State court judge rules last year’s SD marijuana measure unconstitutional

On February 8, 2021, Hughes County Circuit Judge Christina Klinger overturned South Dakota’s 2020 marijuana legalization initiative. Klinger ruled that the measure violated the state’s single-subject rule. Klinger also ruled that the measure constituted a revision of the constitution rather than an amendment.

South Dakota voters approved Amendment A by 54% to 46% on November 3. The measure was designed to

  • legalize the recreational use of marijuana for individuals 21 years old and older, allowing individuals to possess or distribute up to one ounce of marijuana;
  • require the legislature to create a medical marijuana program pass laws allowing the sale of hemp;
  • tax marijuana sales at 15%;
  • allocate tax revenue to public schools and the state’s general fund; and
  • enact other regulations, including over home grow, marijuana business licenses, local control, and civil penalties for violations.

Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller filed a lawsuit in Hughes County Circuit Court seeking to block Amendment A from taking effect. Plaintiffs alleged that the measure comprises more than one subject and that the measure does not simply amend the constitution but, rather, revises the constitution and could only be put before voters by a constitutional convention.

Plaintiffs alleged that the measure concerns five subjects: legalizing marijuana; regulating, licensing, and taxing marijuana; licensing and regulating marijuana by political subdivisions; regulating medical marijuana; and regulation of hemp.

Miller said, “Our constitutional amendment procedure is very straightforward. In this case, the group bringing Amendment A unconstitutionally abused the initiative process.”

Defendants argued that all the provisions were essentially related. South Dakotans for Better Marijuana Laws, which backed Amendment A, said, “We are prepared to defend Amendment A against this lawsuit. Our opponents should accept defeat instead of trying to overturn the will of the people. Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.” The group said they would file an appeal with the South Dakota Supreme Court.

Governor Kristi Noem (R) said, “Today’s decision protects and safeguards our constitution. I’m confident that South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.” Noem said in January, “I directed [petitioners] to commence the Amendment A litigation on my behalf.” This is the first time a state’s governor led an effort to overturn a voter-approved marijuana legalization measure.

In South Dakota, all citizen initiatives—both initiated constitutional amendments and initiated state statutes—must concern only one subject. South Dakota did not have a single-subject rule for ballot measures until 2018. Voters approved Constitutional Amendment Z on November 6, 2018. It enacted a single-subject rule for initiated constitutional amendments and legislatively referred constitutional amendments and required that constitutional amendments be presented so that multiple proposed amendments to the constitution be voted on separately. The state legislature also passed a bill in 2018—House Bill 1007—that enacted a single-subject rule for initiated state statutes.

Sixteen of the 26 states with a statewide initiative or veto referendum process have a single-subject rule.

Article XXIII of the South Dakota Constitution provides that a constitutional amendment “may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject.”

Article XXIII of the state constitution also establishes a process for constitutional conventions to propose revisions. It allows the state legislature through a three-fourths vote in both chambers or a citizen initiative approved by voters to call a convention. Convention members are then elected and can refer amendments or revisions to the voters through a majority vote.

South Dakota voters also approved a medical marijuana initiative on the November 2020 ballot. South Dakota was the first state to vote on both a recreational marijuana initiative and a medical marijuana initiative at the same election.

Fifteen states and the District of Columbia have legalized marijuana for recreational purposes: 12 states and D.C. through ballot initiatives, one state through a legislatively referred ballot measure, and two through bills approved by state legislatures and signed by governors.

The federal government has classified marijuana as an illegal controlled substance since 1970. Marijuana is a Schedule I drug under the Controlled Substances Act (CSA). As of 2020, the possession, purchase, and sale of marijuana were illegal under federal law.

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