Analysis: Amendment A Supporters Appeal to SD Supreme Court

Democracy scored an important victory last week when the Legislature killed Governor Kristi Noem’s plan to delay Initiated Measure 26, the medical marijuana plan approved by 70% of South Dakota voters last fall. But the bigger battle for democracy is taking place in the South Dakota Supreme Court, which last week received the appeal from advocates for Amendment A, the broad marijuana constitutionalization that the Governor successfully sued to overturn on technical grounds last month.

Lawyers Tim Billion and Brendan Johnson write the most important summary of this case on page 8 of their March 10 argument:

This case is not just about marijuana. It is also about the future of the initiative process in South Dakota. If this Court affirms the decision of the circuit court, it will substantially impair the fundamental right of South Dakotans to initiate laws and constitutional amendments [Tim Billion and Brendan Johnson, appeal to the South Dakota Supreme Court, Thom and Miller v. Barnett, 2021.03.10, p. 8].

The appeal contends that the Circuit Court got the law and logic surrounding the people’s right to initiative backwards, straining to strike down Amendment A instead of placing the fullest burden of proof on the Governor and her Potemkin plaintiffs, Pennington County Sheriff Kevin Thom and Highway Patrol Colonel Rick Miller. The court’s favoring of the plaintiffs over the people puts the people’s right to amend their own Constitution in grave jeopardy:

More fundamentally, however, the circuit court’s decision—if affirmed— does great damage to the integrity of the initiative process. A ruling that Amendment A included multiple subjects improperly establishes new and heightened restraints on the right of the people to legislate by initiative. It would mark South Dakota as an outlier from the other states that have added marijuana provisions to their constitutions. In addition, a determination that Amendment A required a constitutional revision not only calls into serious question the constitutional validity of past amendments to the Constitution (including those made in 1972 to reshape the Constitution itself) but could effectively excise the right to initiate constitutional amendments from the Constitution. Finally, allowing Thom and Miller to override the results of the 2020 election will subject virtually every initiated measure to a post-election court challenge, undermining the finality of elections and placing the judicial branch in the politically-fraught position of adjudicating the validity of elections after the results are known [Appeal, 2021.03.10, pp. 10–11].

Before getting to the juicy parts, in which the appellants attack the single-subject and amendment-not-revision arguments at the core of the Governor’s assault on the initiative process, the appellants rewage their arguments on the plaintiffs’ standing and the timeliness of their litigation.

Standing

The appellants maintain that policemen Thom and Miller, as arms of the state, cannot sue the state. They argue that the Governor’s executive order declaring that Trooper Miller was acting on her behalf, issued the same day that the plaintiffs had to file their response brief in Circuit Court, “was a transparent effort to avoid the clear consequences” of case law that denies standing to public officials. The Governor’s attempt to gloss her standingless plaintiffs’ action as a gubernatorial defense of constitutional integrity itself violates the constitution in three ways [pp. 19–21]:

1. Article 4 Section 3 says the Governor must bring her defense of the Constitution “by appropriate action or proceeding brought in the name of the state.” Thom and Miller v. Barnett is not brought in the name of the state.
2. Article 4 Section 3 explicitly forbids the Governor from bringing “any action or proceedings against the Legislature.” The suit is technically against Secretary of State Steve Barnett, but is effectively against the people, who are acting Legislatively in amending their Constitution.
3. The Governor’s power to defend the Constitution is a “core function”; the Governor cannot delegate that power any more than the Governor can delegate the power to command the National Guard, fill vacancies in the Legislature, or issue pardons.

The appellants note that delegating such vitally important authority allows the Governor to avoid political accountability for unpopular actions. “If the Governor wants to try to undo the results of an election, she needs to be politically accountable for that exercise of her power. She may not instruct a subordinate—who is unaccountable to the voters but could be fired by the Governor—to act as her proxy” [pp. 21–22].

The appellants also argue that Thom and Miller failed to show any real injury that would give them standing. The appellants note that just one year ago, this same Supreme Court used the failure to show specific injury to throw out a lawsuit by students against the Mid-Central Education Cooperative for its GEAR UP corruption.

Timeliness

The Governor’s plaintiffs contend that they could not challenge Amendment A until after the voters approved it. The appellants maintain that a suit against the amendment process rather than the amendment itself had to be filed before the election.

The appellants note that statute authorizes challenges to initiatives before the election. SDCL 2-1-14 requires the rejection of petition signatures collected illegally; if Amendment A did indeed, as plaintiffs claim, violate the single-subject rule and have to go through a convention rather than the direct initiative petition process, then all of the petition signatures were illegally collected and could have been challenged in court (see SDCL 2-1-18) the moment the Secretary of State illegally counted them. Drawing analogies to challenges to the process of nominating and electing candidates, the appellants maintain that the plaintiffs had their chance to challenge the petition process before Amendment A went to the ballot.

In this case, the point of suing before the election takes place, particularly under the single-subject restriction, is to prevent “logrolling”, the concealment of unpopular measures in a long, complicated measure to secure votes for policies that alone and exposed would not pass. The appellants claim that if logrolling was taking place in Amendment A, the plaintiffs had an obligation to stop that harm before it happened in the election. The plaintiffs acted too late to prevent that harm from taking place… perhaps, the appellants suggest, because they could not present (and have not presented) any evidence that logrolling was taking place. No harm, no foul.

