Any Given Thursday: South Dakota Supreme Court’s Indecision on Adult-Use Cannabis
South Dakota Supreme Court Justices Patricia J. DeVaney, from left, Janine M. Kern, Steven R. Jensen, Mark E. Salter and Scott P. Myren hear April 28 arguments about the constitutionality of voter-approved Amendment A, which would legalize adult-use cannabis in the state. They have yet to issue an opinion.
Keloland Media Group

Any Given Thursday: South Dakota Supreme Court’s Indecision on Adult-Use Cannabis

South Dakotans for Better Marijuana Laws is racing to hit a Nov. 8 signature gathering deadline for the 2022 ballot as a back-up plan.

November 4, 2021

Matthew Schweich has started every Thursday morning for the past six months by logging onto the South Dakota Supreme Court’s opinion page and hitting the refresh button.

Twenty-seven straight weeks, the campaign director for South Dakotans for Better Marijuana Laws (SDBML), a statewide ballot question committee based out of Sioux Falls, has been met by disappointment, as time and time again he finds that the five-justice court remains a no-decision on the constitutionality of Amendment A—the 2020 voter-approved adult-use cannabis ballot measure.

In addition to being the SDBML campaign director, Schweich also serves as the deputy director of reform organization Marijuana Policy Project (MPP).

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

“Eight o’clock sharp every Thursday morning,” Schweich said about when the South Dakota Supreme Court updates its issued opinions online each week. “I’d hate to count up all those Thursdays that there’s been no ruling on the Amendment A case.”

Last November, 54.2% of South Dakota voters cast ballots in favor of Amendment A, to legalize adult-use cannabis, but Republican Gov. Kristi Noem launched a taxpayer-funded lawsuit challenging the ballot measure, claiming it violated the state’s one-subject rule.

Without the Supreme Court’s decision, Amendment A currently sits unconstitutional, which Circuit Judge Christina Klinger ruled in February. Noem, who opposed legalization leading up to the 2020 election, nominated Klinger to the state’s Sixth Circuit Court in early 2019.

The Supreme Court heard arguments on Amendment A in late April, but the judicial body has remained silent since, putting SDBML in a tight position—a Nov. 8, 2021, deadline looms to gather roughly 17,000 valid signatures to qualify for the 2022 ballot, in case the Supreme Court upholds Klinger’s ruling that Amendment A is unconstitutional.

RELATED: Arguments on Amendment A Unfold in Front of South Dakota Supreme Court

“Overall, we’ve got hundreds of volunteers all over the state, and we’ve got 40 signing locations all over South Dakota,” Schweich said. “And we’re just going to have to rely on our volunteers to come up big for us. Based on the level of frustration, and therefore motivation, I think there’s a very good chance we’ll get what we need and be able to submit [on Nov. 8].”

Schweich said he hopes SDBML will collect 22,000 to 23,000 signatures—to provide a 5,000 to 6,000 buffer—in case some of the signatures are not validated (i.e., signees who do not write their information legibly or who think they’re registered to vote when in fact they are not).

Going through the same ballot initiative process two years ago, South Dakotans for Better Marijuana Laws staff and volunteers submit petitions for Amendment A and medical cannabis legalization Measure 26 to Secretary of State Steve Barnett on Nov. 4, 2019, in Pierre.

If the signature gathering campaign comes up short for the Nov. 8 deadline, then SDBML will extend its efforts for the statutory ballot initiative and try to submit by May 2022 instead, but there’s a slight risk in doing so, Schweich said. Initiative organizers plan to do their “big count” Nov. 6, and that’s when he’ll know where the signatures stand, he said.

“The ideal path forward is to submit on Monday,” he said. “However, a federal court has ruled that the Nov. 8 deadline is too early, and they have extended it to May. And so, we feel very confident that we have until May to submit these signatures; however, it is not 100 percent.”

The “slight risk” is that the May extension could be rescinded, but Schweich said everyone he’s talked to told him that’s very unlikely.

The steps taken toward putting an adult-use initiative on the 2022 ballot are part of a backup plan. Should the Supreme Court restore Amendment A as constitutional—overturning Klinger’s decision—then SDBML would call off its ballot campaign, Schweich said.

But no one really knows when that decision will come.

“There is no deadline [for the Supreme Court to make a decision],” Schweich said. “I don’t know what the timeline is. I expected that the South Dakota Supreme Court would have issued a ruling long before this. It’s been over six months since the final hearing, … and I think most people in the state are quite confused as to why it’s taking so long.”

The decision could become public on any given Thursday, Schweich reiterated. Every state has a different judicial branch system, he said.

Last year in Nebraska, for example, the team at MPP worked to get a medical cannabis initiative approved by Secretary of State Bob Evnen in August only for the Nebraska Supreme Court to rule less than a month later that it violated the state’s single-subject rule. At the time, Schweich said it was a deeply flawed decision that only ensured suffering medical cannabis patients, including veterans, would continue to be criminalized while trying to live healthier lives.

“Unfortunately, the Nebraska Supreme Court ruled against us, but they did so on a much quicker timeframe,” Schweich said this week. “So, I was never expecting that it would take this long to get a ruling in South Dakota, but we just can’t control that.”

