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IM 27 Omits Legalizing Marijuana Sales to Avoid Single-Subject Challenge…

…But Bong Sales Kosher!

As one of my anonymous correspondents noted earlier this week, Initiated Measure 27 will not legalize the sale of marijuana in South Dakota. Vote Yes on IM 27, and you’ll be able to grow, possess and smoke small amounts of marijuana, but you won’t be able to exchange green baggies for greenbacks.

Matthew Schweich, leader of IM 27 sponsor-org South Dakotans for Better Marijuana Laws, sales are omitted from the initiative by design, to avoid the single-subject rule that Governor Kristi Noem exploited to give her appointed judges an excuse to throw out the last voter-approved legalization of marijuana, Amendment A:

Schweich said the gaps in the measure were by design—to stick to only one subject. If it passes, he said the legislature has three choices—build upon the state’s medical regulatory framework for recreational, repeal the measure, or make South Dakota the only state where pot is legal, but with nowhere to buy it.

“And I don’t think they’re going to choose that option. I think that the choices will be clear. It’s not going to be easy,” Schweich said. “We’re going to have to work very hard, but if we have a good strategy and plan going into the session, I do think that we could get an implementation bill passed.”

Last session, the Republican-controlled state Senate passed a regulatory framework for legal marijuana sales. The bill failed in the House [Lee Strubinger, “Legislature Needed for Taxing, Sales Structure If IM 27 Passes,” SDPB, 2022.10.21].

I dig the single-subject concern, but I remind readers that the single-subject rule is “infinitely malleable.” IM 27 may omit sales, but it covers “Possessing, using, ingesting, inhaling, processing, transporting, delivering without consideration, or distributing without consideration….” Even Kristi Noem’s sloppiest lawyer could walk into court and argue that possessing, using, and transporting are different subjects. A subsequent clause legalizes “Possessing, using, delivering, distributing, manufacturing, transferring, or selling to persons twenty-one years of age or older marijuana accessories.” If IM 27 can legalize the possessing, using, and selling bongs under the single-subject rule, why couldn’t IM  27 have included “selling” in its list of eight actions allowed for bong contents? Heck, why couldn’t the authors simply have stricken “without consideration” and allowed the remaining language to encompass sales of marijuana?

But whatever single-subject debate may arise, the fact is that IM 27, as written, as available for voter approval, will not legalize commercial marijuana activity.

As I said Thursday, if you want to buy your weed instead of growing your own, and if you are looking past your immediate cravings to fiscal policy and want to tax marijuana to boost the state budget and carve out room in the budget for food tax repeal, you can’t just show up on November 8 and vote Yes on IM 27. You also have to elect Jamie Smith so Kristi Noem can’t veto further marijuana legislation. You also have to elect Democrats to the House to replace the Republicans standing in the way of practical marijuana policy. And you have to be ready to show up in Pierre in January, February, and March to lobby those legislators and remind them of the people’s leafy will.

22 Comments

  1. P. Aitch 2022-10-22

    No state has legalized recreational cannabis without first writing the definition of decriminalizing cannabis into law.

  2. larry kurtz 2022-10-22

    The Picuris and the Pojoaque Pueblos have entered agreements with State of New Mexico to market cannabis product outside tribal borders. The Tewa words wõ poví translate to “medicine flower” and so far half of Pojoaque’s clients are from Texas and other red states.

  3. larry kurtz 2022-10-22

    Honestly? I personally find my home state’s machinations over cannabis hilarious. Whatever triggered white people like Quack Fred Deutsch hope to gain by not regulating the industry means millions for tribal communities.

  4. bearcreekbat 2022-10-22

    The idea that Governor Kristi Noem’s appointed judges used the “single-subject rule” as “an excuse to throw out the last voter-approved legalization of marijuana, Amendment A” Is an unfortunate and incorrect criticism of the South Dakota Supreme Court Justices. There a five current Justices: Chief Justice Steven Jensen; Justice Janine Kern; Justice Mark Salter; Justice Patricia DeVaney; and Justice Scott Myren.

    https://ujs.sd.gov/Supreme_Court/Justices.aspx

    The decision of the Supreme Court ruled 4-1 that Amendment A violated the single subject rule. The Justices voting in the majority on this issue included Chief Justice Steven Jensen – appointed by Governor Daugaard; Justice Janine Kern – also appointed by Governor Daugaard; Justice Mark Salter – also appointed by Governor Daugaard; and Justice Patricia DeVaney – appointed by Governor Noem.

