State on Amendment A: Cannabis Doesn’t Overhaul Constitution, Does Fit Single Subject Rule

For Christmas, Bob Mercer gives us the briefs filed by both the Attorney General’s office and South Dakotans for Better Marijuana Laws to rebuff the legal challenge to Amendment A, South Dakota’s cannabis constitutionalization. Let’s see how well the state does fighting against its own Governor in court:

Assistant Attorneys General Grant Flynn and Matthew W. Templar tackle the two main arguments posed by the cops Governor Noem enlisted to file the twin lawsuits she’s funding against the will of the people: that Amendment A is a revision, not an amendment, and that Amendment A violates our new single-subject rule for constitutional amendments.

First, on revision vs. amendment, AAGs Flynn and Templar hit the books to build a framework for Judge Christina Klinger to distinguish revisions from amendments. They turn to the California Supreme Court, which has frequently addressed the question of revision vs. amendment by applying both quantitative and qualitative tests. Under the quantitative test, a revision is “so extensive in its provisions as to change the ‘substantial entirety’ of the Constitution.” Under the qualitative test, a revision makes “far-reaching changes in the nature of our basic governmental plan.

The Oregon Court of Appeals has said a revision must be “fundamental” and “far-reaching.” The Delaware Supreme Court says a revision must “effect a change in the basic philosophy which has cast our government in its present form.”

The Michigan Supreme Court expands on the qualitative distinction with a “New Constitution Test,” recognizing that the revision process “can produce a proposed constitution…. changes that significantly alter or abolish the form or structure of our government, in a manner equivalent to creating a new constitution, are not amendments.”

California’s quantitative standard stands out among the other state analyses Flynn and Templar cite but makes a simple point: if you’re rewriting most or all of the constitution, you’re revising. California’s qualitative standard lines up with the common theme from Oregon, Delaware, and Michigan: revisions make basic, fundamental changes to how we govern ourselves.

The state litigants on both sides of this case don’t have much on the quantitative side. Noem’s Potemkin plaintiffs invoke the length of Amendment A (15 sections, 55 subsections, 2,300 words) as a signal that Amendment A is really a revision. The Attorney General’s team compares that quantity to the 25 articles and 245 sections of the South Dakota Constitution and concludes that Amendment A does not wreak “a significant number of changes.” Both sides miss the point. California’s quantitative standard does not set a numerical ratio to distinguish revision from amendment. The California courts count not the words but the effects of those words throughout the constitution. A single paragraph could implicitly alter the effect of multiple sections of a constitution and thus be a revision; a great pile of paragraphs could add a complicated yet clearly unitary subject to a constitution with no substantive impact on the rest of the constitution and be an amendment.

The state also misses its chance to flesh out its one-paragraph quantitative argument by comparing Amendment A to amendments in other states that won against revision challenges. In building the foundation of its argument, the state does cite several such successful amendments—California alone offers examples of amendments moving the state capital, limiting state and local governments’ assessment and taxing powers, creating victims rights, and limiting legislators’ terms, budgets, and pensions. Either side could dig into those examples for numerical comparisons—word counts, distinct provisions, ratios to existing constitutional language. The state could compare those successful amendments with a 1948 amendment that was tossed as a revision because it did so much, addressing “a bill of rights, pensions, gaming, taxes, oleomargarine, civic centers, the legislature, public lands, and surface mining,” affecting “most of the already existing Articles within the Constitution.” The state could give hard numerical criteria for that disqualified revision, compare them to the same numerical criteria for California’s successful amendments, and then show where our Amendment A falls on that numerical continuum.

But the state does no such calculus and makes no such quantitative comparisons. The state does mention that Amendment A “does not purport to alter or impact any other articles currently in the Constitution, beyond those mentioned in the Amendment,” but I get the impression that neither side is properly making the quantitative standard a voting issue…

…in which case the court, thinking Californianly, should focus on the qualitative argument. The state argues hard here, saying that legalizing cannabis does not far-reachingly or fundamentally change how we govern South Dakota. Amendment A addresses a single subject, cannabis. Amendment A fits cannabis regulation into “the administrative state that already exists in South Dakota.” Most importantly, the only arguable change in who runs what, the amendment’s delegation of administrative authority to the Department of Revenue, “includes the same types of responsibilities often delegated to state agencies by the Legislature,” showing that the voters are following a well-worn regulatory precedent, not forging an entirely new way of governing South Dakota.

