South Dakota legislators debate path forward on marijuana

Published: Feb. 9, 2021 at 10:39 PM CST
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PIERRE, S.D. (KOTA) - After Hughes County judge Christina Klinger ruled against the legality of Amendment A, lawmakers are now left to wonder how they should approach the issue of marijuana moving forward.

The decision all but cemented the chance that the lawsuit will eventually head to the South Dakota Supreme Court. However, it is unlikely that there will be a decision regarding that case prior to the end of the South Dakota legislative session in late March.

There have been at least ten cannabis related bills filed since the start of the state legislative session.

Lawmakers have expressed frustration with the process of trying to advance those bills.

“The real question I have in the back of my mind, is maybe our state motto is wrong” said State Representative Michael Rohl (R-Aberdeen). “I always thought it was ‘Under God the People Rule,’ I didn’t think it was under God the courts ruled.” Rohl is sponsoring legislation that would expunge marijuana related crimes from a background check record.

Although the wind is out of the sails right now for Amendment A advocates, this is just the first round of a heavy weight fight.

“The single subject rule on legislation has been interpreted pretty broadly,” said Neil Fulton, USD Knudson School of Law Dean. “Judge Klinger applied the reasonably germane test, and determined this was not reasonably germane because it dealt with hemp, marijuana, and went beyond legalization and into regulation. I think her reasoning was well done, but it was a little bit surprising to me. I kind of thought it would come out the other way.”

Fulton speculates that if the Amendment A decision was held up at the South Dakota Supreme Court, it is likely that a more straightforward, condensed version of it would be proposed in the near future.

“I don’t think this is done, clearly you had a majority of voters who supported generally legalized marijuana. I would expect as a political matter, this is coming back.”

If Amendment A were to meet its demise at the state supreme court level as well, legislators on both sides of the aisle have not ruled out the prospect of attempting to pass marijuana legalization through legislation.

“What happened yesterday (the lawsuit verdict) does change my view,” said State Senator Arthur Rusch (R-Vermillion). “Clearly, that was based on procedural defects in what they did. With that, the underlying vote of the people to approve this is still overwhelmingly shown. In light of that, my sense in talking to other senators is that the senators want to move forward with some kind of proposals as far as carrying out the wishes of the people.”

If recreational marijuana legislation were to be proposed in the state legislature, it is more likely it would come from the senate. It would face a steep uphill battle in the state house, and if it were to pass there, it would likely be vetoed by Governor Kristi Noem.