A coalition of South Dakota House lawmakers on Tuesday agreed to revive a bill to legalize marijuana one day after a committee soundly defeated it, using a legislative maneuver known as a “smoke out” to bring the legislation to the floor.
The Senate passed SB 3 last week, but it seemed all but certain that it would no longer advance following a defeat in the House State Affairs Committee on Monday. Activists didn’t give up the fight, however, and rallied 24 members of the House to bring the issue to the floor despite the committee setback.
BARELY has enough, now he’ll need a few more to calendar it. SB 3 is still alive right now pic.twitter.com/GxGPGXk6s1
— Austin Goss (@AustinGossSD) March 1, 2022
House Speaker Spencer Gosch (R) requested that members wishing to revive the legalization bill stand up. When enough members stood, he quipped that “we just smoked out a weed bill.”
Senate Bill 3, legal recreational marijuana, was just smoked out on the House floor. Speaker of the House Spencer Gosch said the motion just made the threshold and told the floor "we just smoked out a weed bill."
— Eric Mayer (@Mayer2241) March 1, 2022
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. While activists are still holding out hope that the reform can be enacted legislatively, they’re keeping the option open to go to the ballot again this November if lawmakers fail to act.
“This is an encouraging outcome today,” Matthew Schweich, director of South Dakotans for Better Marijuana Laws (SDBML), told Marijuana Moment. “It’s clear that members of the South Dakota House of Representatives are listening to their constituents who are demanding that the will of the people be restored.”
Now, House floor action on the Senate-passed bill is expected to happen on Wednesday, and it would require a simple majority of 36 votes to pass the chamber.
SB 3 (recreational marijuana) has been smoked out of the House, bringing life back to the bill and allowing it to be re-voted on. The SD Legislature still has the opportunity to follow the will of the people. pic.twitter.com/yUU5hckREb
— SD Democratic Party (@SoDakDems) March 1, 2022
The legislation, sponsored by Sen. Michael Rohl (R), would allow adults 21 and older to purchase and possess up to one ounce of cannabis from licensed retailers.
Home cultivation would not be permitted, however, unlike under a ballot measure that activists have been collecting signatures for.
The state Department of Revenue would be 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.
Monday’s House committee hearing did deliver a secondary defeat for reform advocates, however. The panel axed a separate Senate-passed bill dealing with marijuana penalties and initial rules that would have been put into place if voters approved legalization on the ballot, 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 was gutted in committee, replaced the 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 perviously defeated attempts to advance SB 20 several times this session, but its proponents continue to find new ways to revive its language. Schweich said on Tuesday that activists will fight back against the revised proposal again on the House floor when it is taken up on, which is expected on Wednesday.
Separately, the House rejected a separate 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’s most important, they say, is passing SB 3 to enact the broader reform.
Activists welcome the opportunity to work with the legislature to develop a framework to regulate adult-use marijuana, but they’re also keeping their options open.
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.
Photo courtesy of Philip Steffan.