South Dakota Supreme Court Strikes Down Recreational Cannabis Legalization

A majority of South Dakota voters gave their blessing to cannabis legalization last year, but the state’s court system did not.

The long, drawn-out saga surrounding the Mouth Rushmore State’s flirtation with cannabis reached its coda last week, as the South Dakota Supreme Court ruled the voter-approved amendment unconstitutional on technical grounds.

In a 4-1 ruling handed down on the eve of Thanksgiving, the justices said that Amendment A, which would have legalized pot use for adults aged 21 and older, violated the state constitution’s “one subject” requirement for constitutional amendments.

Writing for the majority, Chief Justice Steven Jensen said that Amendment A clearly contained “provisions embracing at least three separate subjects, each with distinct objects or purposes.” 

Amendment A, which was approved in last year’s election with the support of 54 percent of South Dakota voters, dealt with not only recreational pot, but also medicinal cannabis and hemp.

The state’s constitution, Jensen wrote, “not only includes a single subject requirement but also directs proponents of a constitutional amendment to prepare an amendment so that the different subjects can be voted on separately.”

“This constitutional directive could not be expressed more clearly—each subject must be voted on separately—and simply severing certain provisions may or may not reflect the actual will of the voters,” Jensen wrote. “Therefore, we cannot accept Proponents’ suggestion that excising the medical marijuana and hemp provisions from Amendment A in favor of retaining the provisions regulating and legalizing recreational marijuana is an appropriate remedy. Amendment A is void in its entirety.”

The ruling upholds a previous decision by a South Dakota circuit court, which struck down Amendment A in February.

Amendment A Long Opposed by South Dakota Leaders

The amendment was staunchly opposed by Republican Gov. Kristi Noem and the lawsuit challenging its constitutionality was brought on her behalf by the South Dakota Highway Patrol Superintendent and a county sheriff.

Jensen said in his opinion last week that neither of those law enforcement officials “had standing to challenge Amendment A in their official capacities,” and that the circuit court had erred in its determination of such. But because Noem ratified the lawsuit, the “standing defect” had been alleviated and the action proceeded “as if it had been commenced by the real party in interest,” meaning the governor.

In April, the state’s Supreme Court agreed to hear the case.

After the high court’s ruling last week, Noem, widely considered a potential 2022 GOP presidential candidate, took a victory lap.

“South Dakota is a place where the rule of law and our Constitution matter, and that’s what today’s decision is about,” the governor said in a statement. “We do things right—and how we do things matters just as much as what we are doing. We are still governed by the rule of law. This decision does not affect my Administration’s implementation of the medical cannabis program voters approved in 2020. That program was launched earlier this month, and the first cards have already gone out to eligible South Dakotans.” 

In addition to Amendment A, South Dakota voters also approved a separate proposal legalizing medical marijuana last year. That proposal, Measure 26, passed with the support of 70 percent of South Dakota voters.

The state’s medicinal cannabis program is slowly getting off the ground. Earlier this month, the state announced that it would begin accepting applications from eligible medical cannabis patients.

Marijuana advocates in South Dakota have been left dismayed by the opposition from both the governor and the courts, but the road to legalization did not end last week. Activists began circulating petitions earlier this fall in the hopes of getting another recreational pot proposal on next year’s ballot. 
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