A legal scholar claims that Ohio’s state constitution could limit the extent to which lawmakers can make drastic changes in the law on marijuana approved by the Ohio voters.
Derek Clinger is a Staff Attorney at University of Wisconsin Law School’s State Democracy Research Initiative. He spoke at a Webinar on Tuesday.
Clinger continued, „Now let’s be clear. I don’t believe that the Constitution prevents the legislature completely from making any changes, but I actually think that this position is better than that which says that lawmakers are given complete discretion in changing initiatives.”
Clinger’s remarks were made as part of an Ohio State University Drug Enforcement and Policy Center online presentation titled, (Un-)Checked powers of the Ohio General Assembly : Can legislators override voter’s will on Marijuana Reform. Speakers described the legislative attempts this session to undermine many of the voter-approved provisions in Issue 2 of Ohio’s legalization law for 2023.
Advocates have criticized the legislation—SB 56 and its House counterpart, HB 160—as restrictive measures that would undermine the will of voters.
Clinger explained that there is an assumption made by many people, „that the General Assembly can change the initiative or completely repeal it.” The state Constitution does not explicitly address the scenario, and courts have never weighed in.
He said that the section of the state constitution on initiative powers is „a reserve of legislative authority by the people to the people in Ohio.” The General Assembly did not create it. In reality, the General Assembly shares power with Ohioans in the area of lawmaking.
It is not clear in the Constitution whether or not lawmakers are allowed to amend public initiatives that have been approved by voters. However, there is a specific process in place for legislators to either adopt or provide alternatives to such proposals. Then, Voters are consulted on a particular issue. It also sets limits, such as around the scope of a proposal—the so-called „single subject” rule—and on certain tax issues.
Clinger explained that „the framers knew how to put clear limitations on their power,” but they failed to expressly state that General Assembly could change, or even reverse initiated laws after an elections.”
He added that the Constitution states, „It is possible to pass laws in order to make them more effective but they should not limit the power or provisions reserved by the Constitution.”
Clinger stated that „this anti-subversion provision seems to address most directly the question of whether or not legislators could amend or repeal initiatives approved by voters.” They can but only if they facilitate the initiative in no way.
Clinger’s interpretation will be the topic of an upcoming Case Western Reserve Law Review piece about constitutional limitations on changes in legislation to Ohio initiatives. A version was published online in April.
Patrick Higgins of ACLU of Ohio spoke at the same webinar. He said even lawmakers had expressed concerns about certain parts of the law „possibly being unconstitutional” or „unimplementable.”
„But the common refrain in the Statehouse is, ‘It’s called the revised code for a reason. Higgins added, „We can tweak it.”
The message was loud and clear, he said. „This isn’t what the voters want.”
The House Judiciary Committee is already taking steps to soften SB56, the restrictive law, as a response to public criticism. Changes approved at a hearing late last month, for example rolled back some of the strict limits included in a verson of the measure passed by the Senate in February, including a criminal prohibition on sharing marijuana between adults on private property.
The members stated that they would make further changes to the original plan.
Karen O’Keefe said that at the Tuesday webinar, the Marijuana Policy Project’s (MPP) director of state policy Karen O’Keefe stated the bill still has „a lot of alarming provision but it is not as horrible as the original proposal.”
The proposal was initially more radical in its recriminalization and tax hikes, and it removed all allocations included in Issue Two, including those for local government, jobs training, and social equity.
O’Keefe noted that „the amended version” of the bill would have less recriminalization, but would still ban marijuana purchased elsewhere or not grown in Ohio, as it does now. It would also prohibit sharing homegrown cannabis among adults.
She said that if you couldn’t show where the cannabis was purchased, this would allow for these types of questions. „You could also only share cannabis that was purchased… People that are helping their neighbors with serious illnesses couldn’t do that anymore, and if they shared more than 20 grams, they’d face a felony for doing so.”
The revised bill also earmarks 25 percent of revenue for local governments—higher than the legislation’s initial 20 percent but lower than the 36 percent allocation approved by voters. The bill also does away with the voter-approved program for social equity and employment.
