A letter in Wednesday's Rapid City Journal captured our attention. In "The nanny state is here," John Batteen in Rapid City writes:
I’m writing to you on behalf of all freedom loving South Dakotans. The recent lawsuit challenging Amendment A is an affront to our liberty, our voting system, and the will of the electorate.
The hypocrisy of Kristi Noem, Kevin Thom, Rick Miller, and the others who continue to work against cannabis is a blatant insult to the intelligence of our people. She says she trusts South Dakotans to make the right choices for themselves and their families, then turns around and tells us we’ve made the wrong choice.
This is the nanny state government people are so afraid of. The police here for decades now have said about the marijuana laws, “We don’t make the laws, we just enforce them.” Well now, Kevin Thom and Rick Miller think they can make the laws too. That is the very definition of a police state.
Cannabis is a nonpartisan issue. More people voted for Amendment A than voted for Kristi Noem when she got elected. More people voted for IM26 than voted for Donald Trump in our most recent election. If the Republicans choose cannabis as their hill to die on, the 2022 election cycle will not be kind to them. Please do not delay in the smooth implementation of Amendment A. If we can get distributors set up in time for Sturgis 2021, we will make a giant pile of money.
Back in late October, we wrote in The peculiar knots of cannabis policy prompt GOP kinks in South Dakota and Minnesota:
. . . Here in South DaCOVID--where the Sioux Falls Argus Leader reported Wednesday South Dakota reaches new highs in COVID-19 hospitalizations, daily cases--Joe Sneve reported earlier in the week, Poll: South Dakotans narrowly favor legal marijuana in the state.
Also popular? The governor's handling of the pandemic, despite the climbing hospitalization and death counts, Sneve report Wednesday in Polling: South Dakotans like Noem's handling of the pandemic.
Sneve reported earlier this week in Personal freedom not part of Noem's thinking on legal pot in South Dakota:
Kristi Noem talks a lot about personal freedom while defending her hands-off approach to the COVID-19 pandemic.
The first-term governor of South Dakota, though, doesn't support a libertarian approach to the use of drugs such as marijuana, which voters will decide whether to legalize for both medical and recreational use in next week's election.
Noem has said repeatedly during this campaign season that she opposes both Initiated Measure 26 (medical) and Constitutional Amendment A (recreational). And Friday during an interview with the Argus Leader at the Sioux Falls Convention Center, Noem said she opposes legalizing marijuana in any fashion because it would hurt South Dakota families in the long run.
"I ran for governor telling people that I wanted to build stronger families and create more opportunities for our kids, and i just don't see smoking pot as a gateway to helping people be better," the governor said.
But proponents of legal marijuana say that flies in the face of her repeated calls for less government involvement in people's lives amid the coronavirus pandemic. While Noem has championed personal responsibility during the pandemic, many of her fellow governors issued stay-at-home restrictions and mask mandates.
When both medical and recreational cannabis measures were approved by South Dakota voters, we wondered Will Big Stone Lake become pot tourist haven after South Dakotans vote for legal weed?
Not so fast, Governor Positive Pants and her allies said. In Law enforcement officers ask courts to stop legal marijuana, Joe Sneve reported for the Sioux Falls Argus Leader:
Two law enforcement officers want the courts to overturn legislation passed by 225,260 voters earlier this year legalizing marijuana in South Dakota.
Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller filed a lawsuit Friday challenging the constitutionality of Amendment A, which legalized the cultivation, transport, possession and sale of marijuana in in the state.
Voters approved the amendment in the Nov. 3 election with by an 8% margin.
In a release issued Friday announcing the legal challenge, Thom and Miller argue Amendment A violates the constitution because it encompassed more than one subject, a limitation added to the constitution by voters in 2018. And they say the process voters used to pass Amendment A doesn't comply with the constitution. . .. .
Over at Dakota Free Press, Cory Allen Heidelberger took on the nuances of the attack on the will of the voters in Amendment vs. Revision: Anti-Marijuana Litigants Must Show Legal Weed Radically Changes SD Constitution and Government and Constitutional Question, Not Election Contest: Plaintiffs Show No Voting Irregularities to Justify Challenge to Marijuana Amendment.
And he explores one of the most irritating elements in the attack in Thom, Miller Using Public Resources, Including State Dollars from Noem, to Challenge Amendment A in Court:
. . . Yet the plaintiffs are using public resources to prosecute their complaint against the public vote. Thom and Miller say they are bringing their complaint “in their individual and official capacities,” so they are contending that this effort to overturn the voters’ will is part of their public jobs, meaning they think their effort can be carried out while they are on duty, on the taxpayer’s dime. They have published their complaint on the Department of Public Safety website. Sheriff Thom announced the challenge on official Pennington County Sheriff’s letterhead and directed readers to contact his office’s spokeswoman, (still illegally moonlighting) Senator Helene Duhamel.
