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
[¶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.
[¶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.
[¶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
[¶12.] Thom and Miller appeal the circuit court's order dismissing the election contest, asserting that an election contest is a proper action to challenge the validity of the voter's adoption of Amendment A. Proponents appeal the circuit court's order declaring Amendment A unconstitutional, asserting the following issues: (1) Whether Thom and Miller have standing; (2) Whether the challenge to Amendment A could be brought after the election; and (3) Whether Amendment A contains multiple subjects in violation of Article XXIII, § 1.
Standard of Review
[¶13.] This Court reviews "a ruling granting a judgment on the pleadings de novo." Slota v. Imhoff & Assocs., P.C., 2020 S.D. 55, ¶ 12, 949 N.W.2d 869, 873. We similarly "review a circuit court's entry of summary judgment under the de novo standard of review." Smith Angus Ranch, Inc. v. Hurst, 2021 S.D. 40, ¶ 13, 962 N.W.2d 626, 629 (quoting Estate of Stoebner v. Huether, 2019 S.D. 58, ¶ 16, 935 N.W.2d 262, 266). Issues of constitutional and statutory interpretation are also subject to de novo review. Jans v. S.D. Dep't of Pub. Safety, 2021 S.D. 51, ¶ 10, 964 N.W.2d 749, 753 (quoting In re Cleopatra Cameron Gift Tr., Dated May 26, 1998, 2019 S.D. 35, ¶ 17, 931 N.W.2d 244, 249). In de novo review, no deference is given to the circuit court's decision. Johnson v. United Parcel Serv., 2020 S.D. 39, ¶ 26, 946 N.W.2d 1, 8 (quoting Zochert v. Protective Life Ins. Co., 2018 S.D. 84, ¶ 18, 921 N.W.2d 479, 486).
Whether the circuit court properly dismissed the election contest
[¶14.] An election contest is a "creature of statute." Warren v. Brown, 57 S.D. 528, 234 N.W. 38, 41 (1930). It is defined as "a legal proceeding, other than a recount, instituted to challenge the determination of any election under the provisions of this title, or any municipal, school, or township election." SDCL 12-22-1. This Court has explained that an election contest is a challenge of "the election process itself." In re Election Contest as to Watertown Special Referendum (Watertown Special Referendum II), 2001 S.D. 62, ¶ 7, 628 N.W.2d 336, 338 (citation omitted) (emphasis added). Therefore, a contestant must show voting irregularities and, further, that the irregularities were "so egregious that the will of the voters was suppressed." Id.
[¶15.] Here, Thom and Miller recognize that their election contest is not the typical challenge wherein a contestant asserts a violation of a statute governing the election process itself or a voting irregularity. Nevertheless, they contend that their challenge is proper because, in their view, if this Court determines that Amendment A violated Article XXIII, then the placement of Amendment A on the ballot was a voting irregularity. They further assert
[¶16.] Article XXIII, §§ 1 and 2 prescribe the means by which our Constitution may be amended or revised. While these constitutional provisions are mandatory, non-compliance with either provision does not mean that the process by which votes were cast was compromised or that a voting irregularity occurred. See, e.g., In re Petition for Writ of Certiorari as to Determination of Election on Brookings Sch. Dist.'s Decision to Raise Additional Gen. Fund Prop. Tax Revenues, 2002 S.D. 85, ¶ 14, 649 N.W.2d 581, 586 (observing that the root of the problem related to the validity of ballots not "the validity of the election process itself"). Other than alleging violations of Article XXIII, §§ 1 and 2, Thom and Miller have not identified any irregularity in the election process caused by a violation of an election law. See Watertown Special Referendum II, 2001 S.D. 62, ¶ 8, 628 N.W.2d at 338-39 (rejecting contestants' claim that long lines to vote constituted a voting irregularity when contestants presented no "proof of a violation of a state or local election law"). Therefore, the circuit court properly dismissed Thom and Miller's election contest.
Whether Thom and Miller have standing
[¶17.] Proponents contend the circuit court erred in finding that Thom has standing to sue the State in his official capacity because, in their view, the law is well settled that a county (and therefore a county official) cannot sue the State. They also contend that even if Thom could bring suit, he "did not plead or prove any legally-protected interest to or adversarial relationship in this lawsuit related to his official capacity." They similarly argue that Miller cannot sue the State in his official capacity because the Highway Patrol is a subordinate agency of the State and Miller has failed to identify that "the Highway Patrol will suffer a direct, material harm to a legally-protected right[.]"
[¶18.] Thom asserts that he "has standing to bring to the attention of the Court" the rules governing how constitutional amendments are to be submitted, "which the Proponents of Amendment A violated in submitting Amendment A to the voters." In his view, "standing is conferred upon him in his official capacity as Sheriff, due to his oath of office" and because of the statutory requirement "that he keep and preserve the peace in Pennington County." For his part, Miller alleges that he has standing in his official capacity "because Amendment A will have a direct and injurious effect on the Highway Patrol" by divesting authority from the Highway Patrol and transferring it to the Department of Revenue. He also claims that he has a substantial and real interest in this action because he took an oath to support the South Dakota Constitution.
