Adult-use cannabis legalization remains uncertain in South Dakota, where the state’s Supreme Court heard arguments April 28 on the constitutionality of a voter-approved amendment from the November 2020 election.

The court’s hearing stems from a lawsuit challenging the constitutionality of Amendment A, which passed with a 54.2% majority. The ballot measure read: “An amendment to the South Dakota Constitution to legalize, regulate and tax marijuana; and to require the legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use.”

The plaintiffs in that case argued that the measure violates the state’s one-subject rule and does not simply amend the state constitution but, rather, revises the constitution. Therefore, the revision would require a constitutional convention to be called for by a three-fourths vote of members from both chambers of the state legislature.

The defendants, who represent South Dakotans for Better Marijuana Laws, the group behind Amendment A, argued the measure contains one subject—cannabis—to which all provisions are essentially related. In addition, they argued the state constitution’s definitions of “amendment” and “revision” are permissive, not obligatory.

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During the hearing in front of the five South Dakota Supreme Court justices on April 28, Brendan Johnson, an attorney in support of Amendment A, argued the state’s one-subject rule as it has been applied by the high court has historically serviced as a shield, not as a sword, he said.

“It is designed to shield the people from legislation, from crafty legislators, who before the legislation passes, they’ll insert … something that the people weren’t expecting,” Johnson said. “They would have no reason to expect that this could happen. That has been the purpose of this single-subject. Same when it comes to amendments.

“Is there something in the amendment that is so outlandish, so outside the bounds, that the people of South Dakota couldn’t possibly have known what it was that they were really voting for? That didn’t apply here in South Dakota. We had a vigorous debate—probably the most intensely scrutinized piece of legislation in my lifetime, in a generation, that the people ever voted on.”

Article XXIII of the South Dakota Constitution states: “No proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately.”

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.

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In her opening remarks in front of the Supreme Court justices, Lisa Prostrollo, an attorney who argued in opposition of Amendment A, said the constitutionality of the voter-approved ballot measure is not a matter of legalizing cannabis.

“And it’s not about the multitude of other subjects that are packaged within Amendment A,” she said. “It’s about the rule of law, and it’s about enforcing the limitations that the people placed on their ballot initiative under the constitution. Those limitations are essential to preserving the integrity of our state’s founding documents. The circuit court recognized this when it struck down Amendment A, and we’re asking this court to do that same.”

RELATED: South Dakota Judge Strikes Down Adult-Use Amendment

On Amendment A, the South Dakota Supreme Court is considering a core filing that is 550 pages.

Justice Janine M. Kern said she counted 15 subjects and 55 subsections in the new article that Amendment A purports adding to the South Dakota Constitution. She asked about what she called the “far-reaching implications” of the article in regard to the state’s department of revenue’s “exclusive power” to enforce certain lawful functions, such as appropriating tax revenue gained through the implementation of an adult-use cannabis program.

“I’d like you to address that concept,” she said to Johnson.

“Of course, the number of provisions has always been less important than what the provisions themselves do,” Johnson said. “When it comes to the exclusive power of the department of revenue, you’re going to hear a lot about that. So, the language here is extremely important.”

Regarding the authority that would be granted to the state’s department of revenue, the article that would be added to the constitution states, “The department shall have the exclusive power … to license and regulate the cultivation, manufacture, testing, transport, delivery, and sale of marijuana in the state and to administer and enforce this article.”

Johnson said that language involves a simple delegation of power.

“That is not revolutionary, in all due respect to opposing counsel,” he said. “What we see every year in this legislature is that they will delegate powers to a different agency. When we talk about the exclusive power of the department of revenue, it means that they’re not sharing it with the department of health, which they might do in the situation of medicinal marijuana.”

In a rebuttal, Prostrollo said that delegation of power as written in the article is not simple but is unique as it applies to South Dakota. Granting the department of revenue exclusive authority to enforce certain lawful functions would affect South Dakota Highway Patrol Col. Rick Miller and the rest of the highway patrol, she said.

The entire case being argued in front of the Supreme Court on April 28 stemmed from Miller and Pennington County Sheriff Kevin Thom, who filed a lawsuit Nov. 24 that challenged Amendment A, arguing it violates the state’s one-subject rule.

