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The Empire Strikes Back

On Behalf of | Feb 10, 2021 | Blog |

Now, in galaxy right here, the saga of legalized marijuana in South Dakota delivered a rollback to the days of prohibition. Despite South Dakota voters approving Constitutional Amendment A by a percentage vote of 56% to 46%, the South Dakota Court system has invalidated Amendment A as of February 8, 2021.

Shortly after the passage of Amendment A, two lawsuits were filed by law enforcement officers challenging the constitutionality of Amendment A. Essentially, this challenge involved a claim that the language of Amendment A violated the “single-subject rule,” embodied in a previous constitutional amendment passed. The lawsuit alleged Amendment A encompassed to many subjects for a constitutional amendment rather than the basic legalization of marijuana. These arguments included involving hemp as well as marijuana (although both derive from cannabis), taxation, fines, the discipline of professional or occupational licenses, etc. Furthermore, the lawsuit alleged that Amendment A was actually a “revision” to the South Dakota Constitution, which requires a constitutional convention approved by three quarters of the Legislature. In other words, Amendment A was rendered too big in substance to be a mere amendment to the South Dakota Constitution.

The drafters of Amendment A and other supporters defended legalized marijuana. The lawsuit was filed in Hughes County, South Dakota, the county that embodies the state capital. Although my review of the law reflects that the lawsuit could go either way, I was not surprised an opinion was issued yesterday voiding the entirety of Amendment A. However, it is no surprise South Dakota voters will be disappointed in state government utilizing the legal system in a move that is perceived by many of the electorate as rejecting a valid democratic process. As a few citizens have told me in frustration, “Why vote anymore?” Hopefully the process will work itself out.

While the proponents of legalized marijuana have avowed to appeal the circuit court’s decision, prosecutors will now likely reverse course on contemplating settling or dismissing pending marijuana cases due to the now-defunct Amendment A. If there were Vegas odds on how the South Dakota Supreme Court appeal will come out, the safe bet will be that the Supreme Court will uphold Judge Klinger’s decision. There is no timeline as to when a decision would be rendered, and the appeal process hasn’t started yet anyway.

On the courthouse front, what this means for pending marijuana cases is that any momentum defense attorneys had in potential dismissals marijuana cases may be out the window. On all of my cases since the date of being hired, I have made diligent attempts to reach dismissals in marijuana – related cases, including drug paraphernalia charges. Many cases will need to go back to the drawing board and be sorted out with new strategies.

To make matters worse for medical marijuana proponents, the South Dakota Legislature is currently considering a bill to delay the implementation of medical marijuana for one year, or July 1, 2022. Although IM26, legalizing medical marijuana, passed with an astounding vote of 70% to 30% in favor of legalization to take effect this year, state government is wanting an additional year to study and consider regulatory measures and laws before a medical marijuana program is rolled out. As of today, February 10, 2021, the delay has yet to become law.

Hopefully the Empire knows what’s best for the public, because the voters are now the Rebels.