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Thom and Miller Have Two Actions Against Amendment A: Complaint for Declaratory Relief Plus Election Contest

Perhaps recognizing that challenging Amendment A, South Dakota’s marijuana legalization, via an election contest will go nowhere in court, anti-pot plaintiffs Kevin Thom and Rick Miller are pitching that legal wall-spahetti to the Sixth Circuit alongside another complaint, this one a lawsuit for declaratory relief, filed last Friday just 33 minutes after the first newsmaking lawsuit.

The complaint for declaratory relief makes the same arguments as the election contest complaint: Amendment A is invalid because (1) it is a broad revision of the South Dakota Constitution rather than a limited amendment and did not go through the state constitutional convention process required for revising the Constitution and (2) it encompasses more than one subject. The text of both complaints is almost entirely identical, with minor wording changes identify the complainants as “plaintiffs” rather than “contestants.”

Thom and Miller file both complaints in their official capacities as Pennington County Sheriff and South Dakota Highway Patrol Colonel, respectively, indicating they think they can prosecute both arguments on the clock, as part of their work for the taxpayers whose vote their are trying to overturn.

The complaint for declaratory relief does not seek to declare the November 3 election and all ballots cast therein for or against Amendment A invalid, but it still asks the judge to offer the same relief as the election contest: to declare Amendment A not ratified and not part of the South Dakota Constitution.

The complaint for declaratory relief also differs from the election contest in explicitly naming Secretary of State Steve Barnett as the sole defendant. This diverges from previous lawsuits against state law. In 2016, Republican legislators and the Family Heritage Alliance sued the State of South Dakota and Attorney General Marty Jackley to block Initiated Measure 22. In 2019, when I sued to overturn Initiated Measure 24 and 2019 House Bill 1094, I named the Governor, the Attorney General, and the Secretary of State as defendants in their official capacities. When the Chamber, the Koch Brothers, and other capitalist filed their own IM 24 lawsuit alongside mine, they named the Attorney General and the Secretary of State as plaintiffs.

But even Secretary Barnett alone as defendant, as well as the constitutional questions raised, means the Attorney General will be lawyering for the defense. Given the plaintiffs’ filing in their official capacities and Governor Noem’s declaration that she will spend state money to support the challenge to Amendment A, it appears both of these measures will bring us the ridiculous spectacle of taxpayer dollars fighting taxpayer dollars in court.

Related Reading: Amendment A sponsoring committee South Dakotans for Better Marijuana Laws said Monday they plan to intervene in the legal challenges filed by Sheriff Thom and Trooper Miller. (Read SDCL 15-6-24, the statutes on intervention.) They contend both the amendment-vs.-revision and single-subject arguments are based on “incorrect legal theories.” And this morning, SDBML is calling on Amendment A supporters to call Sheriff Thom’s office (605-394-6113) and Trooper Miller’s office (605-773-3105) to civilly (“Insults and cursing do not help our cause,” but “be firm and direct”) tell them to withdraw from the lawsuits and stop abusing their positions and public funds.

23 Comments

  1. Nix 2020-11-25

    Good Lord, Thoms, Miller and the Dope Queen are just shameless Ducks. (Ya, I spelled it wrong)
    When you have an election that reflects the will of the people, and you are sworn to uphold the constitution, that’s it.
    This isn’t a dictatorship, but whatever
    you clowns are attempting certainly
    is not American.
    This crap happens in third world countries with dictators.
    You should be stripped of your duties
    and prosecuted.
    If we have the numbers to pass Amendment A and 26, then we have the numbers to impeach the Queen.
    LOCK HER UP !!!!

  2. Mark Anderson 2020-11-25

    Come on South Dakota, just because your little dictator let’s you keep your face clean from masks doesn’t mean she wants you to stick a joint in it. Pretty soon you could vote in anything and we can’t have that. This is not a democracy but a republic of rugged individualists who worship trump the ultimate trust fund baby of power and glory.

