# South Dakota's marijuana ballot initiative passed but is being blocked by a judge **URL:** \ **Category:** Politics & Elections\ **Created:** [February 9, 2021, 3:40am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490 "2021-02-09T03:40:28Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 9, 2021, 3:40am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/1 "2021-02-09T03:40:28Z")
Story here: > **[South Dakota judge rejects amendment legalizing marijuana](https://apnews.com/article/constitutions-south-dakota-recreational-marijuana-marijuana-kristi-noem-c990e08307ca5016d789f7504cb6e7e6)** > > PIERRE, S.D. (AP) — A South Dakota judge on Monday struck down a voter-approved constitutional amendment that legalized recreational marijuana after Gov. Here’s the crux of the legal argument: > [@](#): > > Circuit Judge Christina Klinger ruled the measure approved by voters in November violated the state’s requirement that constitutional amendments deal with just one subject and would have created broad changes to state government. > > “Amendment A is a revision as it has far-reaching effects on the basic nature of South Dakota’s governmental system,” she wrote in her ruling. > [@](#): > > In her ruling, Klinger said that marijuana legalization would have touched on business licensing, taxation and hemp cultivation. The amendment would have given the state’s Department of Revenue power to administer recreational marijuana, but Klinger ruled that by doing so, it overstepped the authority of the executive and legislative branches of government. This seems like a dodge to me. Outlawing slavery would have been prohibited because it touched on more than one area in government. Making it not a crime to jaywalk affects revenue and police powers, so it would be invalid? I mean, is there any way to only affect one thing regarding government with any amendment? Gov. Noem thinks it’s just dandy: > [@](#): > > “Today’s decision protects and safeguards our constitution,” Noem said in a statement. “I’m confident that South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.” Does it tho? Will this decision stand in higher court? ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [February 9, 2021, 3:58am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/2 "2021-02-09T03:58:37Z")
> [@Snowboarder\_Bo](#): > > This seems like a dodge to me. Outlawing slavery would have been prohibited because it touched on more than one area in government. Making it not a crime to jaywalk affects revenue and police powers, so it would be invalid? I mean, is there any way to only affect one thing regarding government with any amendment? The single subject rule makes sense to me, in that constitutions are meant to be different from statutes. If you want to enact multifaceted legislation, that needs to be done by statute. (Or technically, can also be done by revision of the constitution, but that shouldn’t be how it’s done.) If you can imagine someone wanting to vote for one part, but not another, then they should be subject to separate votes. If you want legalized marijuana in the constitution, it should be a pretty simple thing just declaring recreational marijuana legal. Then enact or leave to the legislature the statutes to carry it out. ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 9, 2021, 4:24am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/3 "2021-02-09T04:24:28Z")
But that doesn’t always work out the way it should. More than one state legislature has dragged their heels at implementing the will of the voters as expressed thru marijuana ballot initiatives. It seems to me that the ballot initiative dealt with one issue: marijuana. It deals with the one issue in a number of ways, but it only addresses one issue. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [February 9, 2021, 4:31am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/4 "2021-02-09T04:31:16Z")
> [@eschrodinger](#): > > The single subject rule makes sense to me, in that constitutions are meant to be different from statutes. If you want to enact multifaceted legislation, that needs to be done by statute. By why are the people as sovereign more limited than the legislature? Why a single subject rule for the sovereign, but not for the sovereign’s delegate, the legislature? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 9, 2021, 4:34am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/5 "2021-02-09T04:34:52Z")
There’s quite a bit of subtext in the AP story that seems indicate that things might not be all square, too: > [@](#): > > Two law enforcement officers, Highway Patrol Superintendent Col. Rick Miller and Pennington County Sheriff Kevin Thom, sued to block legalization by challenging its constitutionality. Miller was effectively acting on behalf of South Dakota Gov. Kristi Noem, who had opposed the effort to legalize pot. > [@](#): > > Klinger was appointed as a circuit court judge by Noem in 2019. ---
