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SD Supreme Court Kills Amendment A on Single-Subject Violation

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:

  1. Recreational Marijuana—by creating a comprehensive plan to constitutionally legalize, regulate, and tax marijuana for all persons at least twenty-one years of age;
  2. Hemp—by constitutionally mandating that the Legislature pass laws regarding hemp; and
  3. 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.

29 Comments

  1. John 2021-11-24

    Remember at the judicial retention on the 2022 and 2024 ballots.

  2. Cory Allen Heidelberger Post author | 2021-11-24

    Yeah, John, but we’d better elect a new Governor in 2022 to ensure any judges we don’t retain are replaced by someone better—i.e., not part of the blinkered good-old-boys club.

  3. mike from iowa 2021-11-24

    The majority held that Noem’s post-filing ratification of Thom’s and Miller’s lawsuit “cures any standing defect.”Noem is a standing defect, unless she parks her arse on her throne where she becomes a sitting defect, or something.

  4. Donald Pay 2021-11-24

    Now Noem owns that lawsuit. She can’t fob it off on rogue cops who had no business stinking their porcine snouts into the matter.

    I have to say I have always supported the one subject rule, but I think there is obvious nexus to the various parts of the Amendment that allows it to stand. I don’t have a robe, so my opinion doesn’t matter.

    Another lesson: bring simple initiated measures. No more than four simple sections, all related to the main purpose.

  5. Nix 2021-11-24

    Take a deep breath and relax.
    Good things come to those who wait.

    Plan B
    Sign the petition.

    Plan C
    How do we get rid of the Dope Queen of Delusion and not Have Haugaard on
    the throne. ?

  6. mike from iowa 2021-11-24

    Plan C
    How do we get rid of the Dope Queen of Delusion and not Have Haugaard on
    the throne. ?

    Move to iowa or New Mexico.

  7. Mark Anderson 2021-11-24

    Well your legislature will move this forward won’t they? They listen to the will of the people don’t they?

  8. Nix 2021-11-24

    Mike,
    I grew up in Iowa. Nope. Kim Reynolds
    is the Dope Queen of Delusion’s sister.
    Not sure about New Mexico but Montana goes Recreational on Jan. 1st.
    Colorado , Illinois and Michigan are wondering this time of year.
    Just sayin …..

  9. Nix 2021-11-24

    That’s supposed to be wonderful
    not wondering.

  10. grudznick 2021-11-24

    Yeah, all you tokers of the demon weed don’t need this law. Take a deep toke from your bong and just relax.

  11. jerry 2021-11-24

    Agreed, the tribes could bring in some serious revenue on this as they did with gambling.

  12. Mark Anderson 2021-11-24

    Grudz got outvoted. He can’t except it. Libertarians rule.

  13. grudznick 2021-11-24

    I do except it, Mr. Anderson, it’s just tough to accept. But it is still illegal to toke on the demon weed, which is bad, very bad.

    Libertarians do rule, grudznick has been spouting that for years ever since my good friend Bob and close personal friend Lar brought me into their clique.

    Tomorrow, sir is Gravy Day, and we should all give thanks the Supremes rolled out their ruling on this day.

  14. larry kurtz 2021-11-24

    Indeed, it’s very brave, even progressive of Mrs. Noem to stifle white privilege and empower the tribal communities trapped in South Dakota to have a head start in the race to develop the state’s cannabis industry.

  15. Porter Lansing 2021-11-24

    This was a highly beneficial ruling for Democrats across America.
    It’s well documented that equal, majority numbers of both political parties believe cannabis should be legal.
    Once news of Noem’s position of recriminalizing marijuana and turning USA Justice Department loose on states who’ve legalized, she’s sunk.

    PS – Pat Powers didn’t have time to compose anything, today.
    Today is the biggest, most popular day for alcoholics in South Dakota and his antics at Hobo Days enshrine him as a drunkard, letch, and liar.

  16. Richard Schriever 2021-11-25

    “…..bring simple initiated measures. No more than four simple sections, all related to the main purpose.”

    Indeed Mr. Pay:

    Consent of the Governed Act:

    “Any initiated act or constitutional amendment passed by a direct vote of the people, shall not be nullified or altered or amended in any way by any means other to a direct vote of the people.”

  17. larry kurtz 2021-11-25

    The defeat of cannabis for all white adults in South Dakota will likely to boost tribal enrollment. A former chairman of the Sisseton-Wahpeton Oyate is a tribal liaison for a cannabis development firm and South Dakota Secretary of Tribal Relations Dave Flute is also a former chairman of the SWO.

    PIERRE, S.D. – Today, Secretary David Flute issued the following statement in response to the Supreme Court’s decision regarding Amendment A:

    “For the past year, our tribes have been preparing for the implementation of the state’s safe and responsible medical cannabis program. I want to make clear to our tribal leaders that today’s Supreme Court decision striking down Amendment A does not undo any of those efforts. The decision only strikes down Amendment A, which the court found violated the single-subject rule approved by South Dakota voters in 2018.”

    “I will be contacting the tribal leaders over the coming days to assure them that the will of the voters supporting the medical cannabis program will be upheld.”

    https://news.sd.gov/newsitem.aspx?id=28744

  18. mike from iowa 2021-11-25

    Happy Thanksgiving to most of DFP commenters and staff. The rest of you can pound sand.