Under South Dakota’s current system of government, the highway patrol has been granted or delegated authority to enforce all laws on state highways—an authority that the state legislature delegated—but if Amendment A is enacted, suddenly that authority shifts to the department of revenue, Prostrollo said.

Justice Mark E. Salter questioned that perspective as it relates to the constitutionality of Amendment A.

“Isn’t that the nature of an amendment, that the people through their vote could do something different—tell the legislature we want a different rule?” he said. “The highway patrol’s cognizance over whatever it has cognizance over at this point surely isn’t constitutionally based.”

It is constitutionally based, Prostrollo said.

“It is?” Salter asked.

Amendment A should in fact be considered a revision, Prostrollo said.

“Under our current constitution, we have three branches of government that are afforded specific delegated powers,” she said. “Amendment A changes that. It elevates the department of revenue to effectively a fourth branch of government with exclusive power. That’s a fundamental change to the basic structure of our constitution and our system of government. That makes Amendment A unlike any other amendment that this state has ever seen, and it’s the reason this court should strike it down today.”

Another key component surrounding Amendment A discussed during the hearing included the opposition’s silence to challenging the ballot initiative before the election.

Johnson acknowledged that Amendment A is a lengthy amendment that was crafted through studying legislation from other states, including constitutional amendments, and streamlined some of those previously established legalization efforts, he said.

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Justice Patricia J. DeVaney asked if other states on which Amendment A was modeled also submitted their measures all as one amendment. Johnson said he’d have to double-check before providing a definitive answer.

“Colorado also has a single-subject rule, which is similar to South Dakota’s,” Johnson said. “So, that’s [part of] what we patterned it after.”

The first state to pass an adult-use cannabis legalization measure, Colorado voters approved Amendment 64 by approximately a 55% majority in the November 2012 election.

Amendment 64’s specific language on the 2012 ballot was as follows: “Shall there be an amendment to the Colorado Constitution concerning marijuana, and, in connection therewith, providing for the regulation of marijuana; permitting a person 21 years of age or older to consume or possess limited amounts of marijuana; providing for the licensing of cultivation facilities, product manufacturing facilities, testing facilities, and retail stores; permitting local governments to regulate or prohibit such facilities; requiring the general assembly to enact an excise tax to be levied upon wholesale sales of marijuana; requiring that the first $40 million in revenue raised annually by such tax be credited to the public school capital construction assistance fund; and requiring the general assembly to enact legislation governing the cultivation, processing, and sale of industrial hemp?”

Johnson said the critical issue for South Dakota’s voter-approved Amendment A is: Was it done constitutionally and lawfully?

The answer is “yes,” Johnson said.

“Did we have the requisite number of signatures? Absolutely did,” he said. “Did we get them in time? Absolutely did. Did we violate the single-subject rule? We did not.”

The South Dakota Constitution does not restrict the scope or magnitude of the single subject of a legislative act, Johnson said.

“Fifty-five sections is a lot,” he said. “But is it part of a singular scheme, where we are taking cannabis, which has been illegal, and legalizing it? I would say that it is.”

If opponents of Amendment A had a constitutionality issue with how it appeared on the ballot, Chief Justice R. Jensen questioned why those opponents did not file litigation to challenge the voter initiative before the election.

“You’ve got this issue with, ‘We don’t think that this is properly in front of the voters, and we want to challenge it. The secretary of state shouldn’t put this on the ballot,’” Jensen said. “Is there a reason that couldn’t have been brought before the election, before the people voted on this, and the court could have decided the one-subject issue before the people voted?”

The initiative petition was received by South Dakota Secretary of State Steve Barnett on Aug. 15, 2019—more than a year before the election.

There was no straightforward procedure for bringing an action before the election, Prostrollo said.

“Thankfully, the legislature has now addressed that, so it won’t be a problem moving forward,” she said. “But there was a question at the time. And in fact, this court has stated that when a case is deciding whether a change in the constitution has been legally affected, that question is actually better addressed after the election.”