[¶19.] This Court has not directly examined whether a public official has standing to challenge the constitutionality of a law. Generally, "to establish standing in a declaratory judgment action[,] the plaintiff must have `personally ... suffered some actual or threatened injury as the result of the putatively illegal conduct of the defendant.'" Abata v. Pennington Cnty. Bd. of Comm'rs, 2019 S.D. 39, ¶ 12, 931 N.W.2d 714, 719 (quoting Benson v. State, 2006 S.D. 8, ¶ 22, 710 N.W.2d 131, 141). "Whether a party has standing is a legal conclusion, which we review under the de novo standard." Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 S.D. 7, ¶ 38, 709 N.W.2d 824, 836.
[¶20.] In Edgemont School Dist. 23-1 v. South Dakota Department of Revenue, we
[¶21.] Here, neither Thom nor Miller have identified that they have suffered some actual or threatened injury as a result of Amendment A. While they both contend that Amendment A impacts their official duties, an official's performance of his or her duties "does not affect the personal or property rights of these officials." See State v. Steele Cnty. Bd. of Comm'rs, 181 Minn. 427, 232 N.W. 737, 738 (1930). Thom and Miller, in their official capacities, also "have no interest in defeating the purpose of the law" because "[t]hey can suffer no injury by carrying out [its] mandate" and "[n]o violation of duty can be imputed to them by reason of their compl[iance]." See id. Moreover, although Thom and Miller argue that their oaths to uphold the Constitution required them to file this challenge because they believe that Amendment A was submitted to the voters in violation of the Constitution, taking an oath to uphold the Constitution "does not require [the official] to obey the Constitution as he decides, but as judicially determined." See Charles Hewitt & Sons v. Keller, 223 Iowa 1372, 275 N.W. 94, 96 (1937).
[¶22.] As the Minnesota Supreme Court observed, "[t]o permit officials charged with such a duty to raise such a question may not only be a hazardous proceeding to themselves but productive of great inconvenience to the public." Steele Cnty. Bd. of Comm'rs, 232 N.W. at 738. For these reasons, we conclude that Thom and Miller do not have standing in their official capacities to bring this declaratory judgment action challenging Amendment A.
[¶23.] However, Miller alternatively contends that even if he lacks standing, dismissal of the declaratory judgment action would be improper because the Governor is the real party in interest and she ratified the commencement of this lawsuit through an executive order. Proponents respond that the Governor "cannot cloak Miller with standing." They also contend that the executive order is "a transparent effort to avoid the clear consequences" of Miller's failure to establish standing.
[¶24.] On January 8, 2021, the Governor filed Executive Order 2021-02 with the Secretary of State, noting that her "oath to support and defend the Constitution means ensuring that the Constitution is not violated...." She then asserted that the placement of "Amendment A on the ballot was not proper and violated the procedures set forth in the South Dakota Constitution" and that "upon [her] prior instruction, Colonel Rick Miller" commenced
[¶25.] It is well settled that "[e]very action shall be prosecuted in the name of the real party in interest." SDCL 15-6-17(a). However, SDCL 15-6-17(a) further provides that "[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest." We have explained that "[t]he purpose of the real party in interest provision is to assure that a defendant is required only to defend an action brought by a proper party plaintiff and that such an action must be defended only once." Ellingson v. Ammann, 2013 S.D. 32, ¶ 6, 830 N.W.2d 99, 101 (quoting Biegler v. Am. Fam. Mut'l Ins. Co., 2001 S.D. 13, ¶ 27, 621 N.W.2d 592, 600).
[¶26.] This Court has not previously examined the ratification language in SDCL 15-6-17(a). However, our rule is patterned after Federal Rule of Civil Procedure 17(a), and multiple federal courts have examined the requirements for ratification of an action by the real party in interest. See generally Nooney v. StubHub, Inc., 2015 S.D. 102, ¶ 8 n.1, 873 N.W.2d 497, 499 n.1 (explaining that it is appropriate to be guided by federal court decisions interpreting and applying similar federal rules of civil procedure). As one court observed, "[r]atification, though rare, is an entirely proper method of resolving controversies over real parties in interest." Clarkson Co. Ltd. v. Rockwell Int'l Corp., 441 F.Supp. 792, 797 (N.D. Cal. 1977). Ratification is designed to prevent forfeiture of an action when such forfeiture would be unjust. See, e.g., Sun Refining & Marketing Co. v. Goldstein Oil Co., 801 F.2d 343, 345 (8th Cir. 1986) (allowing ratification after judgment was entered to prevent injustice); see also Wieburg v. GTE Sw., Inc., 272 F.3d 302, 309 (5th Cir. 2001); Putzier v. Ace Hardware Corp., 50 F.Supp.3d 964, 984 (N.D. Ill. 2014).
[¶27.] In examining whether "[a] proper ratification under Rule 17(a)" exists, the Third Circuit Court of Appeals identified two elements, namely that the
[¶28.] Here, the Executive Order makes clear that the Governor intended to challenge Amendment A by her authority in Article IV, § 3 of the Constitution, that she authorized the suit filed by Miller, desired that it continue, and affirmed it in all respects. The Executive Order does not specifically state that the Governor agrees to be bound by the final determination in the case. However, the Order ratifies and affirms the action "[p]ursuant to SDCL 15-6-17(a)" "in all respects[,]" and this language indicates the Governor's intent to be bound by the result of this action. See Aquila, LLC v. City of Bangor, 640 F.Supp.2d 92, 101 (D. Maine 2009) (construing document to satisfy requirements of ratification although key words were not used).