Single Subject

That contention about the absence of logrolling forms a key part of the argument against the single-subject rule as a basis for overturning Amendment A. “The people are presumed to know what they want, to have understood the proposition submitted to them in all of its implications, and by their approval vote to have determined that [the] amendment is for the public good and expresses the free opinion of a sovereign people” [p. 51]. The plaintiffs have shown no evidence that the people did not know what they want or that Amendment A does not reflect their will. (Appellants don’t make this argument, but if plaintiffs try responding to this gap in their case, the appellants could note that the popular outcry against this lawsuit and the effort to delay IM 26 indicate that the public remains strongly in favor of cannabis liberalization.) The Circuit Court thus provided “an improper remedy to a problem that never existed.”

Amendment vs. Revision

The Circuit Court ruled that Amendment A was really a revision that had to go through a constitutional convention because it wrought “far reaching changes in the nature of our basic governmental plan.” The appellants challenge the four main points that the Circuit Court held constituted “far reaching changes”:

1. Giving exclusive power to the Department of Revenue: The appellants contend that, through Amendment A, the people are exercising their Legislative power to delegate authority to the Department of Revenue to regulate marijuana the same way the Legislature delegates authority to the same Department to regulate alcohol (see SDCL 35-1-2, SDCL 35-10-1). They acknowledge that Amendment A restricts the Legislature’s ability to pass certain laws, but this restriction is no different from the Constitution’s restrictions on Legislative authority in other matters.

The appellants err in one argument on this topic: they claim that the spate of cannabis bills considered this Session demonstrate that the Legislature doesn’t think Amendment A placed any restriction on its ability to pass laws relating to marijuana. Amendment A wasn’t supposed to go into effect until July 1, so if the plaintiffs are correct that Amendment A would handcuff the Legislature’s regulation of marijuana, those handcuffs don’t click until the 2021 Session is done.

2. Stopping the Legislature from enacting civil penalties: The appellants say the people have the same Legislative power as the Legislature to set maximum penalties and have done so with Amendment A. The amendment thus does not make a “sweeping change to the structure of government” [p. 63]; it expresses the will of the people entirely within the existing structure of lawmaking.

3. Stopping the Executive Branch from reallocating authority: The plaintiffs contend that Amendment A prevents the Governor from reassigning marijuana duties from the Department of Revenue to another exectuive agency. The appellants point to the language of Amendment A that the Circuit Court ignored, the definition of the regulatory “department” as “the Department of Revenue or its successor agency.” That definition anticipates and allows that normal exercise of Executive power, just as Article 12 Section 5 anticipates and allows the assignment of authority over the health care trust fund to an agency other than the South Dakota Investment Council, and just as Article 13 Section 20 successorizes management of the cement trust fund.

4. Establishing a new cause of action against the Department of Revenue: The plaintiffs convinced the Circuit Court that letting citizens sue the Department of Revenue if it failed to carry out its duties represented a far-reaching change in our system of government, because only the Legislature can dictate who can sue the state and for what. But suing the state to make it do its legal duty—the writ of mandamus—is no revolutionary concept; it’s already an integral part of state law:

The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board, or person [SDCL 21-29-1; cited in Appeal, p. 67].

“Thus, Amendment A did not establish anything new,” contend the appellants, “it simply recognized the application of an existing remedy.” And (this should sound familiar now), the people can authorize mandamus the same as the Legislature can, because the people reserve to themselves the right to legislate.

The appellants argue that if the Court thinks Amendment A constitutes a far-reaching change in the structure of government, then past amendments that really did change the structure of government are in big trouble. They point to four amendments enacted in 1972 which reorganized the executive branch, judicial branch, and local government and allowed amendment by initiative. Those changes did not go through a convention; the Legislature sent those amendments straight to the ballot, just like citizens did Amendment A. If we have to have a convention to implement the administratively modest changes of Amendment A, and if plaintiffs can challenge Amendment A on those procedural grounds after enactment, then get ready for a lawsuit that would upend South Dakota’s system of government. (Hmm… that 1972 overhaul was a major initiative of the Democratic Kneip Administration… overturning the Kneip legacy really is Noem’s endgame….)

Severability

Oh yeah, bonus argument: the appellants argue that, even if they lose on every other argument, the Court still has an obligation to sever the unconstitutional provisions but leave intact everything that can pass constitutitonal muster. Citing Dakota Systems Inc. v. Viken 2005, they argue that the Court is obliged to preserve as much of the people’s Legislative act as possible. The appellants note that Amendment A included a severability clause, meaning the people themselves envisioned the prospect that parts of their law could be challenged in court and are willing to accept partial enactment of their will.

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The ability to smoke pot is the least of the matters at issue in fight for Amendment A. What’s really at stake is the ability of the people of South Dakota to amend their own Constitution. If the Supreme Court rejects this appeal, it establishes precedent for the Governor and other opponents of democracy to deter any initiative effort with the threat of lawsuits revolving around extremely subjective claims of the number of subjects a measure contains and the scope of the changes to the structure of government an amendment causes.

Stand by for a response from the state….