Judge rules recreational marijuana measure unconstitutional in South Dakota

Joe Sneve
Sioux Falls Argus Leader

PIERRE — A Hughes County judge has ruled that a voter-approved amendment to the South Dakota Constitution ending marijuana prohibition in the state shouldn't go forward.

Circuit Court Judge Christina Klinger ruled Monday that Constitutional Amendment A violates the state Constitution on two grounds: It violates the single subject rule, meaning it encompassed more than one topic, and it conflicts with language in the Constitution that provides for its modification.

Attorneys for the plaintiffs in the case, South Dakota Highway Patrol Superintendent Rick Miller and Pennington County Sheriff Kevin Thom argued last month that because Amendment A added an entirely new section to the state Constitution instead of modifying an existing one, it should be considered a revision, not an amendment.

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Revisions to the constitution require a convention of state delegates before being placed on the ballot and cannot be done through the petition process, like initiated measures and amendments.

"The failure to submit Amendment A through the proper constitutional process voids the amendment and it has no effect," Klinger said.

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Constitutional Amendment A, which provides for the legalization of all forms of marijuana as well as the licensing, sale and cultivation of cannabis, passed with an 8% margin when voters cast their ballots in the November election. It was set to go into effect July 1. 

Legal fees for Miller's role in challenging the amendment are being paid for by the state of South Dakota at the order of Gov. Kristi Noem, who campaigned against the ballot measure leading up to the election.

The decision is expected to be appealed to the South Dakota Supreme Court, though some of the defense attorneys in the case aren't sharing their plans yet.

Tim Bormann, chief of staff in the Attorney General's Office, said the office, constitutionally charged with defending voter-approved ballot measures in court, was still reviewing the decision but wouldn't be commenting further.

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"As the paperwork was just filed, I can say that our office is reviewing the decision; at this point in time we are treating this as ongoing litigation and we will not be commenting on the matter at this time," he wrote in an email.

Representing South Dakotans for Better Marijuana Laws, the group that placed the amendment on the ballot, Brendan Johnson was a bit more forthcoming.

"We disagree with the ruling and we are preparing our appeal to the South Dakota Supreme Court," he said.  

Noem lauded Monday's ruling and said she expects an appeal to have the same result.

"Today's decision protects and safeguards our constitution," she said in a statement sent to the Argus Leader. "I'm confident the South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.

The decision comes as lawmakers at the Capitol consider several bills related to both Constitutional Amendment A as well as Initiated Measure 26, the ballot question that also passed during the November election legalizing medicinal marijuana. Those bills include a pair relating to the state's driving while intoxicated and open container laws.

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Because the Supreme Court is expected to make the final ruling, the Hughes County decision shouldn't have much impact on legislative efforts, said Rep. Drew Dennert, R-Aberdeen.

"I don't think the ruling changes anything regarding medical marijuana in South Dakota. That's still going to be law on July 1," he said. "The ruling was today, but the main ruling that I and other legislators are going to be waiting for is the Supreme Court ruling.

"We knew that no mater what the decision was, it was going to be appealed by whoever lost," he added.