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Plan B: Marijuana Advocates Draft New Initiatives to Legalize Pot AND Repeal Single-Subject Rule!

With Amendment A still hung up in court, marijuana advocates are readying Plan B. Yesterday the folks who brought us Amendment A to constitutionalize marijuana and the narrower and now enacted Initiated Measure 26 to legalize medical marijuana announced that they have drafted and filed five new ballot measures to rectify Governor Kristi Noem’s grievous negation of the will of the voters on Amendment A. None of the initiatives are posted on the Secretary of State’s website so far, but the advocates—South Dakota’s New Approach PAC and the DC-based Marijuana Policy Project—released the text of all five measures yesterday.

Plan B includes a pair of constitutional amendments and a pair of laws, each consisting of long and short versions of the same basic idea of allowing adults 21 and older to use, possess, grow, and sell marijuana. Both amendments and both laws allow continued restrictions on use of marijuana in public and at work. I’ll give the text and differences of these lengthy measures below.

But what really interests me is the fifth proposal in the pot-backers’ packet, in which they recognize that if you’re going to fight for an initiative in South Dakota, you also have to fight for the initiative process itself and challenge the Republican Party’s effort to hollow this hallowed process. Alongside whichever marijuana proposal they choose to place on the ballot, New Approach and the MPP propose a constitutional amendment to strike the infinitely malleable and selectively deployed single-subject rule that Governor Noem used to kill Amendment A in court. Their amendment would remove the problematic single-subject language from Article 23 Section 1 of the South Dakota Constitution:

Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately. [South Dakotans for Better Marijuana Laws, proposed amendment striking single-subject rule for constitutional amendments, 2021.07.02].

The language NASD/MPP would strike was tacked onto Article 23 Section 1 by us, the voters, when we approved the Republican-Legislature-sponsored Amendment Z in 2018 by a 62% majority. No one organized a serious campaign against Z in 2018. The Marijuana Policy Project demonstrated its ability to raise millions of dollars to put initiatives on the ballot with a blitzkrieg petition drive and swamp its opponents with a big-money campaign to reverse past voter tendencies and win majorities at the ballot box. If anyone can get South Dakotans to see the error of handing the tyrants in Pierre an easily abused and democracy-killing single-subject rule, it’s the Marijuana Policy Project and its keenly motivated national donors.

The MPP also has a winning strategy in twinning this single-subject challenge with a renewed marijuana petition drive. As I discovered with two failed petition drives in 2019, the particulars of the initiative and referendum and the election process don’t draw crowds of volunteers and petition signers. Marijuana flags do. Circulating a ballot question petition on a technical, abstruse issue of election law alongside a ballot question petition on a hotter-button issue that people have heard about and are torqued off about can increase the chances of getting that more complicated issue on the ballot. I followed that strategy successfully in 2015 when I referred two bad laws: one was the widely publicized and unpopular youth minimum wage, a direct affront to the voters who just three months before that in the 2014 election had approved an annual increase of the minimum wage for all workers; the other was a jumble of technical changes to election law that make it harder for new candidates, and especially independents, to run for office. When I petitioned, I led with the youth minimum wage, which got big headlines and enraged the majority who heard about it. As folks eagerly signed the petition against the reduced youth minimum wage, I asked if they’d like to sign the other petition. Seeing that I was a decent and trustworthy guy for fighting the outrageous repeal of their will on the minimum wage, four out of five minimum wage referendum signers were willing to trust that the complicated election law I was explaining was also bad and thus signed my second petition. Both measures made the ballot, and both measures got the majority vote I sought.

The MPP can now play that same two-hat trick. Fly the marijuana flags again to draw the crowds, get them signing the marijuana petition, then offer the second petition on the single-subject rule. Explain to the eager marijuana supporters, “The reason you’re having to sign a marijuana petition again this year is that the Governor used a dirty trick to take away the amendment you voted for last year. You want to stop the Governor’s dirty tricks? Good—here—sign this second petition.”

Alas, MPP deputy director Matthew Schweich says they’ll only fight to repeal the single-subject rule if they lose their case before the Supreme Court:

If Amendment A is fully restored by the South Dakota Supreme Court, then we would not move forward with these initiatives. If Amendment A is struck down, then we want the option of returning to the ballot next year. We are filing these initiatives now because the deadline for completing a signature drive is quickly approaching.

We remain hopeful that the South Dakota Supreme Court will make the right decision and restore Amendment A. However, we need to be prepared for any potential outcome. These four cannabis legalization initiatives represent different approaches that could accommodate different rulings in the Amendment A case. Only one would be advanced to the ballot [Matthew Schweich, press release, South Dakotans for Better Marijuana Laws, 2021.07.02].

