Politics
South Dakota Police File Lawsuit To Overturn Voter-Passed Marijuana Measure

Two law enforcement officials in South Dakota are asking a judge to throw out a marijuana legalization measure that state voters approved this month, filing a court challenge that appears to have the backing of Gov. Kristi Noem (R) and is being paid for at least partially with state funds.
Pennington County Sheriff Kevin Thom and state Highway Patrol Superintendent Col. Rick Miller sued on Friday. The lawsuit seeks to declare all ballots cast for or against Amendment A null and void and invalidate the changes it makes to the state Constitution.
âIâve dedicated my life to defending and upholding the rule of law,â Thom said in a press release. âThe South Dakota Constitution is the foundation for our government and any attempt to modify it should not be taken lightly. I respect the voice of the voters in South Dakota, however in this case I believe the process was flawed and done improperly, due to no fault of the voters.â
The challenge, filed in stateâs Sixth Judicial Circuit Court, attempts to overturn Amendment A, which won just over 54 percent of the vote on Election Day, on what some might see as a technicality. It claims that because the marijuana legalization question, a constitutional amendment, covers multiple issuesâincluding the legalization and regulation of marijuana for adults 21 and older, as well as the regulation of medical cannabis and hempâit violates a 2018 requirement that âno proposed amendment may embrace more than one subject.â
In all, the challenge claims the constitutional amendment contains at least five distinct subjects involving the legalization and regulation of various forms of cannabis. Rather than package those subjects into a single proposed amendment, the challenge argues, organizers needed to split them into separate questions on the ballot.
âA major purpose of the one-subject rule is to avoid requiring voters to accept part of a proposed amendment that they opposed in order to obtain a change in the Constitution that they support,â the complaint says, âresulting in votes that do not accurately reflect the electorateâs approval of the proposed amendment.â
A challenge along similar lines removed a medical marijuana legalization measure from Nebraskaâs ballot in September, when the Nebraska Supreme Court ruled that the proposed constitutional amendment violated that stateâs single-issue rule.
South Dakota has had the single-subject requirement in place since voters passed a 2018 constitutional amendment on the issue.
âOur constitutional amendment procedure is very straightforward,â said Miller of the South Dakota Highway Patrol. âIn this case, the group bringing Amendment A unconstitutionally abused the initiative process. Weâre confident that the courts will safeguard the South Dakota Constitution and the rule of law.â
The law enforcement officials’ complaint also argues that the legalization measure was not properly constitutionally ratified. “The proponents of Amendment A failed to follow that basic textual requirement,” their press release says.
The group behind the South Dakota legalization measure said over the weekend that its legal team is reviewing the lawsuit and developing a strategy that it will share soon.
âWe are prepared to defend Amendment A against this lawsuit,” South Dakotans for Better Marijuana Laws said in a statement. “Our opponents should accept defeat instead of trying to overturn the will of the people. Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.â
The group said it will be moving to formally intervene in the lawsuit this week, which it said was “filed incorrectly under South Dakota law, as a ‘contest’ to an election.”
“The complaint has nothing to do with the manner in which the election was conducted and only relates to the text of Amendment A,” the pro-legalization organization said of the single-subject dispute. “But anyone who reads Amendment A can see that every word relates to the cannabis plant.”
The police lawsuit’s claims on procedural grounds are a “manufactured distinction” that is “unsupported in the law and is utterly insufficient as a basis for overturning a constitutional amendment approved by voters,” South Dakotans for Better Marijuana Laws said.
State money is funding an unspecified portion of the lawsuit, the Rapid City Journal reported on Friday, citing a spokesperson for Noem. “The governor approved this because she took an oath to support and defend the Constitution. This is part of her duty as governor,â Ian Fury told the paper.
Private lawyers are representing the officials.
In the days after the election, the governor said she âwas personally opposed to these measures and firmly believe theyâre the wrong choice for South Dakotaâs communities.â
âWe need to be finding ways to strengthen our families,â Noem said, âand I think weâre taking a step backward in that effort.â
In a statement to the Rapid City Journal on Friday, she said sheâs eager to see the challenge go to court.
âIn South Dakota we respect our Constitution,â Noem said. âI look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.â
The case doesn’t seek to challenge the separate statutory medical cannabis ballot measure that voters also approved this month.
A handful of other legal challenges are in the works across the U.S. after voters approved every major marijuana and drug reform measure on state ballots on Election Day.
