On November 3, 2020, South Dakota citizens voted to approve an amendment to the state constitution that legalizes all things cannabis. Voters also approved an initiated measure directing the state to establish a medical marijuana program.
After the election, the superintendent of the Highway Patrol and the Pennington County Sheriff sued to challenge the constitutionality of the amendment. They hold that it contains a multitude of subjects, rather than a single subject as required by a 2018 amendment initiated by the state legislature.
A Sixth Circuit judge agreed with the law officers and found the amendment unconstitutional.
Amendment A proponents appealed, and the South Dakota Supreme Court heard arguments April 28.
Brendan Johnson is a former U.S. Attorney for South Dakota who advocates for legalization of marijuana.
During oral arguments, Chief Justice Steven Jensen asks him if recreational marijuana would have been approved if it had not been on the same ballot as the more popular measure for medical marijuana.
"We have some indication from the initiative that the voters strongly favored medical MJ, 70 percent. Lot of counties who voted other way on AA said absolutely we support medical MJ. We don’t have kind of outcome where we can determine if voters would have voted the same way if it was recreational MJ standing alone. Is that problematic?"
Johnson says voters had the option of approving only medical marijuana, because it was a separate issue on the ballot. And he says Amendment A, on its own, passed by more than 54 percent.
Johnson says there was intense media coverage leading up to the election, and voters were more informed about this amendment and initiated measure than they were about most legislative bills.
"We had a vigorous debate, probably most intensely scrutinized piece of legislation in my lifetime, in a generation, that people ever voted on."
Opponents to Amendment A say that it contains more than one subject, which violates a 2018 addition to the state constitution.
Justice Janine Kern addresses that concern with Brendan Johnson.
"I count 15 subjects, 55 subsections, as noted in opposing counsel’s brief. Very little publicity about far-reaching implications, Department of Revenue invested with exclusive power, or decision where taxation will go to. I’d like you to address that concept."
"Right. Number of provisions has always been less important than what the provisions themselves do."
Johnson reads from Amendment A, laying out what the Department of Revenue has the exclusive power to do: license and regulate cultivation, manufacture, testing, transport, delivery and sales of marijuana and administer and enforce the article.
Amendment A also sets out certain rules the Department of Revenue must include as it develops its plan for oversight. It protects people working in the cannabis industry from sanctions. And it restricts the rate of taxation at 15 percent until November 3rd, 2024.
“That is not revolutionary, all due respect to opposing counsel. What we see every year from this legislature is that they will delegate powers to a different agency.
"I want to be clear, this is not about cannabis, medicinal MJ, multitude of other subjects packaged in AA, it’s about rule of law and enforcing limitations that the PEOPLE placed on their power of initiative under constitution."
Lisa Prostrollo represents Colonel Rick Miller, the superintendent of the state Highway Patrol.
She disagrees with Johnson’s contention that Amendment A’s single subject is the legalization of cannabis, and all else lays out the means by which that is accomplished.
"What is single purpose of AA? Legalization of MJ, MMJ, hemp? Funding of public schools, revising state’s tax scheme, granting DOR exclusive constitutional authority unprecedented in our state?"
Prostrollo says all are separate purposes encompassed within Amendment A, and each one can stand and fall on its own.
Prostrollo explains why opponents didn’t challenge Amendment A before the election.
"Issue in this case there was no clear procedure bringing action before this election. Lege has now addressed but was a question at the time. This court has stated when deciding if change in constitution has been effected, that question is better addressed after the election."
Prostrollo notes that the Supreme Court has reviewed several amendments after they’ve been approved by voters.
"There’s no specific time bar for challenging the constitutionality of AA. If there were, that would be particularly concerning bc it’s implying that the passage of time can somehow sanction constitutional invalidity."
Justices will consider these arguments and more, outlined in briefs, before issuing an opinion at a later date.