[¶29.] Moreover, although Proponents resisted ratification below and again on appeal, they have not claimed that prejudice would result if ratification were permitted. See Aquila, LLC, 640 F. Supp. 2d at 102 (noting that no prejudice results when ratification "seems to inure to [the defendant's] benefit by avoiding sequential litigation on essentially the same claim"). They also fail to identify any defense they would be unable to assert due to ratification. See Motta, 499 F. Supp. at 1374 (noting that "an important function of the real party in interest rule is to enable the defendant to present all the defenses he has against the party entitled to pursue the claim").
[¶30.] Instead, Proponents argue that the "ratification argument misses the point." In their view, the Executive Order impermissibly delegated to Miller the Governor's constitutional power to bring suit. They further assert that "[i]f this is indeed a lawsuit brought by" the Governor, "she should have brought it" in the name of the State. Proponents' claim that the action was improperly captioned elevates form over substance. Regardless of the caption, the Governor's ratification of the action in her official capacity authorized the suit under the authority granted to the Governor under Article IV, § 3 of the Constitution. Further, Proponents' improper delegation argument fails because the Governor, as a real party in interest, has standing to commence or ratify the commencement of this action under SDCL 15-6-17(a). See Arnoldy v. Mahoney, 2010 S.D. 89, ¶ 19, 791 N.W.2d 645, 653 ("Standing is established [under SDCL 15-6-17(a)] through being a `real party in interest.'" (citation omitted)).
[¶31.] Ratification under SDCL 15-6-17(a) has "the same effect as if the action had been commenced in the name of the real party in interest." Thus, the Executive Order ratified Miller's prosecution of this suit as if the Governor had commenced it herself. "Formal joinder or substitution of the real party in interest will not be necessary when the real party ratifies the commencement of the action." See 6A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1555 (3d ed. 1990); see also Am. Legend Coop. v. Top Lot Farms, Inc., No. 4:18-CV-04064-KES, 2020 WL 4540598 at *4 (D. S.D. Aug. 6, 2020) (concluding that joinder or
[¶32.] While Thom and Miller lacked standing to commence this action, our conclusion that the Governor ratified the prosecution of the action and is bound by the outcome of this litigation cures any standing defect. Therefore, we affirm the circuit court's decision to deny Proponents' motion to dismiss the action due to a lack of standing. See Rawoof v. Texor Petroleum Co., Inc., 521 F.3d 750, 759 (7th Cir. 2008) (observing "that ratification is a legitimate way to cure an initial failure to prosecute an action in the name of the real party in interest under" the federal rule); Digizip.com, Inc. v. Verizon Servs. Corp., 139 F.Supp.3d 670, 677 (S.D.N.Y. 2015) (same); Martin v. China Manf. All., LLC, No. 11-CV-0711-MJR-PMF, 2013 WL 12051729 (S.D. Ill.) (same).
Whether the challenge to Amendment A could be brought after the election
[¶33.] Proponents contend that this declaratory judgment action is untimely because the Governor, as well as Thom and Miller, could have pursued a pre-election challenge to Amendment A. According to Proponents, Thom and Miller could have challenged the Secretary of State's decision to place Amendment A on the ballot under SDCL 2-1-17.1 or SDCL 2-1-18, or sought injunctive relief "preventing the Secretary of State from placing Amendment A on the ballot." They also contend that the Governor should have asked this Court to issue an advisory opinion on the constitutionality of Amendment A. Finally, Proponents argue that we should apply principles of waiver and laches to this post-election challenge.
[¶34.] The authorities cited by Proponents to support their claim of waiver and laches all involved challenges based upon procedural irregularities in the election process. Proponents have not cited any cases where the doctrines of waiver and laches have been applied to post-election challenges based upon the single subject or separate vote requirements of a state constitution. Further, Proponents' identification of other legal remedies that may have been available before the election does not mean these remedies were exclusive. "The existence of another adequate remedy does not preclude a judgment for declaratory relief[.]" See SDCL 15-6-57. Finally, we have previously considered post-election challenges where the defects were known and could have been addressed before the election. See Bienert v. Yankton Sch. Dist., 507 N.W.2d 88 (S.D. 1993); Barnhart v. Herseth, 88 S.D. 503, 222 N.W.2d 131 (1974). We therefore reject Proponents' claim that this action is untimely.
Whether Amendment A violates Article XXIII, § 1
[¶35.] Article XXIII, § 1 of the South Dakota Constitution allows constitutional amendments to be proposed to the voters by citizen initiative or by a majority vote of the Legislature. The power of the people to propose amendments by initiative, however, is not without limits. Article XXIII, § 1 provides in relevant part that "no proposed amendment may embrace more than one subject" and "[i]f more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately." (Emphasis added.)
[¶37.] This Court long ago emphasized the significance of the constitutional requirement ensuring voters are afforded an opportunity to vote separately on each separate subject contained in a proposed amendment. "[I]t is hardly necessary to point out that the provision of the constitution requiring that amendments shall be so presented to the electors that they may vote upon each separately is one of the utmost importance, and one of substantial merit." Herried, 10 S.D. 109, 72 N.W. at 97.
