Legal-Ease: Legalization of recreational marijuana not as ironclad as people think

Last month, Ohio voters passed two state-wide referendums. The first referendum, Issue 1, amended Ohio’s Constitution regarding abortion and other, various healthcare related topics.

The only legal authority that has higher priority than the Ohio Constitution is the United States Constitution. Therefore, the Ohio General Assembly (the Ohio equivalent of the U.S. Congress) working with Ohio’s governor cannot pass laws that overrule the Ohio Constitution. Thus, for all intents and purposes, Issue 1’s language is the law of the land unless or until the Ohio or U.S. Constitutions are amended.

The recent, increased frequency of Ohio voter-led referendums to amend the Ohio Constitution arguably started around 2009.

Before and during 2009, various groups asked the Ohio General Assembly to pass laws to allow and tax a limited number of casinos in Ohio. However, the General Assembly did not pass those requested laws.

Therefore, the groups who supported casino allowance and taxation took the necessary steps to have Ohio’s electorate as a whole vote on whether to amend the Ohio Constitution to allow and tax one casino each in Cincinnati, Cleveland, Columbus and Toledo. That referendum was called “Issue 3,” and Issue 3 ultimately passed.

Nevertheless, in the midst of consideration of 2009’s Issue 3, many people complained that such a specific decision (identifying very specific locations for four casinos in Ohio) was simply too individualized and meticulous to include in the Constitution. Thus, the argument was that casinos might be OK, but allowing casinos should not be something that is legalized through a Constitutional amendment.

That argument against the structure or context of 2009’s Issue 3 encouraged supporters of this fall’s Issue 2 legalizing recreational marijuana to not structure the law change as a Constitutional amendment. Instead, this year’s Issue 2 was structured to create a new set of statutes in the Ohio Revised Code, which statutes provide for the legalization and taxation of recreational marijuana.

However, unlike the Ohio Constitution, the Revised Code can be amended by the Ohio General Assembly and Governor.

Issue 2 is set to become effective in early December. However, because Issue 2 was a statutory amendment and not a constitutional amendment, the General Assembly can amend Issue 2 or even void Issue 2 in its entirety.

Supporters of Issue 2 have expressed to the General Assembly a moral obligation to honor the direct wishes of Ohio voters. For now, the Governor has expressed a desire to only nibble away at the edges of Issue 2 to provide protections against child access to marijuana and limit the locations of marijuana consumption.

Thus, despite voters personally approving the new Issue 2 law, the General Assembly was left holding the power to ultimately honor that law, change it or revoke it.

Accordingly, as a practical matter, the more aggressive the General Assembly and the Governor are in amending Issue 2, the more likely it becomes that future voter referendums in Ohio will only be Constitutional amendments that cannot be overruled by the General Assembly and Governor.

Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at [email protected] or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.