In Mississippi, where voters legalized marijuana for medical use, the mayor of the city of Madison asked the state Supreme Court to invalidate the measure on procedural grounds, arguing it was improperly put before voters. But unlike in South Dakota, Mississippi state officials are siding with voters.
âEven if their interpretative argument is correct, petitionersâ action is woefully untimely,â says a filing made earlier this month by the secretary of state and attorney general, who are defending the law in court. âThey could have asserted their so-called âproceduralâ challenge years ago.â
State officials said the high court âshould deny petitionersâ requested relief and dismiss their petition.â
In Montana, meanwhile, the group Wrong for Montana is suing to overturn a cannabis legalization measure passed by 56.9 percent of state voters. In that suit, plaintiffs argue the measure unconstitutionally involved the appropriation of state funds.
Separately, some Montana lawmakers had planned to undo the legalization law through a bill in the state legislature, but the leader of that effort, Rep. Derek Skees (R) backed away from that plan after noting the measureâs wide margin of victory.
âThe only branch of government in this state dumb enough to overturn citizensâ initiative is the [state] Supreme Court, which has done it repeatedly,â he said.
Read the full lawsuit against South Dakota’s marijuana legalization law below:
South Dakota Marijuana Lawsuit by Marijuana Moment
Teen Marijuana Treatment Admissions Fell Sharply In States That Legalized, Federal Report Shows
Photo elements courtesy of rawpixel and Philip Steffan
Politics
Marijuana Use Won’t Automatically Block People From Federal Jobs, Biden Administration Memo Says

Admitting to past marijuana use should not automatically disqualify people from being employed in the federal government, the Office of Personnel Management (OPM) said in a memo distributed to agencies on Thursday. Separately, the Biden administration is instituting a new policy of granting waivers to some White House staff who’ve used cannabis.
While the extent and recency of an applicant’s use can still be factors in making employment decisions, OPM said that simply admitting to prior cannabis consumption doesn’t necessarily mean a person lacks the “suitability or fitness for a position,” as long as they commit to not use marijuana while employed.
“It would be inconsistent with suitability regulations to implement a policy of finding an individual unfit or unsuitable for federal service solely on the basis of recency of marijuana use,” Acting OPM Director Kathleen M. McGettigan wrote. “Past marijuana use, including recently discontinued marijuana use, should be viewed differently from ongoing marijuana use.”
This government-wide development comes as NBC News is separately reporting that President Joe Biden’s administration will be granting waivers for certain officials in the White House’s Executive Office of the President who have used cannabis. Again, the extent of the person’s past use can influence whether they obtain a waiver, and they must pledge to stop consuming marijuana.
“As more state laws have changed, federal agencies are increasingly encountering individuals whose knowledge, skills, and abilities make them well-qualified for a position, but whose marijuana use may or may not be of concern when considering the suitability or fitness of the individual for the position,” says the new OPM memo, which applies to most federal workers except for those dealing with classified information or who are employed in a sensitive national security position.
There are statutory considerations that agencies must still take into account, including two factors that “could be implicated by an individualâs use or possession of marijuana.” Illegal use of controlled substances without “evidence of substantial rehabilitation” is one, OMP said, and the other is “criminal or dishonest conduct.”
“However, OPMâs suitability regulations do not permit agencies to automatically find individuals unsuitable for federal employment based on either factor,” it continues. “Rather, when agencies consider the suitability or fitness of an applicant or appointee for a position, the individualâs conduct must be evaluated on a case-by-case basis to determine the impact, if any, to the integrity and the efficiency of the Government.”
“Even where an individual has illegally used marijuana without evidence of substantial rehabilitation, agencies cannot find an individual unsuitable unless there is a nexus between the conduct and the ‘integrity or…efficiency of the service,'” the memo says.
This is a notable development that recognizes the reality that more states continue to legalize cannabis for medical and recreational purposes, and people who have used marijuana shouldn’t be discriminated against, even if it remains illegal under federal law.
Biden might continue to be opposed to adult-use legalization, but he does support other reforms like legalizing for medical use, decriminalizing possession, expunging prior records, modestly rescheduling the plant and letting states set their own policies. And regardless of where he stands, the fact remains that many Americans have used cannabis, meaning the administration would likely face hiring challenges if they imposed a blanket ban.
