Governor Kristi Noem is using Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Colonel Rick Miller as plaintiff-pawns in a crazy ploy to avoid her constitutional duty to defend voter-approved initiatives and expend public resources to attack marijuana-legalizing Amendment A in court.
Let’s goose Kristi’s ganders and use their mislabeled lawsuit to overturn another nefarious obstacle to direct democracy, the single-subject rule.
Supporters of Amendment A can thank me for going to court and protecting their access to the huge sums of out-of-state campaign cash that made their 2019 petition drive and 2020 campaign viable. They may also be able to blame me for publishing last January the single-subject argument that Thom and Miller (and Noem) are using to attack Amendment A in court. But hey: if I can see a legal argument coming, so can big-money anti-initiative lawyers like Noem’s litigatious footman Matt McCaulley… and, for that matter, big-money lawyer Brendan Johnson, who wrote Amendment A and surely—surely!—anticipated the single-subject attack and the five ways he’d demolish it in court when the SDGOP establishment inevitably—inevitably!—launched it.
O.K., nitty-gritty time:
The single-subject rule in South Dakota Constitution Article 23, Section 1, is brand-spankin’ new, written and placed on the ballot in 2018 by anti-democracy SDGOP legislators who want to take away our ability to write our own laws and check the Legislature’s power. The single-subject rule for constitutional amendments, as approved by you, the voters, in 2018, as Amendment Z, says, “no proposed amendment may embrace more than one subject.”
Does Amendment A embrace more than one subject?
Yes, I suggested one morning before breakfast, rattling off ten different activities and seven arguable subjects identifiable in Amendment A without breaking a sweat or taking a check. YES!!! now cry Thom and Miller:
39. Amendment A violates the one-subject rule because it embraces at least five separate subjects, including, but not limited to:
- Legalization of recreational marijuana;
- Regulation, licensing, and taxation of the commercial sale of recreational marijuana;
- Regulation and licensing of recreational marijuana by political subdivisions;
- Regulation of marijuana for strictly medicinal use as prescribed by a medical professional; and
- Regulation of hemp.
40. Amendment A purports to confer personal rights upon individuals to use medical and recreational marijuana, while simultaneously conferring property rights upon entities to grow and sell marijuana to others. These personal and private rights are fundamentally distinct [Kevin Thom and Rick Miller, “Election Contest: Verified Complaint, In the Matter of Election Contest as to Amendment A, an Amendment to the South Dakota Constitution to Legalize, Regulate, and Tax Marijuana; and to Require the Legislature to Pass Laws Regarding Hemp as Well as Laws Ensuring Access to Marijuana for Medical Use,” Sixth Judicial Circuit, filed 2020.11.20].
Paragraph 40 is spaghetti thrown at the wall; it won’t stick. Amendment B, the sports-betting measure we passed right alongside Amendment A, confers a personal right upon individuals to participate in sports betting at Deadwood casinos while simultaneously conferring property rights upon entities to host and profit from sports betting. 2016 Amendment S, “Marsy’s Law” as amended by 2018 Amendment Y, now enshrined as Article 6 Section 29, confers a variety of personal and property rights (restitution!) and takes away rights from defendants, the press, and the public. Article 6 Section 4 dictates that “The right of petition,”—(we’re going to come back to that)—”and of the people to peaceably assemble to consult for the common good and make known their opinions, shall never be abridged,” and petitioning, assembling, consulting, and making known our opinions are distinct rights. Article 6 Section 2, our basic statement of due process rights, guarantees three distinct rights: the right to life, the right to liberty, and the right to property. You can read almost any section of the Constitution to grant different kinds of rights to different classes of people or to balance rights by extending some rights while reducing other rights (cursèd Amendment A! what about my right not to smell pot all over Aberdeen?)
2020 Amendment B, of course, is the only item above that was approved after Amendment Z single-subject rule, but the intertwingled nature of different rights affected by even the briefest sections of the Constitution demonstrates the absurdity of Thom and Miller’s Paragraph 40 argument: if the single-subject rule outlaws any amendment that affects more than one kind of right for more than one group of people, it outlaws almost any change the people might try to make to their own Constitution. That is the SDGOP’s intent, but that is not our Founders’ intent or our Constitution’s plain language and practice.
Paragraph 39 is less baloneyish, though Thom and Miller still have to stretch their ingredients. Letting doctors prescribe marijuana, letting Smoky Joe blaze up at home for kicks, and letting Farmer Bob and the lumber mill collaborate to make hemp fiberboard are three different activities requiring different regulation. State laws and city and county ordinances have different scopes. Arguably, sure, each aspect of Amendment A could be considered a different subject.
