South Dakota Supreme Court strikes down recreational marijuana

The state’s high court struck down Amendment A, which would have legalized recreational marijuana, by a vote of 4-1.
Published: Nov. 24, 2021 at 10:07 AM CST
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PIERRE, S.D. - The South Dakota Supreme Court ruled Wednesday that a voter-approved constitutional amendment to legalize recreational marijuana is unconstitutional, upholding an earlier decision by the state’s sixth circuit court.

In a 4 to 1 vote, the High Court determined that the constitutional amendment dealt with three separate and distinct subjects, those being recreational marijuana, hemp and medicinal marijuana.

Chief Justice Steven Jensen wrote the majority opinion. “We conclude that the submission of “Amendment A” to the voters plainly and palpably violated Article 23, Section 1,” Jensen wrote. That law includes the state’s single subject rule.

Justice Scott Myren was the lone vote against the majority ruling. He wrote that the propositions in Amendment A are all “incidental to and necessarily connected.” Myren added that those propositions provided a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and its related products.

“We think that this ruling is extremely flawed,” said Marjiuana Policy Project (MPP) Deputy Director Matthew Schweich. “It is based on the idea Amendment A was three subjects. We all know Amendment A was the recreational cannabis legalization initiative. To say the voters weren’t able to understand Amendment A, we think that is disrespectful.”

The South Dakota Supreme Court heard arguments in the ‘Amendment A’ case regarding the constitutionality of the amendment in April. Defense Attorney Brendan Johnson opened up those arguments, drawing attention to the fact that Amendment A passed by a sizeable margin in the November 2020 election.

The plaintiffs, Pennington County Sherriff Kevin Thom, and SD Highway Patrol Superintendent Rick Miller were backed by Governor Kristi Noem, a long-time opponent of marijuana. Attorney Lisa Prostrollo of Redstone Law argued that the lawsuit was not about cannabis but the rule of law. She said Amendment A violates the state’s single-subject rule, which requires ballot measures to be limited to a single subject.

“I have been criticized for trying to override the will of the voters, when the opposite is true,” Thom said. “I am upholding the will of the voters. In 2018, the voters passed Amendment Z, that said we wanted a single topic per amendment, and the lower court and Supreme Court both affirmed that.”

Thom admits that he is personally opposed to recreational marijuana legalization, citing what he sees as problems in states that have legalized recreational marijuana.

“I do not think South Dakota wants to go the way of states with failed drug policies like Oregon, Washington, and California. However, ultimately that may be up to the voters if it put on the ballot again.”

“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about,” Governor Kristi Noem said Wednesday. 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,” Noem also pointed out that the decision would not effect the state’s roll out of the medical marijuana program, which also passed on the ballot in November 2020. The state’s medical marijuana law went into effect on July 1st after pushback and attempts to delay it.

Noem’s gubernatorial opponent Steve Haugaard (R-Sioux Falls) suggested that voters could have been left with some confusion as to what Amendment A did and did not contain.

“The concern is that voters were left with some confusion as to whether both (Amendment A and IM 26) had to pass to legalize medical marijuana. That is why it is important to make sure that each measure contemplates only one subject, and that is why the Court ruled against it,” Haugaard said in a release.

Amendment A was intended to take effect on July 1, 2021.

South Dakota lawmakers have suggested a proposal to legalize recreational marijuana use for adults while repealing much of the state’s new medical marijuana law. In the hours after the decision was released, many suggested that the idea of legal recreational marijuana would at least have to be discussed during the 2022 state legislative session.

One of the groups behind both Amendment A and IM26, South Dakotans for Better Marijuana Law, is already looking ahead.

We have a clear plan, we are going to do two things,” explained MPP Deputy Director Matthew Schweich. “We are continuing our signature drive for our 2022 cannabis legalization issue, and I am confident we can collect the signatures we need based on the May 3rd deadline. Second, we are going to get our grassroots fired up for the upcoming state legislative session.”

The Secretary of State last week approved a proposed 2022 cannabis legalization initiative for signature gathering.

The ballot initiative would make legalize marijuana for adults aged 21 and older. To qualify for next November’s ballot organizers must collect just under 17,000 valid signatures from South Dakota voters by November 8th.

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