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.
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.
