Flag of South Dakota

Last November, South Dakota voters approved Amendment A, which allowed for the recreational use of marijuana by individuals 21 years and older (and for possession of up to 1 ounce). On February 8, 2021, a South Dakota judge granted summary judgment in favor of law enforcement officers who filed a lawsuit on behalf of Governor Kristi Noem challenging Amendment A. In Thom v. Barnett (No. 32CIV20-187), the court held that the proposed amendment was unconstitutional and therefore void and without effect.

The Court’s Reasoning

The court held that Amendment A violated the South Dakota Constitution’s “single subject rule.” In relevant part, Article XXIII § 1 of the South Dakota Constitution states, “no proposed amendment may embrace more than one subject.” According to Circuit Court Judge Christina Klinger, Amendment A contained several sections that were not “reasonably germane” to the amendment’s primary subject, the legalization of marijuana. For example, the court held that sections relating to the cultivation and sale of hemp were not reasonably germane to the subject of the legalization of marijuana because “marijuana and hemp are two distinct subjects.” Even though the court recognized that marijuana and hemp are both derived from the cannabis plant, it found that “‘[c]annabis’ cannot be retroactively inserted as the main subject of Amendment A.”

Additionally, the court held that Amendment A was unconstitutional because it was functionally a revision to the South Dakota Constitution, not an amendment. According to the court, Amendment A instituted such “far-reaching changes to the nature of South Dakota’s governmental plan” that it constituted a “revision” and must have first been submitted to a constitutional convention. Because it did not undergo the proper procedures, the court ruled Amendment A in its entirety to be void and without effect.

Employer Takeaways

Amendment A was scheduled to take effect on July 1, 2021, but with this decision, Amendment A has no effect. However, it is likely that the case will be appealed to the South Dakota Supreme Court. Employers may also want to note that this case does not concern the validity of Initiated Measure 26, which establishes protections for medical marijuana patients.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor and report on developments with respect to Amendment A and will post updates in the firm’s Drug Testing and State Developments blogs as additional information becomes available. Important information is also available via the firm’s webinar and podcast programs.

Michael K. Clarkson is a shareholder in Ogletree Deakins’ Boston office.

Andrew M. Soukhome is a 2020 graduate of the Sandra Day O’Connor College of Law at Arizona State University and is currently awaiting admission to the state bar of Arizona.


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