Amendment A backers can make state’s points to SD Supreme Court, says AG’s chief of staff

Capitol News Bureau

PIERRE, S.D. (KELO) — The choice by state Attorney General Jason Ravnsborg that his staff will stop defending the voters’ decision to legalize recreational marijuana in South Dakota doesn’t mean their points can’t still be presented on appeal, according to his chief of staff.

Tim Bormann told KELOLAND News the attorney general’s office and the intervenors’ lawyer raised “identical arguments” that Amendment A wasn’t a revision of the South Dakota Constitution and that A’s scope didn’t violate the constitution’s requirement that an amendment be about only one subject.

Brendan Johnson, a Democratic former U.S. attorney for South Dakota, sponsored the amendment and one of the lawyers representing intervenors. Johnson said last week he would begin preparing an appeal to the South Dakota Supreme Court, after a state circuit judge ruled Monday, February 8, that A was about multiple subjects and was a revision, meaning it should have gone through a constitutional convention before it was presented to voters.

The Republican attorney general through Bormann confirmed to reporters Friday his office had defended the amendment and wouldn’t be involved any longer. Governor Kristi Noem, a Republican who opposes marijuana legalization, wants the voters’ decision declared invalid by the South Dakota courts.

Grant Flynn from the attorney general’s office and Johnson for the intervenors had argued at a January 27 hearing to Circuit Judge Christina Klinger that A covered one topic — cannabis — and didn’t fundamentally change state government.

“Each relied on the same main concepts although the details of those arguments may have focused on some details a little differently,” Bormann said. “However, because they all relate back to the same main points, it can all be raised with the (South Dakota) Supreme Court.”

The state constitution doesn’t directly define the terms ‘amendment’ or ‘revision.’ The governor appointed Judge Klinger as well as Supreme Court justices Patricia DeVaney and Scott Myren. The high court’s five justices aren’t limited to the judge’s decision, according to Bormann.

“In addition, because it’s a question of law, and reviewed anew, the Supreme Court could choose to focus on an argument that Judge Klinger rejected, as long as that argument is raised again on appeal,” he said.

Johnson said he couldn’t talk about the ongoing case on the record. As to how Ravnsborg chose to withdraw, Bormann told KELOLAND News, “The decision was made independently and in-house by the attorney general.”

None of the sides can raise an entirely new argument for the first time on appeal, according to Bormann.

“However, you can decide to focus on an argument that was made in circuit court, so, in that manner, you might change the focus in front of the Supreme Court, but the argument will still be the same basic argument,” he said. “Depending on what the intervenors believe their best arguments to make to the (Supreme) Court are, the details can be focused on differently on appeal.”

The challenge to Amendment A doesn’t directly affect IM 26, which voters approved legalizing medical marijuana. The governor and Republican legislative leaders announced last week they want to delay it taking effect until after the 2022 legislative session. State law says it is supposed to become effective July 1, 2021.

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