But consider this blog post. I can tell you that each paragraph addresses a different subject, expressed in a clear topic sentence (well, Martin Connor and Doc Miller might dispute that compositional clarity). But I can also tell you that each paragraph contributes a sub-subject to the blog post, which itself has a single subject: the validity of the single-subject-rule argument against Amendment A. Does this blog post not have a single subject just because it has paragraphs expressing sub-subjects? Of course not.
Likewise laws and constitutional provisions. We may identify multiple subjects raised by just one sentence the Constitution (again, see Article 6, Sections 2 and 4, mentioned above) or in one long, complicated amendment to our Constitution (see Article 6, Section 29). We may identify several aspects of personal, commercial, professional, and regulatory activity in Amendment A. Yet in each case, we can also reasonably say that each part of the Constitution addresses a single subject. Article 6 Section 2: due process. Article 6 Section 4: political participation. Article 6 Section 29: crime victims’ rights. Amendment A: the proper role of cannabis sativa in our community.
Single-subject restrictions have been accepted by the South Dakota Supreme Court as a means to prevent hoodwinking the public with long initiatives and hidden provisions. Yet Amendment A involved no hoodwinking. The sponsors didn’t bamboozle us with a blizzard of pot provisions only to sneak in clauses prohibiting women from wearing pants or cutting their hair. They told us from the start that Amendment A was comprehensive cannabis reform. So did Attorney General Jason Ravsnborg in his title and explanation for Amendment A. Voters had over a year to read Amendment A’s fifteen sections and 2,298 words. No one found a surprise provision. A majority found that this one amendment was a reasonable way to deal with the complicated but unitary subject of cannabis in South Dakota.
And don’t forget: the voters who passed Amendment A this month are the same voters who enacted Amendment Z, the single-subject rule for constitutional amendments, in the immediately preceding general election. Since Amendment Z did not define subject, we may reasonably turn to legislative intent to understand subject. Here, the legislative intent comes from the voting public. In 2018, the voting public looked at Amendment Z and said, “O.K., let’s limit each amendment to a single subject.” Just two years later, with that judgment ringing in its collective ears (I was thinking about it; surely—surely!—y’all were, too!), the same voting public read Amendment A and said, “Yup, looks like a single subject—cannabis reform—and a good idea. We approve.”
The voters themselves have already ruled on Thom and Miller’s argument: cannabis reform is a single subject, and they want it in the Constitution.
Thom and Miller don’t demonstrate that Amendment A fails the single-subject rule. Instead, they demonstrate that the single-subject rule is just an excuse for the SDGOP establishment to play word games and restrict the people’s right to make their own laws through initiative and referendum.
The real constitutional argument here may not be against Amendment A but against Amendment Z. We the People remain the constituent power; we have constituted the Legislature and Sheriff Thom and Trooper Miller and the rest of the government with our Constitution, but we constituents retain the original and ultimate authority over what our Constitution says and allows those constituted powers to do.
We determine what the Constitution says in part through our right to petition. Article 6 Section 4 (I told you we’d come back to this!) promises, “The right of petition… shall never be abridged.” Amendment Z, the single-subject rule as deployed by Thom, Miller, and their public bankroller Kristi Noem, does not square with that promise. Thom and Miller are showing that the single-subject rule serves only to open the door to popular obstruction via semantic nihilism, a microparsing of integral proposals into decontextualized verbal particles. Thom and Miller would force South Dakotans to divide every problem into smaller and smaller parts, turning one unified proposal into dozens, maybe hundreds (depending on how far the opponents of initiative power care to press the vaguely defined concept of subject) of separate initiative petitions. Dividing a proposal like Amendment A into, say, ten separate petitions would make circulating the complete policy proposal impractical (it’s hard enough getting people to sign one petition; imagine getting them to sign ten petitions). Thom and Miller would reduce the range of topics the electorate may practically address by initiative petition to only the most general, most minute, or most trivial topics. Amendment Z, as read by Thom and Miller to the court, would forbid South Dakotans from working together as a community to craft comprehensive solutions to vital public problems, present those solutions to the voters on petitions as initiatives, and offer the voters the opportunity to approve and enact those solutions.
Thom and Miller demonstrate that, far from protecting the public, Amendment Z profoundly erodes our ability to exercise our constituent power and govern ourselves. If the court truly wants to protect the legitimacy of our Constitution, the court will leave Amendment A in place and overturn Amendment Z.
Of course, such a turnabout ruling cannot happen in the strict confines of a constitutional challenge to Amendment A. SDCL 12-22-15 allows “any voter who was entitled to vote on such question… to intervene as a party plaintiff or defendant” in the election contest Thom and Miller have filed, but we’ll need Amendment A sponsor Brendan Johnson or some other interested party to file a countersuit against Governor Noem and Attorney General Ravnsborg to tackle Amendment Z. Just remember, Brendan and interested parties, when it comes to initiative and referendum law, Noem and Ravnsborg have a really bad track record in court.