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Brendan Johnson Would Write Marijuana (and Hemp!) into SD Constitution

Somebody—not New Approach South Dakota—wants to write marijuana into South Dakota’s constitution.

On May 30, the Legislative Research Council issued guidance and revisions for a constitutional amendment submitted by Brendan Johnson of the Robins Kaplan Law Firm in Sioux Falls. In its original form, the amendment adds a new thirteen-section article to our state constitution with the following intent:

The purpose of this Amendment is to make marijuana legal under state and local law for adults twenty-one (21) years of age or older, and to control the commercial production and distribution of marijuana under a system that licenses, regulates, and taxes the businesses involved. The intent is to prevent arrest and penalty for personal possession and cultivation of limited amounts of marijuana by adults twenty-one (21) years of age or older; remove the commercial production and distribution of marijuana from the illicit market; prevent revenue generated from commerce in marijuana from going to criminal enterprises or gangs; prevent the distribution of marijuana to persons under twenty-one (21) years of age; prevent the diversion of marijuana to illicit markets; ensure the safety of marijuana and products containing marijuana; and ensure security of marijuana businesses. To the fullest extent possible, this amendment shall be interpreted in accordance with the purpose and intent set forth in this section [proposed initiated amendment to legalize marijuana, submitted to LRC May 2019, published 2019.05.30].

Of course, none of that text matters, as LRC advises that citizens initiating amendments don’t get to provide statements of intent or summaries; the Attorney General gets to write the official explanation. But given the illiteracy of our current Attorney General, perhaps we should just let Johnson do the job for him.

Johnson’s amendment would allow adults 21 and older to have, use, and share up to an ounce of marijuana, grow up to three marijuana plants at once out of sight (with no more than six plants in one private residence, so if you have more than one roomie, you’ll have to share), and sell bongs. If we can see your plants from the sidewalk or if you don’t lock your plants up, you get a civil penalty of up to $250. Toke up in public or before your 21st birthday, and you get a $100 fine (minor consumers get the option of going to four hours of drug education/counseling instead).

Under Johnson’s amendment, the Department of Revenue gets to regulate and tax marijuana. The Department gets to issue licenses for pot growers, testers, wholesalers, and retailers. The Department gets until November 3, 2021 to come up with the rules to manage all the fun authorized by this amendment.

Local governments would still be allowed to control how many marijuana licenses, if any, are issued within their jurisdictions and set other restrictions. Local governments just can’t put up roadblocks—literally: Groton can’t pass an ordinance making it illegal for the Flandreau Fun Factory to send a truckload of whacky weed up to Aberdeen via Highway 12.

The state would also get to make money off marijuana. Johnson’s amendment levies a 15% excise tax on all marijuana sales. The Legislature doesn’t get to change that rate until November 3, 2024. Half of the tax collected goes to the Department of Revenue to regulate and enforce the pot rules. A quarter goes to public schools, and a quarter goes to the general fund.

The amendment directs the Legislature to legalize hemp and medical marijuana by November 3, 2021.

Johnson throws in a severability clause, which the LRC, as usual, says is unnecessary but which we know from Judge Mark Barnett we have to have to preserve an amendment from wholesale destruction in our crony courts.

For even more fun and excitement, Johnson adds an enactment date of thirty days after approval—i.e., December 3, 2020. As we know, in its post-IM 22 anti-initiative fervor, the 2017 Legislature weakened direct democracy by setting the enactment date for any ballot measure as July 1 after the election, meaning any ballot measure approved at a general election sits for seven months, allowing a full Session worth of Legislative meddling and sabotage. The July 1 enactment law, SDCL 2-1-12, makes no provision for an initiative to specify its own enactment date; if Johnson wants to be able to do that, he needs to get everyone at his law firm and in his rolodex to sign my People Power Initiative Petition (see Section 4)!

