PIERRE | A South Dakota judge heard nearly three hours of arguments Wednesday in a lawsuit that could decide the fate of an amendment to the state constitution legalizing recreational marijuana, medical marijuana and hemp.
The amendment was passed with 54% of the vote in November. But two law enforcement officers, Highway Patrol Superintendent Col. Rick Miller and Pennington County Sheriff Kevin Thom, have tried to halt the state from legalizing pot by challenging its constitutionality. A lawyer representing Miller made it clear the head of the Highway Patrol was acting at the behest of Gov. Kristi Noem, who opposed the marijuana legalization measure.
Lisa Postrollo, the lawyer representing Miller, argued the amendment creates an “unprecedented problem” for the state's constitution by giving the Department of Revenue the power to tax and regulate marijuana, elevating the Department of Revenue to a fourth branch of government.
Lawyers for the law enforcement officers also argued the amendment violated a rule that constitutional amendments must only address one subject and should have been treated as a wide-sweeping revision to the constitution, which requires a convention to finalize changes before it is presented to voters.
But lawyers defending the amendment said that designating authority to a state agency is something that happens all the time and cast the lawsuit as an effort to overturn the results of a fair election. They argued that the public's ability to enact laws is a foundational aspect of South Dakota law, which would be spurned if the courts overturn the amendment.
“The people spoke. The people won,” said Brendan Johnson, an attorney for the groups supporting marijuana. “You can’t now reverse it because there are people in Pierre who disagree with the decision made.”
Both lawyers for the attorney general and marijuana groups said the amendment addresses the single subject of cannabis.
Christina Klinger, who was appointed as a circuit court judge by Noem in 2019, asked lawyers one question throughout the proceedings that were held in Pierre — why cannabis was not included in the title of the amendment that appeared on ballots.
The judge said she would issue a written ruling, but did not give an expected timeline. The lawsuit is expected to ultimately be decided by the state Supreme Court, but the amendment is set to take effect July 1.
State lawmakers, meeting several blocks away from the courthouse, are closely watching the court proceedings as they prepare for the potential of pot legalization. Several bills to address the issue have already been filed, covering prohibitions on smoking in vehicles, allotting $4 million to implement the program, as well as a handful of empty bills that may have language added later in the legislative session.