If attorneys representing opponents of any ballot amendment were to bring challenges to court before an election, and then voters struck down and defeated such an initiative at the polls, that would be a waste of judicial resources, Prostrollo said.

While it’s clear that voters can change the constitution when they want to, and when they follow the rules, the substantive legality of Amendment A is not an issue, Salter said from behind the bench. Rather, what’s at issue are the technical requirements posed by the constitution for presenting an amendment in the first place, and whether the correct procedure was utilized, he said.

Going back to the one-subject rule, Johnson said it’s OK for voters to have multiple reasons for supporting a ballot initiative—such as voting in favor of legalizing adult-use cannabis and ensuring access to medicinal cannabis—on the same ticket. What’s not OK is if the ballot initiative buried something that somehow voters would have been tricked or fooled into supporting, he said. That did not happen with Amendment A, he said.

“When we talk about the damage that could be done,” Johnson said, “if that for the first time in our state’s history we have a court that literally throws out 417,000 votes that were cast on a piece of legislation passed by the people, the harm that that could do, especially in a time that [many] people feel like elections are rigged anyhow, the standard should be exceptionally high.”

The Louisiana House Criminal Justice Committee advanced House Bill 524, which would establish the regulatory framework for adult-use cannabis in the state.

Republican Rep. Richard Nelson sponsored the bill, which passed in a 7-5 vote after an "impassioned" debate on April 27, The Advocate reported. Two additional Republicans and several Democrats supported the legislation, while mainly district attorneys and sheriffs opposed it.

Nelson said he believes the state’s cannabis prohibition is a failed experiment and needs to end, according to The Advocate. He also argued that legalizing and then regulating and taxing adult-use cannabis could generate hundreds of millions of dollars in revenue for Louisiana—revenue that the state is currently missing out on.

But opponents of the legislation said that the potential revenue from legalizing and regulating cannabis would cause a host of other problems, like safety issues, KPEL reported.

The legislation still has a difficult journey before it becomes law. It must get approved by the Republican-dominated full House and Senate and Democratic Gov. John Bel Edwards, who said he opposes adult-use cannabis, The Advocate reported.

However, the committee’s recent vote on the legislation indicates that opinions on cannabis are starting to change in the Louisiana legislature, as more conservatives are beginning to show support for legalization.

The South Dakota Supreme Court will hear arguments April 28 regarding the constitutionality of the state’s adult-use cannabis amendment that voters approved in the November election.

The court’s hearing stems from a lawsuit challenging the constitutionality of Amendment A. The state-passed ballot measure  read: “An Amendment to the South Dakota Constitution to legalize, regulate and tax marijuana; and to require the legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use.”

Less than a month after voters approved the ballot measure with a 54.2% majority, Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Col. Rick Miller filed a lawsuit challenging Amendment A, arguing it violates the state’s one-subject rule, and the amendments and revisions article of the South Dakota Constitution.

The plaintiffs argued that Amendment A has five subjects: legalizing cannabis, regulating cannabis, taxing cannabis, requiring the South Dakota Legislature to pass laws regarding hemp and ensuring access to medical cannabis.

Commenting on the litigation, National Organization for the Reform of Marijuana Laws (NORML) Deputy Director Paul Armentano said: “Legalization opponents cannot succeed in the court of public opinion or at the ballot box. Thus, they are now seeking to overturn election results after the fact. Whether or not one supports marijuana legalization, Americans should be outraged at these overtly undemocratic tactics.”

South Dakotans for Better Marijuana Laws, the group behind Amendment A, filed a response in court on Dec. 7, arguing that the case should be dismissed because voiding Amendment A would overturn the people’s will. Citizens from that group also argued that Amendment A had one subject: cannabis.

On Jan. 8, Gov. Kristi Noem issued an executive order that allowed the legal challenge of Amendment A to proceed. In that order, Noem said, “The initiative process used to place Constitutional Amendment A on the ballot was not proper and violated the procedures set forth in the South Dakota Constitution.” Also, in that order, Noem said she instructed Miller to file the litigation against Amendment A on her behalf.

Noem’s executive order opened the door for Circuit Judge Christina Klinger to reject the voters’ will by striking down the approved adult-use amendment in a ruling she issued Feb. 8. Klinger said Amendment A violated South Dakota’s requirement that constitutional amendments be limited to just one subject.

