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South Dakota House Rejects Marijuana Legalization Bill That Was Temporarily Revived In ‘Smoke Out’ Vote



The South Dakota House on Thursday rejected a bill to legalize marijuana that had been temporarily revived after a committee defeat earlier this week. Now, activists are moving ahead with an effort to put legalization before voters again this November.

Meanwhile, the House defeated separate legislation to gut existing protections for medical cannabis patients.

It’s been a wild ride for the legalization proposal, SB 3, which had already passed the Senate last week. But then the House State Affairs Committee voted against the proposal on Monday, which typically would have spelt death for the legislation for the session. However, 24 members rose on Tuesday to put give the bill new life on the floor despite the committee action, a legislative maneuverer that is by pure coincidence known as a “smoke out.”

But even after the legislative about-face, the House on Thursday ultimately voted 28-40 not to formally calendar the bill, effectively killing it for the session.

Just before the vote, Rep. Greg Jamison (R) urged colleagues to give the body a chance to debate the legislation.

“All of South Dakota voted on this issue. The entire Senate body voted on this issue,” he said. “Today is our chance to complete the cycle of this issue.”

South Dakota voters already approved legalization during the 2020 election, but the reform was struck down by the state Supreme Court following a challenge from the governor’s office. Activists decided to take a two-track approach to the reform in 2022, both working with legislators for a legislative reform while separately collecting signatures for a ballot initiative if lawmakers failed to act.

“We are disappointed by this outcome but we are not surprised,” Matthew Schweich, campaign director of South Dakotans for Better Marijuana Laws (SDBML), said after the House vote. “We have long been aware of the fact that most politicians in Pierre do not respect the opinions of their constituents when it comes to cannabis policy.”

“We will continue our signature drive and put legalization back on the ballot this November,” he said. “And we will win for a second time. We’ve done it before, we’ll do it again.”

SB 3, sponsored by Sen. Michael Rohl (R), would have allowed adults 21 and older to purchase and possess up to one ounce of cannabis from licensed retailers.

Home cultivation would not have been permitted, however, unlike under a ballot measure that activists have been petitioning for.

The state Department of Revenue would have been responsible for regulating the adult-use program and promulgating rules related to issues such as transportation and registration.

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A Marijuana Interim Study Committee, headed by legislative leaders, was established last year to explore the issue, and the panel ultimately recommended that the legislature take up legalization this session. This legislation was one of the direct products of that recommendation.

Also on Thursday, the House defeated a separate bill, SB 150, that was originally meant to deal with marijuana penalties and initial rules that would have been put into place if voters approved legalization on the ballot. The House State Affairs Committee gutted that legislation on Monday, replacing it with language that advocates view as hostile.

As drafted and passed in the Senate, the licensing provisions of the measure would have made it so only existing business that currently hold liquor licenses would be eligible to enter the marijuana market. That would have included places like gas stations, grocery stores and bars.

But the language replaced by the panel with provisions from two separate bills, SB 20 and SB 16.

SB 20 would eliminate certain legal protections for medical cannabis patients under a program that voters approved in 2020, while SB 16 would expand police authority to conduct searches and make prosecutions for people who work at licensed medical cannabis facilities. That authority was reserved to regulators under the bill as drafted, and certain members argued that police need to have that ability given the absence of trained investigators in the Department of Health.

Advocates have defeated several attempts to advance SB 20 several times this session, the latest on Thursday in its new vehicle.

Separately, the House rejected another bill last week that would have established a tax policy if recreational marijuana became legal, setting an overall 15 percent tax on cannabis just as was prescribed under the voter-approved 2020 initiative.

Activists viewed that defeat as a setback, but clarified that the measure itself would not have legalized adult-use cannabis. What was most important, they said, was passing SB 3 to enact the broader reform.

Advocates had welcomed the opportunity to work with the legislature to develop a framework to regulate adult-use marijuana, but they also kept their options open in case that didn’t pan out.

To that end, SDBML is actively collecting signatures to place legalization on the state’s 2022 ballot as lawmakers navigate the issue.

The campaign’s 2020 success at the ballot was overruled by the state Supreme Court as a result of a legal challenge funded by Gov. Kristi Noem’s (R) administration. The court ruled that the measure violated a single-subject rule for ballot initiatives.

While the House has proved to be a clear obstacle to enacting legalization, Noem represents another barrier. She declined to rule out vetoing the legalization legislation on the day it passed the Senate last week. She also confusingly questioned voter support for the reform despite the fact that they approved it at the polls two years ago.

Noem’s office also recently suggested that the activists behind that voter-approved initiative should pay the legal fees of the lawsuit that invalidated the will of voters—a proposal that the campaign called “ridiculous.”

While a recent poll found that most South Dakota voters approve of Noem’s job performance overall, just 39 percent approve of her handling of marijuana legalization, with 51 percent disapproving. The governor is up for reelection this year.

Noem has consistently faced criticism from advocates and stakeholders over her early opposition to cannabis reform.

She released an ad ahead of last year’s election urging residents to vote against the legalization initiative that ultimately passed, 54-46 percent.

Lately, however, the governor seems committed to associating herself with the implementation of a separate medical cannabis legalization initiative that voters also overwhelmingly approved last year, despite having opposed the proposal in the run-up to the election.

After regulators approved rules for the medical marijuana program in September, Noem said her administration “is fully on board to make certain South Dakota continues to implement the most responsible, patient-focused medical cannabis program in the country.”

Noem tried to get the legislature to approve a bill to delay implementation of the medical cannabis program for an additional year, but while it cleared the House, negotiators were unable to reach an agreement with the Senate in conference, delivering a defeat to the governor.

In response, her office started exploring a compromise last year, with one proposal that came out of her administration to decriminalize possession of up to one ounce of cannabis, limit the number of plants that patients could cultivate to three and prohibit people under 21 from qualifying for medical marijuana.

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Photo courtesy of Chris Wallis/Side Pocket Images.

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