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New Ground for Amendment A Appeal: Constitution Prohibits Governor from Blocking Voter-Approved Initiatives

I woke up this morning thinking two things: I gotta pee, and we gotta appeal the overturning of Amendment A. The former problem was easily resolved. The latter requires a bit more effort. But I have an idea that might help.

On my lurching way from bed to bath, it occurred to me (as it occurs to many South Dakotans every day as they consider many different issues) that we wouldn’t be in this fix if Kristi Noem weren’t Governor. Our Governor used her office and our tax dollars to sue the state government of which she is head and throw out a voter-approved initiative. She essentially exercised her veto power over Amendment A.

Wait—veto power? The South Dakota Constitution, which is the complete focus of the Governor’s court challenge against the voters, says of initiatives and referenda in Article 3 Section 1, “The veto power of the Executive shall not be exercised as to measures referred to a vote of the people.” That restriction was in the original version of the initiative and referendum section, brought to us by Father Robert Haire back in 1897. From the beginning, South Dakota’s initiative and referendum process meant to exclude the Governor from the process. The people place measures on the ballot, and if the people approve them, the Governor’s only role is to say, “Yes, sirs, and yes, ma’ams.”

In open contravention of that clear Constitutional intent, Governor Kristi Noem has inserted herself into the initiative process and effectively vetoed Amendment A.

I know—effectively is a big word in that claim. The Governor didn’t actually fire up her veto branding iron and stamp Amendment A into the flaming pit of her barbecue ring. She filed an argument in court, and her judge bought it. But the whereases of her executive order “ratifying” the lawsuit, declaring the lawsuit a projection of her power, reads very much like a veto message and makes clear her intent to stop Amendment A.

And hey, I thought it was a stretch for Noem’s lawyers to concoct the novel argument, never before tried in South Dakota, that a voter initiative had to go through a convention instead of the normal petition process. That strained and fundamentally subjective argument held water in court; why not respond, appellants, with another novel constitutional argument: the Governor has used the courts to circumvent the explicit prohibition on exercising gubernatorial power to block the enactment of a voter-approved initiative.

Aaahhh… that’s two things out of my system this morning.


  1. Ryan 2021-02-13 08:12

    I honestly hope the appellants read this blog occasionally, as you have repeatedly suggested very good arguments against this subversion.

  2. M 2021-02-13 08:39

    You just gave me some hope today.

  3. bearcreekbat 2021-02-13 09:44

    That is an interesting approach. The AG’s office won’t raise such a claim, however, since the AG has reportedly decided not to appeal of the circuit court’s ruling, according to today’s RC Journal, and will not participate in an appeal filed by Amendment A supporters.

  4. jerry 2021-02-13 09:44

    Ravnsborg will not defend his own approval of Amendment A. Seems like when you have a murder rap hanging over your melon, you will kiss the arse of the queen and do her bidding. This needs to be appealed. Ahhhh.

  5. RST Tribal Member at 57572 2021-02-13 10:53

    The South Dakota Constitution, as with the U.S. Constitution is operational when elected people are of sound moral character, understand the rule of law and are mostly decent leaders. The evidence to the contrary is going through a second impeachment and trial in Washington and South Dakota is witness to a mini directorial play. The wows of a 1 party inbred state. Can November 2022 come fast enough!? Thune, Johnson, Noem and some of the 1 party ruling party mischief makers, ops I mean Republican legislators, need to be looked at for future time i office.

  6. Mike Livingston 2021-02-13 16:02

    If I’d have known that the bar was so low I might have gone into politics.

  7. Sion G. Hanson 2021-02-13 18:01

    It will be interesting to see how all of this plays out. When gambling was first introduced in SD, it was denied a couple of times, but those that supported it kept pushing until it was legalized. The same will happen with pot.
    Governor Noems recent article explaing her planned process for initiating medical marijuana in this state was far too technical for her to have come up with it on her own. I’d like to bump into her on the street and ask her about it. I’d get a surly “no comment”! She has no notion of what she is doing.

  8. John Dale 2021-02-14 02:53

    Release the hounds.

    I like this idea.

    The governor has fair warning on this issue.

    Mask and vaccine freedom without cannabis freedom is pissing in the wind.