I can understand the practicality of MPP/NASD’s strategy. If they beat the Governor in court and Amendment A becomes law, they don’t need to circulate another marijuana petition. Marijuana is their organization’s raison d’etre; they would struggle to justify to their donors running a campaign just to reform South Dakota’s ballot question laws. Plus, they would lose the advantage I describe above: they wouldn’t have a high-profile marijuana measure that can draw crowds of signers just by waving leafy pot symbols and reduce the explaining they have to do to secure signatures on the more arcane single-subject issue. A lot of the folks who signed the marijuana petitions in 2019 are single-subject voters who aren’t thinking about the broader implications of the single-subject rule. Absent a marijuana petition on top of the clipboard, such single-subject voters would say, “Why do I care about the single-subject rule? Amendment A survived, so the single-subject rule doesn’t affect me. Here, toke up and chill out….”

That’s the challenge of protecting the ballot measure process itself: we need voters and campaigners to look beyond their immediate special interests and work together to protect democratic processes for everybody.

*     *     *

But far be it from me to try spending other people’s money on my idealism. If the Supreme Court tosses Amendment A, here are the four new marijuana initiatives, one of which New Approach and the MPP will put on the streets on on top of their clipboard with their challenge to the single-subject rule:

Plan B’s marijuana-specific amendments would add a tenth section to Article 21, the “Miscellaneous” section, of the South Dakota Constitution. The long version, not including the title, runs 884 words:

Section 1. That Article XXI of the Constitution of the State of South Dakota, be amended by adding a NEW SECTION to read:

§ 10. Marijuana

The following acts are lawful and shall not be an offense, or be subject to a civil fine, penalty, or sanction, or be a basis for detention, search, or arrest, or to deny any right or privilege, or to seize or forfeit assets, under state or local law, regulation, or ordinance, if the person is at least twenty-one years of age: possessing, using, ingesting, transporting, processing, delivering without consideration, or distributing without consideration one ounce or less of marijuana, except that not more than eight grams of marijuana may be in a concentrated form; cultivating not more than three marijuana plants and possessing the marijuana produced by the plants, provided the plants and any marijuana produced by the plants in excess of one ounce are kept at one private residence, are in a locked space, are not visible by normal, unaided vision from a public place, and not more than six plants are kept in or on the grounds of a private residence at one time; possessing, cultivating, manufacturing, testing, delivering, distributing, or selling for consideration to persons twenty-one years of age or older marijuana or marijuana accessories, by licensed commercial cultivators, wholesalers, testing facilities, or retail sales outlets; and assisting another person who is at least twenty-one years of age, or allowing property to be used, in any of the acts permitted by this section.

This section does not limit or affect laws that prohibit or otherwise regulate the following: the use, ingestion, purchase, possession, transport, delivery, or distribution of marijuana or marijuana accessories by a person younger than twenty-one years of age; delivery or distribution of marijuana or marijuana accessories, with or without consideration, to a person younger than twenty-one years of age; consumption of marijuana while operating or being in physical control of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport, while it is being operated; smoking marijuana within a motor vehicle, aircraft, motorboat, or other motorized form of transport, while it is being operated; possession or consumption of marijuana or possession of marijuana accessories on the grounds of a public or private school, in a school bus, or on the grounds of any correctional facility; smoking marijuana in a location where smoking tobacco is prohibited; consumption of marijuana in a public place, unless permitted by statute; consumption of marijuana as part of a criminal penalty or a diversion program; undertaking any task under the influence of marijuana, if doing so would constitute negligence or professional malpractice; performing solvent-based extractions on marijuana using solvents other than water, glycerin, propylene glycol, vegetable oil, or food grade ethanol, unless permitted by statute; or conduct that endangers others.

This section does not require that an employer permit or accommodate conduct allowed by this section or affect an employer’s ability to restrict the use of marijuana by employees. This section does not limit the right of a person who occupies, owns, or controls private property from prohibiting or otherwise regulating conduct permitted by this section on or in that property, or limit the ability of the state or a local government to prohibit or restrict any conduct otherwise permitted under this section within a building owned, leased, or occupied by the state or the local government. This section does not limit or expand the rights or restrictions otherwise applicable to medical marijuana or industrial hemp.

A person who cultivates marijuana plants that are visible by normal, unaided vision from a public place is subject to a civil penalty not exceeding two-hundred and fifty dollars. A person who cultivates marijuana plants that are not kept in a locked space is subject to a civil penalty not exceeding two-hundred and fifty dollars. A person who smokes marijuana in a public place is subject to a civil penalty not exceeding one- hundred dollars. A person who is under twenty-one years of age and possesses, uses, ingests, transports, processes, delivers without consideration or distributes without consideration one ounce or less of marijuana or marijuana accessories is subject to a civil penalty not to exceed one-hundred dollars, and may be provided the option of attending up to four hours of drug education or counseling in lieu of the civil penalty. The legislature may periodically adjust the amounts of the civil penalties provided herein, not to exceed the rate of inflation. The civil penalties enumerated in this paragraph are the exclusive penalties for the conduct described.

