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UPDATE: State paying for part of lawsuit seeking to overturn voter-approved recreational marijuana
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UPDATE: State paying for part of lawsuit seeking to overturn voter-approved recreational marijuana

Kevin Thom

Kevin Thom

The Pennington County Sheriff and Superintendent of the Highway Patrol have asked a judge to void the recreational marijuana amendment that was approved by 54% of voters statewide and 59% in Pennington County.

The complaint says Amendment A violates the South Dakota Constitution by addressing multiple topics and because it should be considered a revision, not an amendment. It was filed Friday in Hughes County. 

Sheriff Kevin Thom and Superintendent Rick Miller are making this challenge as private individuals and in their roles as sheriff and superintendent, the complaint says.

“I’ve dedicated my life to defending and upholding the rule of law. The South Dakota Constitution is the foundation for our government and any attempt to modify it should not be taken lightly,” Thom said in a Friday afternoon news release from the Pennington County Sheriff’s Office. “I respect the voice of the voters in South Dakota, however in this case I believe the process was flawed and done improperly, due to no fault of the voters.”

“Our constitutional amendment procedure is very straightforward,” Col. Rick Miller said in the release. “In this case, the group bringing Amendment A unconstitutionally abused the initiative process. We’re confident that the courts will safeguard the South Dakota Constitution and the rule of law.”

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 group behind the amendment said it’s constitutional and that Thom and Miller are undermining voters.

“We are prepared to defend Amendment A against this lawsuit. Our opponents should accept defeat instead of trying to overturn the will of the people,” Drey Samuelson, political director for South Dakotans for Better Marijuana Laws, said in an email. “Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year."

Drey Samuelson

Drey Samuelson

Brendan Johnson, the lawyer and former U.S. Attorney who filed the amendment, said he can’t comment because he’s on a long drive and hadn't read the complaint.

The state of South Dakota is paying for part of the lawsuit. 

"The governor approved this because she took an oath to support and defend the constitution. This is part of her duty as governor,” spokesman Ian 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.”

Fury did not respond when questioned about whether Noem asked Miller and Thom to file the lawsuit. 

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The spokeswoman for the sheriff’s office said she did not immediately have an answer to who is paying for Thom's legal fees. Thom's lawyers did not respond to messages.

Both Noem and Thom spoke out against Amendment A and an initiated measure that legalized medical marijuana, saying they were afraid it would lead to increased traffic deaths and use among minors. Recreational marijuana is the "wrong choice," Noem told the Argus Leader on Nov. 5. She did not answer questions about her ability to stand in the way of implementation or if she's reviewing her options.

It’s unclear why Thom and Miller filed the challenge after the election rather than when Johnson submitted the amendment in September 2019 or when state officials said it qualified for the ballot. Fury did not respond when asked why Noem didn't intervene earlier. 

The complaint

The complaint makes two allegations as to why the amendment violates the South Dakota Constitution. 

It says the amendment is illegal because it violates the “one-subject rule” by covering at least five separate topics:

  • Legalization of recreational marijuana;
  • Regulation, licensing and taxation for the commercial sale of recreational marijuana;
  • Regulation of medical marijuana;
  • Regulation of hemp.

The one-subject rule is outlined in Article XXIII, Section 1 that says: "A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject."

The second allegation is that the amendment is really a revision, not an amendment, and therefore was illegally introduced and passed. 

The complaint says Amendment A is a revision because it:

  • Embraces more than one subject;
  • Creates a brand new article;
  • Addresses new subjects unrelated to existing articles;
  • Creates broad changes “that will have vast implications for our system of government;”
  • Creates a “fundamental alteration” to the structure of the Constitution and powers given to each branch of government by giving “exclusive power” to the Department of Revenue.

The complaint says the amendment’s “complicated web of rules and regulations” about details like fines is problematic because it means that changes can only be approved through additional amendments. It also points out that this is the first time South Dakota voters added an entirely new article to the Constitution since they gained the power to amend the document in 1972.

Article XXIII, Sec. 2 of the Constitution is about revisions. It says the Constitution can only be revised through a constitutional convention called for by 3/4 of the Legislature or a majority of voters. If a convention is approved:

  • Members are elected on a nonpolitical ballot in the same districts and in the same number as the House of Representatives;
  • Proposed amendments or revisions must be approved by a majority the convention;
  • The convention then submits the issue to the voters.

This process “preserves the integrity of the Constitution and the system of government that it creates by promoting transparency, public input, and informed debate and discussion,” the complaint says. 

— Contact Arielle Zionts at

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