[¶38.] Applying the separate vote requirement contained in Article XXIII, § 1 at the time, the Herried Court found persuasive the analysis by the Wisconsin Supreme Court in State ex rel. Hudd v. Timme, 54 Wis. 318, 11 N.W. 785, 791 (1882). Herried, 10 S.D. 109, 72 N.W. at 97. The Wisconsin court determined that the same language in the Wisconsin constitution required
[¶39.] Applying the Wisconsin court's test to the challenged amendment in Herried, the Court observed that the title of the amendment "would seem to indicate that the legislature regarded it as embracing more than one amendment[.]" Id. It also observed that the provisions abolishing the trustees and changing the number and powers of the regents could have been adopted independently of each other. However, the Court noted that the critical inquiry is whether "as a matter of law, but one amendment is included[.]" Id.
[¶40.] The Court then identified that the purpose or object of the proposed amendment was "to place" state educational institutions "under the control of a single board." Id. In the Court's view, "[t]he membership of such board, its powers, and the abolition of the local boards, are but incidental to and necessarily connected with the object intended." Id. The Court therefore concluded that "only one amendment was submitted." Id. The Court also noted "the well-recognized rule" that when the constitutionality of an amendment is called into question, it will be sustained if "it does not plainly and palpably appear to be invalid." Id.
[¶41.] This Court applied Herried in Barnhart when considering whether an amendment proposed by a constitutional revision commission and approved by the Legislature for submission to the voters that made more than 20 changes to offices and departments in the executive branch was submitted to the voters in violation of Article XXIII, § 1. 88 S.D. at 510, 222 N.W.2d at 135. The Court detailed the legislative history surrounding the proposed amendment, noting that before the Legislature approved submission of the amendment to the voters, input had been "received from every department of government affected by this amendment; by any and all business and civic groups having an interest; and by all individuals who wished to appear and be heard." Id. at 508, 222 N.W.2d at 134. Then the Court in Barnhart identified that the purpose of the amendment "was to engender greater efficiency and responsibility in the executive branch of state government by gathering a multitude of independent boards and commissions under the control of the governor, and to eliminate unnecessary offices and burdensome restrictions on remaining offices." Id. at 510, 222 N.W.2d at 135. Ultimately, the Court concluded that the provisions of the proposed amendment are "incidental to and necessarily connected with the object intended."
[¶42.] Here, the circuit court did not apply the three-part test from Herried. Rather, it applied a "reasonably germane" standard adopted by this Court in Baker v. Atkinson, 2001 S.D. 49, ¶ 25, 625 N.W.2d 265, 273. Thom and Miller contend that this more deferential standard from Baker is inapplicable to the question whether an amendment to the constitution violates the single subject and separate vote requirements found in Article XXIII, § 1. Proponents, in contrast, contend the circuit court correctly determined that the reasonably germane test applies when a constitutional amendment is challenged under Article XXIII, § 1.
[¶43.] Baker did not involve a proposed constitutional amendment; rather, the issue concerned a referendum petition seeking to challenge certain Lawrence County ordinances and resolutions approving a change of zoning. See 2001 S.D. 49, ¶ 21, 625 N.W.2d at 272. More importantly, the Court in Baker interpreted a different single subject provision (S.D. Const. art. III, § 21) governing legislative enactments, which does not contain a separate vote requirement. The Court specifically observed that the single subject rule under Article III, § 21, concerning legislative enactments, is to "be construed liberally to uphold proper legislation, all parts which are reasonably germane."
[¶44.] The single subject and separate votes requirements of Article XXIII, § 1, in contrast, demand more than Article III, § 21. As the Court in Herried explained, the protections afforded by Article XXIII, § 1 are "more forceful when considered in connection with the action of electors upon proposed constitutional amendments than when considered in connection with the actions of legislators." 10 S.D. 109, 72 N.W. at 96. This is because "[i]n the legislature each member has an opportunity to offer amendments, and thus record his dissent to the objectionable features of any pending measure[,]" whereas the elector "must either ratify or reject the entire proposition as presented." Id.
[¶45.] Other courts have applied an approach similar to Herried when considering the single subject or separate vote requirements for constitutional amendments as compared to legislative actions. "The process [of amending the constitution] is appropriately more complex than simple lawmaking and, most important, requires participation by [ ] voters." Cambria v. Soaries, 169 N.J. 1, 776 A.2d 754, 764 (2001). "[B]ecause the separate-vote requirement is concerned only with a change to the fundamental law, the notion that the people should be able to vote separately upon each separate amendment
[¶46.] Applying Herried and Barnhart, here, we start by identifying the object or purpose of Amendment A. According to Proponents, the object or purpose of Amendment A is "the legalization and regulation of marijuana, including its recreational, medical, and agricultural uses." They argue that every part within Amendment A is reasonably germane to this purpose. Miller, in contrast, asserts that the purpose is to legalize the possession and ingestion of small amounts of "marijuana" as that term is defined in Amendment A, and that the Amendment embraces other unconnected subjects with different objects or purposes in view. The circuit court determined that "[t]he subject of Amendment A is: the legalization of marijuana" and that the hemp provision pertains to a distinct subject not connected to the legalization of marijuana.
