South Dakota voters approved a pair of initiatives in November to legalize recreational and medical marijuana.
Initiated Measure 26 still stands, with medical marijuana set to become legal July 1, and take center stage in a special session of the Legislature.
Amendment A, legalizing recreational marijuana, was quickly knocked down by Sixth Circuit Court Judge Christina Klinger as unconstitutional after a court challenge.
This week, it was announced that the two sides of South Dakota’s recreational marijuana court battle will meet again at the state Supreme Court April 28. Here’s what you need to know:
What’s in Amendment A?
Amendment A seeks to legalize “possession, use, transport, and distribution of marijuana and marijuana paraphernalia” for South Dakotans age 21 and over, with possession and distribution limited to one ounce or less. A 15% tax would be imposed on marijuana sales with that revenue directed to the state Department of Revenue to pay back the costs of implementing Amendment A, and the rest split 50-50 between public schools and the South Dakota general fund.
Amendment A also requires the Legislature to regulate the sale of hemp, an industrial variety of the Cannabis sativa species.
Who are the parties to the lawsuit?
According to a Jan. 8 executive order, Gov. Kristi Noem directed Highway Patrol Superintendent Rick Miller to bring litigation against Amendment A just 17 days after it succeeded on the general election ballot. Also party to the lawsuit on Miller’s side is Pennington County Sheriff Kevin Thom.
Per online marijuana news outlet CannabisWire, Noem’s effort to overturn Amendment A represented the first time a governor tried to overturn a marijuana legalization initiative approved at the ballot box.
For the appellants, political committee South Dakotans for Better Marijuana Laws is named alongside South Dakota Secretary of State Steve Barnett, former U.S. Attorney for the District of South Dakota Randy Seiler, retired Sioux Falls police officer Bill Stocker, former Reagan administration official Chuck Parkinson and the executive director for New Approach South Dakota, Melissa Mentele.
Noem’s Jan. 8 executive order, as with all executive orders, was signed by Barnett, still a defendant in the case to which the order was referring.
What was decided in the ruling?
Klinger ruled that “[s]everal provisions of Amendment A implement ‘far reaching changes’ in the basic nature of South Dakota’s governmental system by taking authority given to the Legislative and Executive branches and allocating it to the Department of Revenue.”
Amendment A authorized the South Dakota Department of Revenue to license “commercial cultivators and manufacturers, testing facilities, wholesalers, and retailers.” It also left the door open to local governments to ban licensees within their limits.
Klinger wrote that the “far reaching” nature of the amendment was its downfall. Her ruling deemed it a revision of the state constitution, not an amendment.
Under the South Dakota Constitution, amendments are subject to the “single subject rule,” which was added to the constitution after voter approval on the 2018 general election ballot. Under the single subject rule, amendments may only concern one subject. A more thorough revision of the state constitution requires a constitutional convention.
What happened after the ruling?
On Feb. 11, South Dakotans for Better Marijuana Laws released a statement saying that they “remain confident” that the state Supreme Court would find in their favor upon appeal.
“The idea that Amendment A is a substantial change to South Dakota’s system of government that requires a constitutional convention is preposterous,” the statement read. “Amendment A does not change the fundamental structure of South Dakota’s political system or elections in any way.”
In their Feb. 17 appeal to the state Supreme Court, attorneys Timothy Billion and Brendan Johnson argued that an affirmation of Klinger’s decision would “substantially impair the fundamental right of South Dakotans to initiate laws and constitutional amendments.
“South Dakotans have retained for themselves the power to initiate legislation and constitutional amendments,” they wrote. “The ability of voters to decide what rights their constitution guarantees is a fundamental and sacred right. This power to initiate laws and constitutional amendments enables South Dakotans to enact new laws or amend the state’s Constitution where the ordinary legislative process does not reflect the will of the people.”
Lawyers for Miller and Thom fired back in a brief filed March 24 that the case will determine whether “private lawyers and special interest groups can use the initiative process to circumvent the requirements set forth in the South Dakota Constitution.”
“Despite the many baseless procedural arguments Proponents have raised in an attempt to distract from the merits, Amendment A remains an unprecedented, multi-subject revision that was drafted in secret and placed on the ballot in violation of the Constitution itself,” they wrote. “Because Amendment A was submitted to the voters in violation of the Constitution itself, it is void.”