  3. jerry 2020-11-25

    These two hoodlums, Thom and Miller, prove just how jack booted South Dakota law encroachment really is. They fear their gravy train will end and they will have to get off their fat arse’s and go to real work, like cutting their budgets from the bloat they have installed. We are all sick and tired of getting gouged for their extravagances on the backs of young people and the sick who just want to live. DO THIS ON YOUR OWN DIME

    IMPEACH GNOEM

  4. Jake 2020-11-25

    This is probably why the state’s investigation into the death of [Joe Boever, Nick Nemec’s counsin] is still ‘open’! The South Dakota Attorney General that killed him still faces no charges and is still running his office drawing a tax paid salary. He is needed by Noem’s cabal to help stop the people’s “Wise Choice” vote to approve marijuana. I agree, calling the two lawmen’s offices is good. Let’s expand it to calling the governor’s office.

  5. jerry 2020-11-25

    Don’t forget, jackboot Miller still hasn’t disclosed how much South Dakota taxpayers are getting gouged for with the security while GNOem grifts out of state. Hoodlums with badges.

  6. Jenny 2020-11-25

    The deceased pedestrian’s name was Joe Boever. The Nemec brothers that have done their own investigation are the cousins of Joe Boever.
    Can anyone fill us in on this? What’s holding the Ravnsborg investigation up? Is he still working?

  7. jerry 2020-11-25

    As this is about the corrupt use of taxpayer dollars to cover private citizens legal expenses, I say that there should be a “go fund me page” to help defend and offset the heavy foot of taxpayer contributions into the pockets of private lawyers to disenfranchise the will of the popular vote. trumpian isn’t it. IMPEACH GNOEM

  8. o 2020-11-25

    Can Governor Noem spend state funds without legislative approval? Doesn’t the legislature hold the purse strings. I know process means little in this discussion but. if this is an argument about rules and process, shouldn’t process be followed (least the appeal on process be subject to appeal on process?)

  9. jerry 2020-11-25

    Sioux Falls/Pennington County should follow El Paso’s route of collecting money from trump/GNOem for campaign expenses we taxpayers had to get gouged for.

    “EL PASO, Texas (KTSM) — The City of El Paso is taking further steps in attempts of collecting over half a million dollars that’s owed by the Trump campaign from a rally that took place almost two years ago.

    It’s almost the end of November and with obstacles throughout the year due to COVID-19, the City has been waiting since February of last year on money that’s been owed from the Trump campaign.

    “We all are seeing firsthand the struggles that everyday El Paso families have in addition to the challenges that we have in our own budget,” City Rep. Peter Svarzbein said during Tuesday’s council meeting, “So this amount of money is not inconsequential and also the message that we send that nobody is above the law is also an important one for our community to understand as well.”

    Go, do your jobs and let the choices made by South Dakota voters stand. Collect from the deadbeats. IMPEACH GNOEM

  10. Curt 2020-11-25

    Interestingly, Noem has managed to throw a little business in the direction of her lobbyist pal Matt McCaulley and his Redstone law firm whom she has retained to represent Thom and Miller. OK, it’s more than a little business – reporter Arielle Zionts writes in today’s RC Journal that the contract is worth $403,375. So far. I guess that probably means Rudy Giuliani is busy.

  11. Eve Fisher 2020-11-25

    Obviously they’re all advertising their services in hopes that they can join Rudy Giuliani in the on-going Trump Legal Dream Team.

  12. Donald Pay 2020-11-25

    It seems right that the state should pay for an independent defense of this measure with attorneys approved by the measure’s sponsors.

  13. jerry 2020-11-25

    Staple and Spice know full well jackboot Thom and his corrupted ways of intimidation.