[¶47.] Importantly, any statement of the object or purpose of Amendment A divorced from a review of the provisions contained therein and their connectedness to one another runs the risk of defining the object or purpose based on various policy objectives sought to be attained by the drafters of this Amendment. It also runs the risk of defining the object or purpose too narrowly or too broadly. Indeed, Article XXIII, § 1 is not violated simply because a proposed amendment includes multiple provisions. Rather, a violation occurs when the proposed amendment contains more than one subject, with different objects or purposes, that are not dependent upon or connected with each other.
[¶48.] Amendment A as submitted to the voters proposed the addition of at least nine different provisions to the Constitution. These included: (1) creating a constitutional right for individuals at least 21 years of age to possess and use certain quantities of marijuana; (2) regulating the planting, cultivating, harvesting, drying, processing, and manufacturing of marijuana for use by individuals at least 21 years of age; (3) creating civil penalties for individuals that violate the provisions in Amendment A; (4) making the South Dakota Department of Revenue responsible for the regulation and oversight of the production, sale, and possession of marijuana for individuals at least 21 years of age; (5) creating statewide regulation of the licensing of producers, manufacturers, and sellers of marijuana to individuals at least 21 years of age; (6) authorizing local regulation of the commercial sale and distribution of marijuana for individuals at least 21 years of age and regulation to allow individuals at least 21 years of age to cultivate marijuana at a private residence; (7) establishing the taxation of marijuana sold to individuals at least 21 years of age; (8) mandating the Legislature to enact legislation by April 1, 2022, to "[e]nsure access to marijuana beyond what is set forth in this article by persons who have been diagnosed by a health care provider, acting within the provider's scope of practice, as having a serious and debilitating medical condition and who are likely to receive therapeutic or palliative benefit from marijuana;" and (9) mandating the Legislature
[¶49.] While the provisions of Amendment A included proposals impacting various individuals, agencies, and levels of government, this does not resolve the question whether there is a violation of the single subject and separate vote requirements in Article XXIII, § 1. As we stated in Herried, an amendment including multiple proposals, that could have been presented separately does not violate the Constitution if "the separate propositions [are] necessary to accomplish a single purpose." 10 S.D. 109, 72 N.W. at 97 (quoting Timme, 11 N.W. at 791). This Court also warned against focusing on the different proposals in an amendment in isolation because such a view improperly "substitut[es] for the real object or purpose [of the amendment] one of its incidents." Id. Thus, if multiple proposals "may be logically viewed as parts or aspects of a single plan, then the constitutional requirement is met in their submission as one amendment." Barnhart, 88 S.D. at 512, 222 N.W.2d at 136 (citation omitted).
[¶50.] It is clear that Amendment A contains provisions embracing at least three separate subjects, each with distinct objects or purposes. Those three separate subjects are: (1) the development of a comprehensive plan for the legalization and regulation of marijuana for all individuals at least 21 years of age; (2) a mandate that the Legislature adopt laws ensuring a discrete group of qualifying persons, without regard to age, have access to medical marijuana; and (3) a mandate that the Legislature regulate the cultivation, processing, and sale of hemp.
[¶51.] The first 13 sections of Amendment A stand alone as a comprehensive plan for the legalization of, regulation of, and access to marijuana for all individuals at least 21 years of age. These provisions are dependent upon or connected with one another in order to accomplish this single purpose of legalizing marijuana for all individuals at least 21 years of age.
[¶52.] In contrast, the provision in § 14 relating to medical marijuana has the distinct object or purpose of ensuring access to marijuana solely for therapeutic and palliative health care for certain individuals. Amendment A mandates legislation to ensure access to marijuana for medical purposes "beyond what is set forth in" the Amendment. See § 14(a) (emphasis added). By this plain language the drafters of Amendment A acknowledged that the medical marijuana provision is unconnected to the provisions legalizing marijuana for all persons at least 21 years of age. Indeed, unlike the sections providing for legalization and regulation of and access to marijuana for all persons at least 21 years of age, § 14(a) only applies to a limited group of individuals, without age restriction: (1) who have been diagnosed by a health care provider; (2) with a serious and debilitating medical condition; and (3) are likely to receive therapeutic or palliative benefit from marijuana. Therefore, the limited object or purpose of legalizing marijuana solely for medical purposes is not dependent upon or connected to the broad legalization of recreational marijuana found in the first 13 sections of Amendment A and it is also not dependent upon or connected with the mandate related to hemp in § 14(b).
[¶53.] The constitutional mandate in § 14(b) requiring legislation to provide for "the cultivation, processing, and sale of hemp" has the distinct object or purpose of allowing industrial and agricultural use of a product that contains essentially no psychoactive properties. Hemp, by the definition in Amendment A, is restricted to "a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent on a dry weight basis." In contrast, there is no fixed maximum level of psychoactive properties for marijuana in Amendment A. Tellingly, Proponents claim the subject of Amendment A is the legalization of marijuana, including its agricultural use, but the definition of "marijuana" in Amendment A specifically excludes hemp.
