With the South Dakota Supreme Court poised to hear arguments Wednesday in the validity of an amendment that legalized cannabis, a Sioux Falls lawyer and constitutional historian is weighing in with his own research.
The fate of Constitutional Amendment A sits with the five-member court following Circuit Court Judge Christina Klinger’s ruling in February that the measure was unconstitutional. The amendment, which passed by an 8% majority, legalized small amounts of recreational marijuana and established a regulatory system.
Klinger sided with arguments made by the two lawmen who challenged the measure in court, Highway Patrol Superintendent Col. Rick Miller and Pennington County Sheriff Kevin Thom. Their lawyers argued that Amendment A was invalid because it should have been added to the state Constitution via convention rather than amendment, and that it violated a requirement that amendments can only deal with one subject.
But Dan Brendtro believes the circuit court got it wrong. In an amicus curiae brief, he argues that a foray into the history of the state’s constitutional founding and sweeping reforms passed in 1972 are conclusively in favor of the validity of Amendment A and the traditions of the state as a pioneer of democracy – a tradition “which has been reinforced by countless cases in where this Court has protected the popular will of the people, even when this Court might disagree with the wisdom of their choices,” he writes.
The tradition as a pioneer started in 1898, when South Dakotans gave themselves the power to initiate laws and refer laws passed by the Legislature to popular vote – the first state to do so. In 1972, they expanded that power to include the right to initiate amendments to the state Constitution – like last year’s Amendment A.
This isn’t Brendtro’s first venture into ballot measures and the South Dakota Supreme Court. Fifteen years ago, he successfully challenged the Secretary of State and Attorney General after they refused to place an initiated measure repealing video lottery on the 2006 ballot, a case that also went to the Supreme Court. The decision in that case, written by then Chief Justice David Gilbertson, who retired this year, leaned heavily on the state’s founding history. It also overturned a previous Supreme Court decision.
Brendtro credits Gilbertson’s deep dive into state history for his own review on the Amendment A case. Gilbertson, on his own accord, used his opinion to tell the story of South Dakota.
“Because once you know the story of South Dakota, the right answer is pretty easy to see,” he said about Amendment A. “I think it’s a great model for how to approach constitutional questions, and that’s the approach I tried to use in my brief today.”
Brendtro says he wrote his latest brief on Amendment A on his own accord because he wanted to see how the amendment squared in view of the state’s historical record. He says he wrote the brief without the knowledge of the other parties in the case and that he wasn’t paid.
One of the chief arguments made by Miller and Thom is that Amendment A was so sweeping and altering to the state Constitution that it shouldn’t have been submitted to voters by petition. Rather, it should have first been presented to delegates at a constitutional convention.
In 1969, Gov. Frank Farrar joined a long list of other governors who sought to revise the Constitution because portions had become obsolete. Where other governors failed, Farrar succeeded, and the Legislature created a commission. The work of the commission continued under Gov. Richard Kneip, who won office in 1970.
The commission offered the Legislature a complete overhaul of state government, including the executive branch, local government, the judiciary, as well as a revision allowing voters to propose their own amendments to the Constitution. The Legislature accepted those suggestions and they were placed on the ballot in 1972 as four amendments.
Voters overwhelmingly adopted the changes.
“The Revision Commission did not intend for ‘revisions’ to be relegated solely to constitutional conventions,” Brendtro writes. “Nor did they believe that the people would be hindered by a narrow view of the single-subject rule. Indeed, the Commission itself utilized just four amendments to accomplish a complete constitutional ‘revision’ and overhaul of local and county governments, of our executive and judicial branches, and of our amendment process.”
While the opponents of Amendment A argue the term “revision” is restrictive, requiring a constitutional convention, Brendtro says the term was used interchangeable with “amendment” by the public, the commission and even the court in a subsequent decision challenging one of the 1972 amendments.
The Revision Commission did not reach its conclusions by accident,” he writes. “Instead, they sought to clarify and preserve the broad power to revise-via- amendment because of South Dakota’s difficulty in achieving any constitutional reform between statehood and 1972. They were aware that constitutional conventions were not an efficient or viable mechanism to change our Constitution.”
Voters in 2018 passed an amendment to the Constitution called Amendment Z. It stipulated that any future amendments had to adhere to one subject.
In her decision, Klinger concluded that Amendment A encompassed more than one subject, because besides legalizing marijuana, it also dealt with regulating the substance, as well as medical marijuana and hemp.
Amendment Z isn’t the only place in state law with a one-subject provision. The state Constitution since its original draft in 1889 has said that no law can contain more than one subject. State laws also constrain ordinances or initiated measures to having one subject.
For over a century, Brendtro notes, the Supreme Court has interpreted the single subject language broadly – both in laws and in amendments. As long as subject matter is reasonably related, it has been accepted by the court as having met the one subject standard.
Following the 1972 amendments approved by voters, a disgruntled former state official whose office had been eliminated by one of the amendments filed suit, challenging the sweeping remake as having violated the one subject limitations. Initially, the state official prevailed in the circuit court. But the Supreme Court ultimately reversed the decision.
“We conclude,” the Court wrote in that case, Barnhart v. Herseth, “that the matters contained in the challenged amendment rationally relate to the overall plan of making the executive branch of state government more efficient and responsible.”
Brendtro argues the same broad logic applies to Amendment A. At its base, the measure decriminalized small amounts of marijuana. Then, too, it addressed questions of how it should be regulated.
“Those questions did not need to be addressed in Amendment A, but, we cannot strike down Amendment A simply because they were addressed,” he writes.