Governor’s influence questioned after judge blocks cannabis legalisation

The legalisation of recreational cannabis in the US state of South Dakota is in doubt, amidst accusations of political interference after a judge appointed by the state governor ruled that the voter-approved amendment was unconstitutional.

The state attorney general declined to pursue the matter further after circuit court judge Christina Klinger found that the amendment violated the state constitution by covering more than one subject and by being presented as a constitutional amendment instead of a revision.

Klinger was appointed by governor Kristi Noem (pictured), who directed one of the plaintiffs to bring the legal challenge on her behalf.

The judge found that Amendment A – approved by a majority of electors in the November public ballot – covered several subjects, such as hemp regulation, taxation, and penalties, that were not “reasonably germane” to the main subject, the legalisation of cannabis.

The parties defending the amendment in the lawsuit contended that the subject was cannabis, which encompasses hemp, and that issues such as taxation and penalties are “related subject matter…as necessary to accomplish the objectives of the amendment,” which is permitted under the constitution.


Attorney general’s duty


“Despite the strong presumption of constitutionality and presumption in favour of validity and propriety Amendment A receives, the infringement of the single subject rule in Article XXIII, Section 1 is so plain and palpable as to admit no reasonable doubt Amendment A is invalid,” Klinger ruled.

She also ruled that Amendment A is in fact a constitutional revision, not an amendment, and did not follow the proper procedure for a revision. “Amendment A provides far-reaching changes to the nature of South Dakota’s governmental plan and is therefore a revision,” the judge wrote.

A constitutional revision requires a constitutional convention and the approval of three-fourths of both chambers of the legislature. Since Amendment A did not go through this process, Klinger ruled that it was unconstitutional and void.

The South Dakota attorney general (SDAG) is tasked with defending state laws that are challenged in court. Under this duty, the SDAG office defended Amendment A, arguing that it was constitutional. However, after judge Klinger’s decision, the SDAG declared that its duty to defend the amendment had been fulfilled and that it would not participate in any appeal to the South Dakota Supreme Court.

However, all other parties who intervened to defend Amendment A, including two groups which campaigned for the amendment – New Approach South Dakota and South Dakotans for Better Marijuana Laws – are continuing with the appeal.


Judge’s ruling ‘deeply flawed’


Melissa Mentele, executive director of New Approach South Dakota, confirmed to CBD-Intel that the SDAG is the only party dropping out of the action to defend the amendment.

South Dakotans for Better Marijuana Laws released a statement saying: “We completely disagree with Judge Klinger’s ruling and we remain confident that the South Dakota Supreme Court will uphold Amendment A as constitutional upon appeal.”

The statement described Klinger’s ruling as “deeply flawed,” reiterating the argument that Amendment A covered only one subject – cannabis – and that “[t]he idea that Amendment A is a substantial change to South Dakota’s system of government that requires a constitutional convention is preposterous”.

Since being sworn into office in January 2019, governor Noem has launched a crusade against all forms of cannabis, despite voters’ support for it.

South Dakota was one of the last states to pass hemp legislation in response to the 2018 Farm Bill. After just two months on the job, Noem vetoed a hemp bill, warning that “normalising hemp” would lead to cannabis legalisation.


Campaigner against cannabis


After the legislature passed a bill that satisfied a list of the governor’s demands, such as banning smokable hemp, Noem signed a bill that legalised hemp and hemp derivatives in the state in 2020, a year after her original veto.

The governor has been very vocal in her opposition to cannabis. “I don’t think that anybody gets smarter smoking pot,” she said recently.

She campaigned against both Amendment A and Initiated Measure 26 (IM 26), a separate ballot measure that legalises medical cannabis in South Dakota. After Amendment A passed with 54% and IM 26 with 70% of the vote in November, Noem said voters had made the “wrong choice” on the measures.

When Pennington county sheriff Kevin Thom and state highway patrol superintendent Rick Miller filed the lawsuit to challenge Amendment A in November, Noem’s office was initially coy about her involvement.

Noem’s office said the governor “did not ask” either of the plaintiffs to bring the suit. In December, a spokesperson for her office told CBD-Intel that Noem was “supportive of the lawsuit” and “approved Colonel Miller’s involvement in the lawsuit,” but that she “was not directly involved in it”.

