967 N.W.2d 261
S.D.2021Background
- Voters approved Initiated Constitutional Amendment A on Nov. 3, 2020 (legalize, regulate, tax marijuana; mandate laws on hemp and medical access).
- Pennington County Sheriff Kevin Thom and SD Highway Patrol Superintendent Rick Miller sued post-election: statutory election contest and declaratory judgment arguing Amendment A violated Article XXIII, §1 (single-subject/separate-vote) and §2 (revision vs. amendment).
- The circuit court dismissed the election contest but granted declaratory relief, holding Amendment A violated the single-subject rule and was a revision requiring a convention.
- The circuit court found Thom and Miller had official-capacity standing; the Supreme Court held they lacked standing but found the Governor’s executive-order ratification cured the defect.
- The Supreme Court affirmed dismissal of the election contest and affirmed that Amendment A violated Article XXIII, §1, concluding the amendment embraced multiple, independent subjects and therefore is void in its entirety.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriateness of an election contest | Placement of an unconstitutional amendment on the ballot tainted the election, so an election contest is proper | Election contests challenge electoral-process irregularities; plaintiffs allege constitutional defects, not voting irregularities | Election contest dismissed — plaintiffs failed to allege election-process irregularities or suppression of voter will |
| Standing to challenge Amendment A | Thom and Miller (official capacity): oath and official duties give standing | State/Proponents: political subdivisions and officials lack standing to challenge state actions absent personal or proprietary injury | Plaintiffs lack standing in their official capacities; Governor’s ratification of the suit cured the defect and allowed the case to proceed |
| Timeliness / Pre-election remedies | Post-election declaratory action is permissible; plaintiffs need not have litigated before election | Challenges could have been brought pre-election (statutory avenues); doctrines like waiver/laches should apply | Post-election challenge allowed; doctrines of waiver/laches did not bar this declaratory action |
| Single-subject / separate-vote requirement (Art. XXIII, §1) | Amendment A contains multiple distinct subjects (recreational legalization/regulation, mandated medical-marijuana legislation, hemp regulation, taxation, licensing, penalties) | Proponents: provisions are reasonably germane parts of a single comprehensive regulatory scheme for cannabis products | Amendment A violates Article XXIII, §1 — it embraces multiple independent subjects; severability rejected and the amendment void in its entirety |
Key Cases Cited
- In re Election Contest as to Watertown Special Referendum Election of October 26, 1999, 628 N.W.2d 336 (S.D. 2001) (election contests challenge electoral-process irregularities and require proof that voter will was suppressed)
- State ex rel. Adams v. Herried, 72 N.W. 93 (S.D. 1897) (adopted test for when a proposed amendment embraces more than one subject requiring separate votes)
- Barnhart v. Herseth, 222 N.W.2d 131 (S.D. 1974) (sustaining multi-part amendment where provisions were incidental to and necessarily connected with a single purpose)
- Baker v. Atkinson, 625 N.W.2d 265 (S.D. 2001) (single-subject rule for legislation is construed liberally as reasonably germane; distinguished from constitutional amendment review)
- Edgemont Sch. Dist. 23-1 v. S.D. Dep’t of Revenue, 593 N.W.2d 36 (S.D. 1999) (political subdivisions and subordinate governmental instrumentalities generally lack standing to challenge state statutes)
- Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, 583 P.2d 1281 (Cal. 1978) (quantitative/qualitative framework for deciding whether an initiative is a revision vs. amendment)
- Armatta v. Kitzhaber, 959 P.2d 49 (Or. 1998) (explains single-subject and separate-vote principles as safeguards of direct democracy)
- Mont. Ass’n of Cntys. v. State, 404 P.3d 733 (Mont. 2017) (holding a constitutional amendment submitted in violation of separate-vote requirement void in its entirety)