Seven months after hearing arguments on Amendment A, the South Dakota Supreme Court sends this turkey, upholding a lower court’s revocation of the will of the voters by deeming their legalization of marijuana invalid due to Amendment A’s embrace of more than one subject:
In a four-to-one decision, the Court held that Amendment A, as submitted to the voters in the November 2020 general election, violated the single subject requirement in the South Dakota Constitution. As a result of the constitutional violation, the Court has declared the amendment invalid.
The Court determined that the provisions of Amendment A embraced three separate and distinct subjects:
- Recreational Marijuana—by creating a comprehensive plan to constitutionally legalize, regulate, and tax marijuana for all persons at least twenty-one years of age;
- Hemp—by constitutionally mandating that the Legislature pass laws regarding hemp; and
- Medical Marijuana—by constitutionally mandating that the Legislature pass laws ensuring access to marijuana for limited medical use for qualifying persons.
In reaching its decision, the majority opinion explained that the provisions involving recreational marijuana, hemp, and medical marijuana each have separate objects and purposes, which were not dependent upon or connected with each other [Unified Judicial System, press release, 2021.11.24].
Chief Justice Steven Jensen and Justices Janine Kern, Patricia Devaney, and Mark Salter concurred that Amendment A is invalid for these technical reasons. Newest Justice Scott Myren dissented in part, saying Amendment A’s provisions were “‘incidental to and necessarily connected with’ the object of providing a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances” and that voters were properly and fully informed about the scope of Amendment A. Myren says the majority “departs from the ‘Strong presumption of constitutionality’ we are to accord to Amendment A” and the will of the voters.
Having accepted the Governor’s lawyers’ argument that Amendment A violated the single-subject rule, the majority deemed it unnecessary to rule on the plaintiffs’ more radical argument that Amendment A was a constitutional revision, not an amendment, and thus was improperly submitted to the voters by petition rather than constitutional convention. Justice Myren did address and rebut the revision argument, saying Amendment A did not wreak the sort of comprehensive restructuring of state government that requires a constitutional convention.
The majority did agree with Amendment A proponents that the plaintiffs, Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller lacked standing to bring this lawsuit on their own. The justices said public officials like Thom and Miller cannot sue the state in their official capacity because they hold their offices by the authority of the state itself. In a useful rebuke to the anti-constitutional right-wing rantings of the renegade sheriff some Black Hills Republicans are hosting next week, the majority writes, “[A]lthough Thome and Miller argue that their oaths to uphold the Constitution required them to file this challenge because they believe that Amendment A was submitted to the voters in violation of the Constitution, taking an oath to uphold the Constitution ‘does not require [the official] to obey the Constitution as he decides, but as judicially determined’” [emphasis mine].
However, the majority allowed the lawsuit to stand because, after recognizing they lacked standing, the plaintiffs got Governor Noem to issue an executive order declaring herself the real force behind the plaintiffs and invoking her Article 4 Section 3 duty to “restrain violation of any constitutional or legislative power, duty or right by any officer, department or agency of the state or any of its civil divisions.” The majority held that Noem’s post-filing ratification of Thom’s and Miller’s lawsuit “cures any standing defect.”
Finally, the Court rejected the argument from Amendment A proponents that Noem, Thom, and Miller had to file their challenge prior to the election. Noem’s lawyers incorrectly argued that they could not bring their lawsuit until after the election, but the Court ruled that A’s proponents failed to demonstrate that the opportunity to sue before the election excluded the opportunity to seek relief after the election.
With the South Dakota Supreme Court’s stamp of death now on Amendment A, pot promoters can only give thanks for the fact that, in October, they launched Plan B, a petition drive to place an initiated law to legalize recreational marijuana on the November 2022 ballot. Supporters have until May 3 to collect and submit 16,961 signatures from registered South Dakota voters to put that measure to a vote.