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South Dakota's constitutional amendment legalizing recreational and medicinal marijuana comes under a judge's scrutiny

A Hughes County judge heard arguments over a legal challenge backed by Gov. Kristi Noem and law enforcement to the state's voter-approved constitutional amendment legalizing marijuana in the state.

FSA Court gavel 11-13-18
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PIERRE, S.D. — Attorneys sparred over South Dakota's marijuana constitutional amendment for three hours in a Pierre courthouse on Wednesday, Jan. 27, arguing over the historical roots of the initiated measure process in South Dakota, the governor's role in a lawsuit challenging the legalization effort, and whether residents' vote nearly three months ago to approve recreational and medicinal marijuana in the state should be overturned due to a legal technicality .

Opponents to Amendment A, which received 54% of the vote in November, said the very same state constitution voters changed at the ballot box, allowing for the growth, sale, and regulation of cannabis, was itself violated by an overly broad amendment that tethered recreational with medicinal weed and created a robust regulatory regime solely under the Department of Revenue's discretion.

"The will of the people cannot be recognized unless it's done right," said attorney Bob Morris, who argued in Hughes County Circuit Court on behalf of Pennington County Sheriff Kevin Thom , who has sued to block the amendment from taking effect.

Lisa Prostrollo, representing South Dakota Highway Patrol Superintendent Rick Miller in the lawsuit, also raised questions about what she called rampant "inconsistencies" regarding Amendment A.

"For the life of me, I cannot imagine how Amendment A is going to be integrated with the current provisions of our government," said Prostrollo.


Earlier this month, Republican Gov. Kristi Noem issued an executive order saying she'd directed Thom and Miller to file the lawsuit. Noem has also criticized the "disappointing" vote that led to the amendment's passage, saying it'll cost the state millions.

But Amendment A has drawn curious bedfellow in its defense, including South Dakota Attorney General Jason Ravnsborg's office and former U.S. Attorney for South Dakota Brendan Johnson, who served as Amendment A's lead counsel. On Wednesday, they painted their opponents as undercutting a fair vote prefaced by a vigorous debate among the state's residents.

"It was the sort of civic debate... that our founders envisioned when they declared 'under God, the people rule,'" said Johnson.

Assistant Attorney General Grant Flynn targeted efforts closer to Pierre, calling out Noem's support for the lawsuit.

"Since the governor wasn't able to veto this particular piece of legislation, they're asking you to veto it for them today," said Flynn.

Circuit Judge Christina Klinger, who spoke little during the afternoon hearing, at one point asked Johnson why the amendment didn't violate a single-subject rule held up to scrutinize laws and constitutional amendments. She noted the word "cannabis" — which proponents say encompasses both recreational and medicinal marijuana — wasn't used in Amendment A's title.

"We have marijuana clearly defined as part of that," replied Johnson.

If overturned by a judge, the ruling might amount to a sizable rebuke of South Dakota voters, though not unprecedented. In 2019, a judge overturned a voter initiated measure that banned political contributions from out-of-state donors. In 2017, legislators repealed voters ' approval of a measure limiting lobbyists' gifts to politicians.


While court statements from law enforcement have alluded to increased policing necessary if marijuana is legalized, their attorneys on Wednesday focused almost entirely on procedural elements.

At one point, a spat broke out between attorneys on whether South Dakota — or Oregon — was the first state to write initiated measures into their constitutions.

Prostrollo also argued that the tasking of a state agency with "exclusive authority" to regulate marijuana amounted to a radical overhaul of the state constitution.

"The Department of Revenue would be elevated to a co-equal fourth branch of government," said Prostrollo.

Flynn suggested the Department of Revenue is "already" doing this kind of regulation with alcohol, suggesting the end of Prohibition might be a useful lesson for South Dakota if the amendment is upheld.

At afternoon's end, Judge Klinger said she'd take the oral arguments "under advisement" and promised to issue a written ruling on the matter.

South Dakota became one of just over a dozen states and the District of Columbia to legalize marijuana when voters approved the amendment. Regardless of the judge's decision, the case is expected to be appealed to the state's highest court.

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