This section shall be construed broadly to accomplish its purposes and intents. The legislature shall enact laws regulating the commercial cultivation, manufacturing, processing, testing, transport, delivery, and sale of marijuana, and may enact other laws as necessary to implement this section, but the legislature may not hinder or frustrate the purposes or intent of this section. The legislature may impose a tax on the commercial sale of marijuana and marijuana accessories, not to exceed fifteen percent.

Nothing in this section purports to supersede any applicable federal law, except where allowed by federal law. If any provision in this section or the application thereof to any person or circumstance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of the section that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this section are severable [South Dakotans for Better Marijuana Laws, proposed marijuana amendment, long version, 2021.07.02].

The short version of the amendment still runs 788 words:

Section 1. That Article XXI of the Constitution of the State of South Dakota, be amended by adding a NEW SECTION to read:

§ 10. Marijuana

The following acts are lawful and shall not be an offense, or be subject to a civil fine, penalty, or sanction, or be a basis for detention, search, or arrest, or to deny any right or privilege, or to seize or forfeit assets, under state or local law, regulation, or ordinance, if the person is at least twenty-one years of age: possessing, using, ingesting, transporting, processing, delivering without consideration, or distributing without consideration one ounce or less of marijuana, except that not more than eight grams of marijuana may be in a concentrated form; cultivating not more than three marijuana plants and possessing the marijuana produced by the plants, provided the plants and any marijuana produced by the plants in excess of one ounce are kept at one private residence, are in a locked space, are not visible by normal, unaided vision from a public place, and not more than six plants are kept in or on the grounds of a private residence at one time; possessing, manufacturing, delivering, distributing, or selling to persons twenty-one years of age or older marijuana accessories; and assisting another person who is at least twenty-one years of age, or allowing property to be used, in any of the acts permitted by this section.

This section does not limit or affect laws that prohibit or otherwise regulate the following: the use, ingestion, purchase, possession, transport, delivery, or distribution of marijuana or marijuana accessories by a person younger than twenty-one years of age; delivery or distribution of marijuana or marijuana accessories, with or without consideration, to a person younger than twenty-one years of age; consumption of marijuana while operating or being in physical control of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport, while it is being operated; smoking marijuana within a motor vehicle, aircraft, motorboat, or other motorized form of transport, while it is being operated; possession or consumption of marijuana or possession of marijuana accessories on the grounds of a public or private school, in a school bus, or on the grounds of any correctional facility; smoking marijuana in a location where smoking tobacco is prohibited; consumption of marijuana in a public place, unless permitted by statute; consumption of marijuana as part of a criminal penalty or a diversion program; undertaking any task under the influence of marijuana, if doing so would constitute negligence or professional malpractice; performing solvent-based extractions on marijuana using solvents other than water, glycerin, propylene glycol, vegetable oil, or food grade ethanol, unless permitted by statute; or conduct that endangers others.

This section does not require that an employer permit or accommodate conduct allowed by this section or affect an employer’s ability to restrict the use of marijuana by employees. This section does not limit the right of a person who occupies, owns, or controls private property from prohibiting or otherwise regulating conduct permitted by this section on or in that property, or limit the ability of the state or a local government to prohibit or restrict any conduct otherwise permitted under this section within a building owned, leased, or occupied by the state or the local government. This section does not limit or expand the rights or restrictions otherwise applicable to medical marijuana or industrial hemp.

A person who cultivates marijuana plants that are visible by normal, unaided vision from a public place is subject to a civil penalty not exceeding two-hundred and fifty dollars. A person who cultivates marijuana plants that are not kept in a locked space is subject to a civil penalty not exceeding two-hundred and fifty dollars. A person who smokes marijuana in a public place is subject to a civil penalty not exceeding one- hundred dollars. A person who is under twenty-one years of age and possesses, uses, ingests, transports, processes, delivers without consideration or distributes without consideration one ounce or less of marijuana or marijuana accessories is subject to a civil penalty not to exceed one-hundred dollars, and may be provided the option of attending up to four hours of drug education or counseling in lieu of the civil penalty. The legislature may periodically adjust the amounts of the civil penalties provided herein, not to exceed the rate of inflation.

This section shall be construed broadly to accomplish its purposes and intents. Nothing in this section purports to supersede any applicable federal law, except where allowed by federal law. If any provision in this section or the application thereof to any person or circumstance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of the section that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this section are severable [South Dakotans for Better Marijuana Laws, proposed marijuana amendment, short version, 2021.07.02].