While launching a signature gathering campaign for a 2022 ballot initiative is the responsible thing to do in South Dakota, he said, money being spent on another ballot process could all be for nothing should the Supreme Court rule to restore Amendment A.

SDBML never wanted to launch another campaign, said Schweich, who believes his ballot question committee still has a very good chance of winning the Amendment A case.

When Cannabis Business Times reached out to SDBML attorney Brendan Johnson, who argued on its behalf in front of the Supreme Court in April, Johnson said he was unable to comment on the case until a final ruling is issued.

But SDBML fundraising efforts for its signature drive have been supported by those frustrated, not only with the Supreme Court’s indecision, Schweich said, but also with Noem’s use of taxpayer funds to challenge an amendment that 54.2% of voters backed, he said.

“I speak with the South Dakota voters every day when they come into our campaign office here in Sioux Falls, and I hear them express quite considerable frustration,” he said. “They are very frustrated with Gov. Noem after her decision to use taxpayer funds to file this lawsuit against Amendment A, and they are quite confused as to why it’s taken the state Supreme Court so long to issue a ruling.”

But the frustration is helping to motivate people to get involved and become engaged in the political process, Schweich said of a silver lining.

And it’s not just Noem opponents expressing their grievances.

“The frustration is very real—I have not seen anything like this before,” Schweich said. “There’s so many people who don’t just come in here because they want to sign, but they want to express how they feel. It’s interesting to listen because these people come from all different political backgrounds. We have liberal people and very conservative people, people in the center, libertarians—South Dakotans of all political stripes are coming in here and signing.”

With repeated legal battles that have ensued across the U.S. following recent cannabis legalization measures—not just in South Dakota and Nebraska, but also in Mississippi, where its state Supreme Court overturned a 2020 voter-approved medical cannabis ballot initiative in May—Schweich said the lone course of action is to keep on fighting with more due diligence moving forward. But it’s a continuous battle, he said.

Just this year, the Idaho Senate approved legislation to make it more difficult to get citizen-led initiatives or referendums on the ballot. But the Idaho Supreme Court rejected the law in August, ruling the legislation was so restrictive that it violated a fundamental right under the state’s constitution.

The South Dakota Legislature is attempting a similar tactic to make ballot initiatives more difficult through a “supermajority requirement” that it placed on the June 7, 2022, primary ballot, which, if approved, would require a three-fifths vote of approval by the Legislature before future citizen-led initiatives could be placed on the ballot.

Schweich called it a “disgraceful” proposal that has no place on a primary ballot.

“These attacks on the initiative process come in all different forms,” he said. “They can take the form of legislation, litigation, administrative rulings, proposed initiatives. For those of us who work very hard to uphold and effectuate the will of the people through the initiative process, we just need to be even more aware of potential risks, and we need to work together to fight back against these restrictions. And that is happening, but it is a real battle.”

While SDBML organizers originally filed five potential ballot initiatives for 2022, they since have decided to move forward with a short statutory legalization initiative because it is the most likely to withstand any future legal challenges, Schweich said.

That decision comes with a heightened awareness of potential risks associated with the current “era of assaults” on the initiative process going on throughout the country, he said.

“It just requires a higher level of due diligence on the initiative process and erroring on the side of caution,” Schweich said. “[It also means] having a line item in your budget for litigation and monitoring the Legislature for any changes they try to make for the initiative process and having a good relationship with whatever state agency oversees the initiative process. In South Dakota’s case, that’s the secretary of state.”

Since Klinger ruled Amendment A unconstitutional, and with the Supreme Court currently considering the case, the South Dakota Legislature formed a Marijuana Interim Study Committee, which recommended Oct. 27 that the state legalize adult-use cannabis through the legislative process.

The committee recommended levying a 15% sales tax on cannabis products, the creation of a state licensing system and allowing local governments to create restrictions and prohibitions for cannabis businesses.

“We’re ready to work with them. We want to help them get that bill passed,” Schweich said. “And if it gets passed, we can withdraw our initiative from the ballot. You know, we don’t have to be on the ballot again. In fact, it’s better that we’re not because that just means the people are waiting even longer for policy they already approved.”

But the South Dakota Legislature will not return to session until January.

In addition, if the Legislature gains enough votes to pass an adult-use bill in both chambers, there’s still the risk that Noem could veto the legislation, requiring a supermajority to override her pen.

“There’s a lot of unknowns,” Schweich said. “So, we have to keep collecting signatures and maintain that option of going to the ballot next year.”

If adult-use legalization all boils down to a 2022 ballot measure, he said SDBML will be ready to defend it.

“I think our opponents maybe thought we were just going to kind of walk away, but obviously we haven’t,” Schweich said. “We have the people of South Dakota on our side, and we’re going to keep working hard, and, in the end, we’re going to win. It’s just going to take longer than it should have and it’s going to cause a lot of frustration along the way, but, in the end, cannabis will be legal in South Dakota for adults 21 and over, and the people will be respected. It’s just a question of when.”