Seven months later, the South Dakota Supreme Court says “no” to adult legalization of cannabis


The South Dakota Supreme Court ruled that the vote of its people, who voted 54.2% in favor of legalizing adult cannabis in the November 2020 election, was insufficient to sway public policy.

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The South Dakota Supreme Court justices heard the arguments on Amendment A on April 28. The panel’s decision was made on November 24.

The five-judge court issued a final ruling on November 24, 2021, upholding District Judge Christina Klinger’s February ruling that voter-approved Amendment A violated the state’s one-topic rule in Article XXIII of the South Dakota Constitution and therefore an unconstitutional vote was initiative.

The case stems from a lawsuit filed less than a month after the election of Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Colonel Rick Miller. Although a spokesperson said Republican Governor Kristi Noem did not ask Miller or Thom to file the lawsuit, Noem issued and initiated an executive order two months later, on Jan. 8, 2021, claiming Amendment A was unconstitutional Taxpayer-sponsored lawsuit against the electoral measure.

Noem, who spoke out against legalization in the run-up to the 2020 elections, nominated Klinger for the state’s sixth district court in early 2019 – about two years before Klinger repealed Amendment A.

The majority opinion in the Supreme Court decision on Wednesday was drafted by Chief Justice Steven Jensen in agreement with Judges Janine Kern and Patricia DeVaney, while Judge Mark Salter specifically consented and wrote his own opinion, and Judge Scott Myren partially agreed and partially disagreed .

The five judges heard arguments on Amendment A on April 28th. Their final opinions come almost seven months later.

“This court has long ago emphasized the importance of the constitutional requirement that the voters be given the opportunity to vote separately on each individual issue that is included in a proposed amendment,” said Jensen in the majority opinion.

He added: “It is clear that Amendment A contains provisions that cover at least three separate subjects, each with different aims or purposes. These three separate topics are: (1) developing a comprehensive plan for the legalization and regulation of marijuana for all individuals who are at least 21 years old; (2) a mandate for the legislature to legislate to ensure that a discreet group of qualified individuals regardless of age has access to medical marijuana; and (3) a mandate that the legislature regulates the cultivation, processing and sale of hemp. “

In the courtroom seven months ago, plaintiffs argued that Amendment A had five issues as it was on the ballot: legalization of cannabis, regulation of cannabis, taxation of cannabis, obligation of the South Dakota legislature to pass laws regarding hemp, and Ensure access to medical cannabis.

Meanwhile, the defendants, in particular Robins Kaplan LLP’s attorney Brendan Johnson, of the South Dakotans for Better Marijuana Laws (SDBML), the group behind Amendment A, argued that the measure contained an issue – cannabis – which all provisions of the provisions of the law cover Essentially relate.

While the majority opinion of the Supreme Court recognized that Amendment A violated state law not only because it contained multiple provisions, Jensen said that “a violation has occurred when the proposed amendment contains more than one topic with different aims or purposes, which are not interdependent ”. connected to each other or to each other. “

SDBML campaign director Matthew Schweich, who is also the deputy director of the Marijuana Policy Project (MPP), made the following statement in response to the final decision of the Supreme Court:


Matthew Schweich, Campaign Director, South Dakotans for Better Marijuana Laws.

“We believe this South Dakota Supreme Court ruling is extremely flawed. The court rejected common sense and instead used far-fetched legal theory to overturn a law passed by over 225,000 South Dakota voters with no logical or conclusive support. The ruling states that Amendment A covered three issues – recreational marijuana, medical marijuana, and hemp legalization – and that if they voted for Amendment A, South Dakotans couldn’t say what they were voting on.

“It’s a legal route and one based on the disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”

Also on the vote in November 2020 was a separate measure to legalize medical cannabis, the initiated measure 26, which was passed with a majority of 69.9%.

While Salter specifically agreed – and agreed with the majority court’s conclusion that Amendment A violated the one-topic rule – he wrote a separate statement to emphasize the “material nature” of that rule.

A one-subject rule seeks to soften the policy bargaining scheme of combining multiple measures to achieve majority support, or “logrolling” a tactic where combining unpopular measures with more popular ones can result in a policy being enforced that would otherwise not be passed on its own, said Salter.

“I am not as convinced as the rest of the members of the majority in the Tribunal that a violation of Article XXIII will invalidate the entire amendment in all cases,” he said. “In several of our previous decisions, we have found that the legislature’s violation of a nearly identical constitutional one-subject rule for statutes in Article III was not fatal.”

Later, Salter said in his statement: “I would therefore postpone the question of whether a violation of the one-topic rule of Article XXIII invalidates a constitutional amendment in all cases to another day. Otherwise I agree with the judgment of the court. “

South Dakota Supreme Court

Judge Scott Myren

While Myren partially agreed, his dissenting opinion indicated that there was no sign of voter confusion over Amendment A.

He also disagreed with the majority decision that Amendment A violates Article XXIII.

“I believe the proposals in Constitutional Amendment A are ‘incidental and necessarily related’ to providing a comprehensive plan for all stages of the legalization, regulation, use, production and sale of marijuana and related substances,” he said. “Therefore I am against the majority decision, which violates Amendment A [the single-subject rule] and is void in its entirety. “

Convinced that voters fully understood what was on the ballot in front of them, the reformist Schweich referred to voters’ 54 percent approval of the A for adult use versus 70 percent approval for medical cannabis , the initiated measure 26 was.

“If voters believed Amendment A was a pure medical marijuana initiative, there would not have been a 16-point gap in the election results,” he said. “Medical marijuana and hemp were mentioned in Amendment A in just three sentences. The rest of the initiative dealt with recreational marijuana. Additionally, it’s worth noting that recreational marijuana, medicinal marijuana, and hemp are all versions of the same plant: cannabis. “

Pending the chance the Supreme Court will side with Klinger and Noem in its decision, Schweich and his SDBML team have been collecting signatures across the state to put another adult legalization move on the 2022 ballot.

Every Thursday: South Dakota Supreme Court indecision on adult cannabis use

While SDBML missed a November 8, 2021 deadline to submit around 17,000 valid signatures to qualify for voting in 2022, Schweich and the company will expand their efforts on the statutory ballot initiative and try instead by the extended deadline in May To submit signatures in 2022.

But the waiting of almost seven months for the Supreme Court has in the meantime fraught SDBML with uncertainties, said Schweich.

“The fact that it took the South Dakota Supreme Court nearly seven months to rule on an election-related lawsuit is extremely problematic,” he said. “This unsustainable delay has undermined public confidence in the South Dakota elections, its system of government and its judiciary. The court owes the people of South Dakota an explanation. “

In addition, Schweich said the timing of Noem’s Executive Ordinance, January 8, 2021, was mysteriously timed, almost two months after Miller and Thom filed the objection lawsuit. The executive order contradicted a statement by Noem spokesman Ian Fury, who said on November 23, 2020 that “Gov. Noem has asked neither Col. Miller nor Sheriff Thom to bring the lawsuit. “

The inconsistency, Schweich said, was never explained, and he believes Noem owes an explanation to the public.

“We should know if the January implementing regulation was true,” he said.

Regardless, SDBML’s push to legalize adult cannabis in 2022 will continue.

“We are as energetic as ever to continue our work,” said Schweich. “We’re not going to stop until cannabis is legalized in South Dakota.”