A South Dakota judge sided with Gov. Kristi Noem by overturning a voter-approved constitutional amendment to legalize recreational cannabis in the state.

Circuit Court Judge Christina Klinger said the measure put to voters violated South Dakota’s Constitution on two counts. First, it exceeded South Dakota’s “one subject” requirement governing ballot initiatives, with this broad scope rendering the vote unconstitutional. She contended marijuana legalization would have implications for various state processes, policies and commercial activities, such as business licensing, taxation and hemp farming, that go beyond the single subject rule. She further noted the measure granted regulatory responsibility over the marijuana industry to the state Department of Revenue, which would overstep legislative and executive authority.

Second, the judge also agreed with the plaintiffs – South Dakota Highway Patrol Superintendent Rick Miller and Pennington County Sheriff Kevin Thom – that the proposed Amendment A in fact added a new section to the Constitution rather than amending an existing one. Constitutional revisions under South Dakota law require the approval of state delegates before being put to voters on the ballot, unlike amendments which can be initiated through the petition process.

“Amendment A is a revision as it has far-reaching effects on the basic nature of South Dakota’s governmental system,” Klinger, appointed by Gov. Noem in 2019, argued in her ruling. “The failure to submit Amendment A through the proper constitutional process voids the amendment and it has no effect.”

Klinger’s decision sets the stage for a protracted legal battle over the vote which, if enacted into law, would allow South Dakotan adults 21 and older to buy cannabis at licensed dispensaries and grow their own plants at home from July 1, 2021. The lawyer representing the group behind the ballot measure, South Dakotans for Better Marijuana Laws, said he intends to appeal Klinger’s ruling to the state Supreme Court.

“We disagree with the ruling and we are preparing our appeal to the South Dakota Supreme Court,” Brendan Johnson said.

Gov. Kristi Noem has made no secret of her desire to retain South Dakota’s harsh marijuana laws, even after 54 percent of voters approved recreational cannabis legalization. The legal fees of one of the plaintiffs, Rick Miller, are effectively being paid by the state at the behest of Gov. Noem.

“Today’s decision protects and safeguards our constitution,” Noem said in a statement. “I’m confident that South Dakota Supreme Court, if asked to weigh in as well, will come to the same conclusion.”

The ruling comes while lawmakers are busy considering several bills to legalize both recreational and medical marijuana, which voters also approved of on Election Day. Judge Klinger’s decision has no bearing on the vote to legalize medical marijuana, while Rep. Drew Dennert (R-Aberdeen) said lawmakers will wait until a Supreme Court decision before halting efforts to legalize recreational cannabis.

“I don’t think the ruling changes anything regarding medical marijuana in South Dakota. That’s still going to be law on July 1,” he said to the Argus Leader. “The ruling was today, but the main ruling that I and other legislators are going to be waiting for is the Supreme Court ruling. We knew that no matter what the decision was, it was going to be appealed by whoever lost.”

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