Taxpayers are funding both sides of the pending legal battle that could decide the fate of legal marijuana in South Dakota.
Gov. Kristi Noem has authorized the use of state general funds to cover attorney fees for South Dakota Highway Patrol Superintendent Col. Rick Miller’s lawsuit challenging the constitutionality of Amendment A, which legalizes cannabis for adult use, medical use for minors and allows for commercial growth and distribution of the plant.
Miller is a co-plaintiff in the case alongside Pennington County Sheriff Kevin Thom. They argue that Amendment A isn’t legal because it encompasses more than one subject and should be considered a revision to the constitution rather than an amendment.
Thom is also suing in his official capacity, meaning Pennington County taxpayers will likely be footing the bill.
And because the statutory responsibility for defending Amendment A in court belongs to the Attorney General’s Office, taxpayers will be on the hook for those costs as well.
But how much public resources, energy and labor from the Attorney General’s Office will actually go into trying to keep Amendment A on the books is unclear.
Attorney General Jason Ravnsborg, who still finds himself at the center of an unresolved crash investigation involving the death of a pedestrian, has previously taken positions on marijuana policy more aligned with the plaintiffs in the suit than those who worked on getting marijuana legalized in the state.
As a candidate, Ravnsborg said he opposed loosening South Dakotan’s marijuana laws, and the Attorney General’s Office has taken a position that all forms of cannabidiol CBD oil are illegal in South Dakota.
Neither Ravnsborg nor his chief of staff, Tim Bormann, responded to a request to an email seeking comment and specifically asking how robust of a defense the Attorney General’s Office plans to bring in the Amendment A case.
Group that pushed marijuana vote also will defend it
For the group South Dakotans for Better Marijuana Laws, which raised millions in its effort to get Amendment A both on the ballot and adopted, that isn’t a huge concern. That’s because it intends to bring its own legal defense in the case.
“With all due respect to the Attorney General’s Office, they’re really not a factor in our legal strategy,” said Brendan Johnson, who’s serving as lead attorney in the Amendment A defense on behalf of SDBML. “Whatever they say isn’t going to effect our defense in the least.”
Johnson said his office planned to file a formal request for intervention in the case, which state law says any voter in the state is entitled to ask for.
USD Law School Dean Neil Fulton told the Argus Leader that the Attorney General’s Office has an interest in defending the case because it goes beyond the marijuana issue, and instead will be the first time the single-subject rule is tested in court since voters placed it in the Constitution two years ago.
And if Ravnsborg feels like he can’t defend the amendment due to his personal opinions on marijuana or due to any personal relationships he has with either plaintiff, he could always contract the work out and appoint outside counsel, Fulton said.
On the the pro-pot attorneys being allowed to intervene in the case, Fulton said he anticipates Johnson and his team at Robins Kaplan LLC will be granted intervention by the court, regardless if any of the other parties oppose their involvement.
Much of the litigation will be done through briefs and potentially oral arguments. And because there isn’t a question of fact, Fulton said there shouldn’t be a need for additional witnesses or evidence hearings, additional parties in the case delay the process down, which is when a request for intervention could be denied.
“Even if the attorney general, Sheriff Thom and Col. Millier oppose intervention, I think a judge would say … ‘Their legal opinion has some value to me.’ Particularly because it doesn’t slow down the proceedings,” he said.