Beyond legal marijuana: Dean of USD Law School calls Amendment A case ‘enormous’

KELOLAND.com Original

SIOUX FALLS, S.D. (KELO) — With the oral arguments finished, the fate of legal recreational marijuana and the future of all ballot measures in South Dakota is now in the hands of five justices. 

On Wednesday, South Dakota’s five-member Supreme Court heard verbal arguments from proponents and opponents over Amendment A, which legalizes recreational marijuana for people over age 21 and was approved by 225,260 South Dakota voters. 

University of South Dakota Law School Dean Neil Fulton said everyone should be prepared to wait for a decision.

But for how long? Fulton told KELOLAND News he wouldn’t be surprised if a final decision wasn’t handed down until a year from now.  

“They know it is important politically and they’ll want to act on it with dispatch. But they want to get it right first,” Fulton said. “That takes time for study, thought, exchange of ideas and multiple drafts of opinions.” 

Fulton called the case “enormous” in terms of state history and stressed the final ruling by the Supreme Court will “go well beyond any aspect of just legalizing marijuana.”  

USD Law School's New Dean Talks Traditions, Future
USD Law School Dean Neil Fulton.

“They’ll think not only about this case, but the larger implications for cases down the road and that takes time,” Fulton said. “This is not the only case the South Dakota Supreme Court is considering. They have to keep all those cases moving too.” 

He said the court will be focused on being right for the long term rather than be timely and wrong. 

“Any constitutional amendment that would come down after this is going to be evaluated based on this ruling that the court makes now on single-subject,” Fulton said. “It’s imperative to think about the constitutional amendment and revision process globally, because this case will be a guiding star for all those cases to come that nobody has even thought of.” 

Wednesday’s oral arguments were another chapter in the saga over recreational pot but the final decision will be another turning point in South Dakota’s history with the ballot initiative process. South Dakota prides itself of being the first state to provide “initiative and referendum for enacting and rejecting legislation” first enacted in 1898, predating official statehood. 

“As it turns out, we’re still figuring out exactly how that plays out in the state,” Fulton said about the initiative and referendum process for the people. “That’s one of the beauties of the law. It continues to evolve as the will of the people evolve and as circumstances direct.” 

Fulton said Wednesday’s oral arguments was the process of hearing arguments about legal issues. He said justices have already read written arguments on the issue, but said the oral argument process is the chance of justices to ask questions of the lawyers and the specific legal issues. 

“It’s a back-and-forth exchange about the legal issues, not a decision on the facts,” Fulton said.  “You can see how the justices wrestle with questions of law.”

“In addition to just being a fascinating bit theatre it was really good lawyering too which is fun to watch,” he said. “It’s a real interesting case. The briefs were good, the arguments were good.” 

Single-subject rule, seeing the court process 

Before 2001, there were no recording devices allowed in the South Dakota Supreme Court chambers. Since then, expanding cameras and livestreams for Supreme Court proceedings has expanded even certain trial courts when all parties agree. 

Fulton said it is important for people to see what happens in courtrooms. 

“Bringing more people into the public process is good,” Fulton said. 

The decisions made by the South Dakota Supreme Court have lasting impacts and the ruling on Amendment A will impact hundreds of future unheard cases. 

“It’s going to have real implications for what the people are able to do in terms of amending their constitution,” Fulton said about the Amendment A case. “It touches on a fundamental issue of self-governance for the people of South Dakota and that’s a big deal.”   

Most of Wednesday’s arguments dealt with the issue of determining what would be considered a single-subject. Fulton said there’s a lot of case law on single-subject legislation, but also noted a constitutional provision is different. 

“We do different things in our constitution which is generally more general and long standing principles than we do in legislation which is more detailed and amendable,” Fulton said. “Amendment A kind of stands in an interesting juxtaposition of being somewhat detailed but also putting something in the constitution that is intended to be longstanding.”

Fulton said the justices will have to find a clear path best on their best reason of the law, best alignment the fabric of the law in South Dakota and policy implications 

“These are challenging questions,” Fulton said.

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