    The single Justice dissenting and agreeing with my view that Amendment A did not violate the single subject rule was Justice Scott Myren – appointed by Governor Noem.

    https://ujs.sd.gov/uploads/sc/opinions/2954698e671a.pdf

    Thus it seems quite unfair to suggest the Supreme Court Justices appointed by Noem used the single subject rule as “an excuse to throw out the last voter-approved legalization of marijuana, Amendment A.” Only two Supreme Court Justices have been appointed by Noem and they split on the issue. The three Daugaard appointed Justices were the key to the Court’s decision, not the Noem Supreme Court appointees. The only other Judge involved was the single circuit court Judge Christina Klinger. Although she was appointed by Governor Noem, she certainly did not have the final say on whether Amendment A violated the single subject rule.

    It is easy to assume that our Judges and Justices are corrupt political animals when they issue a decision we disagree with, but such an assumption follows the old rule – it makes and “ass” out of “u” and “me.” As far as I have seen there is absolutely no credible evidence that any of these Justices or the circuit court Judge were in any way unfairly influenced by Noem nor anyone else. All credible evidence I am aware of indicates they made this unfortunate decision honestly and in good faith.

  5. P. Aitch 2022-10-22

    BCB – Perhaps it was a back door criticism of the single subject rule by these learned legal minds, more than anything?

  6. grudznick 2022-10-22

    Measures Initiated are always sloppily drafted trash. This is why they should be banned. Leave law making to the professionals.

  7. grudznick 2022-10-22

    Mr. bat from bear creek is righter than right. It is Mr. H’s NDS that causes him to blog such inaccuracies.

  8. Arlo Blundt 2022-10-22

    Grudznick–“Leave lawmaking to the professionals”, you can’t mean the current crop of dazed and confused legislators…the Gosches and the several Hansons??? Do you mean the lobbyists, who write most legislation to earn a buck?? Laws for sale???

  9. RST Tribal Member 2022-10-22

    The Judicial System in South Dakota has proven to be unfair, unjust, a little more then a bit corrupt, and laced with lots of political influence. Look who selects and confirms the judiciary. From the patrol officer who lets a drunken driving political boss hog in parts way west of the Big Sioux River scamper home instead of the clink, to the misdemeanor convicted killer Attorney General, to the “professional law makers” drunk doing official business in the capitol, to procurators deciding cases on economic status, race and gender or a combination of those factors, and judges who dole punishment like a boarding school adult beating their young charges without mercy or purpose except to harm.

    Yep, the inept inbred Republicans have been stacking the judiciary for decades. And, it shows. Getting a case to the republican infested court room assures predictable outcomes.

  10. M 2022-10-23

    I think grudz has a little fascist in him.

  11. Cory Allen Heidelberger Post author | 2022-10-23

    Point accepted, BCB. Now, what about the single-subject rule? Is concern about the single-subject rule a valid reason for the existence of the “without consideration” phrases that exclude marijuana commerce from IM 27 when IM 27 still legalizes the selling of marijuana accessories? Does the argument that selling marijuana would have introduced a second subject into this initiative open the door for Noem or Deutsch to challenge IM 27 in court on the grounds that it deals with the multiple subjects of possessing and selling marijuana accessories? Does addressing marijuana and marijuana accessories constitute multiple subjects?

  12. grudznick 2022-10-23

    Mr. Blundt, young Mr. Gosch is a farmer. I certainly do not mean him.

  13. grudznick 2022-10-23

    No, Mr. H, the lack of “selling”, sir, is because measures initiated are sloppily drafted garbage foisted upon the peoples by those looking out for their own pocket books and not able to effectively lobby in the legislatures. This shall be the remedial lesson today at the Conservatives with Common Sense breakfasting.

  14. larry kurtz 2022-10-23

    Yes, the initiative and referendum processes are blunt instruments but they’re the people’s weapons to resist the tyranny of one-party rule especially in a nanny state that intends to create winners and losers in economic development.

  15. bearcreekbat 2022-10-23

    Cory, before the Court’s ruling on Amendment A I would have been quite comfortable with the propositions that:

    “concern about the single-subject rule [is not] a valid reason for the existence of the ‘without consideration’ phrases”; and

    “addressing marijuana and marijuana accessories [do not]constitute multiple subjects.”

