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Owen: Noem Lawsuit Against Pot Not About Constitutional Integrity

I don’t like David Owen quite as much as I like Grandpa Joe, but South Dakota’s Chamber chief said something really interesting on public radio yesterday.

As the state president of our Chamber of Commerce, David Owen led the unsuccessful campaign against Amendment A, South Dakota’s constitutionalization of cannabis. When the voters rebuffed the Chamber’s concerns and approved Amendment A, Owen accepted defeat and expressed respect for the will of the voters. Owen and the Chamber did not join Governor Kristi Noem’s lawsuit to overturn the will of the voters. The Governor claims that she ordered the lawsuit to “support and defend the Constitution” of South Dakota.

Outside the South Dakota Supreme Court chamber yesterday, where our justices heard arguments on Amendment A, David Owen cast doubt on the Governor’s justification for this expensive lawsuit:

He says the legal challenge before the state Supreme Court is not about a benign constitutional question.

“This isn’t purely a drive that says  ‘Oh my, I need to protect the constitution.’ Let’s not kid anybody. This is driven by people who want South Dakota to ban recreational marijuana. They’re using this argument as a reason, which means we may open up a constitutional door that has consequences” [Lee Strubinger, “State Supreme Court Hears Legal Marijuana Case, Public Awaits Decision,” SDPB Radio, 2021.04.28].

Governor Noem is paying her favorite private lawyers a lot of money to cook up a convoluted constitutional argument to achieve political ends she failed to achieve at the polls. She doesn’t want marijuana legalized, and she’ll say—or pay her lawyers lots of our tax dollars to say—whatever it takes to achieve the goal. If she prevails among the justices, her arguments of convenience and connivance will do immense damage to the people’s constitutional right to control and write their own constitution. She does not care about that collateral damage; she just wants to stop the voters from getting what they want and what she doesn’t want.

And even David Owen, who won’t mind seeing the Supreme Court kill Amendment A, seems willing to acknowledge the speciousness and harm of the arguments the Governor is making to kill it.


  1. John Dale 2021-04-29 18:31

    Spoiler alert .. Amendment A is indeed multi-subject, sets a precedent contrary to SD constitutional principles (major change to constitutional precedent).

    If it fails, which I think it should (sadly), it will be because it creates an oligopoly enforced through unelected officials in SD government that are or will be compromised to ensure none of the $ goes to America first patriots and SD residents writ large.

    I know, crazy, right?

    So sad.

  2. Bob Newland 2021-04-29 19:57

    John Dale is unusually (even for him) intranslatable in his criticism? of the advocates (can’t tell who he favors) of the lawsuit on legal weed.

  3. RST Tribal Member 2021-04-29 22:02

    Win or lose isn’t the goal of America’s Governor Noem. Her Washington handlers want her name in print and on the air. When trying to get name recognition and high profile it’s not the end but the process that counts.

    America’s Governor got her behind chewed out on the transgender veto/none veto action. This pot court thingie just might get her back in sync with her future constituency. She has the silly idea that she can use South Dakota as a launching pad to a greater office. The GOP leader could order her to take out RINO Thune in 2022 or tell her to stay Governor.

    The voters should put her of her office in November 2022 before she does real damage to the state. Also, tossing out RINO Thune and the Dusty Johnson would be a good start to bring progress to the state.

  4. Ryan 2021-04-29 22:58

    John, it’s one subject – cannabis. Everything in that amendment is rationally related to the clear and obvious goal of legalizing cannabis while trying not to leave a sloppy loop hole for people who oppose it to take advantage of upon implementation.

    Owen is saying what everyone knows. Noem doesn’t care about rules, she cares about ruling. If there is one single adult in this state who believes this lawsuit actually has anything to do with the technical arguments being made about the amendment, I would hope that person wears a helmet in public to protect himself and those around him.

    The Honorable Justices on the SD Supreme Court know what is going on, I’m sure. They are incredibly smart folks. Literally everyone knows. Everyone.