**Author:** ![Roderick\_Femm](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/roderick_femm/32/14875_2.png) [@Roderick\_Femm](https://boards.straightdope.com/u/Roderick_Femm)\ **Post date:** [February 9, 2021, 5:09am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/6 "2021-02-09T05:09:25Z")
> [@Northern\_Piper](#): > > > [@eschrodinger](#): > > > > The single subject rule makes sense to me, in that constitutions are meant to be different from statutes. If you want to enact multifaceted legislation, that needs to be done by statute. > > By why are the people as sovereign more limited than the legislature? Why a single subject rule for the sovereign, but not for the sovereign’s delegate, the legislature? That doesn’t seem to be the claim of this judge. The claim is that specifically state constitutional amendments, no matter who passes them, should not deal with more than one subject at a time, and that this is based on the state constitution as it exists now. To handle what is in this amendment, if the judge is correct, you could have multiple amendments, one for each part, or you could have the amendment be more general, and rely on statutes to handle the details. If SD has ballot initiatives (I don’t know if they do or not) those statutes could come from the legislature or from the vote of the people. So it’s not who is passing the law that matters, it is the type of law being passed, constitutional amendment or statute. Having said that, I have no idea which legal argument is better or which will prevail in the end. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [February 9, 2021, 5:52am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/7 "2021-02-09T05:52:04Z")
> [@Northern\_Piper](#): > > By why are the people as sovereign more limited than the legislature? Why a single subject rule for the sovereign, but not for the sovereign’s delegate, the legislature? They aren’t. There’s no single subject rule for legislation – possibly just a relation clause. The difference isn’t between the people and the legislature, but between constitutional amendments and statutes (which the people may also be able to pass – I don’t know if SD has that type of initiative process.) ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [February 9, 2021, 5:56am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/8 "2021-02-09T05:56:44Z")
IMO, the time to deal with this sort of thing should be before the initiative appears on the ballot. Once it has, and the people vote to support it, it’s going against the will of the people to deny it. It looks politically motivated to me to do it this way, like they wanted to make it seem like they were giving the people a chance, but when it didn’t go the way they wanted, they had a legal excuse for why it shouldn’t pass. I also would suggest that such an interpretation of what counts as a single issue is overly restrictive. It should matter what the public would consider a single issue, not whether there’s some technical legal argument that it’s more than one issue. Finally, I question the wisdom of such restrictions in the first place. You could wind up with interrelated issues where the results don’t align, and you get stuck in a very weird place. ---
**Author:** ![eschrodinger](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/eschrodinger/32/122_2.png) [@eschrodinger](https://boards.straightdope.com/u/eschrodinger)\ **Post date:** [February 9, 2021, 6:04am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/9 "2021-02-09T06:04:20Z")
> [@Snowboarder\_Bo](#): > > But that doesn’t always work out the way it should. More than one state legislature has dragged their heels at implementing the will of the voters as expressed thru marijuana ballot initiatives. Sure. That doesn’t mean the single subject rule shouldn’t have teeth. The people can always vote accordingly for their legislators, and/or propose an initiative law, rather than constitutional amendment. > [@](#): > > It seems to me that the ballot initiative dealt with one issue: marijuana. It deals with the one issue in a number of ways, but it only addresses one issue. In my state, there was a good example – there was a constitutional amendment initiative on criminal justice that did a number of things. It passed, but was struck down on single subject grounds. The proponents then broke it up into multiple separate amendments, some of which passed, and some failed. Again, passing marijuana legalization by initiative is a great idea, as far as I’m concerned. It just needs to be done as a statutory scheme and not part of the constitution. Maybe, for those in favor of letting it stand, you could explain why it’s a good idea to have this sort of legislation in the state constitution. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [February 9, 2021, 6:20am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/10 "2021-02-09T06:20:07Z")
> [@Snowboarder\_Bo](#): > > There’s quite a bit of subtext in the AP story that seems indicate that things might not be all square, too: > > > [@](#): > > > > Two law enforcement officers, Highway Patrol Superintendent Col. Rick Miller and Pennington County Sheriff Kevin Thom, sued to block legalization by challenging its constitutionality. Miller was effectively acting on behalf of South Dakota Gov. Kristi Noem, who had opposed the effort to legalize pot. > > > [@](#): > > > > Klinger was appointed as a circuit court judge by Noem in 2019. The other point to note here, having just looked up Kristi Noem’s bio, is that she’s a far-right Republican nutjob in the Trumpist mold. During the current pandemic she was opposed to mask-wearing and restrictions on social gatherings; she’s all for repealing the ACA; all for abortion bans; and against immigration, especially when it involves Muslims. Needless to say she has a huge problem with allowing people to smoke pot, even if a majority is in favor. ---
**Author:** ![JaneDoe42](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/janedoe42/32/14104_2.png) [@JaneDoe42](https://boards.straightdope.com/u/JaneDoe42)\ **Post date:** [February 9, 2021, 6:46am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/11 "2021-02-09T06:46:54Z")
Pot was legal/tolorated until Prohibition. White folks had their moonshine and speakeasies, black folks only had their blues clubs…soda only. But they smoked that wacky tobaccy and seemed to be having fun. Can’t let those black boys be having no fun so lets cut our noses off our faces and make all forms of hemp and cannabis felonies. AZ voted to make MMJ legal 10 years ago, but it wasn’t passed until the PTB were sure that we the people really, really understood what we were voting for, cause we are all children who need to be protected from that evil weed. Besides, brown skinned people like it too. Very bad. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [February 9, 2021, 7:21am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/12 "2021-02-09T07:21:24Z")
