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With South Dakota lawmakers at impasse, medical marijuana program approved by voters in November looking more viable

The South Dakota House of Representatives rejected a medical marijuana plan approved by the Senate that would've removed a criminal penalty from possessing less than an ounce of marijuana. The legislature has one more day to establish a program, or the cannabis program becomes law, as passed by voters.

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A vote rejecting a Senate-amended bill that would've decriminalized a small amount of marijuana reflects off the plexi-glass erected in the South Dakota House of Representatives chamber for the coronavirus pandemic. (Christopher Vondracek / Forum News Service)
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PIERRE, S.D. — With a political logjam at the statehouse, the citizens of South Dakota may well get a medical marijuana program that looks a lot more like the one voted on last November than what Gov. Kristi Noem and House leadership had in mind.

On a whirlwind day at the capitol, the chambers played hot-potato on Wednesday, March 10 with a measure to legalize a medical marijuana program that, as of a Senate amendment earlier this week, also decriminalizes small amounts of marijuana and allows those under 21 who have medical permits to smoke the drug without penalty.

But as of Wednesday evening, with only one day to go in the session, both chambers appeared to lack the appetite to reach a compromise on the bill. In a vote just after 6 p.m., the House approved a motion to not attempt a final-day compromise with the Senate. Without such legislation to implement a medical marijuana program, the text of Initiated Measure 26 as written — and approved by 70% of South Dakota voters last fall — would become law in July.

"We came together as a body," said Greg Jamison , R-Sioux Falls, prior to the 67-3 vote, casting what essentially was a last-minute foiling of a month-long attempt to rewrite IM26 as a legislative victory.

Midway through Wednesday afternoon, a conference committee of three members from each chamber to muscle through compromise unraveled, with a 3-3 deadlocked vote on a motion to pass Initiated Measure 26, the voter-approved action that set the balling rolling on the state's medical marijuana program.

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But Sens. Blake Curd , R-Sioux Falls, and Mike Rohl , R-Aberdeen, joined Rep. Oren Lesmeister , D-Eagle Butte, to defeat the measure, with Curd, an orthopedic surgeon, arguing the House plan didn't go far enough in allowing for sensible dosage amounts.

"We'd have the possibility of people who are critically ill... having to make a trip to access more product on a very frequent basis," said Curd.

Seemingly stuck in place, House Speaker Spencer Gosch , R-Glenham, offered a second motion to effectively return the bill without recommendation to each chamber, which received a 6-0 vote, returning the bodies to ground zero.

In speaking with reporters afterward, Curd suggested the House could either accept Senate changes and override — presumably — a veto attempt by Noem, or IM 26 would become law on July 1 as passed by voters.

"This is a House bill in its origin and the Senate has taken action on it and amended it, and sent it back to the House for concurrence, so the Senate no longer has any role in it," Curd said.

According to the 90-plus sections of IM 26, people could qualify for cards from DOH to allow them to possess 3 ounces of cannabis for medical purposes.

While IM 26 passed with wide support of voters, the earliest House plan — backed by Gov. Noem — suggested a 12-month delay was needed to adequately implement the plan in DOH, which has been wracked by the COVID-19 pandemic. In recent weeks, that deadline was moved up 6 months.

But the Senate upended those plans on Monday in a 31-4 vote vote, bucking the lower chamber — and Noem's office — by removing criminal penalties for possessing less than an ounce of marijuana. On Wednesday morning, the House had its chance to accept the upper-chamber's more aggressive implementation.

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After gaveling in, the House Republican caucus retired to a private room in the Capitol's fourth floor to hash-out an impasse over HB 1100 around noon.

When they emerged an hour later, they dispatched quickly with debate that saw both House Speaker Gosch and Majority Leader Kent Peterson , R-Salem, rise to tut-tut members into "voting red" on the Senate's version of the bill

"'Does your changed bill still allow kids under the age of 21 to smoke medicinal marijuana?" Gosch asked Jamison, who offered a motion to concur with the Senate's amendment, which allows qualifying practitioners who are minors to smoke, as well as ingest marijuana, as proposed in HB 1100.

"In the spirit of debate, yes," said Jamison. But he noted those under 21 — many children — must qualify as having a medical need to take marijuana, through smoking or derivatives. "I know that that gets thrown out as a way to scare some people or create some concerns, but please don't let that happen."

Rep. Jess Olson , R-Rapid City, took umbrage with Speaker Gosch's suggestion that the House was subverting the "will of the people," by noting a majority of adults voted for recreational and medicinal marijuana use last November.

"The Senate was working to meet the intentions of the voters," she said. "To say the voters didn't want this doesn't acknowledge Amendment A . They voted for that, as well. And that passed."

Last month, a circuit court judge in Pierre blocked the state's approval of legalizing recreational marijuana, citing a requirement that constitutional amendments not be "more than one subject."

After ten minutes of debate, and stern directions from Peterson who repeated the phrase "vote red," the motion to accept the Senate version failed on a nail-biting, if not particularly close 46-24 vote.

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The House voted — by voice — in favor of forming a conference committee to meet with the Senate. But those plans would soon run into a brick wall of opposition.

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