The differences:

  1. In paragraph 1, the short version makes legal “possession, manufacturing, delivering, distributing, or selling…marijuana accessories….” The short version thus appears to leave illegal the production and sale of pot in any quantity greater than the ounce in your pocket and three plants in your locked basement allowed by both versions. The long version adds cultivation and testing to these permitted activities and applies them to “marijuana or marijuana accessories” (how one cultivates marijuana accessories is an open question) but limits the freedom to engage in those activities to “licensed commercial cultivators, wholesalers, testing facilities, or retail sales outlets….”
  2. In paragraph 4, the long version explicitly prohibits the Legislature from imposing on pot-related activities any civil penalties beyond those allowed by the amendment. Strict constitutionalists would say this clause is unnecessary: if the constitution doesn’t say the Legislature can do something, the Legislature can’t do that thing.
  3. In paragraph 5, the long version directs the Legislature to enact laws to regulate the marijuana industry but not “hinder or frustrate” this amendment. The long version also authorizes the Legislature to impose up to a 15% sales tax on marijuana and marijuana accessories. The short version authorizes no specific marijuana tax; however, if marijuana becomes legal to sell, the Legislature could subject marijuana to our general sales tax.
Parag Long Amendment Short Amendment
1 …possessing, cultivating , manufacturing, testing, delivering, distributing, or selling for consideration to persons twenty-one years of age or older marijuana or marijuana accessories, by licensed commercial cultivators, wholesalers, testing facilities, or retail sales outlets; …possessing, manufacturing, delivering, distributing, or selling to persons twenty-one years of age or older marijuana accessories;
4 …The civil penalties enumerated in this paragraph are the exclusive penalties for the conduct described. omitted
5+6 long vs 5 short …The legislature shall enact laws regulating the commercial cultivation, manufacturing, processing, testing, transport, delivery, and sale of marijuana, and may enact other laws as necessary to implement this section, but the legislature may not hinder or frustrate the purposes or intent of this section. The legislature may impose a tax on the commercial sale of marijuana and marijuana accessories, not to exceed fifteen percent. omitted

The laws seek the same legalization but indicate the sponsors’ willingness to take their chances with mere statutes that the Legislature could amend or repeal rather than amendments that can only be approved or overturned by voters or judges. The laws, long and short, do add some details more appropriate to statute than to constitution.

The long version runs 2,080 words:

BE IT ENACTED BY THE PEOPLE OF SOUTH DAKOTA:

Section 1. That title 34 be amended by adding a NEW CHAPTER to read:

§ 1. Terms used in this chapter mean:
(1) “Department,” the Department of Revenue or its successor agency;
(2) “Hemp,” the plant of the genus cannabis, and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent on a dry weight basis;
(3) “Local government,” means a county, municipality, town, or township;
(4) “Marijuana,” the plant of the genus cannabis, and any part of that plant, including, the seeds, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including hash and marijuana concentrate. The term includes an altered state of marijuana absorbed into the human body. The term does not include hemp, or fiber produced from the stalks, oil or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other products;
(5) “Marijuana accessory,” any equipment, product, material, which is specifically designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, ingesting, inhaling, or otherwise introducing marijuana into the human body.

§2. Notwithstanding the provisions of this chapter, this chapter does not limit or affect laws that prohibit or otherwise regulate:
(1) Delivery or distribution of marijuana or marijuana accessories, with or without consideration, to a person younger than twenty-one years of age;
(2) Purchase, possession, use, or transport of marijuana or marijuana accessories by a person younger than twenty-one years of age;
(3) Consumption of marijuana by a person younger than twenty-one years of age;
(4) Operating or being in physical control of any motor vehicle, train, aircraft, motorboat, or other motorized form of transport while under the influence of marijuana;
(5) Consumption of marijuana while operating or being in physical control of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport, while it is being operated;
(6) Smoking marijuana within a motor vehicle, aircraft, motorboat, or other motorized form of transport, while it is being operated;
(7) Possession or consumption of marijuana or possession of marijuana accessories on the grounds of a public or private preschool, elementary school, or high school, in a school bus, or on the grounds of any correctional facility;
(8) Smoking marijuana in a location where smoking tobacco is prohibited;
(9) Consumption of marijuana in a public place, other than in an area licensed by the department for consumption;
(10) Consumption of marijuana as part of a criminal penalty or a diversion program;
(11) Conduct that endangers others;
(12) Undertaking any task under the influence of marijuana, if doing so would constitute negligence or professional malpractice; or
(13) Performing solvent-based extractions on marijuana using solvents other than water, glycerin, propylene glycol, vegetable oil, or food grade ethanol, unless licensed for this activity by the department.

§3. Notwithstanding the provisions of this chapter, this chapter does not:
(1) Require that an employer permit or accommodate conduct allowed by this chapter;
(2) Affect an employer’s ability to restrict the use of marijuana by employees;
(3) Limit the right of a person who occupies, owns, or controls private property from prohibiting or otherwise regulating conduct permitted by this chapter on or in that property; or
(4) Limit the ability of the state or a local government to prohibit or restrict any conduct otherwise permitted under this chapter within a building owned, leased, or occupied by the state or the local government.

