Johnson tells what led to Amendment A

Capitol News Bureau

SIOUX FALLS, S.D. (KELO) — The attorney who sponsored Amendment A that South Dakota voters approved last year explained to other lawyers Thursday what drove the effort to legalize marijuana for people age 21 and older.

But Brendan Johnson first told the South Dakota State Bar Convention that he wouldn’t get into the details while the South Dakota Supreme Court is still considering whether Amendment A violated the state constitution’s one-subject rule and whether the measure should have gone to a statewide constitutional convention prior to the ballot.

Governor Kristi Noem, a Republican, is trying to stop Amendment A from taking effect. A state circuit judge ruled in the governor’s favor in February. Johnson, a Democrat, appealed the decision.

“I don’t think there’s anything that I could reveal to any of you this morning that would substantially affect deliberations,” Johnson said Thursday. “But I want to be respectful of the relationship we have with our judges. And I don’t want to set a precedent where we make this uncomfortable for judges to come to meetings like this because we’re going to be debating, I’m going to be arguing to you, the merits of my case while people are still deliberating. So I want to be open about that. I’m not going to discuss the legal arguments of Amendment A. I don’t think it’s appropriate, I don’t think it’s appropriate to do so.”

The convention also heard presentations on a program titled “Up in Smoke” about cannabis banking from state Banking Division director Bret Afdahl, flaws in the medical marijuana laws from Pennington County Sheriff’s Department Captain Tony Harrison, and ethical considerations from University of South Dakota law school lecturer Mike McKey.

Johnson said a marijuana case he handled helped lead to the decision to pursue a ballot measure removing the criminal penalty for possessing small amounts.

Brendan Johnson

“These are fundamentally life-changing experiences for a lot of people who find themselves in this situation. For that young man, what he went through will be one of the two, three biggest things that ever happen in his life,” Johnson said.

South Dakota also approved medical marijuana in the November election. Johnson said both were part of a national trend toward more legalization. “This has moved in one direction. One direction,” he said.

Noem campaigned against Amendment A and the medical-marijuana measure, IM 26.

State Bar members are scheduled to vote Friday on what South Dakota’s rule should be for lawyers advising clients on marijuana matters.

Marijuana remains an illegal drug under federal law. But a decision by the U.S. Department of Justice during the Obama administration produced what was known as the Cole memorandum, setting a policy that federal prosecutors wouldn’t pursue violations of small amounts of marijuana.

The Trump administration didn’t shift back. Johnson, a former U.S. attorney for the district of South Dakota, doesn’t see the Biden administration changing the hands-off stance.

“I don’t have any inside information, but there’s no indication that the Department of Justice, the lawyers there, are going to start cracking down on small amounts of cannabis,” Johnson said. He added, “The federal government is allowing states to experiment, to make their own decisions when it comes to cannabis.”

The state constitution lets voters use ballot measures to pass laws and amend the constitution. It’s been the route Democrats have taken in recent decades as Republicans won super-majorities of seats in the Legislature.

“Today there is a very, very significant opposition, particularly in our Legislature, to direct democracy, to people being able to use the initiative process,” Johnson said.

He listed a variety of ways that Republican lawmakers this year raised further barriers, from legislation on the size of print on ballot measures to putting a measure on the 2022 June primary ballot rather than the November general ballot that would draw many more voters.

“People are more aware when there’s one of these initiatives on the ballot. People are more aware of what’s going on oftentimes than they are of what’s happening in Pierre, and it gets our people engaged, it gets people talking, being part of the political process,” he said.

Amendment A won in South Dakota’s two largest population centers of Sioux Falls and Rapid City, despite their partisan political differences. “You get places like Minnehaha County and Pennington County voting the same way. How often does that happen?”

Amendment A drew across party lines, he said.

“We had more Democrats in favor than Republicans, but you had significant number of Republicans who were supporting this, and particularly as you went west of the (Missouri) river. You get more of the particularly libertarian Republicans, the small government Republicans, you saw some very significant support for this. And the numbers in polling were 55-45 from the beginning when it came to decriminalizing cannabis — and they didn’t move, they didn’t move throughout the entire time the election was held, it was about 55-45,” he said.

The list of states that have legalized medical marijuana or adult-use marijuana or both continues to grow. “No state that has ever ended the prohibition has ever gone back then and the voters have repealed the decision to legalize cannabis. You’ve never even heard of a campaign where they’re trying to repeal the fact that they’ve legalized cannabis. It doesn’t happen. If it does, it loses substantially,” Johnson said.

The governor’s office announced Thursday afternoon that the state medical-cannabis website was now up and she issued a public-service announcement saying, “The medical cannabis program is on schedule.”

The state Department of Health plans to start issuing cards to patients and care providers this fall.

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