SIOUX FALLS, S.D. — The South Dakota Supreme Court on Wednesday heard final arguments in a legal battle sparked by an attempt by Gov. Kristi Noem’s administration to strike down a voter-passed constitutional amendment to legalize marijuana.
The high court will decide whether recreational pot use, medical marijuana and hemp cultivation are enshrined in the state’s constitution.
Voters passed the measure — known as Amendment A — in November, but Highway Patrol Superintendent Col. Rick Miller mounted a legal challenge to its constitutionality on Noem’s behalf. Pennington County Sheriff Kevin Thom also sued to block legalization.
The issue of legalizing marijuana has created significant divisions among South Dakota Republicans. Some reason they have a duty to honor the will of the voters, but Noem insists legalizing marijuana is a “bad decision.”
On Wednesday, lawyers arguing before five Supreme Court justices in Pierre had nothing to say about the benefits or ills of pot, instead focusing on the constitutionality of the amendment passed by 54% of voters. Those arguing against legalization said the new law would violate the state constitution by elevating the agency tasked with regulating recreational pot, the Department of Revenue, to a fourth branch of government, and that the ballot measure violated a rule that constitutional amendments must only address one subject.
“Amendment A will have significant and lasting effects on our constitution if it’s allowed to stand,” said Lisa Postrollo, a lawyer representing Miller.
A state circuit judge and Noem appointee sided with those arguments and struck the constitutional measure down in February. Advocates for legalization appealed to the Supreme Court.
Brendan Johnson, an attorney representing advocates including South Dakotans for Better Marijuana Laws conceded that the constitutional amendment was lengthy but said that was no reason to throw it out. He argued that the court should be cautious about striking the ballot measure down because it would weigh on future efforts for citizens to change laws at the ballot box.
He warned justices of “the damage that could be done if, for the first time in our state’s history, we have a court that literally throws out 417,000 votes that were cast on a piece of legislation.”
Johnson also argued that Miller and Thom don’t have standing as law enforcement officers to challenge the constitutional amendment.
Before the law was overturned by the circuit court, it was set to go into effect July 1. The court could strike down the law entirely, dismiss Noem’s challenge, or strike specific sections that it finds in violation of the constitution while keeping other parts intact. It has not given a timeline for when it will make a ruling.
