Feature: Medical Marijuana Victory in South Dakota Court Battle Over Ballot Language

The South Dakota medical marijuana initiative and its organizers, South Dakotans for Medical Marijuana, won an important legal victory last Friday when a circuit court judge ordered state officials to throw out the ballot explanation drafted by medical marijuana foe Attorney General Larry Long (R). Initiative organizers had filed suit challenging Long's ballot explanation as hopelessly biased against the initiative, and in his ruling last Friday, Circuit Court Judge Max Gors of Pierre, the state capital, agreed.

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Can't even be left alone in South Dakota...
Under South Dakota law, the attorney general is charged with writing an "objective, clear, and simple summary" of ballot measures. But Attorney General Long's original didn’t even come close. Before he even got to the ballot summary itself, he decided to change the very name of the measure. Known from the beginning and filed with the state as "An act to provide safe access to medical marijuana for certain qualified persons," Long decided it would be better titled as "An Initiative to authorize marijuana use for adults and children with specified medical conditions." The complete text of his original ballot explanation is as follows:

Currently, marijuana possession, use, distribution, or cultivation is a crime under both state and federal law. The proposed law would legalize marijuana use or possession for any adult or child who has one of several listed medical conditions and who is registered with the Department of Health. The proposed law would also provide a defense to persons who cultivate, transport or distribute marijuana solely to registered persons. Even if this initiative passes, possession, use, or distribution of marijuana is still a federal crime. Persons covered by the proposed law would still be subject to federal prosecution for violation of federal drug control laws. Physicians who provide written certifications may be subject to losing their federal license to dispense prescription drugs.

In his ruling last Friday, Judge Gors ordered Attorney General Long to either rewrite the ballot summary or use language Judge Gors himself drafted:

This initiative will allow persons, including minors with parental consent, with a debilitating medical condition, to grow (not more than six plants), possess (not more than one ounce), and use small amounts of marijuana for medical purposes. "Debilitating medical condition" is defined to include cancer, glaucoma, HIV, AIDS, or a chronic, debilitating condition that includes cachexia, wasting syndrome, severe or chronic pain, severe nausea, seizures, including epileptic seizures, severe or persistent muscle spasms, including those caused by spinal injury, multiple sclerosis, Chrohn's Disease, fibromyalgia, or any other medical condition approved by the Department of Health. Certification may be accomplished by submitting medical records to the Department of Health or by submitting a doctor's recommendation. A person may not drive while impaired by marijuana or smoke marijuana anyplace tobacco smoking is prohibited. Growth, possession, and use of marijuana will still be illegal under federal law, but certification is a defense to criminal prosecution under state law.

Sarah Raeburn, a spokesperson for the attorney general's office, told Drug War Chronicle Wednesday that Long had decided to accept the judge's version as is. "That is what we will use," she said. "The only changes were two misspellings that we have corrected."

"We were very pleased with the judge's decision," said Huron attorney Ron Volesky, who argued the case for lead plaintiff Valerie Hanna of South Dakotans for Medical Marijuana, a former army nurse who suffers neurological disorders related to exposure to chemicals during the Gulf War. "We feel it is a victory for fairness at the ballot box. The circuit court put forth a remedy with new language that is fair in its substance," he told the Chronicle.

Volesky, a former state legislator who is the Democratic nominee for attorney general this year, was the perfect man for the job. Not only is he among the few South Dakota politicians interested in medical marijuana -- he introduced a bill that went nowhere in the legislature in 2002 -- he had previous experience challenging Attorney General Long's ballot explanations in 2004.

Plantiff Hanna also pronounced herself gratified. "I'm very happy and pleased with the decision," she told Drug War Chronicle. "It's a good day for sick people in South Dakota."

The Washington, DC-based Marijuana Policy Project, which helped bankroll the signature gathering drive to get the initiative on the ballot, was also pleased. "Thanks to this sensible ruling, South Dakota will now have a fair description of the medical marijuana initiative on the ballot and South Dakota residents can make an unbiased decision about whether they want to protect South Dakota medical marijuana patients from arrest and prosecution for using the medicine that works best for them," MPP spokesperson Rebecca Greenberg told Drug War Chronicle.

Now, with the ballot language issue behind them, South Dakota medical marijuana proponents are turning their attention to winning at the ballot box in November. The socially conservative state will be a tough nut to crack, but organizers are optimistic.

"We will keep pressing forward," said Hanna. "We are reaching out to the press, and I'm contacting clergy members right now. Hopefully, we will find some that have the gumption to stand up publicly, but it's pretty scary to advocate for this here. But I'm really hopeful people will respond positively to this initiative."

