S.D. legislators recommend bill to legalize marijuana for all purposes — but no ‘home grow’

Capitol News Bureau

PIERRE, S.D. (KELO) — A panel decided Tuesday to move forward on legalizing marijuana for all purposes for people age 21 and older in South Dakota but keeping the current medical-cannabis program in place for people younger than 21.

The 8-2 recommendation came from the Legislature’s subcommittee on adult-use marijuana. The next steps are for the full marijuana study committee to decide whether the proposed bill should proceed and then to seek a green light from the Legislature’s Executive Board.

If those clearances occur, the legislation would be introduced in the 2022 session that opens in January. The bill would then go through the standard process of committee action and possibly votes by the 70-member House of Representatives and the 35-member Senate.

The move Tuesday came while the South Dakota Supreme Court continues to consider whether Constitutional Amendment A that voters approved 54-46% last November was valid. Amendment A legalized adult-use marijuana. Governor Kristi Noem opposed its passage and challenged it in court after the election.

KELOLAND News asked for a response Tuesday from the governor regarding the subcommittee’s decision. Replied spokesman Ian Fury, “You are correct that Governor Noem is not supportive of legalizing recreational marijuana.” Overriding a governor’s veto would require a two-thirds majority in both legislative chambers.

The subcommittee chairman, Representative Hugh Bartels, said lawmakers found themselves in a difficult spot, because of the governor’s stance and because Amendment A took the unusual step of making the various forms of cannabis part of the South Dakota Constitution, rather than state law.

Legislators in South Dakota can change state laws but they can’t change the state constitution.

“There wasn’t a lot of latitude under Amendment A for this group to do anything, because Amendment A basically put the authority in the (state) Department of Revenue and not the Legislature,” Bartels said. “So we picked this path to go down, in case it was ruled unconstitutional, we would have something on the shelf ready to go. I would imagine that if the court does rule that Amendment A stands, this bill will never be introduced.”

Voters last year also approved Initiated Measure 26, legalizing medical cannabis for people of all ages who receive a medical card from the South Dakota Department of Health. The department must start issuing those cards no later than November 18. Noem also opposed its passage. Voters backed it 70-30%.

Two key differences between the proposed legislation and the voter-approved measures are home-grown marijuana wouldn’t be legal and marijuana couldn’t be grown outside. The subcommittee also decided to put tax provisions into a separate bill so that lawmakers could have cleaner choices on legalizing adult-use marijuana and taxing it. A tax increase or new tax in South Dakota requires a two-thirds majority.

The legislation would repeal most of the medical-marijuana provisions that voters put into state law. Senator David Wheeler wanted to keep them, at least for now.

“Because we’ve had three days to rewrite all our marijuana rules in South Dakota since this draft came out publicly, and I just cannot get behind the idea of managing the bureaucracies, and melding them together, and what’s Revenue, what’s Health, and how to do that on that timeframe,” Wheeler said. “And so that’s why I’m hoping the committee will at this stage agree with me that, let’s not say we’re going to delete IM 26 until we are more firmly agreed on where the recreational program is going and what that looks like.”

Representative Mark Willadsen disagreed.

“I don’t view these sections as going against the will of the people, because we are setting up a replacement program. We just call it adult-use. It also includes the sections to have medical marijuana for those under the age of 21,” Willadsen said. “Also, what it does do is become a better steward of our state’s tax dollars, because we’re eliminating a bureaucracy. Why should we have two bureaucracies for marijuana? I don’t think it’s necessary to have the medical marijuana program in place if this legislation passes for adult use.”

Willadsen continued, “I think those that want to get marijuana for medical purposes that are over the age of 21 are going to be able to do that more easily with this program, than they do with the medical marijuana program that we have in force now. So I view this as a step in the right direction for South Dakota, for simplicity in government, for not having two bureaucracies when we can make one do the work of those two.”

The original draft of the proposal was heavily amended during more than four hours of work by the committee. (KELOLAND News will link to the revised version of the bill, as well as the proposed tax bill, when they become publicly available.)

Meanwhile petitions are circulating for signatures to put on the 2022 general-election ballot another initiated measure — this time, it would be a state law if passed — that would legalize adult-use marijuana. They need a minimum of 16,961 valid signatures from South Dakota registered voters and must file the petitions with the South Dakota Secretary of State no later than 5 p.m. CT on November 8.

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