Pennington Co. Sheriff, SDHP head sue to stop recreational marijuana

Challenge on two constitutional grounds

PIERRE, S.D. — Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol commander Col. Rick Miller on Friday filed suit against the recently passed Amendment A.

Col. Rick Miller

Pennington Co. Sheriff Kevin Thom

The amendment directs the state legislature to legalize marijuana for both medicinal and recreational use, and to legalize hemp production.

The lawsuit filed in Hughes County alleges that the amendment violates South Dakota Constitution Article 23 on two grounds.

The first challenge says that Amendment A violates the one-subject rule in Article 23, paragraph 1. Thom and Miller argue that the amendment’s title alone contains five different subjects.

 § 1.   Amendments. Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the Legislature. An amendment proposed by initiative shall require a petition signed by qualified voters equal in number to at least ten percent of the total votes cast for Governor in the last gubernatorial election. The petition containing the text of the proposed amendment and the names and addresses of its sponsors shall be filed at least one year before the next general election at which the proposed amendment is submitted to the voters. A proposed amendment may amend one or more articles and related subject matter in other articles as necessary to accomplish the objectives of the amendment; however, no proposed amendment may embrace more than one subject. If more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately.
[Emphasis added]

The one-subject rule was approved by popular vote in South Dakota’s 2018 general election.

The second challenge to Amendment A alleges that the change should have been filed as a revision to the Constitution, not an amendment.

The lawsuit argues that under Article 23, amendments are used to change existing language in the Constitution and may be approved by South Dakota voters, while revisions add new language to the constitution, and can only be approved by a Constitutional Convention called by a three-fourths vote in both houses of the South Dakota Legislature. Thom and Miller argue that the language of Amendment A is new language and should instead be considered a revision to the constitution.

§ 2.   Revision. A convention to revise this Constitution may be called by a three-fourths vote of all the members of each house. The calling of a constitutional convention may be initiated and submitted to the voters in the same manner as an amendment. If a majority of the voters voting thereon approve the calling of a convention, the Legislature shall provide for the holding thereof. Members of a convention shall be elected on a nonpolitical ballot in the same districts and in the same number as the house of representatives. Proposed amendments or revisions approved by a majority of all the members of the convention shall be submitted to the electorate at a special election in a manner to be determined by the convention.

“I’ve dedicated my life to defending and upholding the rule of law,” said Sheriff Thom. “The South Dakota Constitution is the foundation for our government and any attempt to modify it should not be taken lightly. I respect the voice of the voters in South Dakota, however in this case, I believe the process was flawed and done improperly, due to no fault of the voters.”

“Our constitutional amendment procedure is very straightforward,” said Col. Miller. “In this case, the group bringing Amendment A unconstitutionally abused the initiative process. We’re confident that the courts will safeguard the South Dakota Constitution and the rule of law.”

The lawsuit does not challenge Initiated Measure 26, which voters also approved on November 3, which would allow the use of marijuana for medicial purposes only.

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