    “https://www.newscenter1.tv/no-charges-for-rapid-city-store-owner-after-cbd-raid/

  14. John 2020-11-26

    Many incentives are misaligned in the US police, prosecutorial, prison legislative-industrial complex. The ridiculous, self-defeating war on drugs is but one example. Sentencing is but another. Most criminal sentences are meted out at the county level — but the state pays. When the county is forced to pay for sentencing . . . guess what, Sherlock? The length of sentences was reduced AND with no measurable effects on crime.
    It’s long past the time to re-align incentives in the less-than-just system. As the saying goes, ‘war is too important to be left to the generals’ – similarly justice is too important to be left to the police, prosecutors, and prisons.
    https://www.sciencedirect.com/science/article/abs/pii/S0047272720301493

  15. jerry 2020-11-27

    Where are the Democrats? Come out, come out wherever you are. Stand for something, don’t let Oren Lesmeister do all the lifting. Support these two initiatives loudly.

    “I’m as bullish a Democrat as anyone, but let’s be real: 68% of Americans ARE NOT Democrats. Also, much to my chagrin, Democrats are not unanimous in their support of cannabis legalization. (More on that another time.) That means that a good number of Republicans and — yes, rural Republicans — support legalizing cannabis!” https://www.dailykos.com/stories/2020/11/27/1998611/-If-only-there-was-an-issue-rural-Dems-could-make-inroads-with

    Start someplace to show change can be made.

  16. Cory Allen Heidelberger Post author | 2020-11-27

    Remember: the Attorney General cannot do legal work for the plaintiffs. The Attorney General is required by law to defend Amendment A against legal challenges like these.

    But Noem does need to keep Ravnsborg around… because as long as Ravnsborg is in charge, he will guarantee as inept a defense as possible.

  17. Cory Allen Heidelberger Post author | 2020-11-27

    O, I’m not sure if the Legislature can claim oversight of the expenditure of the funds Noem is dedicating to pitting the state against itself on Amendment A or if she can simply draw existing operational funds from the Department of Public Safety. We should watch open.sd.gov to see which department writes McCaulley and Morris their checks for this case.

  18. Cory Allen Heidelberger Post author | 2020-11-27

    …but O gets me looking, and I find in Open.SD.gov two payments to McCaulley’s Redstone Law Firm from Governor Noem on November 13, one week before he filed the Thom/Miller court challenges to Amendment A. The two checks total $2,888. They are listed as contractual services for legal consulting. They are drawn from federal covid-19 stimulus funds. Since Septmeber 23, Redstone has received nine such payments from the federal coronavirus relief funds totaling over $76,000. There is nothing in Open.SD.Gov indicating that this legal consulting was for the Thom/Miller lawsuits; all we have is timing. I’m willing to say the more logical explanation for these nine payments, including the November 13 payments, is that Noem has McCaulley’s lawyers studying the CARES Act and advising her on how she can legally use the money… or at least, that’s one way she could justify using coronavirus funds to pay Redstone.

  19. Cory Allen Heidelberger Post author | 2020-11-27

    The Morris Law Firm has received over $49K in state payments this fiscal year. Morris’s three November 11 checks, totaling over $14K, come from the Public Entity Pool for Liability and the Bureau of Administration Special Revenue Fund.

  20. grudznick 2020-11-27

    Those bossturds!

    Mr. H, you are righter-than-right that Mr. Ravnsborg will be his ept-less self and trudge through his legal work. I’m sure his mind is fully on his duties. His gerbil brain is focused 100% on his legal maneuvers and constitutional duties, not upon his impending ending.

    All this, while Mr. McCaulley, with his giant brain, is juggling many different situations and only needs to deploy a small brain pinky to smite down what Mr. Ravnsborg might come up with.

    These are the facts of the case, and they are indisputable.

  21. mike livingston 2020-11-27

    This debate could be about cannibus or anything else, the issue is whether our votes and petitions have any substantive value.

    Apparently the value of our democracy depends on the will of the governing and not the governed.

    Covid krissy is probably in denial over Diaper dons tragic loss otherwise she would be in her fox locker scolding us about the hazards of reefer madness

  22. grudznick 2020-11-27

    //grudznick’s post deleted//

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