Circuit judge hears Amendment A arguments

Capitol News Bureau
KELO Court Gavel

This story has been updated.

PIERRE, S.D. (KELO) — The South Dakota Supreme Court has never directly addressed what the terms amendment and revision mean in the South Dakota Constitution. But the five justices might get the opportunity if the Amendment A case reaches them later this year.

That point stood out from a Hughes County circuit court hearing Wednesday on whether the amendment voters approved in November legalizing recreational and medical uses of marijuana violates the South Dakota Constitution.

Circuit Judge Christina Klinger told the four sets of attorneys she would issue a ruling at a later date.

The terms ‘amendment’ and ‘revision’ aren’t defined in the South Dakota Constitution but both are in Article XXIII that explains the separate processes for changing the state’s foundational document. A revision appears to require a statewide vote on whether to call a convention, followed by a second vote on what the convention produces.

Lisa Prostrollo argued that Amendment A is a revision because it would make a fundamental change in state government. She said it should have gone through an additional step of a constitutional convention before it went on the election ballot.

Prostrollo is the lawyer for South Dakota Highway Patrol superintendent Rick Miller, who brought the suit at the direction of Governor Kristi Noem. Miller and Pennington County Sheriff Kevin Thom want Judge Klinger to throw out the November 3 election result.

According to Prostrollo, Amendment A creates “a co-equal fourth branch of government” through the powers it gives the state Department of Revenue.

Grant Flynn from the South Dakota Attorney General’s office is defending the amendment. He said it doesn’t make a fundamental change.

Flynn said he turned to Black’s Law Dictionary because the state constitution is silent. He said Black’s most applicable definitions are an amendment makes a change while a revision is “a complete and thorough rewriting.”

Prostrollo countered that Black’s definitions “are really not helpful.” She said Article XXIII of the constitution states an amendment can affect only existing articles of the constitution. “It cannot establish an entirely new article,” she said.

Responded Flynn, “I do take issue with that assertion that we can’t use dictionaries to define words.”

Amendment A grants “exclusive power” to the Department of Revenue, even though the department was established in state law by the Legislature, according to Prostrollo. It also conflicts with the governor’s authority over the department, she said, and punches a hole in the court system’s disciplinary power over lawyers.

“It is a revision. It should have been subject to review at constitutional convention. It was not,” Prostrollo said, adding that none of this was explained before people voted on Amendment A.

She also attacked Amendment A as a violation of the constitution’s single-subject requirement. She said A has 15 sections and 55 sub-sections, covering everything from legal age to the 15 percent excise tax on marijuana transactions.

Flynn said the constitution’s articles on the executive and judicial branches were significantly overhauled in 1972 through amendments on the ballot “just like Amendment A was.”

“Amendment A addresses one subject — cannabis,” Flynn said. “”Everything that’s found in Amendment A is under that umbrella.”

Prostrollo countered that the umbrella argument acknowledged the amendment contained multiple subjects.

Replied Flynn, “This is no different than any other power delegated to agencies.”

The other attorneys making arguments Wednesday were Bob Morris for Sheriff Thom and Brendan Johnson for the intervenors. Johnson sponsored the amendment.

At one point, Judge Klinger asked Johnson why he and Flynn were using the word ‘cannabis’ when she didn’t see it in the title or the body. Johnson stepped around the question, replying, “We have marijuana clearly defined as part of that.”

An hour later, Flynn returned to the judge’s question. “Marijuana is a term people are familiar with. Cannabis, that might not be,” he said. Later Johnson noted cannabis does appear at several points in the amendment body.

Johnson disagreed the governor would lose authority. “The governor has a lot of control over the Department of Revenue. This doesn’t create a fourth branch of government — far from it,” he said.

Prostrollo’s passion showed in her final statements. “I’ve got one question — What does exclusive power mean? I’d like to have that answer today,” she said. “They seem to have no issue with exclusive power granted to the Department of Revenue.”

She argued that a subordinate agency such as the department can’t be granted exclusive power. “It simply can’t be reconciled,” she said.

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