Thom v. Barnett

• Decision Date: 24 November 2021
• Docket Number: 29546,29547-a-SRJ
• Citation: 2021 S.D. 65
• Parties: SHERIFF KEVIN THOM, In His Official Capacity as Pennington County Sheriff, and COLONEL RICK MILLER In His Official Capacity as Superintendent of the South Dakota Highway Patrol, Plaintiffs and Appellees, v. STEVE BARNETT, In His Official Capacity as the South Dakota Defendant, and SOUTH DAKOTANS FOR BETTER MARIJUANA LAWS, RANDOLPH SEILER, WILLIAM STOCKER, CHARLES PARKINSON, and MELISSA MENTELE, Defendants and Appellants. IN THE MATTER OF ELECTION CONTEST AS TO AMENDMENT A, AN AMENDMENT TO THE SOUTH DAKOTA CONSTITUTION TO LEGALIZE, REGULATE, AND TAX MARIJUANA; AND TO REQUIRE THE LEGISLATURE TO PASS LAWS REGARDING HEMP AS WELL AS LAWS ENSURING ACCESS TO MARIJUANA FOR MEDICAL USE.
• Court: South Dakota Supreme Court

2021 S.D. 65

SHERIFF KEVIN THOM, In His Official Capacity as Pennington County Sheriff, and COLONEL RICK MILLER In His Official Capacity as Superintendent of the South Dakota Highway Patrol, Plaintiffs and Appellees, v. STEVE BARNETT, In His Official Capacity as the South Dakota Defendant, and SOUTH DAKOTANS FOR BETTER MARIJUANA LAWS, RANDOLPH SEILER, WILLIAM STOCKER, CHARLES PARKINSON, and MELISSA MENTELE, Defendants and Appellants. IN THE MATTER OF ELECTION CONTEST AS TO AMENDMENT A, AN AMENDMENT TO THE SOUTH DAKOTA CONSTITUTION TO LEGALIZE, REGULATE, AND TAX MARIJUANA; AND TO REQUIRE THE LEGISLATURE TO PASS LAWS REGARDING HEMP AS WELL AS LAWS ENSURING ACCESS TO MARIJUANA FOR MEDICAL USE.

Nos. 29546, 29547-a-SRJ

Supreme Court of South Dakota

November 24, 2021

ARGUED APRIL 28, 2021

REASSIGNED SEPTEMBER 7, 2021

APPEALS FROM THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT HUGHES COUNTY, SOUTH DAKOTA THE HONORABLE CHRISTINA L KLINGER Judge

MATTHEW S. MCCAULLEY

LISA M. PROSTROLLO

CHRISTOPHER D. SOMMERS of

Redstone Law Firm, LLP

Sioux Falls, South Dakota

Attorneys for #29546, plaintiff and appellee and #29547, plaintiff and appellant Colonel Rick Miller.

ROBERT L. MORRIS

Belle Fourche, South Dakota

Attorney for #29546, plaintiff and appellee and #29547, plaintiff and appellant Sheriff Kevin Thom.

BRENDAN V. JOHNSON

TIMOTHY W. BILLION of

Robins Kaplan LLP

Sioux Falls, South Dakota

Attorneys for #29546, defendants and appellants and #29547, intervenors and appellees South Dakotans for Better Marijuana Laws, Randolph Seiler, William Stocker, Charles Parkinson, and Melissa Mentele.

JENSEN, Chief Justice (on reassignment).

[¶1.] At the November 3, 2020 general election, South Dakota voters approved Initiated Constitutional Amendment A, titled by the Attorney General as: "An amendment to the South Dakota Constitution to legalize, regulate, and tax marijuana; and to require the Legislature to pass laws regarding hemp as well as laws ensuring access to marijuana for medical use." Following the election, Kevin Thom (Thom) and Rick Miller (Miller) filed a statutory election contest and a separate declaratory judgment action claiming Amendment A was presented to the voters in violation of the requirements for amendments to the South Dakota Constitution. The circuit court dismissed the election contest determining it was not an appropriate proceeding to challenge Amendment A. However, the court concluded in the declaratory judgment action that Amendment A was submitted to the voters in violation of the single subject requirement in the South Dakota Constitution Article XXIII, § 1 and that it separately violated Article XXIII, § 2 because it was a constitutional revision that should have been submitted to the voters through a constitutional convention. We affirm the circuit court's dismissal of the election contest and its determination that Amendment A violates Article XXIII, § 1.

Facts and Procedural History

[¶2.] In May 2019, the prime sponsor of Amendment A submitted the original version of the Amendment to the director of the Legislative Research Council for review and comment as required by SDCL 12-13-25. The director's written comments were provided to the prime sponsor, the Attorney General, and the Secretary of State. On August 16, 2019, the Attorney General delivered the final form of Amendment A and the Attorney General's statement of its title and explanation to the Secretary of State as required by SDCL 12-13-25.1. In the explanation, the Attorney General expressed the view that "[j]udicial clarification of the amendment may be necessary."

