South Dakota Supreme Court strikes down recreational marijuana amendment

·4 min read
The South Dakota Supreme Court listens to oral arguments in case regarding the legality of Constitutional Amendment A on Wednesday, April 28, 2021.
The South Dakota Supreme Court listens to oral arguments in case regarding the legality of Constitutional Amendment A on Wednesday, April 28, 2021.

Recreational marijuana use will remain illegal in South Dakota after the state's high court ruled against a voter-approved ballot measure that aimed to end cannabis prohibition in the Rushmore State.

The ruling, released Wednesday morning, ended months of speculation about how the issue would play out with the five justices on the court.

The court's opinion upheld Circuit Court Judge Christine Klinger's decision from earlier this year that found Constitutional Amendment A violated a provision requiring amendments to the Constitution encompass only one subject. Klinger also ruled that Amendment A was so expansive that it should have been ratified by a convention rather than as an amendment.

Read the ruling: Why did the South Dakota Supreme Court rule against recreational marijuana?

The Court agreed with Klinger that Amendment A violated the single-subject rule, which had been passed by voters in 2018. The court declined to rule on whether the amendment should have been addressed by a convention.

The Court concluded that Amendment A contained at least three different subjects: Legalization of recreational marijuana for those 21 and older; medical marijuana, and a commandment that the Legislature create a regulatory scheme for cannabis. Because the amendment was so far reaching, the Court concluded that voters might vote in favor of some portions even though they opposed other portions, a concept known as "logrolling."

"It is also problematic that it appears from submissions in the record that the drafters of Amendment A folded the additional subjects of hemp and medical marijuana into this single amendment to aggregate votes and increase the chances for passage of the provisions legalizing and regulating recreational marijuana," Chief Justice Steven Jensen wrote in the majority opinion.

Although the Court agreed that the first 13 sections of Amendment A were a single subject devoted to legalizing marijuana, it declined to separate that by finding those sections legal and the rest of the amendment unconstitutional.

Besides ruling on the single-subject issue, the Court also had to determine whether the two lawmen who brought the suit had standing. The challenge was brought by Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent, Col. Rick Miller. Ultimately, the Court ruled they didn't have standing, but because Gov. Kristi Noem ratified the action, the challenge was valid.

"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," Jensen wrote.

Justice Jensen was joined by Justices Janine Kern and Patricia DeVaney. Justice Mark Salter concurred, while Justice Scott Myren concurred in part and dissented in part.

Myren's dissent focused on the single-subject decision. He noted that Amendment A received substantial media attention and that voters were informed about its intent.

"I believe that the propositions in Constitutional Amendment A are 'incidental to and necessarily connected with' the object of providing a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances," Myren wrote.

Wednesday's ruling has no effect on Initiated Measure 26, which legalized medical marijuana.

Voters approved Amendment A in November 225,260 to 190,477 -- an 8% margin.

More: Judge rules recreational marijuana measure unconstitutional in South Dakota

Critics of the measure argued that voters were confused between the amendment and Initiated Measure 26, which was overwhelming approved and legalized marijuana for medicinal purposes.

Following its approval, Thom and Miller challenged the outcome, with the assistance of the governor. They argued that Amendment A was void because it violated a provision that requires amendments to be limited to one subject and that it was such an extensive re-write of the Constitution that the amendment process was inadequate.

More: Supreme Court hears recreational pot case. Now South Dakota awaits a decision.

State officials, marijuana proponents react to decision

Noem said in a statement that the case wasn't about cannabis but about "the rule of law."

“We do things right – and how we do things matters just as much as what we are doing," she said. "We are still governed by the rule of law."

Thom told the Argus Leader Wednesday morning that he's satisfied with the ruling.

"It's an honor for me to be able to defend our Constitution," he said. "I took a lot of criticism from people about trying to overturn the will of the voters but the will of the voter was in 2018 with Amendment Z when they said they'd like a single topic when it comes to amending the constitution."

Supporters of the amendment argue that it encompassed one subject: cannabis legalization. While true, the amendment's reach included establishing a taxing structure for cannabis, and it instructed both the state and local governments how it could be regulated. It also included provisions legalizing medicinal marijuana and hemp.

South Dakotans for Better Marijuana Laws campaign director Matthew Schweich was critical of the Court's ruling Wednesday.

"We believe that this ruling from the South Dakota Supreme Court is extremely flawed," he said. "The court has rejected common sense and instead used a far-fetched legal theory to overturn a law passed by over 225,000 South Dakota voters based on no logical or evidentiary support."

This is a developing story. Stay with the Argus Leader for further updates.

This article originally appeared on Sioux Falls Argus Leader: South Dakota recreational marijuana struck down by state supreme court

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