United States:
In South Dakota, The AG And The Governor Are Sparring. What Does This Mean For Marijuana Deregulation In Other States?
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Marijuana legalization is sweeping the nation. State after state
is enacting legislation permitting medical marijuana and adult-use
marijuana. In many states, the legislation does not include a
specific role for the state attorney general in the regulation and
enforcement of the new marijuana regimes. But businesses in the
marijuana industry would be wrong to assume that the state attorney
general will not play an active and, in some cases, central role in
shaping the marijuana industry at a local level.
Case in point: South Dakota
The state is slowly rolling out its newly enacted medical
marijuana program (effective July 1, 2021) and it has encountered a
significant speed bump. The Flandreau Santee Sioux Tribe opened the
state’s first marijuana dispensary on its tribal land and
began issuing medical marijuana cards. Yet South Dakota’s
Governor Kristi Noem, with the support of South Dakota Highway
Patrol, instructed law enforcement not to honor medical marijuana
cards issued by the tribe to non-tribal members, and to arrest
non-tribal members in possession of marijuana, regardless of their
medical status.
South Dakota’s Attorney General Jason Ravnsborg originally
disagreed with the Governor’s instructions. Per his Chief of
Staff on July 7, 2021, General Ravnsborg determined that, in
accordance with state law, the tribal medical marijuana cards are
valid because they are medically
certified. See SDCL
34-20G-1-4. As a result, General Ravnsborg stated law
enforcement should honor tribally-issued medical marijuana cards
even for non-tribal members.
Forty-eight hours later, however, General Ravnsborg changed his
tune and released a statement that “the Attorney
General’s Office agrees with the South Dakota Highway
Patrol’s framework for implementation of [the medical
marijuana statute]”.
South Dakota Loathe to Prosecute
The public spat is certain to cause confusion, but to most South
Dakotans it may not matter. Even if law enforcement arrests people
for marijuana possession with a tribally-issued medical marijuana
card, many of the state’s attorneys have signaled their
reluctance to prosecute in such circumstances. Yet, the
initial difference of opinion between the Attorney General and the
Governor (and the head of Highway Patrol), and the subsequent
turnabout, highlight the state attorney general’s critical
role in the interpretation and development of marijuana policy and
enforcement.
Courts Will Likely Follow AG
State attorneys general often issue opinion letters regarding
interpretations of a contested or unclear law. These letters may be
requested by select categories of individuals or state agencies,
and provide businesses, policy makers and law enforcement with
legal guidance and certainty regarding the interpretation and
application of state law. The state attorney general is empowered
to issue these opinions by the nature of their position as chief
legal officer for the state. The attorney general’s
interpretation is paramount and will likely be afforded great
weight by state courts if or when litigation arises. Whether
General Ravnsborg will issue a formal opinion on this issue remains
to be seen, but such a letter supporting his original position
would certainly provide clarity for the state’s attorneys and
those in possession of medical marijuana cards issued by the
Flandreau Santee Sioux Tribe.
Will Other States Follow SD’s Lead? Businesses, Watch
This Space
The situation in South Dakota is unique because the original
dispute played out so publicly, but no one should be surprised that
differences of opinion between lawmakers and law enforcement exist.
Why General Ravnsborg changed his position so abruptly is still a
mystery, but his official opinion on the topic is critical to the
right to purchase and possess medical marijuana in South Dakota.
After all, it is the state attorney general’s prerogative to
interpret and apply state law in a manner consistent with its
express language and lawmakers’ intent. As more and
more states work through the enactment of marijuana legislation,
cannabis businesses will be well-served to remember what happened
in South Dakota and keep their eye on the state attorneys general
throughout the nation.
Originally Published by Cannabis Business Executive
(CBE)
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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