Yes, the notoriety of cannibis can largely be traced to one **[Harry “Reefer Madness” Anslinger](https://en.wikipedia.org/wiki/Harry_J._Anslinger)**, who needed something to be opposed to after Prohibition. The fact that Blacks were prominent users was convenient since Anslinger was a raging racist even by the standards of his time. He promoted the use of the term “marijuana” because it had a foreign connotation that made it seem even more evil. It supported his narrative that it was a dangerous narcotic from a foreign hellhole that drove its users to insanity and murder, a view that I’m sure the good Republican governor of South Dakota still holds today. ---
**Author:** ![nelliebly](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nelliebly/32/5422_2.png) [@nelliebly](https://boards.straightdope.com/u/nelliebly)\ **Post date:** [February 9, 2021, 7:36am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/13 "2021-02-09T07:36:35Z")
Something is rotten in Pierre, and it has to do with legal fees. The legal fees of the four voters who were granted permission by a judge to intervene in the lawsuit are oaud for by South Dakotans for Better Marijuana laws, which has raised money by appeals to South Dakotans. But the legal fees for Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Rick Miller, who filed the lawsuit to block the amendment, are a murkier matter. Noem approved state funds to pay for Miller’s legal fees. A spokesperson for the Sheriff’s office, who is also a state senator originally appointed by Noem, says no taxpayer money is going toward Thom’s legal fees but declined to say where the money is coming from. [[source](https://rapidcityjournal.com/news/local/crime-and-courts/marijuana-supporters-say-in-court-filing-that-voiding-amendment-a-would-overturn-will-of-the/article_d7e2447b-ea90-557e-be5c-6122d76c0411.html)] Doesn’t the governor authorizing state funds to pay for the legal fees of someone filing a lawsuit seem ethically dubious? As I understand it, Miller and Thom were not filing the lawsuit on behalf of the State. I’m also wondering why Miller gets his legal fees paid and Thom does not. And who _is_ paying Thom’s legal fees? ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [February 9, 2021, 9:53am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/14 "2021-02-09T09:53:56Z")
I’ve had a look at the South Dakota constitution and the text of the ballot initiative. Generally I’m not in favor of courts getting in between the voters and the law, and generally I’m in favor of single-issue legislation, but for me the winning position is that generally, … if the people of South Dakota wish to change the law on recreational use of marijuana, they should vote for a government and legislature that will do that. It looks like the ballot initiative was an attempt to run around behind and defeat the people who elected representatives, and there was no more inherent legitimacy in that attempt than there was in blocking it. If the text was the kind of thing that might fit well in a constitution, or if the constitution was the kind of thing that included lots of different laws, I’d think different. In this case, although I’m generally in favor of liberalization, and generally opposed to court involvement, I have to reluctantly concede that the initiative was both bad and anti-democratic, and permitting it would have been an abuse of process. ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [February 9, 2021, 9:58am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/15 "2021-02-09T09:58:08Z")
> [@Melbourne](#): > > … if the people of South Dakota wish to change the law on recreational use of marijuana, they should vote for a government and legislature that will do that. > > It looks like the ballot initiative was an attempt to run around behind and defeat the people who elected representatives, and there was no more inherent legitimacy in that attempt than there was in blocking it. And how are the people who voted for the ballot initiative different from the people who elected representatives? How is direct democracy _less_ an expression of the will of the people (and _less_ “democratic”) than representative democracy? ---
**Author:** ![Melbourne](https://avatars.discourse-cdn.com/v4/letter/m/b5e925/32.png) [@Melbourne](https://boards.straightdope.com/u/Melbourne)\ **Post date:** [February 9, 2021, 10:19am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/16 "2021-02-09T10:19:21Z")
> [@Gyrate](#): > > And how are the people who voted for the ballot initiative different from the people who elected representatives? How is direct democracy _less_ an expression of the will of the people (and _less_ “democratic”) than representative democracy? And how is the ballot initiative _more_ of an expression of the will of the people, and how is an election _less_ democratic? Since I don’t see a clear winner there, I’m going with what I said about the constitution and the text: I think it was bad. I think that it’s valuable to follow the forms of constitutional government, and not to try and legislate by constitutional change, because I think that constitutions and government are difficult. As illustrated here, were a bad and inappropriate change to the constitution was passed, but also in general. As I mentioned above, I’ve got opinions about different parts of this situation, but I don’t think that the supporters of the ballot initiative have a monopoly on morality and justice: they’re contenders in the political process, and they’ve been temporarily blocked by a different aspect of the same system they sought to exploit. ---