"It's time for the people to speak," said Volesky. "When the legislature fails to act, we do have the power of the people through initiative measures and referendums to get past the legislature. Instead of trying to win over a handful of legislators controlled by the administration, the people can make their own decision."

If the campaign is successful, South Dakota will become the 12th state to legalize medical marijuana and the ninth to do so through the initiative process.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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marijuana

I honestly think marijuana should be legalized for medical purposes. If anyone has ever read there is alot of benifits to using marijuana for medical purposes. People who suffer from pain, to cancer patients, and even AID's patients. I to suffer from pain myself, I personally don't like the idea of Codiene or any other medications being completely addictive. If for some reason my pain went away neither would my addiction immediately, to some chemically altered drug that the FDA passed. The reason the FDA does not pass marijuana as a good known drug for any treatment is just because hey, its not a real drug, its an herbal rememedy they do not consider anything herbal as a cure for anything. A drug has to be. Of course if the state was to pass it, it would be great. Me suffering from chronic neck pain have found marijuana a great substitute for pain in the past of course before giving it up for illegal purposes and jobs, found it a great remedy for pain itself. I did not feel as impaired to drive or operate any machinery, as I would with medication prescribed by a physician. I hope in the future which of course this article was published before the law was passed or not passed, would be some what of an idea what good it can do. Unfourtunately the law was passed its still illegal as of november, we can find it in our hearts to find other options such as marijuana for that purpose to help people. Doctors all around the nation the world for that matter, its not as bad as some people think it is. Just, because a rodent had some bad reaction to it from completey outrageous amounts of dosages, we are people that plant was put here for some reason.

legalization of medical marijuana.

I have rheumatoid arthritis and the pain can be unbearable in my knees, wrists, fingers, ankles, shoulders and my hips have been starting to hurt. The pain got so bad my wife has had to come home from work to help dress and shower me so I can try and go to school. I'm going to school for electronics because I am physically unable to continue my carrier as a welder. Also, my eyes have been getting bad and sometimes in the morning my eyes hurt so bad that I can't go to school. Marijuana eases the pain to where I can go to school and concentrate without my eyes hurting; and it also helps me to relax to where the pain isn't there and I'm able to go to or do something. Medical marijuana would greatly help me live a somewhat normal life with my wife and family. Right now I'm taking 10 different medications and half of them are pain pills. I hate taking these pain pills and the main reason is the side effects has a potential to kill you, but if I didn't have them I would be in so much pain the only thing I could do is lay down. Medical marijuana would help cut my need of these narcotics, as pain medicine, in half or better. If people would put away their stereotypical bias and realize that marijuana is an all natural plant that helps people just like other plants are used for other drugs like morphine. anything can be used in a negative manner and those are the people that lack any sense of control. So I ask people to look positively at this manner and try to understand that medical marijuana will help a lot of us with several different medical diagnoses.

Just plain nervous

I have Hepetitis c for 37 years now and gaulstones, jenitle herpies, heal spurs, catoract in my right eye and stigmatism in the left eye, nausha, Fatigue, ringing in the ears and to top it off i am an ADD person of 55 years old and i got layed off 6 months ago do to my health issues I can't take anything for the ADD so that is a stugle in its self and i also have insomnia i take no meds unless abolute nesessity for the most part i do good, i am not a lazy person and have always been fisical untill lately everything is catching up with me and the only releif i get is from smoking marijuana, WE NEED to pass these laws so people who don't need stress in there lives because of the afects to there health can at least smoke in peace while we battle the affects we cannot cure.

I currently live in

I currently live in vermillion south dakota, but originated from the sioux falls area. I am a very outgoing person and have enjoyed living in the regioin. I am just finsihing my freshman year in college and i have found this through experience. When i lived in sioux falls i attended three differnt middle schools, and finally moved to harrisburg to finish my high school career. During school i was involved in numerous activities so i got to meet plenty of people and became aqcuainted with even more. All of those people i know, and are aquainted with, geek, nerd, athelte, parent, they all smoke pot. and not even for medicinal purposes. Marijuana brings people together. While we are debating whether or not to pass medical marijuana, california has already started voting for recreational use of mariijana. People need to stop being so hypocritical and start to realize what world we live in. Famous atheltes, actors, actresses, and music preformers smoke marijuana and they are the people we look up to in society. It's time to wake up and realize that people smoke weed, and theres nothing you can do to stop it. Why not make more sense and create a law that doesnt make marijuana illegal in the first place. People spend $60 for a 1/8th of weed everywhere iv been. and this moeny goes to drug cartels for all i know. why not legalize it and make the money go towards the government? - SD YOUTH

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