[¶3.] The sponsors of Amendment A submitted a petition to the Secretary of State seeking to place Amendment A on the ballot at the November 2020 general election. On January 6, 2020, the Secretary of State announced that he had validated that the petition contained a sufficient number of qualified voter signatures for Amendment A to be placed on the ballot in the next general election. The measure was titled "Constitutional Amendment A" and was placed on the 2020 general election ballot for consideration by the voters on November 3, 2020. Amendment A was approved by a majority vote, with 225, 260 "Yes" votes (54.2%) and 190, 477 "No" votes (45.8%).

[¶4.] On November 20, 2020, Thom, the duly-elected Sheriff of Pennington County, and Miller, the duly-appointed Superintendent of the South Dakota Highway Patrol, filed a statutory election contest in their individual and official capacities and a declaratory judgment action in their official capacities, against the Secretary of State. The Attorney General appeared in the circuit court on behalf of the Secretary of State pursuant to SDCL 1-11-1.^[1] The circuit court granted South Dakotans for Better Marijuana Laws, Melissa Mentele, Charles Parkinson, Randolph Seiler, and William Stocker's (Proponents) unopposed motion to intervene. The circuit court approved by order the parties' stipulation to consolidate the election contest and declaratory judgment action. Thereafter, Thom and Miller filed a joint motion for summary judgment in both actions. The Attorney General and Proponents resisted summary judgment and filed a motion for judgment on the pleadings in each action.

[¶5.] The Attorney General and Proponents argued that an election contest was not the appropriate proceeding to challenge Amendment A because Thom and Miller did not assert that any irregularities occurred in the election process. Conversely, Thom and Miller asserted that an irregularity occurred because the placement of Amendment A on the ballot in violation of the Constitution tainted the entire election process and resulted in an election that was not a free and fair expression of the will of the voters.

[¶6.] In the declaratory judgment action, Proponents asserted that Thom and Miller lacked standing to challenge the constitutionality of Amendment A. They also argued that Thom and Miller were required to raise their challenge to the Amendment prior to its placement on the ballot and that the failure to do so precluded their post-election challenge. Finally, the Attorney General and Proponents asserted that Amendment A complied with the requirements in Article XXIII, § 1 and § 2 because Amendment A pertained to no more than one subject and amended rather than revised the Constitution.

[¶7.] Thom and Miller argued that Amendment A impermissibly attempted "to revise the Constitution through the initiative process" in violation of Article XXIII, § 2 by adding an entirely new article to the South Dakota Constitution.^[2]They further asserted that the submission of Amendment A to the voters violated Article XXIII, § 1 because it embraced "at least five distinct general subjects[, ]" including: (1) creating a right to grow, possess, and use a small amount of marijuana; (2) granting the Department of Revenue the power to promulgate rules regulating the sale and licensing of marijuana; (3) imposing an excise tax on the commercial sale of marijuana and directing how the revenue is appropriated; (4) requiring the Legislature to pass laws ensuring access to medical marijuana; and (5) requiring the Legislature to pass laws governing the cultivation, processing, and sale of hemp.^[3]

[¶8.] Following a hearing on the motions, the circuit court issued separate memorandum decisions granting Proponents' motion to dismiss the election contest but granting Thom and Miller's motion for summary judgment in the declaratory judgment action. The circuit court entered separate orders incorporating the memorandum decisions.

[¶9.] The court observed that "[t]he basic question in an election contest is whether the election, despite irregularities, resulted in a free and fair expression of the will of the voters." See In re Election Contest as to Watertown Special Referendum Election of October 26, 1999, 2001 S.D. 62, ¶ 7, 628 N.W.2d 336, 338. It then determined that Thom and Miller's "allegations are not related to the 'electoral process' surrounding the 2020 General Election as it relates to Amendment A." The court explained that Thom and Miller do not allege that any irregularities occurred during the election or show "anything suggesting the will of the voters was suppressed." Therefore, the court granted Proponents' motion for judgment on the pleadings, concluding that an election contest was not the appropriate action to resolve Thom and Miller's challenge to Amendment A.

[¶10.] In its declaratory judgment ruling, the circuit court concluded that Thom and Miller had standing in their official capacities as the real parties in interest because each took an oath to uphold the South Dakota Constitution and Amendment A affected their ability to carry out their duties. The circuit court also concluded that Thom and Miller were not required to commence this action prior to the election.

[¶11.] On the merits of Thom and Miller's challenge, the circuit court identified the "subject of Amendment A" as "the legalization of marijuana" and concluded that the "single scheme" of Amendment A is "being able to possess and use marijuana, as defined in § 1 of Amendment A, at any point from its growth through consumption" and includes the "[r]egulation of marijuana[.]" After examining the text of the Amendment the court concluded that it contained an additional, distinct subject-hemp. The court further determined that Amendment A contained provisions unrelated to the subject of legalizing marijuana. The court therefore held that Amendment A violated Article XXIII, § 1. Finally, the court determined that Amendment A was a revision requiring a constitutional convention under Article XXIII, § 2 because it "provides far-reaching changes to the nature of South Dakota's...