§4. Subject to the limitations in this chapter, and notwithstanding any other law, the following acts are not unlawful and shall not be an offense under state law or the laws of any local government within the state or be subject to a civil fine, penalty, or sanction, or be a basis for detention, search, or arrest, or to deny any right or privilege, or to seize or forfeit assets under state law or the laws of any local government, if the person is at least twenty-one years of age:
(1) Possessing, using, ingesting, inhaling, processing, transporting, delivering without consideration, or distributing without consideration one ounce or less of marijuana, except that not more than eight grams of marijuana may be in a concentrated form;
(2) Possessing, planting, cultivating, harvesting, drying, processing, or manufacturing not more than three marijuana plants and possessing the marijuana produced by the plants, provided:
(a) The plants and any marijuana produced by the plants in excess of one ounce are kept at one private residence, are in a locked space, and are not visible by normal, unaided vision from a public place;
(b) Not more than six plants are kept in or on the grounds of a private residence at one time; and
(c) The private residence is located within the jurisdiction of a local government where there is no licensed retail store where marijuana is available for purchase pursuant to this chapter.
(3) Assisting another person who is at least twenty-one years of age, or allowing
property to be used, in any of the acts permitted by this section; and
(4) Possessing, using, delivering, distributing, manufacturing, transferring, or selling to persons twenty-one years of age or older marijuana accessories.

§5.
(1) A person who, pursuant to §4 of this chapter, cultivates plants that are visible by normal, unaided vision from a public place is subject to a civil penalty not exceeding two-hundred and fifty dollars.
(2) A person who, pursuant to §4 of this chapter, cultivates plants that are not kept in a
locked space is subject to a civil penalty not exceeding two-hundred and fifty
dollars.
(3) A person who, pursuant to §4 of this chapter, cultivates plants within the
jurisdiction of a local government where marijuana is available for purchase at a licensed retail store or where the cultivation of plants is not allowed through local ordinance or regulation pursuant to §10 is subject to a civil penalty not exceeding two-hundred and fifty dollars.
(4) A person who smokes marijuana in a public place, other than in an area licensed for such activity by the department, is subject to a civil penalty not exceeding one- hundred dollars.
(5) A person who is under twenty-one years of age and possesses, uses, ingests, inhales, transports, delivers without consideration or distributes without consideration one ounce or less of marijuana or possesses, delivers without consideration, or distributes without consideration marijuana accessories is subject to a civil penalty not to exceed one-hundred dollars. The person shall be provided the option of attending up to four hours of drug education or counseling in lieu of the fine.

§ 6. The department shall have the power, except as otherwise provided in § 10, to license and regulate the cultivation, manufacture, testing, transport, delivery, and sale of marijuana in the state and to administer and enforce this chapter. The department shall accept applications for and issue, in addition to any other types of licenses the department deems necessary:
(1) Licenses permitting commercial cultivators and manufacturers of marijuana to
cultivate, process, manufacture, transport, and sell marijuana to marijuana
wholesalers;
(2) Licenses permitting independent marijuana testing facilities to analyze and certify
the safety and potency of marijuana;
(3) Licenses permitting marijuana wholesalers to package, process, and prepare
marijuana for transport and sale to retail sales outlets; and
(4) Licenses permitting retail sales outlets to sell and deliver marijuana to consumers.

§ 7. Not later than July 1, 2023, the department shall promulgate rules issue regulations necessary for the implementation and enforcement of this chapter. The rules shall be reasonable and shall include:
(1) Procedures for the issuance, renewal, suspension, and revocation of licenses;
(2) Application, licensing, and renewal fees, not to exceed the amount necessary to cover the costs to the department of implementing and enforcing this chapter;
(3) Time periods, not to exceed ninety days, by which the department must issue or deny an application;
(4) Qualifications for licensees;
(5) Security requirements, including lighting and alarm requirements, to prevent diversion;
(6) Testing, packaging, and labeling requirements, including maximum tetrahydrocannabinol levels, to ensure consumer safety and accurate information;
(7) Restrictions on the manufacture and sale of edible products to ensure consumer and child safety;
(8) Health and safety requirements to ensure safe preparation and to prohibit unsafe pesticides;
(9) Inspection, tracking, and record-keeping requirements to ensure regulatory compliance and to prevent diversion;
(10) Restrictions on advertising and marketing;
(11) Requirements to ensure that all applicable statutory environmental, agricultural, and food and product safety requirements are followed;
(12) Requirements to prevent the sale and diversion of marijuana to persons under twenty-one years of age; and
(13) Civil penalties for the failure to comply with rules adopted pursuant to this chapter.

§ 8. In determining the appropriate number of licenses to issue, as required under this chapter, the department shall:
(1) Issue enough licenses to substantially reduce the illicit production and sale of marijuana throughout the state; and
(2) Limit the number of licenses issued, if necessary, to prevent an undue concentration of licenses in any one municipality.

