South Dakota's high court strikes down recreational pot law

One year after 54% of voters approved an amendment to the constitution legalizing marijuana, the state's high court ruled 4-1 that the measure known as Amendment A was "void in its entirety" and violated a single-subject rule.

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PIERRE, S.D. — South Dakota's voter-approved recreational pot amendment has been struck down by the state's high court.

The South Dakota Supreme Court ruled 4-1 on Wednesday, Nov. 24, to uphold a previous injunction by a lower court, declaring the adult-use cannabis constitutional amendment measure known as Amendment A was "void in its entirety."

The nearly 40-page ruling deals a blow to legal pot advocates who'd been buoyed when 54% of the largely rural, conservative state's voters surprised the country in approving legal marijuana as a new plank in the state's constitution.

The court ruled that the amendment violated a so-called single-subject rule, which requires that voters separately vote on distinct subjects. By encompassing hemp, recreational marijuana and medical marijuana, the voter-approved measure went beyond its legal parameters for adding to the state's constitution.

"[W]e conclude that the submission of Amendment A to the voters plainly and palpably violated Article XXIII," wrote Chief Justice Steven Jensen, who authored the majority opinion.


Wednesday's decision was almost immediately cheered by Gov. Kristi Noem. Noem in January ratified the underlying lawsuit filed by State Highway Patrol Superintendent Col. Rick Miller and Pennington County Sheriff Kevin Thom . Jensen's opinion noted the ratification paved the way to avoid a procedural hurdle that would've disqualified the public servants from suing the state in private standing.

"We do things right," Noem said in a statement after the ruling. "And how we do things matters just as much as what we are doing."

In a separate, 26-page dissent, however, the court's newest justice, Scott P. Myren, argued that marijuana was "incidental to and necessarily connected with" standing up a legal cannabis industry.

Myren also cast doubt on legal arguments by the Noem-backed plaintiffs that the initiated measure process, nearly as old as the South Dakota constitution and one of the nation's earliest, is not the place for substantive, complex changes to law.

"Miller complains that these changes are 'comprehensive' and 'enshrined into the Constitution' and that the constitution is not the place for them," wrote Myren. "But that is the point."

Ultimately, however, the court's four-member majority repeatedly observed that Amendment A, a sprawling document with dozens of subsections to legalize pot and hemp , as well as marching orders for the Department of Revenue to stand up a regulatory regime, had violated the single subject rule, saying the "power of the people" to add amendments was "not without limits."


At one point, the court identified the limits of similarity between hemp and adult-use marijuana. While regulations governing "beef production for human consumption" and "manufacturing leather from a cowhide" both share "biological origins," neither regulation is "dependent upon or connected to the other," the court said.

The court ultimately was sympathetic to charges of "logrolling" made by law enforcement: That Amendment A's architects had linked hemp and medical marijuana to siphon off votes for the less popular recreational pot measure

Supporters charged on Wednesday that the court had overrun the will of more than half of the state's voters.

Brendan Johnson, the chief litigant for South Dakotans for Better Marijuana Laws, vowed on social media to "return power to the people," saying he shared the frustration of "hundreds of thousands of South Dakotans who had their votes thrown out."

Similarly, the leader of the Democrats in the House of Representatives, Rep. Jamie Smith , D-Sioux Falls, also told Forum News Service that "It's unfortunate that the will of the people was overturned."

Discontent with the ruling was not uniform on party lines. In a message to FNS, Aberdeen Republican Sen. Mike Rohl , who has taken an active role in a summer study committee to draft legalization bills, also lamented the ruling's consequence on criminal prosecutions of marijuana offenders, saying, "I hope there won't be too many lives destroyed before the peoples' will is recognized."

Rohl said he looked forward to raising cannabis legalization in Pierre.

Last week, the chair of the Legislature's summer study on marijuana, Sen. Bryan Breitling , R-Miller, vowed to bring forward bills to decriminalize marijuana if the court struck down Amendment A.


The ruling may also add a new wrinkle to the coming gubernatorial fight. While a Democrat has not yet announced a challenge to Noem, the Republican's inter-party rival, Rep. Steve Haugaard , R-Sioux Falls, released a statement on Wednesday, that sidestepped a full-throated endorsement of cannabis legalization but noted, "the Legislature is keenly aware of the public's concern that the people's voice must be heard and respected."

The court's opinion had been expected for months after oral arguments at the end of April . Of note, it's evident the court's author had been changed, as Wednesday's opinion notes Jensen was "reassigned" the opinion in early September.

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