[¶54.] Nevertheless, Proponents and the dissent argue that the legalization and regulation of recreational marijuana, medical marijuana, and hemp all relate to a single subject because of their shared biological origin from the cannabis plant and a common plan to comprehensively regulate all products produced by a cannabis plant. But Amendment A does not provide a comprehensive plan to regulate all products
[¶55.] In determining that Amendment A contains three separate subjects, we are mindful of the admonition against employing a type of review that substitutes one of the Amendment's incidents for the real object or purpose. See Herried, 10 S.D. 109, 72 N.W. at 97. Indeed, our focus here is not on whether each provision could have been separately submitted to the voters. As the Court in Timme explained, to require provisions that could stand alone to be submitted separately would "render it practically impossible to amend the constitution[.]" 11 N.W. at 790. However, amendments that "relate to more than one subject, and have at least two distinct and separate purposes, not dependent upon or connected with each other[,]" see Herried, 10 S.D. 109, 72 N.W. at 97, must be submitted so that each can be voted on separately.
[¶56.] This is in part because the single subject and separate vote requirements exist to prevent the "pernicious practice" of combining unrelated provisions in one amendment to ensure passage of a provision that might otherwise fail had the provisions been submitted separately. See Herried, 10 S.D. 109, 72 N.W. at 96. This prohibited practice is commonly referred to as "logrolling." The dissent recognizes
[¶57.] The voters may or may not have been fully informed about Amendment A's provisions. However, even if there was no voter confusion, that does not eliminate the need to address another harm created by logrolling—requiring the voters to decide on more than one separate and distinct proposition with a single vote. The Arizona Supreme Court used the following example to illustrate this type of logrolling:
Kerby v. Luhrs, 44 Ariz. 208,36 P.2d 549, 552 (1934). While this example relates to actions of legislators, the Arizona court aptly observed that if this type of logrolling is prohibited "in the Legislature, where they deal only with statutes," they are "much more" objectionable "when constitutional changes, far-reaching in their effect, are to be submitted to the voters."
[¶58.] We do not discount the "strong presumption of constitutionality after adoption by the people[.]" Barnhart, 88 S.D. at 512, 222 N.W.2d at 136. However, because Amendment A plainly embraces multiple subjects, not dependent upon or connected with each other, South Dakota voters were "compelled either to reject all three on account of one" they disapproved "or else to accept two provisions they disapprove to secure the adoption of one which meets their favor."
[¶59.] For instance, a voter wanting to ensure that the Legislature is constitutionally mandated to provide and maintain access to medical marijuana for the limited
[¶60.] It is also problematic that it appears from submissions in the record that the drafters of Amendment A folded the additional subjects of hemp and medical marijuana into this single amendment to aggregate votes and increase the chances for passage of the provisions legalizing and regulating recreational marijuana.
Whether the doctrine of separability applies
[¶61.] Proponents, however, ask that this Court refrain from invalidating Amendment A in its entirety and instead uphold the provisions of Amendment A that relate to the object or purpose of the Amendment and sever those provisions that pertain to unrelated matters. Proponents argue that the first 13 sections of the Amendment legalizing and regulating marijuana for all persons at least 21 years old can be easily separated from the medical marijuana and hemp provisions added at the end of Amendment A. They direct this Court to cases in which we have applied the doctrine of separability to legislative enactments deemed unconstitutional. See, e.g., Dakota Sys., Inc. v. Viken, 2005 S.D. 27, ¶ 20, 694 N.W.2d 23, 32. They also contend that Miller, as the party challenging
[¶62.] Although this Court has applied separability in the context of the single subject requirement for legislative actions in Article III, § 21, the language of Article XXIII, § 1 contains an additional requirement that "[i]f more than one amendment is submitted at the same election, each amendment shall be so prepared and distinguished that it can be voted upon separately." (Emphasis added.) By requiring proponents to present different subjects separately, so each proposal can be considered and voted on separately, Article XXIII, § 1 imparts an important level of protection to the voters. As this Court recognized, the voters face a dilemma with a "take it or leave it" amendment containing multiple different subjects because the voters, unlike legislators, have no opportunity for debate and negotiation when multiple subjects are embraced in one amendment. To create a remedy that would allow separability after an amendment, submitted in clear violation of Article XXIII, § 1, is voted on would provide no incentive for future proponents of an amendment to comply with this Constitutional mandate. More importantly, the voters will be without the protections Article XXIII, § 1 provides. As two commentators have explained, invalidating the amendment in its entirety "provides the strongest deterrent to combining separable proposals." Robert D. Cooter & Michael D. Gilbert, A Theory of Direct Democracy and the Single Subject Rule, 110 Colum. L. Rev. 687, 722 (2010).
[¶63.] Similarly, other courts have voided the entire amendment when there is a violation of the single subject or separate vote requirements based on the view that the constitutional violation taints the entirety of the initiated amendment. As the Montana Supreme Court explained, "a constitutional amendment submitted to the electorate in violation of the separate-vote requirement is void in its entirety" because "[v]oters had no way to express their opinions" on each proposed constitutional amendment. Mont. Ass'n of Cntys. v. State, 389 Mont. 183, 404 P.3d 733, 747 (2017). The Oregon Supreme Court similarly concluded that a failure to comply with the constitutional mandates for a constitutional amendment voids it in its entirety. Armatta, 959 P.2d at 68. We find the reasoning of these courts persuasive. Importantly, Proponents fail to cite any case that has not voided the entire amendment when submission of the amendment failed to comply with the single subject or separate vote requirements.
