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Legal team to fight for ballot measure that legalized marijuana in South Dakota
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Legal team to fight for ballot measure that legalized marijuana in South Dakota

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Attorney Brendan Johnson.

The group that successfully campaigned to legalize medical and recreational marijuana in South Dakota through the ballot box will intervene in a lawsuit filed by law enforcement that challenges the constitutionality of the recreational amendment.

“We are prepared to defend Amendment A against the lawsuit filed by Pennington County Sheriff Kevin Thom and Superintendent of the South Dakota Highway Patrol Colonel Rick Miller,” South Dakotans for Better Marijuana Laws wrote in a news release. “Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.”

Thom and Miller “are trying to invalidate Amendment A and overturn the will of the voters on the basis of two incorrect legal theories,” the release says.

Kevin Thom

Kevin Thom

Hemp South Dakota (copy) (copy)

Highway Patrol Superintendent Rick Miller shows lawmakers evidence bags of hemp and marijuana during a February 2019 committee hearing for a bill to legalize industrial hemp. The panel approved the measure despite opposition from Gov. Kristi Noem. 

The pair filed a lawsuit last Friday in Hughes County that asks a judge to void the recreational marijuana amendment that was approved by 54% of voters statewide and 59% in Pennington County.

Amendment A violates the South Dakota Constitution because it doesn’t follow the “one-subject rule” and because it’s actually a revision, not an amendment, the lawsuit argues.

The pro-marijuana group says that’s not true and plans to intervene in the case. A legal intervention is when a third-party player who has a stake in the outcome of a lawsuit is allowed to file motions and make arguments in court.

“Anyone who reads Amendment A can see that every word relates to the cannabis plant,” the group said.  “Furthermore, Amendment A follows the interpretation of the single-subject rule used by the legislature.”

The revision vs. amendment argument is a “manufactured distinction” that is “unsupported in the law and is utterly insufficient as a basis for overturning a constitutional amendment approved by voters,” the release says. 

The group makes a third argument against the lawsuit: “This lawsuit was filed incorrectly under South Dakota law as a 'contest' to an election. However, the complaint has nothing to do with the manner in which the election was conducted and only relates to the text of Amendment A.”

An election contest is “a legal proceeding, other than a recount, instituted to challenge the determination of any election,” according to SDCL 12-22-1.

High-profile players

Thom and Miller are represented by Robert Morris from Belle Fourche and three attorneys from the Redstone Law Firm in Sioux Falls: Matt McCaulley, Lisa Prostrollo and Christopher Sommers. None of the lawyers responded to messages from the Journal.

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Matt MacCaulley.

McCaulley/Redstone has been awarded $403,375 in contracts to provide legal services and legislative consulting to the governor’s office since Dec 31, 2019, according to public records. McCaulley also a lobbyist for the office and has worked with Noem since 2010, according to a March story from South Dakota News Watch.

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Redstone Law Firm contracts with the governor's office are shown at www.open.sd.gov.

Gov. Kristi Noem — who is opposed to recreational and medical marijuana — approved state funds for Miller’s legal fees, according to her spokesman Ian Fury. She didn’t ask Miller and Thom to file the lawsuit, Fury said.

“In South Dakota, we respect our Constitution,” Noem said. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”

No taxpayer dollars are being used for Thom’s legal fees, said Helene Duhamel, spokeswoman for the sheriff’s office and a state senator appointed by Noem. Duhamel, who opposed Amendment A and medical marijuana, declined to say if Thom or a third party is paying the bills.

"No tax dollars is the answer," she said. 

Legislative Outlook Program (copy)

Helene Duhamel

The plaintiffs summoned Attorney General Jason Ravnsborg, who is currently being investigated after he crashed into and killed a man near Highmore in September.

Ravnsborg signed a document Monday showing that he received the lawsuit, court records show. The Attorney General’s Office has not yet decided whether Ravnsborg or someone else will handle the case, said spokesman Tim Bormann.