With respect to the White House policy that NBC reported, an official said that the guidelines “effectively protect our national security while modernizing policies to ensure that talented and otherwise well-qualified applicants with limited marijuana use will not be barred from serving the American people.â
There is one somewhat odd stipulation for White House workers who say they’ve used marijuana and receive a waiver. Depending on how recent that use was, they may be asked to work remotely for some amount of time, for unspecified reasons. They must also be subject to random drug testing.
Read the OPM memo on marijuana use and job eligibility below:Â
Memo Assessing Suitability … by Marijuana Moment
IRS Chief Says Agency Would ‘Prefer’ If Marijuana Businesses Could Pay Taxes Electronically
Photo courtesy of Mike Latimer.
Politics
Washington Supreme Court Strikes Down Criminalization Of Drug Possession

Washington Stateâs felony penalties against drug possession abruptly disappeared on Thursday after the state Supreme Court struck down the law as unconstitutional. As lawmakers decide how to respond to the decisionâwith a bill to decriminalize all drugs having already passed a legislative committee earlier this monthâsome police departments and prosecutors have now announced theyâll no longer arrest or pursue cases against people over possession of small amounts.
Simple drug possession âis no longer an arrestable offense,â the Seattle Police Department said in a public statement following the ruling. âEffective immediately, officers will no longer detain nor arrest individualsâ merely for having drugs.
The ruling in the case, State v. Blake, applies only to possession of controlled substances. Other state drug laws, such as those against selling or driving under the influence of drugs, are unaffected.
Meanwhile, according to The Associated Press, the Washington Association of Prosecuting Attorneys sent a memo directing its members to drop ongoing drug possession cases and seek orders vacating convictions for past cases.
“While the legislature can change this prospectively (such action is doubtful), police officers must immediately stop making arrests for simple possession of drugs,” an official with the prosecutors group wrote in an email to Seattle police. “No search warrants. No detentions upon suspicion of simple possession awaiting canine units, etc.”
“You will need to advise your officers as to whether officers should still seize the unlawful drugs as contraband or leave them in possession of the individual,” the email continued.
BREAKING: @SeattlePD has been ordered to stop arresting criminals in possession of drugs.
Washington State Superior Court ruled today that arresting those in possession of drugs is âunconstitutional.â
This is the start of drug legalization in the state of WA. pic.twitter.com/nrqIOjdRVh
— Katie Daviscourtđșđž (@KatieDaviscourt) February 25, 2021
Pacific County Prosecutor Ben Haslam told The Chinook Observer that the ruling “has come as a shock to our office.”
âOn the prosecutorâs officeâs end, we are preparing to request the immediate release of individuals being held in custody only for simple-possession cases,â he said. âNext, we will have to quash all active warrants on pending possession cases. Moving forward, I expect we will be required to vacate charges for individuals previously convicted of possession, and Iâm sure there will be many other ramifications as well.â
How long Washingtonâs de facto legalization of drug possession will last is an open question. The court struck down the stateâs possession law over a single issue: the statute failed to require proof a defendant knowingly possessed the drugs, allowing people to be convicted without any intention of committing a crime.
In response, lawmakers could simply replace the old law with a new one that includes such a requirement. Or they could not.
The idea of reducing or removing criminal penalties for simple drug possession is growing in popularity, with Oregon voters recently replacing penalties for possession of any drug with a $100 civil fine or referral to a health assessment. A bill introduced in Washingtonâs legislature earlier this year would make similar changes, removing all penalties for possession of personal-use amounts of drugs and significantly expanding state funding for outreach, treatment and recovery services.
The measure, HB 1499, passed a House panel earlier this month.
âTodayâs Supreme Court decision gives renewed urgency to the conversation about our stateâs response to untreated substance use disorder,â the billâs prime sponsor, Rep. Lauren Davis (D), told Marijuana Moment late Thursday. âIt presents an opportunity to continue the discussion that was begun in the legislature this session with HB 1499.â
The court decision accomplishes only part of Davisâs proposal. While one prong of her plan would decriminalize drugs, the other would create a âcontinuum of careâ to ensure access to drug treatment and recovery servicesâsomething Thursdayâs ruling does not do.
âIt is imperative that we stop handing down felony possession convictions that compound shame and create barriers to recovery. We must stop criminalizing symptoms of a treatable brain disease. Todayâs decision does that,â Davis said. âBut that alone is insufficient. It is equally important that we build out a response to substance use disorder that truly worksâa robust and fully funded continuum of care ranging from outreach to treatment to recovery support services.â
King County Prosecuting Attorney Dan Satterberg said lawmakers should act to address the court’s action.