And as the kicker, Governor Kristi Noem says the state is helping pay for the plaintiffs’ complaint:
The state of South Dakota is paying for part of the lawsuit.
“The governor approved this because she took an oath to support and defend the constitution. This is part of her duty as governor,” spokesman Ian Fury said.
“In South Dakota we respect our Constitution,” Noem said. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit” [Arielle Zionts, “State Paying for Part of Lawsuit Seeking to Overturn Voter-Approved Recreational Marijuana,” Rapid City Journal, 2020.11.20].
That taxpayer cash will go to the plaintiffs’ well-connected, state-favored lawyers, Board of Minerals member and past state bar president Bob Morris of Belle Fourche and Kristi Noem’s favorite lobbyist Matt McCaulley from Sioux Falls. Taxpayer cash will also cover the defense that the Attorney General will mount. So no matter what, taxpayers lose… and win!
Fortunately, the governor and plaintiffs have prompted a defense of the voters choice. For the Rapid City Journal, Arielle Zionts reports in Legal team to fight for ballot measure that legalized marijuana in South Dakota:
The group that successfully campaigned to legalize medical and recreational marijuana in South Dakota through the ballot box will intervene in a lawsuit filed by law enforcement that challenges the constitutionality of the recreational amendment.
“We are prepared to defend Amendment A against the lawsuit filed by Pennington County Sheriff Kevin Thom and Superintendent of the South Dakota Highway Patrol Colonel Rick Miller,” South Dakotans for Better Marijuana Laws wrote in a news release. “Amendment A was carefully drafted, fully vetted, and approved by a strong majority of South Dakota voters this year.”
Thom and Miller “are trying to invalidate Amendment A and overturn the will of the voters on the basis of two incorrect legal theories,” the release says.
The pair filed a lawsuit last Friday in Hughes County that asks a judge to void the recreational marijuana amendment that was approved by 54% of voters statewide and 59% in Pennington County.
Amendment A violates the South Dakota Constitution because it doesn’t follow the “one-subject rule” and because it’s actually a revision, not an amendment, the lawsuit argues.
The pro-marijuana group says that’s not true and plans to intervene in the case. A legal intervention is when a third-party player who has a stake in the outcome of a lawsuit is allowed to file motions and make arguments in court.
“Anyone who reads Amendment A can see that every word relates to the cannabis plant,” the group said. “Furthermore, Amendment A follows the interpretation of the single-subject rule used by the legislature.”
The revision vs. amendment argument is a “manufactured distinction” that is “unsupported in the law and is utterly insufficient as a basis for overturning a constitutional amendment approved by voters,” the release says.
The group makes a third argument against the lawsuit: “This lawsuit was filed incorrectly under South Dakota law as a 'contest' to an election. However, the complaint has nothing to do with the manner in which the election was conducted and only relates to the text of Amendment A.”
An election contest is “a legal proceeding, other than a recount, instituted to challenge the determination of any election,” according to SDCL 12-22-1.
Thom and Miller are represented by Robert Morris from Belle Fourche and three attorneys from the Redstone Law Firm in Sioux Falls: Matt McCaulley, Lisa Prostrollo and Christopher Sommers. None of the lawyers responded to messages from the Journal.
McCaulley/Redstone has been awarded $403,375 in contracts to provide legal services and legislative consulting to the governor’s office since Dec 31, 2019, according to public records. McCaulley also a lobbyist for the office and has worked with Noem since 2010, according to a March story from South Dakota News Watch.
Gov. Kristi Noem — who is opposed to recreational and medical marijuana — approved state funds for Miller’s legal fees, according to her spokesman Ian Fury. She didn’t ask Miller and Thom to file the lawsuit, Fury said.
“In South Dakota, we respect our Constitution,” Noem said. “I look forward to the court addressing the serious constitutional concerns laid out in this lawsuit.”
No taxpayer dollars are being used for Thom’s legal fees, said Helene Duhamel, spokeswoman for the sheriff’s office and a state senator appointed by Noem. Duhamel, who opposed Amendment A and medical marijuana, declined to say if Thom or a third party is paying the bills.
"No tax dollars is the answer," she said.
. . . South Dakotans for Better Marijuana Laws, which is a ballot question political committee, will be represented by three lawyers from the Robins Kaplan law firm, according to Brendan Johnson, a former U.S. Attorney for South Dakota and sponsor of Amendment A. Johnson is teaming up with Timothy Billion and Eric Magnuson, former chief justice of the Minnesota Supreme Court.
Magnuson, a Pawlenty appointee who's now a Robins Kaplan partner, is likely a familiar name to many Minnesota readers.
Johnson and Noem's minions have tangled in court before. Check out the South Dakota ACLU press release from last October, South Dakota Governor Drops Anti-Protest Laws in Settlement Agreement With ACLU.
Freedom only goes so far with the governor of South DaCovid.
Photo: Hemp plants and Governor Kristi Noem.
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