[¶64.] Because the submission of Amendment A to the voters was not prepared and distinguished such that the different subjects could be considered and voted on separately, "judicial surgery" cannot "cure" the violation of Article XXIII, § 1. See Cal. Trial Lawys. Ass'n v. Eu, 200 Cal.App.3d 351, 245 Cal.Rptr. 916, 922 (1988), overruled in part on other grounds in Lewis v. Superior Ct., 19 Cal.4th 1232, 82 Cal.Rptr.2d 85, 970 P.2d 872 (1999). This singular view is consistent with the plain text of Article XXIII, § 1, which not only includes a single subject requirement but also directs proponents of a constitutional amendment to prepare an amendment so that the different subjects can be voted on separately. This constitutional directive could not be expressed more clearly—each subject must be voted on separately—and simply severing certain
[¶65.] The circuit court properly dismissed Thom and Miller's election contest because they identified no irregularity in the election process. The circuit court also correctly concluded that a challenge to Amendment A was not required to be brought before the election. However, the circuit court erred in determining that Thom and Miller had standing to challenge Amendment A in their official capacities. Nevertheless, the Governor's ratification of Miller's declaratory judgment action cured the standing defect, and the action could proceed as if it had been commenced by the real party in interest. Finally, we conclude that the submission of Amendment A to the voters plainly and palpably violated Article XXIII, § 1, and therefore, we need not address the circuit court's additional ruling that Amendment A is a revision requiring a constitutional convention.
[¶67.] KERN and DEVANEY, Justices, concur.
[¶68.] SALTER, Justice, concurs specially.
[¶69.] MYREN, Justice, concurs in part and dissents in part.
SALTER, Justice (concurring specially).
[¶70.] I agree with the Court's conclusion that Amendment A violated the single-subject rule. I write separately to emphasize the substantive nature of the right Article XXIII, § 1 confers upon South Dakota voters and also to respectfully add my views concerning the effect of a single-subject violation.
[¶71.] Direct democracy provisions, such as the one in Article XXIII, § 1 "encumber[ ] political bargaining" because the multitude of "scattered citizens cannot effectively bargain with each other over public policies." Cooter & Gilbert, supra ¶ 62, at 689. A single-subject rule, however, "attempts to mitigate this problem" by eliminating the results of political bargaining— combining multiple measures to achieve majority support, or "logrolling," and joining relatively unpopular measures with more popular ones, also known as "riding." Id. at 689-90.
[¶72.] The contemporary version of Article XXIII, § 1 includes both an explicit single-subject rule and a one amendment/one vote requirement. By approving these amendments in 2018, South Dakota voters instituted an emphatic single-subject command, establishing for themselves the right to cast a ballot secure in the belief that their vote could only ever affect one aspect of public policy. The workable test described by the Court today demonstrates a justifiable commitment to the "single" part of the single-subject rule. Properly applied, the test should produce correct and consistent results that eliminate intractable situations in which voters must compromise their participation in direct democracy to cast an all-or-nothing ballot.
[¶74.] In several of our previous decisions, we have held that the Legislature's violation of a nearly identical constitutional single-subject rule for statutes contained in Article III, § 21 was not fatal. Applying the doctrine of separability, we have excised the unconstitutional provisions and upheld the remainder of the statute "if it appears that the legislature would have intended the remainder to take effect without the invalidated section." Simpson v. Tobin, 367 N.W.2d 757, 768 (S.D. 1985) (citation omitted); see also Application of Nelson, 83 S.D. 611, 619, 163 N.W.2d 533, 537 (1968) ("The doctrine of separability requires the court to uphold any phase of the measure if the legislature would have enacted that much without the part the constitution rejects." (citing State ex rel. Mills v. Wilder, 73 S.D. 330, 42 N.W.2d 891 (1950))); South Dakota Ass'n of Tobacco and Candy Distribs. v. Dep't of Revenue, 280 N.W.2d 662, 666 (S.D. 1979) (holding a violation of the single-subject rule did not render an entire statute void); South Dakota Educ. Ass'n/NEA v. Barnett, 1998 S.D. 84, ¶¶ 30-38, 582 N.W.2d 386, 394-95 (same).
[¶75.] Here, the Proponents seek a form of separability, but not the one prescribed by our cases. Instead, the Proponents source their argument to § 15 of Amendment A, which purports to be a severance provision stating that the unconstitutionality of any section of Amendment A "shall not affect other provisions or applications of the article that can be given effect without the invalid or unconstitutional provision or application[.]" But this provision cannot serve as the basis for our separability analysis because it overlooks the requirement to show that the violation was inconsequential to the outcome of the election.
[¶76.] On this latter point, the Proponents have not argued that a violation of the single-subject rule was harmless or that Amendment A would have passed even without its extraneous inclusion of medical marijuana and hemp. I would, therefore, leave for another day the question of whether a violation of Article XXIII, § 1's single-subject rule renders a constitutional amendment void in all cases. I otherwise join the Court's opinion.
MYREN, Justice (concurring in part and dissenting in part).
[¶77.] The initiative and referendum provisions of South Dakota Constitution Article III, § 1 "give the right of direct democracy to the public." Patrick M. Garry, The South Dakota State Constitution 56 (G. Alan Tarr, Series Editor, Oxford Univ. Press, 2014). This bold experiment in citizen-led direct democracy began before statehood. Brendtro v. Nelson, 2006 S.D. 71, ¶ 24, 720 N.W.2d 670, 678.