“While there will be a significant amount of work necessary to comply with this ruling in the courthouses throughout the state, it is equally important that the Legislature take steps now to amend this statute to correct the defect found by the Supreme Court,” he said in a statement. “The Legislature should act with a sense of urgency to add the necessary elements to make this statute constitutional this session, and not leave a defective statute on the books.”
Justices on the court werenât necessarily setting out to legalize drugs when they undertook the case that led to Thursdayâs decision. Rather than taking aim at the broader drug war, the ruling says that Washingtonâs possession law unconstitutionally allowed innocent people to be charged and convicted by failing to require that a defendant knew that drugs were in their possession.
âThe possession statute at issue here does far more than regulate drugs,â the court wrote in a majority opinion by Justice Sheryl Gordon McLoud and signed by five of the courtâs nine members. âIt is unique in the nation in criminalizing entirely innocent, unknowing possession.â
The statute would criminalize a postal carrier who delivers a package containing unprescribed Adderall, the opinion says, as well as a roommate unaware the person they live with has hidden drugs in the common areas of the home.
âA person might pick up the wrong bag at the airport, the wrong jacket at the concert, or even the wrong briefcase at the courthouse,â it continues. âOr a child might carry an adultâs backpack, not knowing that it contains the adultâs illegal drugs.â
The defendant in the case, Shannon Blake, was charged with felony drug possession after police in 2016 found a small bag of methamphetamine in the coin pocket of her jeans. Blake, however, said she didnât use drugs and was given the secondhand jeans as a gift just two days earlier.
Because Washingtonâs drug law didnât require that defendants knowingly had drugs on their person, Blake was charged and convicted.
In rendering its decision Thursday, the Supreme Court vacated Blakeâs conviction.
The court’s prior interpretations of the law make the statute “criminalize innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess. The legislatureâs police power goes far, but not that far,” the justices determined. “Accordingly, RCW 69.50.4013(1)âthe portion of the simple drug possession statute creating this crimeâviolates the due process clauses of the state and federal constitutions and is void.”
Not all justices agreed the decision needed to be so sweeping. Justice Debra L. Stephens said in a separate opinion, which concurred in part and dissented in part with the majority, that the court could break from its past holdings and simply reinterpret the law to require proof that defendants knowingly broke the law. She agreed Blakeâs conviction should be thrown out but argued the possession law need not be scrapped in its entirety.
âI would overrule our erroneous precedent and, considering the main arguments actually briefed in this case, read an implied intent element into the drug possession statute,â Stephens wrote. âNearly every other state to have interpreted the model statute holds that it does [have such an element], and Blake urges us to embrace this interpretation.â
Three other justices signed a dissenting opinion, arguing that the court has interpreted Washingtonâs drug possession law for more than 60 years as not requiring an element of intentâand moreover, that the courtâs past decisions have respected the authority of lawmakers to âcriminalize conduct regardless of whether the actor intended wrongdoing.â
Itâs not entirely clear how many past cases might be affected by Thursdayâs ruling. Mark Middaugh, a lawyer who filed a friend-of-brief in the case on behalf of the Washington Association of Criminal Defense lawyers, told the Seattle Times that he believes the ruling could be applied retroactively, allowing anyone with a past conviction for simple drug possession to have that record thrown out.
A press release from the Washington Appellate Project, which represented Blake in the case, was comparatively understated. âWashington joins 49 other states and the federal government,â it said, âin recognizing that the unknowing possession of drugs is not a crime.â
Richard Lechich, a Washington Appellate Project staff attorney who argued the case before the Supreme Court, said justices âcorrectly recognized the injustice of convicting people for innocent conduct.â
âWhile the decision cannot rectify the harm this law caused to so many communities, particularly communities of color, it at least puts an end to it,â he said.
Lechich, however, warned Washingtonians to not to take advantage of the situation. While the possession law is off the books, he said, and some in law enforcement seem to be halting arrests and prosecutions, itâs still a risk to openly acknowledge having drugs.
âI would be very careful about that,â Lechich told Marijuana Moment. âCertainly if you were my client, I wouldnât advise you to do that.â
Washington Lawmakers Approve Drug Decriminalization Bill In Committee Vote
Photo courtesy of Markus Spiske
Politics
Disagreements Threaten Virginia Marijuana Legalization Deal As Deadline Approaches

Conference committee members are divided over a proposed delay in regulatory decisions until next session, but have reportedly settled on delaying legalization of cannabis possession in any case.