§ 9. Actions and conduct by a licensee, a licensee’s employee , and a licensee’s agent, as permitted pursuant to a license issued by the department, or by those who allow property to be used by a licensee, a licensee’s employee, or a licensee’s agent, as permitted pursuant to a license issued by the department, are not unlawful and shall not be an offense under state law, or the laws of any local government within the state, or be subject to a civil fine, penalty, or sanction, or be a basis for detention, search, or arrest, or to deny any right or privilege, or to seize or forfeit assets under state law, or the laws of any local government within the state. No contract is unenforceable on the basis that marijuana is prohibited by federal law.

§10. A local government may enact ordinances or regulations governing the time, place, manner, and number of licensees operating within its jurisdiction. A local government may ban the establishment of licensees or any category of licensee within its jurisdiction. A local government may allow for cultivation at private residences within its jurisdiction that would otherwise not be allowed under §4(2)(c) so long as the cultivation complies with §4(2)(a) and §4(2)(b) and the other requirements of this chapter. A local government may not prohibit the transportation of marijuana through its jurisdiction on public roads by any person licensed to do so by the department or as otherwise allowed by this chapter.

§11. An excise tax of fifteen percent is imposed upon the gross receipts of all sales of marijuana sold by a person licensed by the department pursuant to this chapter to a consumer. The department shall by rule establish a procedure for the collection of this tax and shall collect the tax. The revenue collected under this section shall be appropriated to the department to cover costs incurred by the department in carrying out its duties under this chapter. Fifty percent of the remaining revenue shall be appropriated for the support of South Dakota public schools and the remainder shall be deposited into the state general fund.

§12. The department shall publish an annual report that includes the number and type of licenses issued, demographic information on licensees, a description of any enforcement or disciplinary action taken against licensees, a statement of revenues and expenses of the department related to the implementation, administration, and enforcement of this chapter, and a statement of taxes collected in accordance with this chapter, and an accounting for how those revenues were disbursed.

§13. This chapter shall be broadly construed to accomplish its purposes and intents. Nothing in this chapter purports to supersede any applicable federal law, except where allowed by federal law. If any provision in this chapter or the application thereof to any person or circumstance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of the chapter that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this chapter are severable [South Dakotans for Better Marijuana Laws, proposed marijuana law, long version, 2021.07.02].

The short initiated law is 1,164 words:

BE IT ENACTED BY THE PEOPLE OF SOUTH DAKOTA:

Section 1. That title 34 be amended by adding a NEW CHAPTER to read:

§ 1. Terms used in this chapter mean:
(1) “Hemp,” the plant of the genus cannabis, and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent on a dry weight basis;
(2) “Local government,” means a county, municipality, town, or township;
(3) “Marijuana,” the plant of the genus cannabis, and any part of that plant, including, the seeds, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin, including hash and marijuana concentrate. The term includes an altered state of marijuana absorbed into the human body. The term does not include hemp, or fiber produced from the stalks, oil or cake made from the seeds of the plant, sterilized seed of the plant which is incapable of germination, or the weight of any other ingredient combined with marijuana to prepare topical or oral administrations, food, drink, or other products;
(4) “Marijuana accessory,” any equipment, product, material, which is specifically designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, ingesting, inhaling, or otherwise introducing marijuana into the human body.

§2. Notwithstanding the provisions of this chapter, this chapter does not limit or affect laws that prohibit or otherwise regulate:
(1) Delivery or distribution of marijuana or marijuana accessories, with or without consideration, to a person younger than twenty-one years of age;
(2) Purchase, possession, use, or transport of marijuana or marijuana accessories by a person younger than twenty-one years of age;
(3) Consumption of marijuana by a person younger than twenty-one years of age;
(4) Operating or being in physical control of any motor vehicle, train, aircraft, motorboat, or other motorized form of transport while under the influence of marijuana;
(5) Consumption of marijuana while operating or being in physical control of a motor vehicle, train, aircraft, motorboat, or other motorized form of transport, while it is being operated;
(6) Smoking marijuana within a motor vehicle, aircraft, motorboat, or other motorized form of transport, while it is being operated;
(7) Possession or consumption of marijuana or possession of marijuana accessories on the grounds of a public or private preschool, elementary school, or high school, in a school bus, or on the grounds of any correctional facility;
(8) Smoking marijuana in a location where smoking tobacco is prohibited;
(9) Consumption of marijuana in a public place, unless permitted by statute;
(10) Consumption of marijuana as part of a criminal penalty or a diversion program;
(11) Conduct that endangers others;
(12) Undertaking any task under the influence of marijuana, if doing so would constitute negligence or professional malpractice; or
(13) Performing solvent-based extractions on marijuana using solvents other than water, glycerin, propylene glycol, vegetable oil, or food grade ethanol, unless permitted by statute.