    I am stunned by the uneven application of this principle, and while it’s her advisors that deserve lots of credit, it’s Kristi’s signature on the documents. Reefer madness propaganda still creates reverberations of terror among cannabis advocates who fear constant wrongful imprisonment. Imagine what this chronic fear does to trust of government over decades. State persecution drives more harm than cannabis. If we were allowed to research and put into practice less barbaric methods of ingestion than smoking, we can quantify the harm prohibition has done in healthcare dollars by correlating heart/lung issues with cannabis smoking. Interestingly, both state persecution and health issues related to cannabis go away with legalization; no smoking and legalization.

    Legal dollars are better reallocated toward stopping real drugs, violent crime, and in making economies capable of supporting families with a reasonable margin for some good old American fun.

    How much does South Dakota spend to protect resident IP from theft through FaceBook and other channels:

    Follow the science on cannabis.

    It leads straight to freedom and complete deregulation.

    It is also an obvious part of fixing the economy.

    When citizens trust government, things run much smoother.

    If the vote last November in SD was accurate, this could be Noem’s waterloo?

    If Noem does not get political friction, it lends inductive support to the notion that the election was rigged by Republicans, who want to delay and create government sponsored competitive advantage in the medical market (and therefore in the Black Market as well). My Republican friends would be wise to indulge me on this notion and research “logical induction”.

    Meanwhile, back at the ranch, little Suzie’s grandma lives every day looking over her shoulder in fear of federal prison for the crime of obtaining her grandaughter’s seizure medication. In addition, Bob soldier, who saw his government’s policies in action overseas, comes home with serious reservations about why he fought after seeing soldiers die to protect CIA poppy fields in Afghanistan. Bob doesn’t want his name in a government database. Cannabis could do him some good, as could the act of gardening his own supply. What are you doing here, Governor Noem? It’s opening up some serious attack surfaces politically ..

    This is precisely the type of information and isight that wouldn’t make it to Noem if she were surrounded by the same unscrupulous people that have been prohibiting and prosecuting cannabis while using it themselves for decades.

    It’d be a shame if this note made it to governor Noem.



  9. happy camper 2021-02-14 08:13

    Unfortunately, if people don’t think the government is acting in good faith, they will be more inclined to just do what they want. The AG needs to be able to provide clarity in the future, if he’s not seeking it, then it looks like complicity and was gamed from the beginning as Troy suggested. Noem had no business requesting the two officers start the case and then support them, which she initially denied doing. If not a defacto veto it’s just real dirty pool and good law has not been established, all so she can have her way. I’ve previously respected SD marijuana law for many reasons, not the least of which not wanting to support organized crime, but I’m starting to not see the difference.

  10. jake 2021-02-14 08:44

    John Dale, you finally made some sense. I agree with a lot of what you just posted.

  11. Cory Allen Heidelberger Post author | 2021-02-14 09:03

    BCB, I’m not at all surprised that the AG would bail. He did his perfunctory duty; now he has to do what the Governor says to keep his job.

  12. Cory Allen Heidelberger Post author | 2021-02-14 09:06

    Note that the science and policy arguments for cannabis lend zero weight to the legal arguments the appellants will have to make to overturn Judge Klinger’s ruling. The arguments to the South Dakota Supreme Court and, I hope, the U.S Supreme Court, revolve entirely around questions of constitutional authority and the initiative process.

  13. Cory Allen Heidelberger Post author | 2021-02-14 09:09

    RST makes an important point: “The South Dakota Constitution, as with the U.S. Constitution is operational when elected people are of sound moral character, understand the rule of law and are mostly decent leaders.” Likewise the initiative and referendum process: our ability to put laws to a public vote is meant to check and balance an arrogant and/or unresponsive Legislature and Executive. However, the power of initiative and referendum is not enough by itself to maintain good government. We must have a Legislature and an Executive run by elected officials of good faith who will respect the process and the people’s will. As long as voters separate their votes on ballot measures from their party-line votes for R-branded legislators and governors, those elected officials can and will act with impunity in stifling initiatives, and we will have no real power to control our destiny.

  14. happy camper 2021-02-14 09:20

    Those processes have to be fair. Critically important to be so. They have a sacred oath to use these processes ethically or will lose consent of the governed. Most people, myself included, aren’t gonna understand the law step by step, but will recognize abuse of power. Noem is a mixture of Trump, Janklow, Sarah Palin, and Josh Hawley.

