Since the 2018 mid-term elections, the momentum for legalized marijuana has been like a tidal wave building strength as it hurls towards shore. That was reinforced in last November’s election as well where multiple marijuana ballot 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) is a very real possibility in 2021. However, South Dakota Circuit Judge Christina Klinger is here to remind you that not everyone is in favor of legalized marijuana.
In the first clear victory for marijuana opponents after the recent election, Judge Klinger held that the South Dakota constitutional amendment to legalize recreational marijuana – which passed by receiving 54% of the vote – is unconstitutional because it violates South Dakota’s single-subject rule. That rule says that a constitutional amendment approved by a ballot initiative is only allowed to ask voters to consider one issue at a time. Judge Klinger determined that the amendment broke the rule by including provisions that went beyond the single question of whether to legalize recreational marijuana. According to Klinger, the amendment is unconstitutional because it also imposed a sales tax, directed lawmakers to legalize hemp and protected lawyers and other professionals who advise the cannabis industry from sanctions. Specifically, Klinger wrote “[a]llocating revenue from an excise tax of marijuana sales, forbidding differing professions from disciplining their members, and including a provision compelling the legislature to pass hemp, which is different than marijuana, are not part of the ‘single scheme’ of legalizing marijuana.” Judge Klinger actually went as far as to find that the changes proposed by the amendment were so broad as to constitute a revision to the constitution — not an amendment — and would therefore require approval by supermajorities of the state’s legislature in a constitutional convention.
The fight is likely not over as South Dakotans for Better Marijuana Laws – the group behind the ballot initiative – has indicated they intend to appeal the decision. Additionally, it is important to note that this decision only impacts the ballot initiative related to the legalization of recreational cannabis and does not impact the legalization of medical marijuana in South Dakota. However, marijuana opponents believe Judge Klinger got it right and that marijuana proponents are bundling legalization efforts together with provisions about taxes and funding for public goods that confuse voters and sway the ballot results. That is a topic for a different post, but it highlights where opponents are coming from and how they intend to attack ballot legalization efforts.
Judge Klinger’s ruling should serve as a reminder to 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 ballot box were promising in November, there are fights playing out in courtrooms seeking to undo those results. We’ll be keeping a close eye on challenges that have been filed in Montana and Mississippi to see whether Judge Klinger’s ruling is a one off decision or the start of a significant hurdle for the cannabis industry. Be sure to follow our blog to stay up to date on this issue and everything else concerning the cannabis industry.