§3. Notwithstanding the provisions of this chapter, this chapter does not:
(1) Require that an employer permit or accommodate conduct allowed by this chapter;
(2) Affect an employer’s ability to restrict the use of marijuana by employees;
(3) Limit the right of a person who occupies, owns, or controls private property from prohibiting or otherwise regulating conduct permitted by this chapter on or in that property; or
(4) Limit the ability of the state or a local government to prohibit or restrict any conduct otherwise permitted under this chapter within a building owned, leased, or occupied by the state or the local government.

§4. Subject to the limitations in this chapter, and notwithstanding any other law, the following acts are not unlawful and shall not be an offense under state law or the laws of any local government within the state or be subject to a civil fine, penalty, or sanction, or be a basis for detention, search, or arrest, or to deny any right or privilege, or to seize or forfeit assets under state law or the laws of any local government, if the person is at least twenty-one years of age:
(1) Possessing, using, ingesting, inhaling, processing, transporting, delivering without consideration, or distributing without consideration one ounce or less of marijuana, except that not more than eight grams of marijuana may be in a concentrated form;
(2) Possessing, planting, cultivating, harvesting, drying, processing, or manufacturing not more than three marijuana plants and possessing the marijuana produced by the plants, provided:
(a) The plants and any marijuana produced by the plants in excess of one ounce are kept at one private residence, are in a locked space, and are not visible by normal, unaided vision from a public place;
(b) Not more than six plants are kept in or on the grounds of a private residence at one time; and
(c) The private residence is located within the jurisdiction of a local government where there is no licensed retail store where marijuana is available for purchase pursuant to this chapter.
(3) Assisting another person who is at least twenty-one years of age, or allowing property to be used, in any of the acts permitted by this section; and
(4) Possessing, using, delivering, distributing, manufacturing, transferring, or selling to persons twenty-one years of age or older marijuana accessories.
(5) A person who cultivates marijuana plants, pursuant to (2) of this section, that are visible by normal, unaided vision from a public place is subject to a civil penalty not exceeding two-hundred and fifty dollars.
(6) A person who, pursuant to (2) of this section, cultivates marijuana plants that are not kept in a locked space is subject to a civil penalty not exceeding two-hundred and fifty dollars.
(7) A person who smokes marijuana in a public place is subject to a civil penalty not exceeding one-hundred dollars.
(8) A person who is under twenty-one years of age and possesses, uses, ingests, inhales, transports, delivers without consideration or distributes without consideration one ounce or less of marijuana or possesses, delivers without consideration, or distributes without consideration marijuana accessories is subject to a civil penalty not to exceed one-hundred dollars. The person shall be provided the option of attending up to four hours of drug education or counseling in lieu of the fine.

§5. This chapter shall be broadly construed to accomplish its purposes and intents. Nothing in this chapter purports to supersede any applicable federal law, except where allowed by federal law. If any provision in this chapter or the application thereof to any person or circumstance is held invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of the chapter that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this chapter are severable [South Dakotans for Better Marijuana Laws, proposed marijuana law, short version, 2021.07.02].

Section 5 of the long law includes caps on civil penalties. The short law tacks those penalty caps onto its Section 4, uses its Section 5 to superfluously declare its subordinacy to federal law and its severability, and calls it good. The long law rolls on (Sections 6–9, 12) to assign regulatory and reporting power over the marijuana industry to the Department of Revenue and mandate that Revenue have rules in place by the law’s enactment date of July 1, 2023. The long law authorizes local governments to regulate pot businesses and home growing (Section 10). The long law imposes a 15% excise tax on marijuana sales, directs the tax receipts first to fund Revenue’s pot-regulatory activities, then splits the rest between public schools and the general fund.

The pro-marijuana groups have filed these four marijuana initiatives to maximize their options; they say they will only circulate one of them alongside the single-subject repeal amendment, and they will only hit the streets if the Supreme Court strikes down Amendment A. Of course, if the Supreme Court continues to dawdle, advocates will still have to hit the streets with those petitions by September, because the deadline for submitting petitions for 2022 ballot measures is this November 8. (Of course, I’m still working on extending that deadline in court….)

12 Comments

  1. Richard Schriever 2021-07-03

    Eliminating the single subject language still does not get at the true issue;

    Consent of the Governed Act:

    “Any initiated act or Constitutional Amendment passed by a direct vote of the people, shall not be nullified or altered or amended in any way by any means other to a direct vote of the people.”

  2. John Dale 2021-07-03

    This is not going to end well for Cannabis advocates. It’s nuclear and weaponized (like the last one).

    The real answer is to release control, not add more control:
    https://PlainsTribune.com/cc4l

    If this proceeds, I will advocate for the legislature of SD to abolish the initiative process, retool it, and reconstitute it in a form that is less abusive to the majority body politic of SD.