  15. grudznick 2021-02-14 09:45

    Mr. Dale, you and I are in lock-step on most items, except for the 5 Gs frying people’s brains. grudznick could be wrong on that item, however, since clearly your brain has been fried by something. Probably not the 5 Gs.

  16. John 2021-02-14 10:07

    Generally appeals only allow review of issues argued at the trial court and plead for review. Sometimes the appellate court can review all the issues. Perhaps the appellate court here will review all the issues since the subject matter is the State Constitution.
    A judicial doctrine for consideration is, reasonable investment backed expectations. Investment backed expectations is right-wing judicial created law from the 1978, Penn Central Transportation v. New York City:
    In a nutshell, a regulation that goes too far constitutes a taking. A regulation that goes too far is one that defeats the reasonable exercise of the right afforded in law. Takings require financial compensation.
    The RIBE doctrine may be useful for the appeal.
    Certainly the RIBE doctrine is available to combat neom’s slow-walking medical cannabis use. It would be grand theater having doctors, pharmacies, patients, and their organizations suing SD for their RIBEs. Let freedom ring.

  17. bearcreekbat 2021-02-14 10:23

    Despite Cory’s articulated hope to the contrary, this lawsuit has little, if any, chance of ever going to the US Supreme Court since the lawsuit deals 100% with SD State law rather than either federal law or the people’s rights under the US Constitution. To the best of my knowledge the US Constitution and federal statutes are silent on the states’ initiative and referendum provisions or restrictions.

    Any help or harm from the federal level has to now come through either Congress or the President or both. In Gonzales v. Raich, 545 U.S. 1 (2005), the SCOTUS relatively recently upheld the power of Congress to enact federal criminal laws prohibiting marijuana, which may even reduce the chances that the Court will address any marijuana issue in the near future.

    On the other hand, if Kristi Noem manages to get herself elected POTUS through her Trumpist posturing and the gullibility of the Trump cult, and, if Trumpist autocrats once again take control of Congress, there is a good chance the marijuana obsessed Noem will not only be able to convince Congress to increase the federal criminal penalities for marijuana use (maybe even add the death sentence since Trumpists are so enthralled with the power of the feds to execute people), but also use the Trumpist desire to restrict voting rights to partner with Congress in eliminating the people’s right to enact or restrict state law through initiative or referal petitions. And that type of new federal restriction could indeed merit review by the SCOTUS.

    But given the impact of the previous Reich decision, along with recent conservative decisions restricting voting rights, such as Shelby County v. Holder, 570 U.S. 529 (2013), a Trumpist Congress and President Noem’s anti-initative and referendum voting rights restrictions would likely be once again upheld given the conservative court’s past confirmation of a relatively unlimited federal commerce clause power, coupled with the conservative court’s view of the relatively weak Constitutional protections of the people’s right to vote.

    The moral – be careful what you hope for!

  18. bearcreekbat 2021-02-14 11:21

    John’s linked article is really interesting. Thanks John I enjoyed perusing that article you linked! In my rather cursory review of that concept, however, I had a hard time seeing how it applied here, as there hasn’t been a challenge to either the single subject clause in the State Constitution or any other government regulation resulting in a taking. Perhaps it might apply to the Governor’s exercise of her claimed power to direct a member of her administration to challenge the Amendment in court?

  19. happy camper 2021-02-14 11:25

    Mentele said they will appeal, so the marijuana lobby is probably deciding if South Dakota is a good battleground state and how much money to spend here. They could hire a very skilled legal team. Would Ravangborg, if he is still AG, then be switching sides to argue against them? Or would South Dakota also be able to hire a top notch legal team? Looks to me like there are legal cracks and possible openings. Marijuana stocks have rebounded, consolidated, and Canadian companies are looking at the U.S. for future business. South Dakota isn’t a big market unless the dollars spent here are a positive outcome can be used as precedent to fight legal battles in other states.

  20. John 2021-02-17 08:05

    States with decriminalized cannabis have 20% fewer worker disability cases filed by older workers.
    Thus, those states RECEIVE increased tax revenue AND lower liabilities via fewer worker disability filings.

    Over 30 states have forms of decriminalized cannabis. It should take a handful of folks with a brain a weekend or three to craft a useful legislative and regulatory support scheme for South Dakota.

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