Article XXIII of the South Dakota Constitution states: “No proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately.”

In the conclusion of her ruling, Klinger said, “Amendment A is unconstitutional as it includes multiple subjects in violation of Article XXIII, and it is therefore void and has no effect. Furthermore, Amendment A is a revision as it has far-reaching effects on the basic nature of South Dakota’s governmental system. As a result, Amendment A was required to be submitted to the voters through the constitutional convention process set forth in Article XXIII.”

On Amendment A, the Supreme Court is considering a core filing that is 550 pages.

A unionization effort filed for 17 employees at the Curaleaf medical dispensary in Hanover, Mass., went all the way to Washington, D.C., before a final decision on the results of a mail-in election was made earlier this month. The majority of ballots had been challenged, some of which remained sealed in the final vote count.

The United Food and Commercial Workers (UFCW) Local 328, which represents more than 11,000 workers in a range of industries throughout Rhode Island and southeastern Massachusetts, filed for the Curaleaf Hanover union election April 20, 2020—during the onset of the COVID-19 pandemic. Ballots went out to the Hanover team in May, and the original vote count was June 26. That vote came back 5-2 in favor of joining the Local 328, excluding 10 challenged ballots, which were determinative, meaning there were more challenged votes than the difference between yeses and noes.

“There was some fighting back and forth—because it was during COVID—about people that they were bringing in from other areas and having them work there,” UFCW Local 328 President Tim Melia said. “But they weren’t part of the Hanover group. The company was arguing that they should be part of the unit and should be able to vote on the contract. And we were arguing back the other way. So, there were some charges about who was eligible and who wasn’t when the vote came.” 

The challenged ballots took nearly 10 months to sort out. A federal investigation and hearing by the National Labor Relations Board (NLRB) examined the circumstances of the challenged ballots, which stemmed from which workers were employed at the Hanover location before government shutdowns and which workers were not. The Boston regional office of the NLRB determined that six of the 10 challenged ballots should not be counted. Curaleaf appealed that decision to the NLRB in Washington, D.C., where the labor board declined to hear the case, essentially upholding the ruling of the regional director in Boston.

The final vote was 8-3 in favor of the Curaleaf Hanover workers unionizing, which became official on April 9, 2021, roughly a year after the workers’ campaign was organized.

Local 328 organizers first connected with dispensary workers at Curaleaf Hanover in March 2020, a month before filing the unionization vote and before pandemic-related government shutdowns were enacted. At the time in Massachusetts, the shutdowns affected adult-use dispensaries while medical dispensaries like Curaleaf Hanover were deemed essential. 

“What ended up happening was that the company had sent over some workers from different locations because this is a purely medicinal facility [in Hanover] and the [adult-use] locations for Curaleaf had closed,” Local 328 Director of Organizing Sam Marvin said. “So, they had temporarily sent some workers from kind of far away to work at the medicinal location that was still open. And, so, essentially that made up some of the challenged votes.”

Curaleaf did not confirm the pre-shutdown whereabouts of its workers who represented the six challenged ballots that remained sealed, but the NLRB regional director in Boston determined those six should not be counted as part of the Hanover group. Had the six Hanover ballots that remained sealed all been no votes, then, theoretically, the union organization effort would have failed, 9-8.

A spokesperson from Curaleaf said the vote at the company’s Hanover dispensary was a “secret ballot election” but recognized that the final count was in fact in favor of union representation by the Local 328 for purposes of collective bargaining.

“While we’re disappointed with this outcome, because we believe team members are best served dealing directly with our management team, we respect the collective voice of our Hanover team members at the time and will seek to have a collaborative working relationship with the UFCW,” the spokesperson said. “We will continue to prioritize creating a positive, supportive and inclusive work environment for all team members and provide our patients and customers with the excellent service they expect and deserve from Curaleaf.”

