South Dakota Supreme Court rules against recreational marijuana

South Dakota News

PIERRE, S.D. (KELO) — There will be no recreational marijuana in South Dakota, at least not until the Legislature meets for its 2022 session.

The South Dakota Supreme Court voted 4-1 in a decision released Wednesday morning that Constitutional Amendment A was invalid. The court took the unusual step issuing a news release with the decision.

“Amendment A, as submitted to the voters in the November 2020 general election, violated the single subject requirement in the South Dakota Constitution,” the release said.

The court found that Amendment A asked voters to legalize recreational marijuana, hemp and medical marijuana within the South Dakota Constitution and therefore voters weren’t able to vote on each one.

The South Dakota Supreme Court heard the case in April. Chief Justice Steven Jensen wrote the court’s decision.

“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 stated. He added, “It is clear that Amendment A contains provisions embracing at least three separate subjects, each with distinct objects or purposes.”

In recent weeks, South Dakota lawmakers have been studying the topic. The Legislature’s marijuana study committee has proposed legislation that would legalize marijuana for people at least age 21 in case Amendment A was struck down. Voters last year approved IM 21 legalizing medical marijuana 70-30%. The state Department of Health is now rolling out that program.

The Supreme Court decision is a victory for Governor Kristi Noem, who challenged the validity of Amendment A weeks after South Dakota voters approved it 54-46%, and a defeat for its sponsor, former U.S. Attorney Brendan Johnson.

Noem issued a statement within the hour after the court decision was publicly released. “South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about. We do things right – and how we do things matters just as much as what we are doing. We are still governed by the rule of law. This decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible South Dakotans,” her statement said.

State Representative Steven Haugaard, who’s challenging Noem for the Republican nomination for governor, issued a statement too. “The Legislature is keenly aware of the public’s concern that the people’s voice must be heard and respected. As a result, the Legislature has already been working on bills and recommendations for the upcoming session to work through the issues surrounding marijuana. It will be a subject of special interest during the session,” his statement said.

The four justices who ruled against Amendment A were Janine Kern, Patricia DeVaney, Mark Salter and Jensen. Dissenting was Justice Scott Myren.

The main decision ran 39 pages. A special concurrence by Justice Salter was three pages. The dissent by Justice Myren was 26 pages.

Wrote Jensen, “However, amendments that ‘relate to more than one subject, and have at least two distinct and separate purposes, not dependent upon or connected with each other[,]’ see Herried, 10 S.D. 109, 72 N.W. at 97, must be submitted so that each can be voted on separately. This is in part because the single subject and separate vote requirements exist to prevent the ‘pernicious practice’ of combining unrelated provisions in one amendment to ensure passage of a provision that might otherwise fail had the provisions been submitted separately.

“This prohibited practice is commonly referred to as ‘logrolling.’ The dissent recognizes ‘the need to prevent risks associated with logrolling,’ but then it examines only one danger of logrolling—voter confusion. The voters may or may not have been fully informed about Amendment A’s provisions. However, even if there was no voter confusion, that does not eliminate the need to address another harm created by logrolling—requiring the voters to decide on more than one separate and distinct proposition with a single vote.”

The decision upheld part of a ruling by Circuit Judge Christine Klinger. The decision didn’t address the judge’s other point that the amendment was actually a constitutional revision and should have gone to a constitutional convention. The constitution doesn’t define revision.

Justice Myren in his dissent said Amendment A should have been allowed to take effect. “Reviewing the contents of Amendment A along with its title and the Attorney General’s explanation, it is plain that the Amendment was intended to provide a comprehensive plan for all phases of legalization, regulation, use,
production, and sale of marijuana and related substances,” Myren wrote. “Comprehensive plans are not prohibited in a single constitutional amendment if they are related to a single purpose.”

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