By Ned Oliver, Virginia Mercury
With a Saturday deadline approaching, state lawmakers in the House and Senate are still working to resolve differences over landmark legislation that would legalize recreational marijuana in Virginia.
As of Thursday evening, it was unclear whether the two chambers would be able to reach an agreement on the bill, which Gov. Ralph Northam (D) has made a priority in his final year in office.
At least one lawmaker privately doubted the legislation would pass. Others, however, remained optimistic even as they acknowledged negotiations had grown tense, suggesting a vote was possible as early as Friday.
According to five sources familiar with the talks, the primary point of contention is language sought by the Senate that would delay decisions about how the new market is regulated until next year. Members of the chamber said during hearings last month they felt the legislation was too expansive and complex to complete work on during the 45-day session.
Lawmakers in the House have resisted, arguing the delay is unnecessary, citing in-depth studies conducted by legislative analysts and Northamâs administration. House lawmakers have also expressed discomfort about voting to legalize the drug without finalizing plans for a legal marketplace, according to the sources, who spoke on the condition of anonymity to discuss ongoing negotiations.
If a bill does emerge from the conference negotiations, itâs likely to disappoint civil rights advocates who have been pushing for an immediate end to criminal penalties related to the drug.
Both the House and Senate passed legalization bills that wouldnât allow sales of recreational marijuana to begin until January 1, 2024âtime both sides agree they need to set up a new cannabis authority to regulate the industry.
But they have differed over whether criminal penalties related to the drug should stay in place until legal sales begin. The House advanced legislation that wouldnât end prohibition until 2024 while the Senate proposed legalizing possession of an ounce or less of marijuana beginning July 1 of this year.
The House, whose members worried that repealing criminal penalties before legal sales are permitted would encourage the black market, appear to have won the debate, with Senate negotiators agreeing to maintain existing criminal penalties until 2024, according to the sources.
The approach stands in contrast to a legalization bill signed by New Jerseyâs governor on Monday, which immediately ended criminal penalties for possession of up to six ounces even though retail sales arenât expected to begin until 2022 at the earliest.
Advocates had called the Senateâs position the minimum the legislature could do to address criminal penalties before the retail marketplace opens. Sen. Jennifer McClellan, D-Richmond, who proposed it, said it didnât make sense to continue prosecuting people for something lawmakers had voted to legalize.
âWe canât risk more people being caught in the system for acting in ways that will soon be legal,â wrote a coalition of 25 advocacy organizations led by the ACLU of Virginia and the reform group Marijuana Justice.
Lawmakers skeptical of repealing criminal penalties before there are legal avenues to buy the drug have said they view the decriminalization legislation they passed last year, which reduced penalties for simple possession to a $25 civil fine, an adequate interim step.
Chelsea Higgs Wise, director of Marijuana Justice, countered that the approach unnecessarily allows the disproportionate enforcement of marijuana laws against Black Virginians to continue for three years. She said court data obtained by advocates shows that even with reduced fines, Black people are four times more likely than White people to face citations despite using the drug at the same rate.
âThe commonwealthâs âdecriminalizationâ enforcement maintains Virginiaâs racial disparities and goes against Governor Northamâs stated commitment to social equity, racial equity, and economic equity for marijuana legislation,â she wrote in a statement.
The two chambers are continuing to debate another focus for advocacy groups: how to treat people under 21 caught with the drug. As drafted, the Senateâs version would dramatically increase penalties for underage users caught with the drug, increasing the civil penalty for possession from $25 to $250 for people ages 18 to 20. Minors would face a $200 civil penalty for a first offense.
Valerie Slater, the director of RISE for Youth, which advocates for reforming the stateâs juvenile justice system, said she favors the Houseâs approach, which would also increase penalties for underage possession, but only on subsequent offenses.
But she pointed to New Jerseyâs new law as a better alternative, which calls for a written warning for a first offense, a call to parents for a second offense and referral to community services for a third offense. Members of the stateâs Black Legislative Caucus opposed fines, worrying âpolice would continue to stop and fine minority youth more frequently than White people under 21,â according to The Star-Ledger.
âAt no point should this be a crime for kids,â she said. âCan we just take New Jerseyâs language and drop it into ours? It would be ideal.â
This story was first published by the Virginia Mercury.