O’Keefe, in response to Clinger’s assertion that Clinger’s changes may be unconstitutional under Clinger’s analysis, said that while she „understands that such matters as recriminalization cannabis conduct” or removal voter-passed allocations of funds „are both susceptible,” she continued that „she has become cynical with some courts during the past few years.” She added, however, that „she is now a skeptic of certain courts
Rep. Jamie Callender(R), long-time cannabis reform supporter, told speakers in a recent follow-up meeting that their concerns had been heard. He also said that more amendments were on the horizon.
„Thanks to all of you for participating,” he added. As a result, a bill was introduced last week to address a few of your concerns. One of the main reasons it has not been put to a vote is that we’re still working out some other amendments.
The very specific topics you brought up have been worked on, or they will be in the coming weeks or months,” he said. „I want to say thank you for everyone who is here today. You’ve made a difference. It’ll make the product much better. And I’m optimistic that you may not be perfectly happy, but you’re going to say, ‘You know, this is OK,’ when it comes up.”
The new changes will remove any criminal penalties for adults who share marijuana, hemp or other intoxicating products with each other on their private property. Certain outdoor concert venues could also be exempted under the law against open consumption, provided that they include separate vaping and smoking areas.
This amendment by the committee also eliminated a clause that created a minimum mandatory sentence for those who were caught in a vehicle consuming marijuana while seated on the passenger’s seat.
Under the revised bill, THC infused beverages with up to 5 milligrams THC can be purchased in any store in California and not only in dispensaries. THC-infused beverages would face a $3.50 tax per gallon.
Intoxicating hemp products would be subject to a 10 percent tax separate from marijuana products.
Although the amendment to the bill would not allow for the production of products with high potency, the Division of Marijuana Control may be able to increase this limit by a rule.
Licensed dispensaries would also be able to sell and transfer marijuana to other license holders.
The amount of revenue that municipalities receive from cannabis sales was increased to 25% of the state’s cannabis revenues for seven years. This is a larger amount than any marijuana bill in this session.
In March, a survey of 38 municipalities by the Ohio State University’s (OSU) Moritz College of Law found that local leaders were „unequivocally opposed” to earlier proposals that would have stripped the planned funding.
Rep. Brian Stewart, (R), noted that at the previous hearing of the committee the latest provision regarding host community funding is the most generous legislators have offered in the entire session.
The Senate version was zero percent. „The governor’s version was zero percent,” he added, noting that HB160 itself originally set a 20% allocation over five years. „We’ve increased this to 25 per cent over seven-years.”
Ohio’s Senate president has pushed back against public criticism of the Senate bill, claiming the legislation does not disrespect the will of the electorate and would have little impact on products available in stores.
Meanwhile in Ohio, adults are now able to buy more than double the amount of marijuana than they were under previous limits, with state officials determining that the market can sustainably supply both medical cannabis patients and adult consumers.
Effective earlier this month, adults can purchase up to 2.5 ounces of flower cannabis per day—a significant increase compared to the prior daily transaction limit of one ounce. This change allows consumers to purchase marijuana up to the state’s 2.5-ounce limit.
A spokesperson from the Department of Commerce told MEDCAN24 „that when non-medical programs were first launched online, lower sales limits applied to non-medical items, primarily so that medical patients could have an ample supply.”
They said that „a subsequent review of available inventory data supported this adjustment to increase up to the specified statutory limitations in the statute.”
Meanwhile, Gov. Mike DeWine, a Republican from Ohio, announced in March that he wanted to use marijuana tax revenues to fund police training and local jails. He also said he would like to include behavioral health care services. DeWine said that funding police training would be a priority even if it wasn’t in the 2023 budget.
In the same month in the Legislature, Sens. Steve Huffman (R) and Shane Wilkin (R) introduced legislation that would impose a 15 percent tax on intoxicating hemp products and limit their sales to adult-use dispensaries—not convenience stores, smoke shops or gas stations
DeWine has repeatedly asked lawmakers to regulate or ban intoxicating hemp products such as delta-8 THC.
GOP-Led Congressional Panel Demands Investigation On Biden’s Marijuana Rescheduling Process, Citing ‘Deviations’ And ‘Mental Health Hazards’
Side Pocket Images. Image courtesy Chris Wallis.