**Author:** ![Gyrate](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gyrate/32/3588_2.png) [@Gyrate](https://boards.straightdope.com/u/Gyrate)\ **Post date:** [February 9, 2021, 10:53am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/17 "2021-02-09T10:53:34Z")
> [@Melbourne](#): > > And how is the ballot initiative _more_ of an expression of the will of the people, and how is an election _less_ democratic? Well, for starters, a _direct democratic vote on a specific issue_ will always be more indicative of the voters’ views on that issue than electing representatives whose views may broadly align with those voters but whose views on that specific issue may not. Direct democracy is inherently more reflective of the “will of the people” (at that moment) than representative democracy. It’s also incredibly unwieldy on a regular basis which is why representative democracy is the default but nonetheless a ballot initiative where you ask people what they think about something will give you a better reflection of what they think of that thing than asking a representative what they think the people think of that thing. How could it not? There are certainly issues with ballot initiatives but calling them “anti-democratic” is pretty much the opposite of reality. On the other hand, claiming that ballot initiatives “exploit the system” and “run around behind and defeat the people who elected representatives” _is_ pretty anti-democratic. ---
**Author:** ![wolfpup](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/wolfpup/32/10618_2.png) [@wolfpup](https://boards.straightdope.com/u/wolfpup)\ **Post date:** [February 9, 2021, 11:37am UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/18 "2021-02-09T11:37:05Z")
> [@Gyrate](#): > > There are certainly issues with ballot initiatives but calling them “anti-democratic” is pretty much the opposite of reality. I agree. Ballot initiatives are not always a good way to govern, but they _ **are** _ the ultimate expression of direct democracy. This strikes me as an activist attempt to find reasons to enforce a predetermined ideology. If a bunch of legislation is needed to implement the clearly expressed will of the people, then the appropriate response is to pass such legislation, not to quash the referendum and pretend it never happened. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [February 9, 2021, 3:27pm UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/19 "2021-02-09T15:27:15Z")
> [@eschrodinger](#): > > The single subject rule makes sense to me It does, as long as the concept of “single subject” isn’t so narrowly defined as to prevent any constitutional amendment from passing muster. Marijuana legalization touches multiple aspects of government because EVERYTHING touches multiple aspects of government. In this case, the single subject is marijuana, it isn’t MJ plus alcohol, or MJ plus Covid relief, or MJ plus income tax, it’s MJ and how the government should be involved with MJ. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [February 9, 2021, 3:36pm UTC](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490/20 "2021-02-09T15:36:42Z")
I’ve just read the decision in this case. You can find it [here](https://assets.documentcloud.org/documents/20475266/memorandum-decision65193.pdf) (PDF). The relevant constitutional analysis starts on page 6. The decision gets into some rather arcane discussion of the SD constitution, and how to assess whether an amendment covers a “single subject.” The analysis covers other cases where this issue has been raised, and notes that the “single subject provision should not be construed narrowly or technically in all cases.” The judge then discusses the amendment and explains why it is too broad to encompass a single subject. There is also discussion of the difference between and amendment and a revision to the constitution. These two things are defined separately in the SD constitution. The judge concludes that “Amendment A provides far-reaching changes to the nature of South Dakota’s governmental plan and is therefore a revision,” and not an amendment. A revision to the constitution requires that the measure be “submitted to the voters through the constitutional convention process,” and not passed as a ballot measure. I’m not a constitutional lawyer, and I’m definitely not an expert on the South Dakota Constitution, but there is quite a bit of logic to the argument made by the judge in this decision, at least in my lay opinion. After all, look at the language that this amendment would have added to the SD constitution. Click on the Summary arrow; I’ve hidden it because it’s so long. > **Summary** > > > [@](#): > > > > § 1. Terms used in this article 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 article, this article 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 arc licensed by the department for consumption; > > (10) Consumption of marijuana as part of a criminal penalty 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 article, this article does not > > > > ``` > > (1) Require that an employer permit or accommodate conduct allowed by this article; > > (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 article 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 article within a building