Pro-marijuana group sues Fallin over Rx pot rules
by Meg Wingerter. NewsOK.com, 7-13-2018https://newsok.com/
A pro-marijuana advocacy group has accused Board of Health members of holding secret meetings in violation of state law before making last-minute changes to the rules for medical pot.
The lawsuit, filed in Oklahoma County by Green the Vote, was one of two against the Oklahoma State Department of Health related to medical marijuana as of Friday afternoon. It also named Gov. Mary Fallin and five Board of Health members as defendants.
Michael McNutt, a spokesman for the governor, said she and her staff are reviewing the lawsuit.
The board approved rules Tuesday creating a framework for medical marijuana following passage of State Question 788 last month. During the meeting, board member Chuck Skillings introduced two amendments to ban the sale of smokable forms of marijuana, and to require dispensaries to hire a pharmacist.
The five board members targeted by the lawsuit voted for the amendment to ban the sale of smokable forms.
Fallin signed the rules Wednesday. She didn’t have the option of vetoing a portion of the rules.
Ronald Durbin II, a Tulsa attorney representing Green the Vote, said he had received information about secret meetings to discuss the amendments involving board president Timothy Starkey and board members Dr. R. Murali Krishna, Dr. Jenny Alexopulos, Skillings and Dr. Terry R. Gerard II. He declined to name the source of that information, citing fears of retaliation.
“We believe we have evidence that there were behind the scenes discussions ... to essentially destroy the intent of 788,” he said.
Starkey said he couldn’t comment on a pending lawsuit. The other board members named in the suit couldn’t be reached for comment.
If such a meeting took place, it would be a violation of the Oklahoma Open Meeting Act, which requires public boards to give public notice and publish an agenda whenever a quorum of board members has gathered to discuss official business, said Joey Senat, an Oklahoma State University journalism professor and open government expert.
It also would be a violation if subgroups of the board met to discuss the same topic and at least five of the nine members eventually were involved, Senat said. For example, if three board members met, then one met with two others to talk about the amendments, that’s illegal, he said.
“That would be a blatant violation of the open meeting act,” he said.
The lawsuit also alleges that the board members violated the open meeting act by publishing an “intentionally misleading” agenda, which didn’t include the amendments, for its Tuesday meeting. Whether that’s a violation depends on when the idea came up, Senat said. The agenda must be posted 24 hours before the meeting, so the amendments should have been included if they came onto the board’s radar before then, he said.
“If they knew this was going to come up and could be on the agenda, it should be there in the spirit of the open meeting act,” he said.
‘Arbitrary and capricious’
A second lawsuit, filed Friday in Cleveland County by eight individuals who said they intended to apply for medical marijuana patient or caregiver licenses, alleged the board overstepped its rule-making authority.
The plaintiffs argued the language of SQ 788 made it clear that marijuana smoking would be allowed, and that it strictly limited the Board of Health’s ability to make rules.
“The plain language of SQ 788 does not enable the Oklahoma Health Department to create rules related to the use, ingestion method, distribution, possession or growth of medical marijuana, except as specifically set forth therein,” the complaint said.
Both Green the Vote and the eight individuals suing in Cleveland County claim that the Board of Health was “arbitrary and capricious” in setting some of the rules it approved Tuesday, such as limiting the concentration of THC, the chemical that produces euphoria, in marijuana products; restricting dispensary locations; and prohibiting Sunday hours at dispensaries.
The choice of language is deliberate. Courts tend to give wide latitude to administrative agencies to regulate their areas of expertise. They reserve the right to overturn arbitrary and capricious regulations, but convincing a judge that an agency was completely out of line can be difficult.
Jed Green, political director at New Health Solutions Oklahoma, a trade group representing marijuana businesses, said the lawsuits are a predictable response to actions by Fallin and the Board of Health.
"The reality here is that this failure of leadership will now cost our state more than the limited special session needed to put patients before profit," he said.
All parties are working with a difficult timeline. SQ 788 gives the Health Department until July 26 to post applications for medical marijuana licenses. Patients, caregivers and business owners can begin turning their applications in on Aug. 25. It takes several months to grow the plants to maturity, however, so patients may not begin receiving marijuana until winter.
Shawn Jenkins, secretary of the Yes on 788 political action committee, is worried lawsuits could push that timeline back further. Jenkins said he has two children with epilepsy who would benefit from using marijuana.
“We’re obviously very concerned with anything that would compromise the rollout of 788 and getting patients what they need,” he said.
Jenkins said the board’s last-minute amendments were “egregious,” but that he’d be satisfied if they repealed the amendments at the next meeting. The lawsuits represent a “rift” in the medical marijuana community, because supporters who want to start businesses are trying to change rules that aren’t a concern to patients, he said.
“We don’t want to see people suffer that shouldn’t be suffering, especially at the hands of political organizations and trade groups,” he said.
The Cleveland County lawsuit asked for an injunction blocking the rules, which could delay their implementation. Durbin, the attorney for Green the Vote, said their suit doesn’t ask for a delay, and that he urges anyone else filing litigation not to hold up the process.
“As bad as what the Health Department did (was), we want patients to get whatever they can under the rules,” he said.