Since the 2018 mid-term election, the momentum for legalized marijuana has been like a tidal wave that builds strength as it hurls towards the coast. This was also reaffirmed in the election last November, in which several marijuana electoral initiatives received enough votes to pave the way for some form of legalization. Indeed, there is a strong belief that federal legalization (or at least decriminalization) in 2021 is a very real possibility. However, South Dakota Circuit judge Christina Klinger is here to remind you that not everyone is for legalized marijuana.
In the first clear victory for anti-marijuana opponents after the recent election, Judge Klinger believed that the South Dakota constitutional amendment to legalize recreational marijuana, which passed with 54% of the vote, was unconstitutional because it violated the one-subject rule of South Dakota. This rule states that a constitutional amendment approved by an electoral initiative can only ask voters to consider one topic at a time. Judge Klinger found that the change broke the rule by including provisions that went beyond the sole question of whether recreational marijuana should be legalized. According to Klinger, the change is unconstitutional as it also imposed a sales tax, directed lawmakers to legalize hemp, and protected lawyers and other professionals advising the cannabis industry against sanctions. In particular, Klinger wrote “[a]The division of the revenue from an excise tax on marijuana sales, the prohibition of disciplining its members by different professions, and the inclusion of a provision forcing lawmakers to pass hemp different from marijuana are not part of the “single system “To legalize marijuana. “Judge Klinger went so far as to state that the amendments proposed by the amendment were so broad that they were a revision of the constitution – not an amendment – and would therefore require the approval of a majority of state legislators in a constitutional convention.
The fight is likely not over yet as the South Dakotans for Better Marijuana Laws – the group behind the electoral initiative – have announced they will appeal the decision. In addition, it should be noted that this decision will only affect the electoral initiative related to recreational cannabis legalization, and not medical marijuana legalization in South Dakota. Opponents of marijuana, however, believe Judge Klinger got it right and that marijuana advocates are pooling legalization efforts along with provisions on taxes and public goods financing that confuse voters and affect election results. This is a topic for another post, but it shows where the opponents are coming from and how they plan to attack the ballot legalization efforts.
Judge Klinger’s decision should remind the entire cannabis industry that there is still a long way to go before recreational marijuana is considered a mainstream industry like alcohol. While the results at the November ballot box were promising, fights are taking place in courtrooms to reverse those results. We will closely monitor the lawsuits filed in Montana and Mississippi to determine whether Judge Klinger’s decision is a one-off decision or the beginning of a significant hurdle for the cannabis industry.