    This must be explored to put a stop to the political rape of South Dakota Cannabis advocates (MPP and NASD, as predicted, do not just want to legalize Cannabis, they want to sink it deep against the will of people in my community I revere and respect).

    GOOD LUCK.

    I’m out.

  3. grudznick 2021-07-03

    Tokers of the demon weed are as manic as meth maniacs. Until the saner ones stomp this down and tell them to keep it out of the constitution or a bong derelict kills someone while high on the THCs they will never stop. Reefer madness has proven this medically.

  4. John 2021-07-03

    Great news! Let us also hope and encourage the deep pockets to consider campaigns against the retention of justices who thwart the will of the people.

    More people died and were injured from overdoses of aspirin than cannabis, ever. It’s long last time to stop the losers war on drugs and the systematic propping up the police, prosecutorial, prison industrial complex.

    Consent of the Governed Act:
    “Any initiated act or Constitutional Amendment passed by a direct vote of the people, shall not be nullified or altered or amended in any way by any means other to a direct vote of the people.”

  5. LCJ 2021-07-03

    Sorry, grudznick. I am not going to compare a natural plant with a poison made in some crazy guy’s lab.

  6. Donald Pay 2021-07-03

    John Dale said, “If this proceeds, I will advocate for the legislature of SD to abolish the initiative process, retool it, and reconstitute it in a form that is less abusive to the majority body politic of SD.”

    Most of this is fine. You don’t need to abolish the initiative process. That would be stupid, and could only be done through a constitutional amendment by a vote of the people. You could advocate for a massive restructuring of the initiative process by law or by putting it in a Constitutional Amendment. You might as well go right to your remedy of retooling it by amending the current Constitutional language. If you did it by an initiated measure you would have the same problem with the Legislature not following through with the people’s wishes. My preferred way to do this would be for people who have used the initiative in the past to prepare Constitutional language that would amend out and preclude most of the bureaucracy that the Legislature has put on in the last 20 years. Most of that is not necessary, and is there only to make it more difficult for grassroots South Dakotans to use the process.

    Proposals such as the Consent of the Governed Act are a bit too extreme, but on the right track. You want to have the ability to amend laws that have unintended consequences or to make them run better. The Legislature and Executive can do this best and fastest. And, if they can be made to do this in a fair and respectful way, it makes more sense to let them have a stake in the process. So, I think it makes more sense to require all enacted initiated measures to go into effect for a year before the measure can be amended by the Legislature.

  7. Porter Lansing 2021-07-03

    grudznick – Thank you immensely for your continued support of legal marijuana in South Dakota.
    By using the proven “reverse psychology” ploy, your efforts and successes are immeasurable. Just look what you’ve accomplished with your “Grandpa Walton” technique.

    T.L.T.R. this massive missive but the solution is simple.

    Given: A medical marijuana card from another state is valid in SD.
    Solution: Vacation in Colorado; get a medical card (renewable yearly by mail), and have the product mailed to you. (That option’s legality was addressed and legalized in CO’s last legislative session.)

    – There’s no more reason for SD to need marijuana farms and stores than there is for Colorado to grow oranges.
    -We get them shipped in cheaper than growing them ourselves.
    -So can you.
    -Our weed is world class. Your’s will be “Walmart grade”.
    -Don’t be duped into thinking Kristi Noem’s government will treat you like the valued customer you are.

  8. Mark Anderson 2021-07-03

    Of course, now you know why Noem wants the ditches mowed, no more “accidental” ditchweed to be had.

  9. Richard Schriever 2021-07-03

    Donald Pay Make that a 10 year prohibition against meddling and I MIGHT agree. Otherwise – leave the gate unlatched and the dogs WILL get out. They’ve already demonstrated over and over and over again – that IS their nature.

  10. Nix 2021-07-04

    Hey Grudz,
    Haven’t had any verbal volleyball with you for some time now.
    In reference to your Demon Weed, let’s look at some facts….
    Try not to let them get in your way.
    Alcohol deaths in 2020.
    95,000.
    That’s about 261 of your drinking buddies
    pushing dirt every day.
    These deaths shorten the lives of the
    liver killers by about 29 years.
    Potentially 2.8 million years of life lost.
    Booze is bad Grudz.
    It’s really bad.
    It’s the Demon drink.
    It will kill you if you let it.
    Fire up a left hander, sit in your backyard
    and enjoy one of Gods great gifts to mankind.
    Canabis.
    When you thank me, I’ll be able to understand you too because you can actually enunciate on weed.
    Not so much on the Demon booze.
    And no…I’m not going to clean the puke off of you boots either.
    But, Do have an enjoyable 4th of July.

  11. Mark Anderson 2021-07-06

    Nix, you have to realize that grudz formed his opinion on Marijuana with the film The Cool and The Crazy in 1958. He was a Gigi Perreau fan.

  12. grudznick 2021-07-06

    Indeed. Huge Gigi Perreau fan. Huge.

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