VERMILLION, S.D. — A forthcoming legal opinion on whether or not South Dakotans correctly amended the constitution to legalize recreational marijuana will culminate a pitched political battle between some of the state's power players.
It also will reveal what the state's five Supreme Court justices think of a 2018 constitutional amendment to limit such measures to a "single-subject."
The opinion — expected any given Thursday morning, when the court typically releases rulings to the public — may or may not come before Thursday, July 1, which had been the effective date established by Amendment A, which was stayed by a lower court in February.
But the coming ruling will likely have little to say on marijuana and a lot on that constitutional process.
When former U.S. Attorney Brendan Johnson, counsel for South Dakotans for Better Marijuana Laws, opened his oral arguments in April before the court in Pierre, he addressed the state's voter-initiative process — the very first in the country and embedded in the state's constitution — as "a pretty radical document."
"It wasn't a bug in the design ... that the people could act, as themselves, as a legislature," Johnson said.
The initiated constitutional amendment to legalize cannabis — approved by more than 54% of the state's voters — has been accused by opponents in court of log-rolling, of revising (rather than adding to) to the state's constitution, and violating a separate voter-initiated constitutional amendment from 2018 implementing a single-subject rule on all future measures.
But it was the last point that consumed Justice Mark Salter. In his trademark bowtie, Salter pressed the same question to Johnson and Lisa Prostrollo, counsel for State Highway Patrol Col. Rick Miller who, along with Pennington County Sheriff Kevin Thom, sued to block Amendment A.
"Is the one-amendment, one-rule clause that was contained in our 1889 constitution a single-subject rule?" Salter asked Johnson early in the proceedings.
In other words, say legal observers, Salter was looking for help on defining how expansive (or limited) this new, single-subject test should be.
In 2018, 62% of South Dakota voters passed Amendment Z, applying a "single-subject" rule to initiated constitutional amendments. Lawmakers already applied "single-subject" to initiated statutes.
But that amendment has yet to be ruled on, leading Justice Janine Kern to term the case one of "first impression."
When Johnson asserted that Amendment A had been one of the "most scrutinized pieces of legislation in my lifetime," Kern, representing the state's southwestern circuit, noted Amendment A appeared to incorporate over a dozen subjects and granted the Department of Revenue "far-reaching, exclusive" power to regulate marijuana.
"There was certainly very little publicity about the far-reaching implications," Kern said.
Justice Patricia DeVaney joined in Kern's doubts about Amendment A's ability to comply with the single-subject provision, telling Johnson, "Of course, this was much more comprehensive than a pure statement or single statement saying, 'We're regulating marijuana in all forms."
But the justices also scrutinized the state's attorneys, particularly Prostrollo, who argued for a narrow understanding of the "single-subject" rule.
After Prostrollo argued that "Amendment A cannot represent the will of the people if it is enacted in contravention of the people's constitution," Salter again tried to tease out whether Thom and Miller, whose lawsuit was authorized by Gov. Kristi Noem, had acted too swiftly in trying to throw out the entire law on the basis of largely technical minutiae in the amendment, such as the provisions stipulating the Department of Revenue's role in regulating marijuana.
Salter suggested the state might more narrowly challenge that law down the line.
"Maybe that's the next case, though?" Salter said. "Maybe that's the one that awaits us?"
In an interview on Tuesday, June 22, University of South Dakota Knudson School of Law Dean Neil Fulton suggested the task of defining Amendment Z could be foremost for the court in its upcoming ruling. He also wondered if Prostrollo's argument — namely the single-subject litmus posed by Prostrollo in briefs before the court — was too narrow to stand up to scrutiny.
"I still think that the really restrictive reading of single-subject is tough to win because if this were a statute passed by the legislature, I don't think anyone would be batting an eye," Fulton said.