    In hindsight, it’s easy to say that this amendment could have been drafted better, but to suggest it fails to pass constitutional muster would set a bar too high and would be unfair scrutiny not given to any other laws. It’s just a question now of whether or not the Court will give the benefit of the doubt to what the people obviously want despite an imperfectly drafted amendment. It could go either way because there is just enough vague authority for a 3-2 majority opinion for or against, and we can’t do a darn thing other than just accept whatever those 5 individuals decide. We’ll see!

  5. M 2021-04-30 06:11

    What’s with Kristi and pot? Does she think the cops don’t have anything more serious to do than to bust people with a couple joints? What about all the meth, rapes and missing persons cases that need attention? Kristi trusts us to do the right thing during a life threatening pandemic but not smoke a couple hits to go to sleep at night. Control freak and narcissist.

    All this taxpayers money being wasted by Republicans on frivolous lawsuits or fighting the will of the people is shameful. I do know some Republicans who are no longer faithful to the party because of this single issue. Most of these people are veterans and they fought for the constitution and individual freedoms, not for a governor who fights against them.

    If the S.D. Supreme Court rules in favor of the state, what happens when the U.S. Senate legalizes marijuana? Is Kristi going to defy the feds?

  6. John 2021-04-30 06:14

    Which justice(s) are up for a retention vote in 2022? 2024? Asking for a friend.

  7. DaveFN 2021-04-30 07:12

    For Noem it’s about virtue-signaling her version of morality.

  8. DaveFN 2021-04-30 07:19

    …Both constitutional integrity and cannabis are but a pretext.

  9. Mark Anderson 2021-04-30 18:29

    Gosh, just listening to Todd Rundgren playing past two in a Vermillion bar while smoking, it brings back memories.

  10. Porter Lansing 2021-05-01 21:05

    Not only does Gov. Noem refuse to allow legalization, the head of the SD Republican party is a bail bondsman, making a lot of money bailing out people discovered with small amounts of pot.
    Dan Lederman refuses to allow legalization, too.

  11. james 2021-05-02 10:11

    In court, there was a lot of discussion about the many subsections in Amendment A and how it isn’t constitutional because of the “single subject rule”.

    So… in order to legalize marijuana, we should have voted on 50 different amendments? Is that their position?

    There was also discussion about challenging the Amendment before the election vs. afterward. Marijuana opponents tried flattering the court by saying it would have been a waste of their time to do so before the vote. Well, they wasted their time and all of our time by challenging it now. You know, the voters matter too.

  12. Rlm 2021-05-03 12:58

    The governor and her allies have another option available that no one brings up. They could simply get signatures on a new initiated amendment to repeal A and put the question to the voters in the next general election.
    If they are confident that their ideas are correct, why should they shy away from trying to convince the voters of that

  13. Curt 2021-05-03 22:18

    Back to the beginning – David Owen has good reason for opposing Amendment A. He represents Commerce & Industry. That’s his job. He knows – because their leadership has told him – that they struggle now to find competent workers who can pass a drug screen. Legalization can only compound that problem, But I wish his complaint would focus on the obvious inconsistency of a Governor flying around the country at our expense while touting the lawsuits she is bringing – also at our expense.
    There is presumed to be a ‘balance of powers’ – it’s in the Civics lessons Noem wants us to focus on – but she ignores that fundamental tenet of our Republic. She heads the Executive Branch while usurping the authority of the Legislative Branch to battle the Judicial Branch.
    Regrettably, I have no solution to propose. David Owen might be a good Governor, but I don’t think he would take the job. Forget I ever said that.

  14. leslie 2021-05-04 08:43

    Noem want’s us to be very wary of marijuana consumption for our own protection while encouraging/enabling/dog whistling:

    “violent white supremacists and a…number of militia violent extremists …who associate with militias…such as Proud Boys and Oath keepers [and III%ers and]….adherents of these violent right-wing militias coordinated in advance to attack the Capitol on January 6.”

    (Sen. Dick Durbin letter to FBI Director Wray May 3, 2021– From @DickDurbin)

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