At Supreme Court, South Dakota’s recreational marijuana fight finds attorneys sparring over ‘single-subject’ rule

The South Dakota Supreme Court hears argument on Wednesday, April 21, 2021 in a case to declare Amendment A unconstitutional. Voters passed the measure, legalizing recreational marijuana last November. Joe Sneve / Pool photo

“Should this court look to other states or rely on our own precedent?” Justice Janine Kern asked and admitted, “technically this is a case of first impressions.”

At stake for the first time before the Supreme Court is not just adult possession of marijuana, which Amendment A legalized after 54% of voters voted for it last November, but more specifically the parameters of a 2018 constitutional amendment, which includes all subsequent constitutional amendments a “one” constrained-subject “determination.

Lawyers representing Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Col. Rick Miller argued Wednesday that Amendment A fails this test.

“Amendment A cannot represent the will of the people if it violates the people’s constitution,” Prostrollo said.

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The judges also considered whether Amendment A violated a sentence in the original 1889 constitution, namely a one-vote, one-amendment clause.

In his opening address, Brendan Johnson, a former US attorney for South Dakota and an attorney for the group that brought voters to the polls, warned judges diagonally not to overthrow the will of more than 400,000 voters.

“Too many feel that elections are being rigged anyway,” said Johnson. “The standard should be exceptionally high.”

Brendan Johnson, advocate of Amendment A, an electoral measure to legalize recreational marijuana, sits before the South Dakota Supreme Court in Pierre on Wednesday April 28, 2021.  Joe Sneve / Pool Photo

Brendan Johnson, advocate of Amendment A, an electoral measure to legalize recreational marijuana, sits before the South Dakota Supreme Court in Pierre on Wednesday, April 28, 2021. Joe Sneve / Pool Photo

Submitted by Chief Justice Steven Jensen, whether the 70% of voters who supported a separate electoral measure to legalize medical marijuana may have supported part of Amendment A, which legalized hemp, as well as medical marijuana and recreational marijuana, but not the whole package, Johnson repelled.

“We assume people knew what they voted for,” Johnson replied.

The exchange differed in tone from three months ago, when Sixth Circle Judge Christina Klinger, who rejected the amendment on procedural grounds, largely agreed with the opponents and only broke her silence once to ask Johnson why the authors of the measure were the unused word “cannabis” in the title of the amendment to identify a single subject.

Certainly some of the judges, notably Kern and Patricia Delaney, came across Johnson’s allegation that the public had reviewed Amendment A, with Kern finding that 55 subsections were in the text of the constitutional amendment.

“There was very little publicity for the far-reaching impact [of the amendment]”watched Justice Kern.

Similarly, Justice Delaney described Amendment A as “more than a statement, a single issue”.

But this time the judges also had difficult questions for Prostollo.

At one point, Justice Mark E. Salter suggested that state opposition to a change that will govern all Treasury Department regulations may be a different issue than the clear intention of the majority of voters to legalize marijuana possession.

“But maybe this is the next case?” asked Justice Salter. “Maybe that’s what awaits us?”

“We’re here,” replied Prostrollo. “That is the case.”

When Prostrollo found that legalizing marijuana would significantly change the job for the highway patrol, arguing that Amendment A was a revision – which would require a constitutional convention – rather than a change, Salter urged them again.

“Isn’t that the nature of an amendment?” he asked. “That people could do something different by voting?”

A question that was prominently raised in proponents’ briefs, that Miller and Thom not standing, was only briefly touched upon when Salter cut in Morris to ask if a 20-year-old opinion stating that a school district denied the State could not sue, sheriff is applicable to a county.

In response, Morris delved into a brief history lesson on Pennington County, established in 1877 before statehood, adding, “At best, his office was legally upheld.”

The trial, which allowed cameras in the courtroom and broadcast via a live feed, was completed after an hour.

It is not yet known when the judges will deliver an opinion on the case. The original effective date of Amendment A was July 1, 2021.