In an earlier post we looked at the efforts of the state governments of Oklahoma and Nebraska to challenge in the U.S. Supreme Court the marijuana legalization laws in Colorado. To recap the situation, the plaintiff states are claiming that Colorado’s easy availability of marijuana has a spillover effect on its neighbors in the form of increased costs to enforce their laws against marijuana trafficking and possession.

When we left off in that post, the lawsuit had just been initiated; now not only has Colorado filed a response, but two other states that have legalized marijuana have joined the litigation. These other states — Oregon and Washington — have, like Colorado, passed laws legalizing marijuana for recreational use.

The legal questions and arguments of the three states that oppose the Oklahoma and Nevada lawsuit are procedural and technical in nature. They include:

  • Whether the plaintiff states have “standing” to file their lawsuit. This argument raises the question of whether Oklahoma and Nevada are, legally speaking, proper plaintiffs for such an action.
  • Whether the U.S. Supreme Court is the proper venue to hear such a lawsuit. This argument might be considered to be an alternative to the standing argument; if the Court finds that the plaintiff states do not lack standing, then the argument challenges the choice of the U.S. Supreme Court as the appropriate forum to hear the lawsuit.
  • Whether the lawsuit — which contests the legal right of Colorado to sell and tax marijuana, but not its right to permit the growing of it — would actually cause more harm than good if it prevails. This argument invokes the concept of the “law of unintended consequences”: prohibiting a state from selling or taxing the drug, but not from permitting its cultivation, would have the effect of driving marijuana sales back into “black market” status. The argument goes on to claim that such a “victory” on the part of the plaintiff states would actually see the cross-border trafficking of marijuana from Colorado increase instead of decrease.

Even though Oregon and Washington have filed legal briefs supporting Colorado, they are still not named defendants in the lawsuit (although they may be anticipating that if the plaintiff states prevail against Colorado, then their own neighboring states may file similar lawsuits against them). Their arguments may have a persuasive effect, but are not part of Colorado’s formal legal defense against the lawsuit.

Also, the filing of the complaint by Oklahoma and Nevada, as well as the response of Colorado and the additional briefs by Oregon and Washington does not yet mean that the Supreme Court will actually hear the case. Unlike lower courts, the Supreme Court has discretion to accept or to refuse to hear cases brought before it; if the Court declines to accept the case, then it could be that all of the documents being filed will end up having no legal effect at all, leaving Oklahoma and Nevada in the same position they were in before they decided to begin legal action against Colorado.

However, for the meantime, the use or possession of marijuana in Oklahoma is a criminal act.  Oklahoma marijuana possession penalties are steep with a first offense carrying up to a year in the county jail and a second offense within ten years resulting in a felony charge.  Thus, it is important to consult with competent Oklahoma drug lawyers to protect your rights and freedom.  Call the Hunsucker Legal Group at 405-231-5600 today for your free consultation.