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Impact Investing Conference

Impact Investing Forum 2022

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London. Dec 07-08, 2022.

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The South Dakota Supreme Court ruled the voice of its people, which voted for legalization of adult-use cannabis with a 54.2% majority during the November 2020 election, wasn’t enough to affect public policy.
Keloland Media GroupSouth Dakota Supreme Court justices heard arguments on Amendment A on 28 April. The body’s Nov. 24 decision was made. The five-member court issued a final decision on Nov. 24, 2021. It upheld Circuit Judge Christina Klinger’s February ruling that Amendment A, which was approved by voters, violated Article XXIII South Dakota Constitution’s single-subject rule. Therefore, it was unconstitutional.

This case stems out of a lawsuit filed less then a month after the election by Kevin Thom, Pennington County Sheriff, and South Dakota Highway Patrol Colonel Rick Miller. A spokesperson for Republican Gov. Kristi Noem didn’t ask Miller or Thom for the lawsuit to be filed. However, two months later on Jan. 8, 2021 Noem issued an executive ordering stating that Amendment A was not constitutional and launched a taxpayer-funded suit challenging the ballot measure.

Noem, who was against legalization in the lead up to the 2020 election nominated Klinger as the state’s Sixth Circuit Court Court in early 2019, roughly two years before Klinger overturned Amendment A.

Chief Justice Steven Jensen, along with Justices Janine Kern, Patricia DeVaney, penned the majority opinion in Wednesday’s Supreme Court ruling. Justice Mark Salter also concurred, writing his own opinion. Justice Scott Myren concurred in parts and dissented.

On April 28, the five justices heard arguments about Amendment A. They deliver their final opinions nearly seven months later.

Jensen stated in the majority opinion that “The Court long ago stressed the importance of the constitutional requirement ensuring voters have the opportunity to vote separately for each subject contained in a proposal amendment.”

He said, “It is evident that Amendment A includes provisions encompassing at least three distinct subjects, each with distinct objectives or purposes.” These three subjects are: (1) the development and regulation of marijuana for all persons at least 21 years old; (2) a mandate for the Legislature to adopt laws that provide medical marijuana access for a select group of people, regardless of their age; and (3) a mandate for the Legislature to regulate the cultivation, processing, and sale of hemp.

Seven months ago, the plaintiffs argued in court that Amendment A had five subjects as it appeared on the ballot. These were legalizing cannabis, regulating cannabis and taxing cannabis. They also required the South Dakota Legislature adopt laws regarding hemp to ensure access to medical marijuana.

Meanwhile, the defendants, specifically Robins Kaplan LLP attorney Brendan Johnson, who represented South Dakotans for Better Marijuana Laws (SDBML), the group behind Amendment A, argued the measure contains one subject–cannabis–to which all provisions are essentially related.

Jensen stated that Amendment A was not in breach of state law because it contained multiple provisions. However, the majority opinion of the Supreme Court recognized that Amendment A was not illegal simply because it contained multiple provisions. Jensen said that a violation occurred when the proposed amendment included more than one subject with different objects or purposes that are not dependent on or connected to each other.

Matthew Schweich, the campaign director for SDBML, is also the deputy director of reform organization Marijuana Policy Project. He issued the following statement in response the Supreme Court’s final decision.

SDBML | southdakotamarijuana.orgMatthew Schweich, Campaign Director, South Dakotans for Better Marijuana Laws. “We believe this South Dakota Supreme Court ruling is very flawed. The court rejected common sense and instead used a far-fetched legal argument to overturn a law that was passed by more than 225,000 South Dakota voters. This theory was not based on any logical or evidentiary support. The ruling states that Amendment A comprised three subjects–recreational marijuana, medical marijuana, and hemp legalization–and that South Dakotans could not tell what they were voting on when voting for Amendment A.

“It’s a legal stretch, and one that relies upon the disrespectful assumption South Dakota voters were intellectually incompetent of understanding the initiative.”

A separate measure to legalize medical marijuana, Initiated 26 (also on the November 2020 ballot), was also passed with a 69.9% vote.

Salter – agreeing with the majority court’s conclusion Amendment A violated single-subject rules – wrote a separate opinion to emphasize its “substantive nature”.

Salter stated that a single-subject rule is intended to reduce the political bargaining scheme that combines multiple measures to gain majority support. This is known as “logrolling.” It is a tactic that allows unpopular measures to be combined with more popular measures in order to push through policy that otherwise would not pass.

He stated that he was not convinced by the Court’s majority of Article XXIII violations rendering the entire amendment null in all instances. “We have held in several of our previous cases that the Legislature’s violation a nearly identical constitutional single subject rule for statutes contained within Article III was not fatal.”

Salter later stated in his opinion that he would leave the question of whether a violation Article XXIII’s single-subject rule renders a Constitutional Amendment null in all cases unanswered. I agree with the Court’s opinion.

South Dakota Supreme CourtJustice Scott MyrenWhile Myren agreed in part, his dissenting opinions pointed out that there was no evidence to suggest voter confusion over Amendment A.

He also disapproved of the majority’s decision that Amendment A is in violation Article XXIII.

He stated that he believes that the propositions in constitutional Amendment A were ‘incidental’ to and ‘necessarily connected’ with the object of providing an overall plan for all phases legalization, regulation, use and production of marijuana and related substances. “I disagree with the majority’s decision that Amendment A is in violation of [the single-subject] rule and is null in its entirety.

Reformist Schweich believed voters understood the issues on the ballot. He pointed to the 54% voter approval of adult-use Amendment A, compared to the 70% for medical cannabis Initiated Me 26.

He stated that if voters believed Amendment A to be a medical marijuana-only initiative there wouldn’t have been a 16 point gap in the election results. “Medical marijuana and hemp were only mentioned in three sentences in Amendment 1. Rest of the initiative dealt with recreational marijuana. It’s important to note that recreational marijuana, medical cannabis, and hemp all come from the same plant: cannabis.

Schweich and his SDBML Team have been collecting signatures across the state to try and get another adult-use legalization measure onto the 2022 ballot.

Any Given Thursday: South Dakota Supreme Court’s Indetermination on Adult-Use Cannabis

SDBML missed the Nov. 8th deadline to submit approximately 17,000 valid signatures in order to be eligible for the 2022 ballot. Schweich and company will continue their efforts to support the statutory ballot initiative by submitting signatures by May 2022 extended deadline.

Schweich stated that SDBML was left with uncertainty in the interim after waiting for seven months on the Supreme Court. Schweich said that the fact that it took South Dakota’s Supreme Court nearly seven months to rule on an election-related case was extremely problematic. “This indefensible delay eroded the public’s trust in South Dakota’s elections and its system of government. The court owes South Dakotans an explanation. Schweich stated that Noem’s Jan. 8th, 2021 executive order was strangely timed. This was nearly two months after Miller & Thom filed the stemming suit. This executive order contradicts a statement by Ian Fury, Noem spokesperson, who stated on Nov. 23, 2020 that “Gov. Noem didn’t ask Col. Miller nor Sheriff Thom to file the lawsuit.

Schweich stated that the inconsistency has never been explained and that he believes Noem owes it to the public.

He stated, “We should know if the January executive order was truthful.”

SDBML will continue to push for legalization of adult-use cannabis in 2022. Schweich stated that “We are as motivated as ever to continue working,” “We will not stop until South Dakota legalizes cannabis.”

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