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Attorney General Jason Ravnsborg

South Dakotans for Better Marijuana Laws, which is a ballot question political committee, will be represented by three lawyers from the Robins Kaplan law firm, according to Brendan Johnson, a former U.S. Attorney for South Dakota and sponsor of Amendment A. Johnson is teaming up with Timothy Billion and Eric Magnuson, former chief justice of the Minnesota Supreme Court.

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Judge Christina Klinger, who was appointed by Noem, was assigned to the case, court records show.

Ravnsborg or his office have 10 days to reply to the lawsuit, his summons says. No court dates have been scheduled.

How we got here

The first step of getting ballot questions — initiated measures or constitutional amendments — on the ballot is to submit the law or amendment to the director of the Legislative Resource Council, according to a guide from the Secretary of State’s Office. The director than provides the sponsor with comments to help the sponsor minimize legal conflicts and ensure its effectiveness.

Jason Hancock, the LRC director at the time Johnson submitted the amendment, wrote in his May 2019 response that Johnson should change his amendment to an initiated measure, KELO reported Saturday.

Supporters of Amendment A said an amendment was necessary since legislators have overturned initiated measures in the past.

After making any revisions, the sponsor sends the ballot question to the AG, the guide says. The AG then titles the proposal, writes an explanation, provide a fiscal note if relevant and describes any possible legal consequences.

“Judicial clarification of the amendment may be necessary,” Ravnsborg wrote in his August 2019 statement.

While the AG writes a statement, they don’t have the power “to approve or disprove the constitutionality of a proposed amendment or initiated measure,” Bormann said.

The sponsor then submits multiple documents to the SOS before the SOS gives permission to begin collecting signatures, the guide says.

At least 33,921 valid signatures were required to get an amendment on the Nov. 3, 2020, ballot and South Dakotans for Better Marijuana turned in more than 50,000 signatures in November 2019.

Secretary of State Steve Barnett announced in December 2019 that 75% of the signatures were valid and the amendment would be on the ballot

"The Secretary of State's office approves the petition for circulation, but does not have authority for review of the language of the measures," said Deputy SOS Jason Lutz.

Fifty-four percent of South Dakota voters approved Amendment A on Nov, 3, 2020, before Thom and Miller filed their lawsuit on Nov. 20.

What’s next

There are pros and cons to challenging a ballot question before the election to prevent it from ever getting on the ballot or after the election if it passes, said Neil Fulton, dean of the South Dakota School of Law.

It’s a question of “legal strategy or tactics,” but “I’m sure politics enters into the equation for some folks,” he said.

Judges might not accept a challenge before the election if they view it’s not yet “ripe” to rule on since the ballot question is not yet law, Fulton said. It’s also a question of “who wastes their time, the judges or the voters.”

If a proposal is ruled unconstitutional before the ballot then voters don’t end up voting for something that might be overturned. If it’s ruled constitutional and fails on election day, the legal challenge wasn't needed. 

South Dakotans have successfully challenged ballot questions after elections, like when Initiated Measure 24 — which banned ballot question committees from taking out-of-state money — was ruled unconstitutional last year

A Nebraska sheriff took the opposite approach when he filed a lawsuit to prevent medical marijuana getting on the ballot this year, according to a September story from the Omaha World Herald. A judge agreed the proposal violated the state’s one-subject rule.

The No Way on A campaign focused its arguments on what they said would be negative impacts of legalizing marijuana, not that the amendment was unconstitutional. Making legal arguments instead of political ones might not appeal to voters and aren’t relevant if the proposal fails, Fulton said.

Fulton said he expects the lawsuit to end up in the state Supreme Court because the scope of the single-subject rule for ballot initiatives — "Amendment Z" passed by voters in 2018 — has not been examined in the courts. The Legislature has had a single-subject rule for years and courts have liberally interpreted what counts as a single subject, he said.

Fulton said it will also be interesting to see how the court distinguishes between constitutional amendments and revisions.

— Contact Arielle Zionts at arielle.zionts@rapidcityjournal.com

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