Recreational Marijuana

VERMILLION — After the South Dakota high court struck it down Wednesday, has legalized recreational marijuana in the Rushmore State gone up in smoke?

That remains to be seen, according to a University of South Dakota official.

“From here, there almost certainly will be legislative debate and likely competing proposals on legalization,” said Neil Fulton, the USD Law School dean.

The Supreme Court’s decision striking down Amendment A, which legalized recreational marijuana, raised a number of questions to be answered in the future, Fulton said.

In the November 2020 election, South Dakota voters approved Amendment A by a 54-46% margin. They also passed Initiated Measure 26 (IM 26), legalizing medicinal use by a 70-30% margin.

South Dakota became the first state to approve both recreational and medicinal use on the same ballot.

However, Amendment A also contains references to hemp and medical marijuana, which the South Dakota Supreme Court ruled 4-1 constituted more than one subject and overturned the amendment. The high court’s decision doesn’t affect IM 26 and its implementation.

“The decision affirms the trial court decision striking down Amendment A as violating the single subject requirement of the South Dakota Constitution,” Fulton said. “That means recreational marijuana remains illegal, with medicinal (marijuana) subject to implementation of IM 26 and legislative action.”

Fulton doesn’t look for the issue to go away, but instead possibly taking new avenues. In anticipation of the South Dakota Supreme Court’s decision, recreational marijuana advocates have already launched a petition drive for the 2022 ballot.

“The people can act again through a pared down amendment, and the opinion provides a bit of a road map for that, or (through an) initiated measure,” Fulton said.

The Supreme Court’s decision Wednesday wasn’t unanimous. The dissenting justice considered it three aspects of the same cannabis subject.

That differing interpretation looks to play a major role not only on the marijuana issue but also all petitions drives and ballot measures, Fulton said.

“The most significant aspect of the case, to me, is that it sets the test to determine if constitutional amendments embrace a single subject. That test is different than the one the trial court used,” the dean said.

“It says that a measure violates the single subject rule if: 1) it covers more than one subject, 2) there are distinct purposes of the subjects, and 3) those subjects are not connected or mutually dependent.

“But we see in the dissent, which applies that same test — regulating three different types of cannabinoids vs. regulating cannabinoids generally — can effectively dictate the outcome. Knowing the test provides important guidance, but it doesn’t tell us exactly how future cases will play out.”

Wednesday’s decision drew reaction from various sources.

South Dakota Gov. Kristi Noem, who strongly opposed the legalization of recreational marijuana, applauded the Supreme Court ruling. Last January, she issued an executive order officially directing the South Dakota Highway Patrol superintendent to file a lawsuit challenging Amendment A.

The governor issued a statement Wednesday following the court ruling.

“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about. We do things right – and how we do things matters just as much as what we are doing. We are still governed by the rule of law,” she said.

“This decision does not affect my administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible South Dakotans.”

Following the South Dakota Supreme Court ruling, the South Dakota Department of Health released a statement by Secretary Kim Malsam-Rysdon.

“I’m proud the Department of Health is delivering a safe and responsible medical cannabis program, as approved by the voters in IM-26,”she said. “Amendment A does not impact or affect the program, which is on schedule and meeting all statutory timelines approved by the voters.”

South Dakota’s medical cannabis program will provide a model for the nation, Malsam-Rysdon said.

“Undoubtedly, our program model will serve as an example to other jurisdictions around the country, while serving the needs of South Dakotans,” the secretary said.

“We are delivering on Governor Noem’s promise to implement ‘the best, most patient-focused medical cannabis program in the country.’”

On the other side of the issue, the South Dakota Democratic Party (SDDP) disagreed with the court ruling as overturning a voter-approved measure. SDDP Chair Randy Seiler issued a statement Wednesday announcing a continued effort to pursue legalized recreational marijuana.

“We are disappointed by the outcome of the South Dakota Supreme Court’s ruling on Amendment A,” he said. “South Dakotans made their choice clear when they voted for Amendment A, and we look forward to working on additional avenues to legalize, regulate, and tax marijuana and uphold the will of the people.”

The Supreme Court ruling just ahead of Thanksgiving weekend raised some questions about the length of the court’s deliberations and the timing of the decision’s release.

The timeline and release date aren’t out of line with the high court’s usual procedures, Fulton said.

“The (Supreme) Court releases opinions on Thursdays, but this one comes out on Wednesday because there is a holiday,” he said. “It has taken a while — since April — because there are complicated questions, it is a long opinion with a concurrence and a dissent, and that takes time to work through.”

The court releases its rulings when the justices have finished their deliberations and writing their opinions, Fulton said.

“Certainly, they are aware of the date of the legislative session and the benefit of providing an opinion in time to allow legislative consideration,” the dean said.

“But in my opinion, they are not thinking about media availability (during a holiday period) when they get an opinion released. They release their opinions when they complete them.”

The marijuana issue remains far from over, Fulton predicted.

“This is another chapter in South Dakota’s consideration of the future of cannabinoids, not the end of the story,” he said.

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