The South Dakota Supreme Court ruled that the voice of its people, who voted in favor of legalizing adult-use cannabis by a 54.2% majority in the November 2020 election, was not enough to influence public policy.
The five-justice court issued a final decision Nov. 24, 2021, that upheld Circuit Judge Christina Klinger’s February ruling that voter-approved Amendment A violated the state’s single-subject rule in Article XXIII of the South Dakota Constitution and therefore was an unconstitutional ballot initiative.
The case stems from a lawsuit filed less than a month following the election by Pennington County Sherriff Kevin Thom and South Dakota Highway Patrol Col. Rick Miller. Although a spokesperson said Republican Gov. Kristi Noem did not ask Miller or Thom to bring forth the lawsuit, two months later, on Jan. 8, 2021, Noem issued an executive order, asserting that Amendment A was unconstitutional, and launched a taxpayer-funded lawsuit challenging the ballot measure.
Noem, who opposed legalization leading up to the 2020 election, nominated Klinger to the state’s Sixth Circuit Court in early 2019—roughly two years before Klinger struck down Amendment A.
The majority opinion in Wednesday’s Supreme Court decision was penned by Chief Justice Steven Jensen in concurrence with Justices Janine Kern and Patricia DeVaney, while Justice Mark Salter concurred specially, writing his own opinion, and Justice Scott Myren concurred in part and dissented in part.
The five justices heard arguments on Amendment A back on April 28. Their final opinions come nearly seven months later.
“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 said in the majority opinion.
He added, “It is clear that Amendment A contains provisions embracing at least three separate subjects, each with distinct objects or purposes. Those three separate subjects are: (1) the development of a comprehensive plan for the legalization and regulation of marijuana for all individuals at least 21 years of age; (2) a mandate that the Legislature adopt laws ensuring a discrete group of qualifying persons, without regard to age, have access to medical marijuana; and (3) a mandate that the Legislature regulate the cultivation, processing and sale of hemp.”
In the courtroom seven months ago, the plaintiffs argued that Amendment A has five subjects, as it appeared on the ballot: legalizing cannabis, regulating cannabis, taxing cannabis, requiring the South Dakota Legislature to pass laws regarding hemp and ensuring access to medical cannabis.
Meanwhile, the defendants, specifically Robins Kaplan LLP attorney Brendan Johnson, who represented South Dakotans for Better Marijuana Laws (SDBML), the group behind Amendment A, argued the measure contains one subject—cannabis—to which all provisions are essentially related.
While the Supreme Court’s majority opinion recognized that Amendment A was not in violation of state law simply because it included multiple provisions, Jensen said “a violation occurs when the proposed amendment contains more than one subject, with different objects or purposes, that are not dependent upon or connected with each other.”
SDBML campaign director Matthew Schweich, who also serves as the deputy director of reform organization Marijuana Policy Project (MPP), issued the following statement in response to the Supreme Court’s final decision:
“We believe that this ruling from the South Dakota Supreme Court is extremely flawed. 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. The ruling states that Amendment A comprised three subjects—recreational marijuana, medical marijuana, and hemp legalization—and that South Dakotans could not tell what they were voting on when voting for Amendment A.
“It’s a legal stretch and one that relies on the disrespectful assumption that South Dakota voters were intellectually incapable of understanding the initiative.”
Also on the November 2020 ballot was a separate measure to legalize medical cannabis, Initiated Measure 26, which passed with a 69.9% majority.
While Salter concurred specially—agreeing with the majority court’s conclusion that Amendment A violated the single-subject rule—he wrote a separate opinion to emphasize the “substantive nature” of that rule.
A single-subject rule attempts to mitigate the political bargaining scheme of combining multiple measures to achieve majority support, or “logrolling,” in a tactic where joining unpopular measures with more popular ones can result in pushing through policy that otherwise wouldn’t pass on its own, Salter said.
“I am not as convinced as the other members of the Court’s majority that a violation of Article XXIII renders the entire amendment void in all instances,” he said. “In several of our previous decisions, we have held that the Legislature’s violation of a nearly identical constitutional single-subject rule for statutes contained in Article III was not fatal.”
Later in his opinion, Salter said, “I would, therefore, leave for another day the question of whether a violation of Article XXIII’s single-subject rule renders a constitutional amendment void in all cases. I otherwise join the Court’s opinion.”
While Myren concurred in part, his dissenting opinion pointed out that there was no evidence of voter confusion over Amendment A.
He also dissented from the majority’s decision that Amendment A violates Article XXIII.
“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,” he said. “Therefore, I dissent from the majority’s decision that Amendment A violates [the single-subject rule] and is void in its entirety.”
In his belief that voters fully understood what was before them on the ballot, reformist Schweich pointed to the 54% voter approval for adult-use Amendment A compared to the 70% approval for medical cannabis Initiated Measure 26.
“If voters believed Amendment A was a medical marijuana-only initiative, there would not have been a 16-point gap in the election results,” he said. “Medical marijuana and hemp were mentioned in just three sentences in Amendment A. The rest of the initiative addressed recreational marijuana. Furthermore, it’s worth noting that recreational marijuana, medical marijuana and hemp are all versions of the same plant: cannabis.”
Anticipating the possibility of the Supreme Court siding with Klinger and Noem in its ruling, Schweich and his SDBML team have been gathering signatures throughout the state in an effort to place another adult-use legalization measure on the 2022 ballot.
While SDBML missed a Nov. 8, 2021, deadline to submit roughly 17,000 valid signatures to qualify for the 2022 ballot, Schweich and company will extend their efforts for the statutory ballot initiative and try to submit signatures by the May 2022 extended deadline instead.
But waiting nearly seven months on the Supreme Court left SDBML with uncertainties in the interim, Schweich said.
“The fact that the South Dakota Supreme Court took nearly seven months to issue a ruling on an election-related lawsuit is extremely problematic,” he said. “This indefensible delay undermined the public’s faith in South Dakota’s elections, its system of government and its judiciary. The court owes the people of South Dakota an explanation.”
Furthermore, Schweich said the timing of Noem’s Jan. 8, 2021, executive order, nearly two months after Miller and Thom filed the stemming lawsuit, was mysteriously timed. The executive order contradicted a statement from Noem spokesperson Ian Fury, who said on Nov. 23, 2020, that “Gov. Noem did not ask Col. Miller or Sheriff Thom to bring the lawsuit.”
The inconsistency, Schweich said, has never been explained, and he believes Noem owes the public an explanation.
“We should know whether the executive order issued in January was truthful,” he said.
Regardless, SDBML’s push to legalize adult-use cannabis in 2022 will resume.“We are as energized as ever to continue our work,” Schweich said. “We will not stop until cannabis is legalized in South Dakota.”