by Mira Baylson and Meghan Stoppel
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.
About the Co-Author
Mira E. Baylson is a partner in the State Attorneys General Group at Cozen O’Connor. She represents companies in their dealings with federal and state agencies and offices, as well as those facing investigations from state AGs and other government agencies, including the DOJ and CFPB. She is a member of the Attorney General Alliance (AGA) Cannabis Project and was a panelist in a “Call for Social Equity” discussion at the recent AGA Annual Meeting.
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