LRC revises the heck out of Johnson’s draft. More significantly, LRC advises that legalizing and regulating marijuana (and hemp!) is a statutory matter that should be done with an initiated law, not a constitutional amendment:

The purpose of a constitution is to provide a basic structure within which government can function. The Constitution prescribes and limits the powers to be exercised by that government and sets forth the rights of the governed. The Constitution is not a compilation of policy statutes and as such, should not be amended to incorporate what ought to be statutory material [Jason Hancock, director, Legislative Research Council, letter to Brendan Johnson, 2019.05.30].

I agree wholeheartedly with that advice. Smoking dope is not a basic constitutional right. The number of marijuana plants you can grow in your basement is a statutory matter. Of course, if everyone followed the LRC’s principled advice, the South Dakota Constitution wouldn’t have Marsy’s Card, a cement plant, or craps and keno written into it, either. I understand the impulse to enshrine measures in the state constitution to protect them from Legislative meddling. Still, I’d recommend the backers of this amendment take the LRC’s advice. An amendment requires twice as many signatures to get on the ballot. Stick with statute, and focus on mobilizing all those petition signers and pro-marijuana (and pro-hemp!) voters to pay the heck attention to the rest of the ballot and elect legislators who will respect their will!


  1. Mark 2019-06-06 08:35

    When Bill Clinton was President he
    enacted “Don’t ask, Don’t Tell”.
    President Obama changed that and let people openly serve.
    What happened to the military?
    Nothing. Because LBGT people
    we’re already there.
    When Colorado legalized Cannabis
    what happened?
    Nothing. People were already consuming.
    Should South Dakota legalize cannabis
    Hemp and all CBD?
    And what will happen?
    Nothing except freedom and liberty.
    Because were already here.

  2. Kurt Evans 2019-06-06 10:54

    Pat Powers published a post on this topic at on Tuesday, and someone posting as “Kurt” has submitted several personal attacks mocking commenters who oppose the amendment as uninformed, hot-headed and, in one case, gutter-minded.

    When I try to submit a comment to let readers know this “Kurt” isn’t me, Powers blocks it.

    I support the decriminalization of cannabis. I don’t believe it ever should have been criminalized in the first place. But I believe decriminalization should mean a decrease in intrusive, heavy-handed government, not an increase.

  3. John Dale 2019-06-06 11:30

    Did you guys happen to catch my podcast about what it’s like to purchase Cannabis from the Black Market?

    At – fast forward in the Cannabis topic, then scroll back just a bit. If you’re a liberal snowflake, best shave your armpits first.

  4. jerry 2019-06-06 11:55

    On the lighter side, check this out for laughs.

    We can sell the hemp to sporting goods stores (there are many in Mexico) to construct the right size hemp ladders to toss over the walls. We could use chains made in Mitchell that are just the right strength and length to be called fishing stringers, again to be sold at sporting good shops. South Dakota could make millions on exports to keep nursing homes open, while trump republicans grift, so can we liberal snowflakes with hairy armpits, jamming on some groovy music, can kick back and have some popcorn.

  5. Porter Lansing 2019-06-06 12:04

    Quick! Get a petition going to decriminalize possession of small amounts of reefer. (If you’re discovered with a small amount it’s confiscated, you get a hundred dollar ticket. You can mail in the fine with nothing on your permanent record.) This would end the piss test, perhaps the most unconstitutional law in SD. All states with legal pot started with decriminalization to calm the waters.
    Decriminalizing would give the skeptical time to observe that their predictions won’t come true and liberals time to ridicule those like grudznick who profit from liquor sales.
    Experts Agree – SAFER than Alcohol
    PS … It was Republican support in CO that took the plant over the top after several appearances on statewide ballots (Mainstream GOP agreed that ending organized crime involvement was beneficial and it’s worked. Hard drug arrests are way down, too.)

  6. Hank 2019-06-06 12:24

    Great idea, prison/jail/law enforcement savings will be through the roof and taxes on weed will swell the coffers! SD could spend money on things that matter and you can fill in the blanks of what matters.

  7. chris 2019-06-06 12:36

    Legalizing weed would make tattoo shop libertarians’ votes less exploitable by the far-right, as they were offered legalization in the run up to the 2016 election by Roger Stone in the alt-media on behalf of the trump campaign. Jeff Sessions’ bait and switch is what they got.