Going Beyond Wages and Benefits

When Cannabis Business Times reached out to Curaleaf following the final vote and asked in what ways the company prioritizes taking care of its employees and meeting their needs, the spokesperson said, “We welcome everyone to join our employee resource groups focused on fostering inclusion.” The company identified specific groups that have been developed to meet this priority:

• Black, Indigenous and People of Color (Curaleaf in Color)
• WCC (Women’s Cannabis Collective) 
• PRIDE/QUSH (Queer-Centered Unity and Service Huddle)
• Working Parents (FamiLeaf)
• Community and Volunteerism (Curaleaf Cares) 
  

Curaleaf also hosts panel discussions and support events for all team members: 

• Heritage Lunch-in (food dishes that represent our heritage—celebrating diversity) 
• “Black in Cannabis” panel discussion (education and awareness of the war on drugs and historical community impact of Black people in cannabis) 
• “AAPI in Cannabis” panel discussion (education and awareness of Asian American Pacific Islander communities in cannabis)
• Holding Space and communicating from the C-suite (for times of grief and support—scheduled often and as needed when team members request and/or crisis happen. E.g., George Floyd murder and trial, mass shootings, Asian hate crimes, etc.)
• “Help a Family” (sponsoring Curaleaf team members who are in additional financial need during the holiday season)
• Virtual yoga and meditation classes 
  

“Our team members are the heart and soul of our company,” the spokesperson said. “Their dedication and commitment to serving our patients and customers is exemplified by their incredible efforts during this challenging time as our country deals with the COVID-19 pandemic.”

UFCW’s Push to Unionize Cannabis Workers

First organized by meat cutters and butchers in 1937, the Local 328 now represents workers in myriad industries, including retail food, institutional food, health care, banking, transportation, manufacturing, barbers, cosmetologists and now cannabis. But the push to unionize the cannabis space is just starting to unfold, both in the Local 328’s region and across the nation. Of the 11,000-plus workers represented by the Local 328, fewer than 100 are from the cannabis space. The union is working to increase that representation.

Earlier this month, dispensary workers at Greenleaf Compassionate Care Center in Portsmouth, R.I., unionized by a 21-1 vote to join the Local 328. The organized effort includes budtenders, keyholders, online team members and delivery associates.

Local 328 now represents workers from four cannabis businesses, including the Ocean State Cultivation Center (OSCC) in Warwick, R.I., where workers officially became the state’s first unionized cannabis organization with a negotiated contract in October 2020. OSCC provides cannabis products to compassion centers operating in Portsmouth, Providence and Warwick that serve more than 18,000 cannabis patients in Rhode Island’s medical program.

Perfect Union, a vertically integrated operator and parent company of OSCC, with dispensaries in California, New Mexico and Rhode Island, began paying all employees an additional $2.50 per hour on March 16, 2020—at the onset of COVID-19 and while negotiations were still taking place with UFCW. The bonus pay extended to more than 200 employees, including those working in cultivation, distribution, manufacturing and retail.

“Taking care of our employees is one of our highest priorities,” Perfect Union CEO David Spradlin said in a Local 328 release. “We are pleased to be partnering with the UFCW Local 328 and helping to set a standard for workers in Rhode Island’s cannabis industry. Our partnership ensures our employees will be treated fairly and equitably, allowing us to better serve the community around us.”

The two parties agreed to a labor peace agreement in late 2019, which committed them to open, transparent dialogue throughout the negotiation process, Marvin said. A labor peace agreement is an arrangement between a union and an employer under which one or both sides agree to waive certain rights under federal law with regard to union organization and related activity. Such an agreement is more likely to lead to unionization of a workplace, according to the U.S. Chamber of Commerce.

The finalized contract guarantees a living wage, comprehensive benefits, opportunities for career advancement and safe working conditions for OSCC employees, according to a Local 328 press release.

“The UFCW has been so important in turning these jobs into careers,” said Matthew Baryshyan, who works in cultivation at OSCC. “As this industry grows, so does our need to make sure our best interests are taken into consideration. We now have better wages, a pension plan, full benefits, vacation time, and the list goes on. The UFCW is making sure there is a future in cannabis, and it’s a bright one.”

Does Company Size Matter?

