Supreme Court Won't Hear Nebraska-Oklahoma Pot Lawsuit Against Colorado

A highway check in Nebraska. Additional photos and more below.
A highway check in Nebraska. Additional photos and more below.
File photo

In December 2014, we told you about a lawsuit in which the states of Nebraska and Oklahoma asked the U.S. Supreme Court to strike down Amendment 64, the 2012 measure that legalized limited recreational marijuana sales in Colorado.

Our headline: "NEBRASKA AND OKLAHOMA TO COLORADANS WHO VOTED FOR AMENDMENT 64: GO TO HELL."

A year later, in December 2015, the Obama administration sided with Colorado in the case.

And now, the Supreme Court has announced that it will not hear arguments in the matter, essentially killing the complaint — although two conservative justices reportedly would have done so.

Jon Bruning.
Jon Bruning.
File photo

The original suit, filed by Nebraska Attorney General Jon Bruning and his Oklahoma counterpart, Scott Pruitt (it's included here), stated that "Amendment 64 and its resultant statutes and regulations are devoid of safeguards to ensure marijuana cultivated and sold in Colorado is not trafficked to other states, including Plaintiff States."

The document added that "in passing and enforcing Amendment 64, the State of Colorado has created a dangerous gap in the federal drug control system enacted by the United States Congress. Marijuana flows from this gap into neighboring states, undermining Plaintiff States' own marijuana bans, draining their treasuries, and placing stress on their criminal justice systems."

Scott Pruitt.
Scott Pruitt.
File photo

Pruitt expanded on these claims in the following statement:

Fundamentally, Oklahoma and states surrounding Colorado are being impacted by Colorado's decision to legalize and promote the commercialization of marijuana which has injured Oklahoma's ability to enforce our state's policies against marijuana. Federal law classifies marijuana as an illegal drug. The health and safety risks posed by marijuana, especially to children and teens, are well documented. The illegal products being distributed in Colorado are being trafficked across state lines thereby injuring neighboring states like Oklahoma and Nebraska. As the state's chief legal officer, the attorney general's office is taking this step to protect the health and safety of Oklahomans.

Such assertions don't appear to have convinced U.S. Solicitor General Donald Verrilli, who's listed as the author of a brief to the Supreme Court that backs Colorado over the other two states. In the document, also on view here, Verrilli maintained that the Supreme Court should deny what's technically known as a "motion for leave to file a bill of complaint" because "this is not an appropriate case for the exercise of this Court’s original jurisdiction. Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.

"Nebraska and Oklahoma essentially contend that Colorado’s authorization of licensed intra-state marijuana production and distribution increases the likelihood that third parties will commit criminal offenses in Nebraska and Oklahoma by bringing marijuana purchased from licensed entities in Colorado into those States," the federal brief continued. "But they do not allege that Colorado has directed or authorized any individual to transport marijuana into their territories in violation of their laws. Nor would any such allegation be plausible. Nebraska and Oklahoma have therefore not sufficiently alleged that Colorado has inflicted the sort of direct injury to their sovereign interests warranting an exercise of original jurisdiction. At most, they have alleged that third-party lawbreakers are inflicting those injuries, and that Colorado’s legal regime makes it easier for them to do so. But that is a far less direct connection between state action and the alleged injury than even the connections that this Court found insufficient" in cases involving two previous state disputes, Louisiana v. Texas (from 1900) and Pennsylvania v. New Jersey (from 1976)."

Donald Verrilli.
Donald Verrilli.
File photo

Another passage noted that "the premise of Nebraska and Oklahoma’s preemption argument is that Colorado’s regulatory regime stands as an obstacle to the [Controlled Substances Act's] objective of eliminating the interstate market in marijuana. But that sort of allegation could be made in many cases: One State could argue that Congress sought to displace another State’s law because of a desire for a uniform national rule or a concern that one State’s requirements that differed from federal requirements would cause private persons to take actions that would adversely affect the citizens or interests of other States." Hence, "there is no dispute about the United States’ authority to enforce the CSA, and the relief requested by Nebraska and Oklahoma would not require any adjudication of the rights of the United States or any exercise of authority by the United States."

No telling if Verrilli's argument won the day; the Supreme Court doesn't go into specifics when it declines to hear a case. However, NBC News reports that justices Samuel Alito and Clarence Thomas dissented, with the latter writing that "the plaintiff states have made a reasonable case."

That's a moot point now, and the Marijuana Majority's Tom Angell couldn't be happier with the outcome. In an e-mail to Westword, Angell writes: "There's no question about it: This is good news for legalization supporters. This case, if it went forward and the Court ruled the wrong way, had the potential to roll back many of the gains our movement has achieved to date. And the notion of the Supreme Court standing in the way could have cast a dark shadow on the marijuana ballot measures voters will consider this November. But the justices correctly decided that this lawsuit is without merit and that states should be able to move forward with implementing voter-approved legalization laws even if their neighbors don’t like it.

"At the end of the day, if officials in Nebraska and Oklahoma are upset about how much time and resources their police are spending on marijuana cases, as they said in their briefs, they should join Colorado in replacing prohibition with legalization," Angell goes on. "That will allow their criminal-justice systems to focus on real crime, and it will generate revenue that can be used to pay for health care, education and public safety programs."

Here is the original complaint, followed by the U.S. government response.



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