With A, South Dakota will see a ‘well-regulated market’ for recreational pot, state lawyers say

Capitol News Bureau

PIERRE, S.D. (KELO) — State government attorneys defending Amendment A against a court challenge from South Dakota’s governor are now arguing there is “a great likelihood” that legalizing recreational marijuana will damage the cannabis black market.

But private lawyers for the two law enforcement officers serving as front-men for the governor are countering that voters might have been so interested in passing some parts of A that they accepted other parts they didn’t want.

Circuit Judge Christina Klinger will hear arguments January 27 in Pierre.

Highway Patrol Superintendent Rick Miller and Pennington County Sheriff Kevin Thom want the judge to overturn the November 3 election result. They are acting for Governor Kristi Noem.

Their attorneys argue that A was a revision of the South Dakota Constitution rather than an amendment and therefore should have faced a constitutional convention before going on the ballot. They also claim it violated the single-subject rule that voters approved two years before.

“Amendment A is an unprecedented and unlawful attempt to alter our state’s foundational document,” Lisa Prostrollo, a partner at the Redstone law firm in Sioux Falls, wrote in a January 8 filing. “Amendment A was the first multi-subject constitutional amendment placed on the ballot since the voters established the one-subject rule through the ratification of Amendment Z in 2018.”

Prostrollo continued, “It would also be the first time that an entirely new article of the Constitution was established through a secret drafting process and without the transparency, public input, and legislative debate that a Constitutional convention requires.”

The other partner at Redstone is Matt McCaulley, a former legislator who now works as a legislative lobbyist. Redstone has contracts to represent Governor Noem and state government. Noem’s chief of staff, lawyer Tony Venhuizen, previously was with Redstone.

On the other side, state Attorney General Jason Ravnsborg hasn’t put his name on defense arguments. Ravnsborg is under investigation for hitting and killing with his car a pedestrian, Joe Boever, at the west edge of Highmore on the night of September 12. Ravnsborg maintains he didn’t commit a crime.

Because South Dakota elects its attorney general, Noem can’t remove Ravnsborg from office.

The assistant attorneys general defending A are Grant Flynn and Matt Templar. In their January 8 filing they wrote: “This election contest is nothing more than Contestants trying to avenge their loss at the ballot box, instead of accepting that democracy happened.”

They argue that A wasn’t a constitutional revision because it doesn’t make “a fundamental change to the Constitution on the basic governmental framework of the state.” They instead contend A created a “well-regulated market” for cannabis.

“If a well-regulated market did not exist, then the sale and use of cannabis would be at the mercy of the cannabis black market already in existence. That would endanger the health, welfare and safety of all South Dakotans,” they wrote.

They continued, “If a well-regulated market exists for the sale of cannabis, then there is a great likelihood that the dangers of the cannabis black market can be reduced. Citizens will be able to obtain their cannabis, and cannabis products, from safe and trusted sources. Just like they can obtain their food from safe and trusted sources.”

Lawyer Bob Morris of Belle Fourche filed an affidavit for Sheriff Thom that in summary said decriminalization of marijuana presents many challenges for law enforcement including highway safety. The affidavit noted that, unlike for alcohol, there isn’t a testing mechanism that can measure the marijuana content in a driver’s bloodstream.

Added Prostrollo, “Given the multitude of subjects contained with Amendment A, it is likely that voters who sought one provision of Amendment A might have tacitly accepted other provisions they disliked. This is precisely the evil that South Dakota voters sought to prevent when they ratified Amendment Z.”

The third group in the case are intervenors assembled by Brendan Johnson, the Sioux Falls lawyer and a former U.S. attorney for South Dakota. Johnson, now a member of the Robins Kaplan law firm, sponsored A. Representing the intervenors is Timothy Billion, another Robins Kaplan lawyer.

One of the arguments Billion makes for the intervenors is that the law officers contesting the election have conceded the Legislature could have done what A does: “This concession is fatal to any remaining persuasive value of their argument — when the people act via an initiative, they are exercising legislative power on an equal footing with the Legislature itself.”

Assistant attorneys general Flynn and Templar took the intervenors to task on another point, disagreeing with the intervenors’ contention that constitutionality had to be determined before the election. “But this claim ignores the Supreme Court’s determination that South Dakota courts have no jurisdiction to prevent submitting a constitutional amendment to the voters,” Flynn and Templar wrote.

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