  8. Debbo 2019-06-06 13:03

    I’m for it. But yeah, law, not amendment.

  9. Donald Pay 2019-06-06 13:20

    In theory, Cory is right that this should be a statute, not an Amendment. If this were 1998, that’s what I’d recommend, too. But in the last twenty years unconstitutional overreach by the Legislature regarding initiatives has made the initiative process so difficult that it now pays to simply go the Constitutional route, in spite of the added signature requirement. The amendment approach guarantees that the people’s vote will be respected. It can’t be changed on a whim of a Legislature.

    In reality, forcing initiatives toward the Constitutional Amendment is probably the result they wanted, anyway: it doubles the number of signatures required for an initiative. It is more difficult to reach the ballot, but is the only route now that protects the people’s ability to have their vote protected from arrogant legislative overreach should it make the ballot and pass.

    I already see a problem with Johnson’s approach: lack of a South Dakota grassroots effort. You need people all over the state to come together on an issue like this. It can’t just be one guy. I wouldn’t do this by paid petition circulation. If you can’t get a voluntary grassroots South Dakota effort to do this, it’s not worth doing.

  10. Certain Inflatable Recreational Devices 2019-06-06 19:12

    Cory say, “Smoking dope is not a basic constitutional right.”

    I disagree. I find nothing in The Constitution that prohibits or gives governments the right to prohibit the ingestion of any substance.

    The absence of a federal constitutional prohibition leaves it to local governments to prohibit or not prohibit. SoDak’s constitution, likewise, provides no justification for prohibition of ingestion of a specific vegetable.

  11. grudznick 2019-06-06 19:17

    The demon weed is bad, it is bad, and melts many minds and creates dangerous criminals. Thus, my good friend Bob, you have often heard me give speeches against it as I quaff my frosty adult beverage in the evenings.

  12. Certain Inflatable Recreational Devices 2019-06-06 20:15

    Don’t you wish, grudz, that you could turn a sarcastic phrase into something someone else would read and say, “Now, that’s worth a chuckle.?”

  13. Debbo 2019-06-06 20:43

    CIRD, he just wishes someone, anyone, would read anything at all he writes! That’s why he’s a lobbyist. For a couple months out of every 12, people listen, a little, kinda, because they’re paid to.

  14. Certain Inflatable Recreational Devices 2019-06-06 20:47

    Grudz may be a lobbyist. However I am doubtful that (s)he is Jeremiah Murphy.

  15. Neal 2019-06-06 22:56

    Donald Pay said: “I already see a problem with Johnson’s approach: lack of a South Dakota grassroots effort. … I wouldn’t do this by paid petition circulation. If you can’t get a voluntary grassroots South Dakota effort to do this, it’s not worth doing.”

    I completely disagree.

    The *only* thing this issue has had in the last few election cycles is a grassroots effort, the product of which has been two or more failed attempts to even get on the ballot.

    What it needed was money to hire legitimate, professional petition collectors, but that money wasn’t there.

    If South Dakotans had an opportunity to actually vote on medical marijuana in any of the last several elections it would have passed easily. Recreational will still fail here for now, but medical would pass with upwards of 60%.

    So no, the grassroots on this issue isn’t gonna cut it. It needs a donor. And if someone has hired Brendan Johnson for this, it looks like they found one.

  16. Neal 2019-06-06 23:04

    But I do agree that the legislature has forced the hand on this with respect to the issue of amendment vs. initiated measure. It’s a near certainty that our backwards lawmakers and governor would legislatively repeal (or seriously gut) any type of legalization measure, medical or otherwise. So proponents on issues like this have no choice but to go with the amendment if they want to see it actually effectuated.

  17. Donald Pay 2019-06-07 10:30

    I disagree, Neal. If you can’t get on the ballot with a volunteer grassroots petitioning effort, then you either have an issue that is not supported by much of the public or you have not very dedicated grassroots petitioners and/or weak leadership leading the effort.

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