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

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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.

“I’ve dedicated my life to defending and upholding the rule of law,” Thom said in a press release. “The 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.”

The challenge, filed in state’s 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 issues—including the legalization and regulation of marijuana for adults 21 and older, as well as the regulation of medical cannabis and hemp—it violates a 2018 requirement that “no proposed amendment may embrace more than one subject.”

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.

“A 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,” the complaint says, “resulting in votes that do not accurately reflect the electorate’s approval of the proposed amendment.”

A challenge along similar lines removed a medical marijuana legalization measure from Nebraska’s ballot in September, when the Nebraska Supreme Court ruled that the proposed constitutional amendment violated that state’s single-issue rule.

South Dakota has had the single-subject requirement in place since voters passed a 2018 constitutional amendment on the issue.

“Our constitutional amendment procedure is very straightforward,” said Miller of the South Dakota Highway Patrol. “In this case, the group bringing Amendment A unconstitutionally abused the initiative process. We’re confident that the courts will safeguard the South Dakota Constitution and the rule of law.”

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.

“We 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.”

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,” Ian Fury told the paper.

Private lawyers are representing the officials.

In the days after the election, the governor said she “was personally opposed to these measures and firmly believe they’re the wrong choice for South Dakota’s communities.”

“We need to be finding ways to strengthen our families,” Noem said, “and I think we’re taking a step backward in that effort.”

In a statement to the Rapid City Journal on Friday, she said she’s eager to see the challenge go to court.

“In South Dakota we respect our Constitution,” Noem said. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”

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.

“Even if their interpretative argument is correct, petitioners’ action is woefully untimely,” says a filing made earlier this month by the secretary of state and attorney general, who are defending the law in court. “They could have asserted their so-called ‘procedural’ challenge years ago.”

State officials said the high court “should deny petitioners’ requested relief and dismiss their petition.”

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 measure’s wide margin of victory.

“The only branch of government in this state dumb enough to overturn citizens’ initiative is the [state] Supreme Court, which has done it repeatedly,” 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

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Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Ben Adlin is a Seattle-based writer and editor. He has covered cannabis as a journalist since 2011, most recently as a senior news editor for Leafly.

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Marijuana Use Won’t Automatically Block People From Federal Jobs, Biden Administration Memo Says

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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 individual’s 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, OPM’s 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 individual’s 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.”

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: 

Memo Assessing Suitability … by Marijuana Moment

IRS Chief Says Agency Would ‘Prefer’ If Marijuana Businesses Could Pay Taxes Electronically

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Washington Supreme Court Strikes Down Criminalization Of Drug Possession

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Washington State’s 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 decision—with a bill to decriminalize all drugs having already passed a legislative committee earlier this month—some police departments and prosecutors have now announced they’ll no longer arrest or pursue cases against people over possession of small amounts.

Simple drug possession “is no longer an arrestable offense,” the Seattle Police Department said in a public statement following the ruling. “Effective immediately, officers will no longer detain nor arrest individuals” 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.

Pacific County Prosecutor Ben Haslam told The Chinook Observer that the ruling “has come as a shock to our office.”

“On the prosecutor’s office’s end, we are preparing to request the immediate release of individuals being held in custody only for simple-possession cases,” he said. “Next, 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 I’m sure there will be many other ramifications as well.”

How long Washington’s de facto legalization of drug possession will last is an open question. The court struck down the state’s 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 Washington’s 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.

“Today’s Supreme Court decision gives renewed urgency to the conversation about our state’s response to untreated substance use disorder,” the bill’s prime sponsor, Rep. Lauren Davis (D), told Marijuana Moment late Thursday. “It presents an opportunity to continue the discussion that was begun in the legislature this session with HB 1499.”

The court decision accomplishes only part of Davis’s proposal. While one prong of her plan would decriminalize drugs, the other would create a “continuum of care” to ensure access to drug treatment and recovery services—something Thursday’s ruling does not do.