The qualitative standard requires that a revision must produce a fundamentally new way of running South Dakota. As interpreted by Michigan’s “New Constitution Test,” a revision should present us with a new governing document. Amendment A leaves South Dakota running pretty much the same way it always has, with the same old Constitution, just with one new lengthy section adding cannabis to the crops we can grow, tax, and use. Amendment A is thus an amendment, not a revision.

AAGs Flynn and Templar then exert themselves on the single-subject argument. To support the position that Amendment A addresses the single, obvious subject of cannabis, the state cites case law from South Dakota—”If the provision[s] of the Act fairly relates to the subject, it will meet constitutional requirements”—and Oregon—following a single-subject restriction requires “a ‘unifying principle logically connecting all provisions’ in the measure.” The Oregon precedent comes from Anantha vl. Clarno 2020, in which the Oregon Court of Appeals found that three extensive ballot measures that affected logging regulation, pesticide application, conflicts of interest, and funding for regulatory activities all “concerned one unifying principle: the regulation and protection of Oregon’s forests.”

The emphasis is mine, because right there, the state has its best case-law argument for Amendment A’s single-subjectiveness. The Anantha ruling concerns a measure that does lots of different things within one clear policy area. Amendment A does lots of different things within one clear policy area. Amendment A thus address a single subject.

AAGs Flynn and Templar then make their best soundbite argument in dismissing any argument that recreational marijuana and industrial hemp, both constitutionalized by Amendment A, constitute separate subjects. In the process, they put the state on record declaring that cannabis and corn deserve equal status in South Dakota agriculture:

…cannabis is cannabis is cannabis; just like corn is corn is corn. Marijuana and hemp come from the same general plant, regardless of the specific strain—such as a strain bred for a high THC concentration (marijuana) or a strain bred for a low THC concentration (hemp). The same goes for corn, regardless of if we are talking about sweet corn, field corn, or a strain bred to create another corn product, like corn syrup [Asst. Attys. Gen. Grant Flynn and Matthew W. Templar, Brief in Support of Motion for Judgment on the Pleadings, Thom and Miller v. Barnett, filed 2020.12.23; in Bob Mercer, “Sides Make Their Points on Whether South Dakota’s Marijuana Amendment Was Valid,” KELO-TV, 2020.12.24].

The state further analogizes cannabis regulation to banking regulation, municipal bonds and tax increment financing, and Yankton’s acquisition of a toll bridge, but corn, sweet and otherwise, constitutes the best South Dakota example for which one could ask.

Amendment A is clearly not a fundamental overhaul of South Dakota’s system of government. Amendment A is perhaps more debatably a single-subject measure. But if there is any doubt, AAGs Flynn and Templar tuck in for the judge a helpful voting standard. When handling a measure approved by the voters, Flynn and Templar contend that the court should resolve any reasonable doubt in favor of voters’ expressed will. To this end, Flynn and Templar pull good quotes from California—”The initiative process is one of the most precious rights of a state’s democratic process, and the courts resolve any reasonable doubts about an initiative in favor of the exercise of that power”—and, in the footnotes, from Montana—”The question is not whether it is possible to condemn the amendment, but whether it is possible to uphold it, and we shall not condemn it unless in our judgment its nullity is manifest beyond a reasonable doubt” (though in the Montana case the state cites, Marshall v. Cooney 1999, the court did indeed find that the taxation amendment in question did beyond a reasonable doubt implicitly amend multiple sections of the Montana Constitution and thus did nullify the measure as an improperly processed revision). Flynn and Templar thus quite fairly put the burden of proof on Noem’s pawns to prove beyond a reasonable doubt that the court should overturn a fair and free vote fo the people.

(The Assistant A.G.s also give us the Christmas treat of putting on the record the state’s affirmation that the right of initiative is precious and the state should not blithely obstruct or overturn the expressed will of the people. Thanks, Grant and Matt!)

For people picked by Jason Ravnsborg, Flynn and Templar do reasonably good work in defense of Amendment A. In a later post, I’ll analyze what support Amendment A’s sponsors add to the argument with the brief filed Wednesday by Brendan Johnson and Timothy Billion.