    Based that Supreme Court 4-1 ruling, however, anything now seems possible.

    As for whether “the argument that selling marijuana would have introduced a second subject into this initiative open[s] the door for Noem or Deutsch to challenge IM 27 in court on the grounds that it deals with the multiple subjects of possessing and selling marijuana accessories,” such a court challenge to IM 27 is not only possible, that legal theory probably no longer borders on being unethical due to frivolity. Before the Supreme Court majorities’ Amendment A decision I would have considered such a challenge to be summarily dismissed as frivolous. After that decision, however, the “door” to such challenges seems more than wide open, that “door” has been removed and set in some corner awaiting legal resuscitation until the Court eventually recognizes the wisdom of Justice Myron’s well crafted legal analysis of the “single subject” rule.

  16. Jake 2022-10-23

    Arlo, you know the fact of ‘Grudz’s’ professional background that he would naturally diminish and discredit the ‘people’s’ initiatives because they didn’t come from ‘pros’ like he and the Republican legislators who have passed so many unconstitutional “laws” burdening the people of this state. It’s the GOP way……

  17. larry kurtz 2022-10-24

    Travel with Rick Steves airs on Bill Janklow’s idea of public radio on Sunday mornings. He lives in Edmonds, Washington.

    As the board chair of NORML (the National Organization for the Reform of Marijuana Laws), I speak out publicly across the country on why rather than arresting folks for marijuana, we should embrace a “pragmatic harm reduction” approach so effective in Europe that treats drug abuse as a health and education challenge. That’s why I am asking you to support Measure 27 to legalize marijuana for adults 21 and older in South Dakota. Voters in South Dakota have added reason to approve Measure 27 – it will send a clear message to politicians who continually seek to undermine the state’s ballot initiative process. As you know, 54% of South Dakota voters approved legalization in 2020 before the law was repealed in court on a technicality. Measure 27 is an opportunity to restore the will of the people. [Pierre Capital Journal]

    Tribal sovereignty binds the hands of states competing for federal resources.

    Mary Jane Oatman is executive director of the Intertribal Cannabis Industry Association. She spoke earlier this month at the organization’s conference in Milwaukee as did Rich Tall Bear Westerman (Sisseton Wahpeton Dakota Oyate). Tall Bear Westerman has three separate state licenses for dispensaries in South Dakota. He plans to open his operations, Green Tatanka, in November 2022, where he leases state property on state land. He pointed out that when the Indian Gaming Regulatory Act (IGRA) of 1988 was being discussed, every casino project was approved if it created a small business economy. However, some say that cannabis presents a second opportunity where tribes can help their entrepreneurs, and this time there are some advantages: land. [Native News Online]

    Under the 1988 Indian Gaming Regulatory Act the Tohono O’odham Nation won its lawsuit with the State of Arizona and in 2017 it opened a casino in Glendale outside its established boundaries. So, in 2018 the Oglala Lakota Oyate bought fifty acres just off I-90 outside their Nation then legalized cannabis for all adults in 2020. According to the Lakota Times Oglala Lakota College has the equipment to test cannabis but so far the cost of constructing a lab in Pine Ridge has proved to be prohibitive. Rick Steves has been advocating for legalization since at least 2012 but if If the Neanderthal South Dakota Legislature had any integrity or ethics (they don’t) they would empower the tribal nations trapped in South Dakota to be the sole cannabis industry producers in the state (they won’t).

  18. larry kurtz 2022-10-24

    Mrs. Beal is reminding readers over at Pat’s Pissoir that white people are too stupid to regulate a cannabis industry.

  19. John Dale 2022-10-26

    Outside the box: I’m eager to learn if IM27 is a poison pill to demotivate the movement in SD.

    Grudznickers – “professional” classes are riddled with incompetence and nepotism, and the best and most innovative ideas nearly always come from the fringes.

    Larry – My opinion is that prohibition it is a cruel joke and our current legal cannabis context was designed disguise risk for those standing to make the most from the industry.

  20. larry kurtz 2022-10-26

    Bob Newland and Emmett Reistroffer are certainly heroes in dragging South Dakota into the light from the prohibition darkness and spurred others to NORMLize my home state. So, if Jamie Smith is elected governor I will urge him to pardon Mr. Newland for the legal convictions he suffered for his moral convictions.

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