In addition, Local 328 representatives are currently negotiating a contract for the cannabis workers at a Cresco Labs cultivation and processing facility in Fall River, Mass. A multistate operator headquartered in Chicago, Cresco also operates one of its Sunnyside dispensaries in Fall River, after the company closed on its acquisition of Hope Heal Health Inc. in February 2020.

Earlier this year, more than 180 UFCW Local 881 members who work at Cresco Labs in Joliet, Ill., ratified a union contract that raised wages and improved benefits.

While Cresco Labs and Curaleaf are two of the biggest cannabis companies in the world, Marvin said workers throughout the industry essentially want the same thing—stability.

“Sometimes the smaller, medium-size companies will sell to a larger company,” he said. “So that’s why that’s one of the big issues for even the smaller, medium [companies] is to have some sense of protection and security in case that were to happen. They can still protect their unions, still protect their benefits and sit at the table with a new employer.”

As the biggest companies continue to grow in a sector with increasing revenues, workers of those companies want to ensure they are rewarded “in the industry where they’re creating these profits through their work,” Marvin said. This can take the shape of pay increases, ownership stakes or more inclusive workspaces.

Unionization efforts at Curaleaf Hanover and the Cresco Labs facility in Fall River come as the Massachusetts cannabis industry generated roughly $696 million in sales in 2020—a 56.4% increase from 2019, according to adult-use sales and production data from the state’s Cannabis Control Commission.

Since the adult-use system launched more than two years ago, Massachusetts cannabis sales have exceeded more than $1.5 billion overall. Cannabis sales in 2021 have already logged roughly $370 million through April, according to the state’s seed-to-sale tracking system.

Worker-Management Relations

Big or small, the Local 328 is pushing to extend its representation in the cannabis space. Sometimes organization efforts are met with cordial negotiations, and other times they are not, Marvin said.

As other state legislatures continue to debate and pass adult-use cannabis measures, lawmakers are including provisions in their bills that aim to deter anti-union practices on the part of cannabis business owners. For example, Virginia Gov. Ralph Northam signed legislation last week that gives the state’s incoming Cannabis Control Authority the power to strip licenses from any cannabis business that doesn’t remain neutral while its workers attempt to unionize.

Unionization can be good for both employers and employees, Marvin said. A key benefit made possible through unionization is that employers who may have a tough time entering into industry pension funds could gain access through labor unions that represent their workers, Marvin said.

“For example, we have UFCW industry pension funds that we can now negotiate these employers into because they’re union,” he said. “And we also have access to our industry health and welfare funds as well. So, maybe for some employers that cost can be greater if they’re doing it alone.”

While workers can gain health care and a secure retirement through unionization—which is not to say they can’t gain those benefits without a union—improving their relations with management can translate to the customer experience and reduce turnover, Marvin said.

“We don’t want to see an industry that has a high turnover where patients and customers are going in and seeing a new face every day,” he said. “We want to see that these are good jobs, that workers can take care of their families and their patients and customers at the same time. And I think ultimately that’s very beneficial for the consumer—that they can cultivate that relationship with employees and expect to see them the week after, and the week after that.”

Continuing the Push

Although Local 328 representatives have a trio of moving parts in the cannabis space—including their current negotiation with Cresco Labs and upcoming negotiation efforts with Curaleaf and Greenleaf—Marvin and Melia said the budding sector is ripe for additional unionization. Union negotiations are often centered on wages, hours, benefits and working conditions, while others choose to organize in order to gain dignity and respect on the job, Melia said.

Specifically for workers in medical dispensaries, who were deemed essential in many states as they worked on the front lines during the pandemic, having personal protective equipment (PPE), social-distancing protocols and proper cleaning measures in place were important safety standards, Marvin said. In general, working during a pandemic was a tipping point for many workers in a variety of sectors to organize, he said.

Going hand-in-hand with job security, workers want to make sure they are no longer at-will employees, Marvin said. In U.S. labor law, at-will employment is an employer’s ability to dismiss an employee for any reason, and without warning, as long as the reason is not illegal.

“I think that the organizing that workers are doing now is essentially framing how these jobs are going to be not only today and tomorrow, but for years down the road,” he said. “So, again, we want to make sure these are good jobs and we’re going to continue to communicate and partner with cannabis workers.”