South Dakota Supreme Court rules against recreational marijuana

Capitol News Bureau

PIERRE, S.D. (KELO) — There will be no recreational marijuana in South Dakota, at least not until after the Legislature meets for its 2022 session.

The South Dakota Supreme Court voted 4-1 in a decision publicly released Wednesday morning that Constitutional Amendment A was invalid. The court took the unusual step of issuing a news release with the decision.

“Amendment A, as submitted to the voters in the November 2020 general election, violated the single subject requirement in the South Dakota Constitution,” the release said.

The court found that Amendment A asked voters to legalize recreational marijuana, hemp and medical marijuana within the South Dakota Constitution and therefore voters weren’t able to choose yes or no on each one.

The South Dakota Supreme Court heard the case in April. Chief Justice Steven Jensen wrote the court’s decision.

“This Court long ago emphasized the significance of the constitutional requirement ensuring voters are afforded an opportunity to vote separately on each separate subject contained in a proposed amendment,” Jensen stated. He added, “It is clear that Amendment A contains provisions embracing at least three separate subjects, each with distinct objects or purposes.”

In recent months, South Dakota lawmakers have been researching the topic. The Legislature’s marijuana study committee has proposed legislation for the 2022 session that would legalize marijuana for people at least age 21 in case Amendment A was struck down. Voters last year approved IM 26 legalizing medical marijuana 70-30%. The state Department of Health is now rolling out that program.

The Supreme Court decision, which doesn’t affect IM 26, is a victory for Governor Kristi Noem, who opposed both ballot measures last year and challenged the validity of Amendment A just weeks after South Dakota voters approved it 54-46%, and a defeat for Amendment A’s sponsor, former U.S. Attorney Brendan Johnson.

Noem issued a statement within the hour after the court decision was publicly released. “South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about. We do things right – and how we do things matters just as much as what we are doing. We are still governed by the rule of law. This decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible South Dakotans,” her statement said.

State Representative Steven Haugaard, who’s challenging Noem for the Republican nomination for governor, issued a statement too. “The Legislature is keenly aware of the public’s concern that the people’s voice must be heard and respected. As a result, the Legislature has already been working on bills and recommendations for the upcoming session to work through the issues surrounding marijuana. It will be a subject of special interest during the session,” his statement said.

Johnson, whose father is retired U.S. Senator Tim Johnson, took to Twitter with his reaction. “Today I share the frustration of hundreds of thousands of South Dakotans who had their votes thrown out. This will, however, only strengthen our resolve to return power to the people of South Dakota. Under God The People Rule,” he wrote.

Johnson has another ballot measure already circulating for signatures that would legalize marijuana for people age 21 and older. The initiated measure, which requires 16,961 valid signatures to qualify for the 2022 ballot, proposes a state law rather than a constitutional amendment, which requires 33,922 valid signatures.

The four justices who ruled against Amendment A were Janine Kern, Patricia DeVaney, Mark Salter and Jensen. Dissenting was Justice Scott Myren.

The main decision ran 39 pages. A special concurrence by Justice Salter was three pages. The dissent by Justice Myren was 26 pages.

Chief Justice Jensen cited the 1897 State ex rel. Adams v. Herried decision by the South Dakota Supreme Court regarding the state constitution’s Article XXIII, section 1, as the controlling basis for the court’s current decision. Then-Justice Dick Haney wrote, “[I]t is hardly necessary to point out that the provision of the constitution requiring that amendments shall be so presented to the electors that they may vote upon each separately is one of the utmost importance, and one of substantial merit.”

Jensen quoted the Herried decision in writing for the majority against Amendment A: “However, amendments that ‘relate to more than one subject, and have at least two distinct and separate purposes, not dependent upon or connected with each other[,]’ must be submitted so that each can be voted on separately. This is in part because the single subject and separate vote requirements exist to prevent the ‘pernicious practice’ of combining unrelated provisions in one amendment to ensure passage of a provision that might otherwise fail had the provisions been submitted separately.

“This prohibited practice is commonly referred to as ‘logrolling.’ The dissent recognizes ‘the need to prevent risks associated with logrolling,’ but then it examines only one danger of logrolling—voter confusion. The voters may or may not have been fully informed about Amendment A’s provisions. However, even if there was no voter confusion, that does not eliminate the need to address another harm created by logrolling—requiring the voters to decide on more than one separate and distinct proposition with a single vote.”

The decision upheld part of a ruling by Circuit Judge Christine Klinger. The decision didn’t address the judge’s other point that the amendment was actually a constitutional revision and should have gone to a constitutional convention. The constitution doesn’t define revision.

Justice Myren in his dissent said Amendment A should have been allowed to take effect. “Reviewing the contents of Amendment A along with its title and the Attorney General’s explanation, it is plain that the Amendment was intended to provide a comprehensive plan for all phases of legalization, regulation, use,
production, and sale of marijuana and related substances,” Myren wrote. “Comprehensive plans are not prohibited in a single constitutional amendment if they are related to a single purpose.”

State Senator Michael Rohl reacted on Twitter, “Disappointing Decision, but a Golden Opportunity for Politicians to show if they truly represent the people or if they want to continue to push a broken criminal justice system the majority of South Dakotans tried to change. Is it January yet?”

State Representative Fred Deutsch said on Twitter, “This will put a special onus on SD legislature to debate legalization of recreational marijuana within framework of lessions (lessons) learned from other states.”

During the January 27 hearing in Pierre circuit court, Johnson argued that the amendment covered one subject — cannabis. Judge Klinger posed a key question to Johnson and an attorney for the state attorney general’s office, Grant Flynn. She asked why they 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. Johnson later noted cannabis did appear at several points in the amendment body.

The original lawsuit came from state Highway Patrol Superintendent Rick Miller and Pennington County Sheriff Kevin Thom. The Supreme Court found they didn’t have standing. But the justices ruled that didn’t matter because of the governor’s executive order ratifying the lawsuit.

“While Thom and Miller lacked standing to commence this action, our conclusion that the Governor ratified the prosecution of the action and is bound by the outcome of this litigation cures any standing defect,” Chief Justice Jensen wrote.

He added that the voters’ decision in 2018 to place a single-subject provision in the state constitution wasn’t at the heart of the court’s current decision against Amendment A.

“While this Court has not yet examined the single subject language added in 2018, the Herried Court’s
decision is instructive and controlling because the 2018 amendment in effect ratified the rationale in Herried that when a proposed amendment embraces more than one subject with different objects or purposes, each discrete subject must be voted on separately by the electorate,” Jensen wrote.

This is a developing story; look for additional coverage on the ruling on KELOLAND News and KELOLAND.com throughout the day.

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