma Department of Health working rapidly to create a set of rules for the implementation of medical marijuana laws. Governor Mary Fallin, who first held that the state legislature would need to convene a special session should the law pass, backtracked, saying that the Health Department had been proactive enough in developing rules that such a session would be unnecessary.

However, the Health Department at the last minute tacked on two amendments to its rules--amendments against which the agency's own general counsel cautioned, saying they overstepped the authority of the agency. Despite the caution from Julie Ezell, general counsel for the Board of Health, the group approved amendments that would ban smokable marijuana products, would require dispensaries to hire pharmacists, and would limit the number of dispensary licenses available.

When the Board of Health approved the amendments, supporters of SQ 788 protested, saying that the Board exceeded its authority and attempted to roll back the will of the people in their approval of SQ 788.

One group, Green the Vote, alleges that the Board held secret meetings to craft the two amendments and add them to the rules. The group has filed a lawsuit in Oklahoma County alleging violation of the Oklahoma Open Meetings Act. The lawsuit names Gov. Mary Fallin and five members of the Board of Health as defendants. According to an attorney for Green the Vote, the Open Meetings Act "prevents shuttle diplomacy to get around the open meeting act, meeting in smaller groups, which we believe they did." If found in violation of the open meetings law, defendants face a fine of up to $500 and up to one year in jail.

Another lawsuit, filed by a group of individuals in Cleveland County, asserts that the Board exceeded its authority in adding the amendments. If you will remember, it is the exact claim with which the Board's own general counsel cautioned them. According to the lawsuit, SQ 788 contains language that specifically restricts the authority of the Board of Health. By adding the amendments to the rules, the Board exceeded the limitations placed on them by SQ 788.

Interim Health Commissioner Tom Bates drafted a letter to Attorney General Mike Hunter, noting the conflict and asking for legal advice to proceed in defense of the lawsuit. While the Attorney General's Office did not offer lawsuit defense, Hunter did advise that he would assign a team to the case to offer advice within the next few days.

This is not the first time the state has been accused of attempting to roll back the people's vote when it did not match with the majority party's own views. In November 2016, voters passed State Questions 780 and 781, criminal justice reform measures which reclassified certain nonviolent crimes as misdemeanors rather than felonies. By February 2017, the state legislature attempted to amend the new laws, reinstating certain felonies. At least one legislator said the changes were necessary because Oklahoma voters did not know what they were voting for. However, these measures ultimately failed amid significant protest from voters who asserted that state legislators are elected to represent the people, not to disregard what they clearly voted for.
Some six months after SQ 780 and 781 became law, felonies were down 26 percent--a promising sign for justice reform in Oklahoma.

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