owned, leased, or occupied by the state or the local government. > > > > ``` > > > > § 4. Subject to the limitations in this article, 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 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 pursuant to this article. marijuana is available for purchase pursuant to this article. > > > > (3) Assisting another person who is at least twenty-one years of age, or allowing the 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 article, 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. > > > > (2) A person who, pursuant to §4 of this article, cultivates marijuana 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 article, cultivates marijuana plants within the jurisdiction of a local government where marijuana is available for purchase at a licensed retail store is subject to a civil penalty not exceeding two-hundred and fifty dollars, unless the cultivation of marijuana plants is allowed through local ordinance or regulation pursuant to § 10. > > > > (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 exclusive 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 article. 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; > > (4) Licenses permitting retail sales outlets to sell and deliver marijuana to consumers. > > > > ``` > > > > § 7. Not later than April 1, 2022, the department shall promulgate rules and issue regulations necessary for the implementation and enforcement of this article. 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 article; > > (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 article. > > > > ``` > > > > § 8. In determining the appropriate number of licenses to issue, as required under this article, 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 licensees 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 licensees 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. A holder of a professional or occupational license is not subject to professional discipline for providing advice or services related to marijuana licensees or applications 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 and §4(2)(b) and the other requirements of this article. 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 article. > > > > § 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 article to a consumer. The Legislature may adjust this rate after November 3, 2024. 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 article. Fifty percent of the remaining revenue shall be appropriated by the Legislature for the support of South Dakota public schools and the remainder shall be deposited into the state general fund. > > > > § 12. Any rule adopted by the department pursuant to this article must comply with chapter 1-26 of the South Dakota Codified Laws. Any person aggrieved by a decision of the department is entitled to appeal the decision in accordance with chapter 1-26 of the South Dakota Codified Laws. If by April 1, 2022, the department fails to promulgate rules required by this article, or if the department adopts rules that are inconsistent with this article, any resident of the state may commence a mandamus action in circuit court to compel performance by the department in accordance with this article. > > > > § 13. 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 article, and a statement of taxes collected in accordance with this article, and an accounting for how those revenues were disbursed. > > > > § 14. Not later than April 1, 2022, the Legislature shall pass laws to: > > > > ``` > > (1) Ensure access to marijuana beyond What is set forth in this article by persons who have been diagnosed by a health care provider, acting within the provider's scope of practice, as having a serious and debilitating medical condition and who are likely to receive therapeutic or palliative benefit from marijuana; and > > (2) Regulate the cultivation, processing, and sale of hemp. > > > > ``` > > > > § 15. This article shall be broadly construed to accomplish its purposes and intents. Nothing in this article purports to supersede any applicable federal law, except where allowed by federal law. If any provision in this article 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 article that can be given effect without the invalid or unconstitutional provision or application, and to this end the provisions of this article are severable.[8] The addition is well over 2,000 words. The whole United States Constitution (before amendments) is only about 4,500 words. The SD measure reads much more like legislation than a constitutional provision to me. And I say that as someone who strongly supports marijuana legalization. In terms of outcomes, I’d like the SD Supreme Court to overrule this decision and keep the legalization measure in place, but I’m also not sure that the judge’s decision was indefensible. What they probably should have done, and probably should do in future, is write the amendment much more in the manner of a broad amendment, something like: > [@](#): > > Section 1: > > The growth, possession, use, and sale of marijuana, hemp, and other products of the cannabis plant shall be legal in the state of South Dakota. > > Section 2: > > The legislature shall have the power to regulate and tax the use of cannabis products, provided that no regulation of cannabis products restricts the use of such products by people over the age of 18 years on private property. > > Section 3: > > The amendment shall take effect on July 1, 2021. I’m sure there are better ways to write it, but you get the idea. [Next page](https://boards.straightdope.com/t/south-dakotas-marijuana-ballot-initiative-passed-but-is-being-blocked-by-a-judge/932490.md?page=2)