Beyond legal marijuana: Amendment A ruling helps define ‘single-subject’ rule for future ballot measures

KELOLAND.com Original

SIOUX FALLS, S.D. (KELO) — Before South Dakota voters approved Amendment A in the 2020 election, voters approved Amendment Z in 2018. 

That vote changed South Dakota’s Constitution to require any future proposed constitutional amendments to “embrace only one subject.” But the question of what exactly is a single subject hadn’t been answered until last week when the South Dakota Supreme Court ruled 4-1 against Amendment A. 

University of South Dakota Knudson School of Law Dean Neil Fulton said there’s now some clarity for lawyers advising clients and groups of people who may propose future constitutional amendments through ballot measures. 

“It doesn’t resolve every question and I think you see that in the decision itself,” Fulton told KELOLAND News on Monday. “Justice (Scott) Myren dissented and he applied the same test. He identified the ‘single subject’ to be the regulation of cannabinoids generally. The majority saw the question as regulating medicinal marijuana, recreational marijuana and industrial hemp.” 

Fulton noted the ruling affirmed a circuit court decision, but added justices cited a more restrictive test in determining what would be considered a single subject. 

Chief Justice Steven Jensen, who wrote the court’s decision, noted the single-subject provision wasn’t the main base for the ruling but instead cited an 1897 decision State ex rel. Adams v. Herried regarding the amendments and revisions section of the state constitution.  

“We do make changing the constitution a little bit harder than changing the law,” Fulton said. “We want the constitution to reflect these on-going principles that guide the rest of the operation of state government.” 

Fulton noted Amendment A’s first 13 or 14 sections, which would have created a plan to legalize and regulate marijuana for people at least 21 years old, would have been considered a single subject in the court’s ruling. You can view the full ruling the in documents below.

In a 77-page document, the main decision made 39 pages, a special concurrence by Justice Mark Salter was three pages and Justice Myren’s dissent was 26 pages. Aside from the ruling, the answer of having legal standing was also answered by explaining Governor Kristi Noem is responsible for Amendment A being struck down. 

“There was standing only because Governor Noem has constitutional responsibilities and she tasked Colonel Miller to carry those out. She can’t delegate her standing, but the court found she was acting through Colonel Miller and as a result there was standing,” Fulton said. “If that hadn’t been the case, they’d dismissed the case and we wouldn’t know the answer to the substantive question.” 

Fulton emphasized the court wouldn’t have listened to the case if Gov. Noem didn’t issue an executive order ratifying the lawsuit giving aid to Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Colonel Rick Miller. 

“It was one where everybody won some and everybody lost some and it’s always interesting when that happens in a case,” Fulton said. 

Fulton described the process of “logrolling,” which is mentioned throughout the ruling, as a way to keep separate ideas separated so they stand and fall on their own merits. 

The entire process on Amendment A — passing in the election 54-46%, a filed lawsuit citing the state constitution, a circuit court ruling, an appeal to the state Supreme Court, oral arguments and now a final ruling — is a closely followed example of the law in action, Fulton said. 

“You do see there are different avenues for the law to evolve and meet evolving social challenges,” Fulton said. “The legislature can act, the people can act through initiative and referendum and then the courts are there to provide interruption.” 

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