Gov. Kristi Noem said in an executive order Friday that she directed the Highway Patrol superintendent to bring a lawsuit against the voter-approved amendment legalizing marijuana after her spokesman previously told the Journal she hadn’t.
“On Nov. 20, 2020, I directed Colonel Rick Miller to commence the Amendment A litigation on my behalf in his official capacity,” Noem wrote in the order. “At all times thereafter, Colonel Rick Miller has acted as petitioner and plaintiff in the Amendment A litigation under my direction.”
Ian Fury, Noem’s spokesman, said in a Nov. 23 email that this wasn’t the case.
“Gov. Noem did not ask Col. Miller or Sheriff Thom to bring the lawsuit,” Fury wrote.
Legal filings also make no mention of the fact that Noem directed Miller to file the lawsuit.
Noem's executive order outlines why she asked Miller to file the lawsuit, and her legal authority to do so. Like all such orders, it's signed by the Secretary of State, who is being sued by Miller at the direction of Noem.
The order is procedural, Fury told the Journal on Friday. He also said that the lawsuit was originally Miller's idea although this is never mentioned in the order.
"She didn't ask; he volunteered. Once Col. Miller volunteered to be the plaintiff, Governor Noem delegated her authority under the Constitution and instructed him to bring it," Fury wrote in an email.
Pennington County Sheriff Kevin Thom and Miller filed the lawsuit asking a Hughes County judge to void Amendment A which was approved by 54% of voters statewide and 59% in Pennington County.
The lawsuit claims the amendment violates the state constitution by not following the “one-subject rule” and because it’s not an amendment but a revision that needed to be approved through a constitutional convention, a more complex process.
Thom, Miller and Noem all spoke out against Amendment A before it passed. Noem also approved using state funds to pay for Miller’s legal fees, Fury previously told the Journal.
"The governor approved this because she took an oath to support and defend the constitution. This is part of her duty as governor,” he said when the lawsuit was filed.
“In South Dakota we respect our Constitution,” Noem said at the time. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”
Miller is being represented by a law firm that serves as a lobbyist for Noem’s office and has been awarded $403,375 in contracts to provide legal services and legislative consulting to the office since Dec 31, 2019.
Thom’s lawyer and the spokeswoman for the sheriff’s office say taxpayer money is not being spent on his legal fees but won’t say if the sheriff or a third party is paying.
The South Dakota Fraternal Order of Police and Sheriff’s Association both said they are not paying for his fees. However, the FOP says it supports the lawsuit.
Noem’s order does not say how Thom became involved in the lawsuit. Fury and Thom did not respond to messages asking how Thom became involved. The spokeswoman for the sheriff’s office said she didn’t know if she could reach Thom since he had already left the office.
The lawsuit was filed against the Secretary of State since the office runs the election. He is being represented by the Attorney General’s Office.
The Attorney General’s Office and lawyers South Dakotans for Better Marijuana Laws say the Amendment A is indeed an amendment and only covers one topic: marijuana.
The marijuana group is also arguing that the lawsuit should have been filed before the election and that Thom and Miller can’t sue in their official government roles.
Thom and Miller “have sworn to uphold the law, which includes laws passed by voters. Allowing officials to challenge laws they do not like undermines the rule of law and improperly injects the state into the election process,” the lawyers wrote in a memo. "Law enforcement officers may not pick and choose which laws they will uphold in their official capacities, and they may not use their offices to play politics."
“This is particularly concerning where, as here, the state appears to be paying at least some of the legal fees to allow a state official to sue the state,” the lawyers wrote.
A motions hearing in the case has been scheduled for 1:30 p.m. on Jan. 27 at the Hughes County Courthouse.
— Contact Arielle Zionts at email@example.com.