However, in a January executive order, Noem stated: “On November 20, 2020, I directed Colonel Rick Miller to commence the Amendment A Litigation on my behalf in his official capacity. At all times thereafter, Colonel Rick Miller has acted as petitioner and plaintiff in the Amendment A Litigation under my direction.”

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    Governor’s influence


    CBD-Intel has previously expressed the opinion that Amendment A should survive a legal challenge based on the legal principles at issue but cautioned that the legal language was vague enough to admit political influence into the analysis, especially after the governor got involved.

    Mentele, who is involved in defending Amendment A, told CBD-Intel that she “absolutely” thinks Noem’s involvement has influenced the case.

    “Our first judge was appointed by the governor, so obviously there’s some bias,” Mentele said. “She’s been incredibly vocal about her not wanting cannabis in the state of South Dakota, whether it’s on a medical or adult-use basis. So I do think that that lends some bias to the court case.”

    The case will now go to the South Dakota Supreme Court, where two of the five justices were appointed by Noem. South Dakota Supreme Court Justices face elections three years after appointment and every eight years after that.

    With a temporary win against the recreational cannabis measure in hand, Noem – along with some lawmakers in the state legislature – have set their sights on IM 26, the medical cannabis ballot initiative that passed alongside Amendment A.


    Other states press ahead


    Unlike Amendment A, IM 26 is statutory, which means it can be amended or repealed by a majority vote in the legislature, whereas amending or repealing a constitutional amendment requires much more.

    Two days after the Amendment A lawsuit ruling, Noem announced her intention to delay implementation of IM 26 by a year, citing time constraints.

    While every ballot initiative is different, it should be noted that in Mississippi, where voters passed a ballot initiative to legalise medical cannabis on the same day as South Dakota, officials say they are prepared to meet their 1st July 2021 deadline for regulating the programme.

    Arizona’s health department started issuing licenses for dispensaries to begin selling recreational cannabis on 22nd January after its ballot initiative was passed on the same day as South Dakota’s IM 26.

    South Dakota Democrats have accused Republican Noem of dragging her feet on implementing the cannabis measures, pointing out that she did not hire cannabis consultants until 19th January.


    Repealing ‘the will of the people’


    House speaker Spencer Gosch echoed Noem’s appeal for a delay in implementing IM 26 and introduced a bill (House Bill 1100) that would have that effect.

    HB 1100 would also establish an Interim Marijuana Committee comprised of appointees of the governor, House speaker, and Senate president pro tempore Lee Schoenback – all of whom are Republican. The committee would be tasked with studying various policy measures and reporting back to the legislature with recommendations.

    Although both Noem and Gosch vowed to honour the will of the voters on IM 26, Gosch’s bill would clear the way for Republicans in the legislature to replace its provisions with their own.

    South Dakotans for Better Marijuana Laws describe HB 1100 on their website as “bad legislation”, adding that “it is reasonable to suspect that this bill is designed to ultimately repeal and replace the will of the people”.

    On the same day that a House committee voted to advance HB 1100, the House voted down a bill that would have allowed patients to use tele-health to get their cannabis prescriptions.


    What This Means: With a population of around 884,000, South Dakota will not be a big cannabis market regardless of what happens with Amendment A and IM 26. However, the efforts taken by anti-cannabis politicians there after voter-approved ballot initiatives passed could be emulated in other US states with similar political climates. Both houses of the South Dakota state legislature have big Republican majorities.

    With public support for legalising cannabis at an all-time high across the US, ballot initiatives have been used by cannabis advocates to circumvent legislatures in conservative states and take legalisation efforts directly to voters. When those ballot measures pass in conservative states – like South Dakota, Montana, and Mississippi in November – tension naturally arises between politicians and the voter-approved measures.

    While the current battle in South Dakota may be an extreme example, it will almost certainly not be the last time we see these tensions arise.

    Anthony Traurig CBD-Intel staff

    Photo: Gage Skidmore

    Anthony Traurig

    Head legal analyst
    Anthony is head legal analyst at CannIntelligence, where he is responsible for legal analysis on the platform. He guides the direction of regulatory coverage of the global cannabis sector for CannIntelligence and speaks at many industry events. Anthony has a BA in political science from North Carolina State University and a Juris Doctor from Charleston School of Law (South Carolina), and practised law for several years in the United States as a litigator.