  19. larry kurtz 2021-11-25

    The court fight over Amendment A is a masterful political maneuver engineered by Democratic former US Attorney Brendan Johnson and others to drive public support from the SDGOP after voters from three political parties overwhelmingly approved the change to the SD Constitution.

  20. bearcreekbat 2021-11-25

    Well, my previous prediction that Amendment A would be upheld by the Court missed the mark. But at least the Court has now set the stage for more absurd constitutional theater.

    A commenter on South DaCola called “Very Stable Genius” has plainly identified the Monty Python aspect of this odd court decision: “the window of opportunity to challenge a constitutional referendum is endless, and if so, what prevents a constitution from then eating upon itself overtime?”

    https://www.southdacola.com/blog/2021/11/is-south-dakota-turning-into-a-one-party-dictatorship/

    In other words, under this court decsion the “the requirements of Amendment Z, which passed in 2018” now trumps every other part of the Constitution. Since Amendment A was in fact adopted by the voters, the challenge to it simply asked that it be declared null arguing it addressed two or more subjects. Are there other amendments that have become part of the SD Constitution that address two or more subjects? Apparently so, indicating a need for the Amendment Z restriction. And since the Court permitted the challenge to Amendment A after rather than before it became part of the SD Constitution it would seem that a similar challenge can now be levied against any other part of the existing Constitution. Interpreting a document in such a manner that permits it to eat itself alive over time is a true absurdist Monty Python/Twilight Zone scenario.

  21. Cory Allen Heidelberger Post author | 2021-11-25

    BCB, I would love to see some ambitious opposition lawyers take up this precedent and run with it like a buzz saw through the history of South Dakota law and the Constitution looking for all the changes that can be portrayed as encompassing multiple subjects.

    There are most certainly past actions that the Legislature and voters have approved that appear to encompass multiple subjects. In his special concurrence, Justice Salter noted the the Court has not viewed subject multiplicity as fatal to past laws and has exercised severability to preserve parts. Salter sticks with the majority here in booting Amendment A in toto only by dismissing A’s own severability clause and saying the proponents “have not argued that a violation of the single-subject rule was harmless or that Amendment A would have passed even without its extraneous inclusion of medical marijuana and hemp.”

    Justice Myren goes further in his dissent. he says the Court ignored its own established precept of looking for ways to uphold an amendment after voter approval rather than looking for ways to condemn it. He notes that if the Court had taken the same approach to Barnhart v. Herseth (1974), it would have thrown out the great Kneip 1972 revision of the Constitution.

  22. larry kurtz 2021-11-25

    No foetus in the United States has any civil rights until the third trimester. Republicans preach civil rights for human zygotes but deny the protections of the First, Fourth and Ninth Amendments to people who enjoy cannabis.

  23. ABC 2021-11-25

    Mr. G, Libertarians do rule, but so does every voter of every stripe (D, R, Independent and Other) when we understand the
    idea of self rule or self governorship.

    All an election is is when you decide, OK, I’ll show up, I’ll still keep my role in life as a self-governor, but I agree that
    I will cast my vote for a group decision, majority rules.

    When the majority rules against you, and someone Undesirable takes office, what do you do?

    Continue being a self-Governor!

    Continue inspiring yourself and others with daily ACTIONS!

    Can YOU do something TOTALLY 1 Million Percent More INSPIRING than the current rulers in Pierre?

    Of course!

    Find out what that is, and do it!

    Deciding YOU rule, makes you a citizen! Not accepting crummy realities, means you are BUILDING Better realities now! Put the complaining muscle on pause for 1 million years, then BUILD something that will benefit you and 1 Million other people! How? Do something that benefits people.

    Elections matter, but what is Faster and Better and More RELIABLE is you doing something positive and GREAT today!

  24. bearcreekbat 2021-11-25

    Another thought in this current theatre of the absurd – If a constitutional initiative passes with arguably more than one subject and the main subject is a repeal of Amendment Z’s single subject restriction, which Amendment wins, repealed Amendment Z or the new Amendment repealing Amendment Z? Has our SD Supreme Court twisted reality enough to always prevent the repeal of Amendment Z so long as a theoretical second subject can be invented by the Court’s creative interpretation of wording? And in another dimension is John Marshall (author of the Marbury decision) tearing his hair out or laughing his butt off?

  25. grudznick 2021-11-25

    While all you tokers lament, it is the libbies you trusted to float such a flawed law bill in the first place you need to slap upside the head with a wet noodle.

    Mr. Seiler? Har har har. This fellow had to have the democrat party pay up big fines they can’t afford, and he tried to jam all that hogwash into the constitution. Take your law bills to the legislatures, and stop sending Mr. Brandon, he of the many fails, to do your bidding. Get your legislatures to bring a solid law bill.

    Or I bet you the courts will smite you again. Also, I bet you a bunch of RINO sorts will bring law bills to legalize the demon weed this year. You mark down grudznick’s words in pen on your refrigerator and then when I’m back going Har har har during the sessions you will thank old grudznick. But I will not toke on or eat the devil’s cabbage.

  26. Cory Allen Heidelberger Post author | 2021-11-26

    BCB, perhaps we can figure out a way to challenge Amendment Z itself as a self-contradictory multi-subject amendment. After all, it can be used to overturn a measure that deals with multiple subjects; therefore Z itself encompasses multiple subjects….

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