South Dakota Circuit Judge Overturns Voter-Approved Cannabis Legalization

Now, more than three months after South Dakota voters celebrated the legalization victory, a state Circuit Judge has overturned the will of the people, ruling the cannabis amendment “unconstitutional” and upholding the state’s longstanding marijuana prohibition.

According to a report from Newsweek, the challenges to the marijuana measure initiated with South Dakota Governor Kristi Noem, who vocally opposed the legalization initiative leading up to November’s election. An executive order issued by the Governor on January 8th instructed South Dakota Highway Patrol Superintendent Colonel Rick Miller to file a lawsuit on her behalf disputing the cannabis reform vote.

The crux of Gov. Noem’s argument did not rely on the federal drug law or the supposed dangers of marijuana consumption but instead relied on technicalities of the amendment vetting procedure and the reach of the cannabis measure. In her final ruling, South Dakota Circuit Judge Christina Klinger – a Noem appointee – invalidated the cannabis amendment because it would cause changes in too many facets of the South Dakota state government.

“Amendment A is unconstitutional as it includes multiple subjects in violation of [the South Dakota constitution] and it is, therefore, void and has no effect,” Judge Klinger wrote in her decision. “Furthermore, Amendment A is a revision as it has far-reaching effects on the basic nature of South Dakota’s governmental system.”

The State Attorney General’s office served as defendant in the circuit court case, but in the wake of Judge Klinger’s ruling, a spokesperson for AG Jason Ravnsborg told the Argus Leader that the office would not file an appeal to the decision. Instead of fighting to push the voter-approved amendment to the state Supreme Court, Ravnsborg was content to leave the appeals process to private advocacy groups. The AG is required by law to defend the will of the voters, but according to Ravnsborg’s interpretation, that obligation does not extend past an initial trial.

“That conclusion includes the decision that all matters that may be raised on appeal are questions of law, and it appears that all arguments that could have been made in this matter have, in fact, been made,” a statement from the AG read. “Therefore, it is the decision of the attorney general that the plaintiffs and intervenors can proceed with an appeal of the declaratory judgment action without the involvement of the Attorney General’s Office.”

As more states across the US enact laws to end pot prohibition and welcome adult-use cannabis possession and sale, the South Dakota Circuit Court decision is the first time that state courts have been used to invalidate a voter-approved marijuana legalization amendment. Currently, the closest comparisons can be found in states like Vermont, where voters have legalized weed but state regulators have taken an excruciatingly long time to create a structure for legal commercial sales, or in the District of Colombia, where a lack of statehood has handed the powers of legal weed regulation to the United States Congress, which has for years refused to allow the nation’s capital to enact its voter-approved legal weed law.

In response to the drastic measures taken by Gov. Noem, Highway Patrol Superintendent Miller, and Judge Klinger, a number of local and national cannabis advocacy groups are already working on legal documents to appeal the Circuit Court decision, without the help of the state AG Office.

“The Attorney General has abdicated his responsibility to represent the people of South Dakota,” Melissa Mentele, the executive director of New Approach South Dakota, said in a statement. “Simply put, he has decided to stop doing his job. The Attorney General’s decision is difficult to understand given that he previously argued in court that Amendment A is completely lawful.”

In addition to New Approach South Dakota, South Dakotans for Better Marijuana Laws and the national Marijuana Policy Project have also expressed intent to appeal Judge Klinger’s ruling to the South Dakota Supreme Court.

But while Mentele and other cannabis activists are hopeful that, eventually, the Supreme Court will reverse the Circuit Court decision and reinstate legalization. On the other side of the coin, though, Gov. Noem – who has appointed two of the five sitting justices on South Dakota’s highest court – is feeling equally assured that her anti-weed activism will continue to outweigh the will of the people.

“I’m confident that South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion,” the Governor told reporters on the day Judge Klinger handed down her decision.

Under the voter-approved amendment, cannabis possession would be legal in South Dakota on July 1st of this year, but as it currently stands, that summer smoking holiday is on an open-ended delay.