“It 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. Today’s decision does that,” Davis said. “But that alone is insufficient. It is equally important that we build out a response to substance use disorder that truly works—a robust and fully funded continuum of care ranging from outreach to treatment to recovery support services.”

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 weren’t necessarily setting out to legalize drugs when they undertook the case that led to Thursday’s decision. Rather than taking aim at the broader drug war, the ruling says that Washington’s 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.

“The possession statute at issue here does far more than regulate drugs,” the court wrote in a majority opinion by Justice Sheryl Gordon McLoud and signed by five of the court’s nine members. “It is unique in the nation in criminalizing entirely innocent, unknowing possession.”

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.

“A person might pick up the wrong bag at the airport, the wrong jacket at the concert, or even the wrong briefcase at the courthouse,” it continues. “Or a child might carry an adult’s backpack, not knowing that it contains the adult’s illegal drugs.”

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 didn’t use drugs and was given the secondhand jeans as a gift just two days earlier.

Because Washington’s drug law didn’t require that defendants knowingly had drugs on their person, Blake was charged and convicted.

In rendering its decision Thursday, the Supreme Court vacated Blake’s 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 legislature’s police power goes far, but not that far,” the justices determined. “Accordingly, RCW 69.50.4013(1)—the portion of the simple drug possession statute creating this crime—violates 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 Blake’s conviction should be thrown out but argued the possession law need not be scrapped in its entirety.

“I 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,” Stephens wrote. “Nearly 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.”

Three other justices signed a dissenting opinion, arguing that the court has interpreted Washington’s drug possession law for more than 60 years as not requiring an element of intent—and moreover, that the court’s past decisions have respected the authority of lawmakers to “criminalize conduct regardless of whether the actor intended wrongdoing.”

It’s not entirely clear how many past cases might be affected by Thursday’s 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. “Washington joins 49 other states and the federal government,” it said, “in recognizing that the unknowing possession of drugs is not a crime.”

Richard Lechich, a Washington Appellate Project staff attorney who argued the case before the Supreme Court, said justices “correctly recognized the injustice of convicting people for innocent conduct.”

“While 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,” 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, it’s still a risk to openly acknowledge having drugs.

“I would be very careful about that,” Lechich told Marijuana Moment. “Certainly if you were my client, I wouldn’t advise you to do that.”

Washington Lawmakers Approve Drug Decriminalization Bill In Committee Vote

Photo courtesy of Markus Spiske

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Disagreements Threaten Virginia Marijuana Legalization Deal As Deadline Approaches

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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 Northam’s 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, it’s 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 wouldn’t allow sales of recreational marijuana to begin until January 1, 2024—time 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 wouldn’t 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 Jersey’s governor on Monday, which immediately ended criminal penalties for possession of up to six ounces even though retail sales aren’t expected to begin until 2022 at the earliest.

Advocates had called the Senate’s 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 didn’t make sense to continue prosecuting people for something lawmakers had voted to legalize.

“We can’t risk more people being caught in the system for acting in ways that will soon be legal,” 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.

“The commonwealth’s ‘decriminalization’ enforcement maintains Virginia’s racial disparities and goes against Governor Northam’s stated commitment to social equity, racial equity, and economic equity for marijuana legislation,” 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 Senate’s 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 state’s juvenile justice system, said she favors the House’s approach, which would also increase penalties for underage possession, but only on subsequent offenses.

But she pointed to New Jersey’s 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 state’s Black Legislative Caucus opposed fines, worrying “police would continue to stop and fine minority youth more frequently than White people under 21,” according to The Star-Ledger.

“At no point should this be a crime for kids,” she said. “Can we just take New Jersey’s language and drop it into ours? It would be ideal.”

This story was first published by the Virginia Mercury.

Kansas Governor’s Medical Marijuana Bill Introduced As Lawmakers Take Up Separate Legalization Proposal

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