Id. (citations omitted).
[¶78.] In 1897, a majority of the Populists in both houses of the Legislature "proposed amending article III, § 1 of the constitution to provide for the initiative and referendum." Id. ¶ 25, 720 N.W.2d at 678.
Id. ¶¶ 25-26, 720 N.W.2d at 678 (citations omitted).
Id. ¶ 27, 720 N.W.2d at 679.
[¶79.] In 1972, the people overwhelmingly passed an amendment to South Dakota Constitution Article XXIII, § 1 which provided, in part, "Amendments to this Constitution may be proposed by initiative or by a majority vote of all members of each house of the legislature." S.D. Const. art. XXIII, § 1, Historical Notes. The vote was 173,541 for and 84,939 against. Id. At the November 3, 2020 general election, South Dakota voters approved Initiated Constitutional Amendment A entitled, "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."
[¶80.] When examining a constitutional amendment, this Court heeds two basic principles articulated in Barnhart, 88 S.D. at 512, 222 N.W.2d at 136. First, "[w]hen considering a constitutional amendment after its [a]doption by the people, the question is not whether it is possible to [c]ondemn the amendment, but whether it is possible to [u]ph[o]ld it." Id. (emphasis added). Second, an amendment "should be sustained unless it `plainly and palpably appear(s) to be invalid.'" Id. (emphasis added) (quoting Herried, 10 S.D. at 121, 72 N.W. at 97). In applying these basic principles, I believe that the propositions in Constitutional Amendment A are "incidental to and necessarily connected with" the object of providing a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances. Herried, 10 S.D. at 121, 72 N.W. at 97; Barnhart, 88 S.D. at 511, 222 N.W.2d at 135. They are "necessary to accomplish [its] single purpose." Herried, 10 S.D. at 120, 72 N.W. at 97 (quoting Timme, 11 N.W. at 791). Therefore, I dissent from the majority's decision that Amendment A violates South Dakota Constitution Article XXIII, § 1 and is void in its entirety.
[¶82.] Applying the same analysis here requires due regard for the need to protect voters from the dangers of logrolling. This Court has assessed claims of logrolling by analyzing whether there was a combining of "meritorious" and "vicious legislation" and by evaluating whether the amendment, as proposed, presented a risk of "surprise and imposition" to the persons affected by the Law. Herried, 10 S.D. at 119, 72 N.W. at 96; Jensen, 65 S.D. at 349-50, 274 N.W. at 322. From the outset, the petition circulated to initiate Amendment A was entitled by the Attorney General: "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."
[¶83.] The entire petition process was designed to educate voters. See Recommendations of the Constitutional Revision Commission, Vol. 1, (Dec. 15, 1971) [hereinafter Commission Recommendations] 69 (noting the petition process is partly intended to help ensure "an adequate opportunity [for the people] to inform themselves about the proposed amendment"). The Attorney General's explanation contributed to that education effort. SDCL 12-13-25.1 (requiring the Attorney General's explanation to "educate the voters of the purpose and effect of the proposed ... initiated amendment to the Constitution"). As required by law, the Secretary of State distributed public information about the Amendment, including statements in support and opposition by the respective proponents and opponents, along with the Attorney General's title, explanation, and recitation of the effect of a yes or no vote. SDCL 12-13-23; Steve Barnett, South Dakota 2020 Ballot Questions, https://sdsos.gov/elections-voting/election-resources/election-history/2020_Election_History.aspx.
[¶84.] This Court is to presume the existence of an informed electorate. Barnhart, 88 S.D. at 515, 222 N.W.2d at 137. Moreover, notice can be taken of "the circumstances and publicity surrounding the circulation and signing of the petition...." Baker, 2001 S.D. 49, ¶ 27, 625 N.W.2d at 274.
[¶85.] Additionally, anti-logrolling measures such as a separate vote requirement are not intended to "prohibit a single constitutional amendment from being complex or multi-faceted, or from containing a variety of specific prescriptions and proscriptions." McConkey v. Van Hollen, 326 Wis.2d 1, 783 N.W.2d 855, 862 (2010). Miller asserts that there were 22 to 32 separate subjects in Amendment A. Taken to its logical conclusion, Miller's theory would have required the same number of separate votes in the 2020 election to accomplish the objectives of Amendment A. Commenting on Timme, 11 N.W. 785, the McConkey court observed: "We rejected as absurd the contention that each distinct proposition must be submitted separately. Such an approach would make amending the constitution unduly difficult, especially for complex issues or when an overall change might be impossible to effectuate if the voters could choose to adopt certain parts of the proposed amendment and not others." 783 N.W.2d at 862. This concern is particularly well-taken in this case.
[¶87.] Amendment A contains propositions legalizing recreational marijuana, mandating the Legislature's passage of laws ensuring access to medical marijuana, and regulating the cultivation, processing, and sale of hemp. The Amendment's title provides: "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." The Attorney General's explanation provides in relevant part that the Amendment: "legalizes the possession, use, transport, and distribution of marijuana" by certain individuals; "requires the Legislature to pass laws regarding medical use of marijuana;" and "requires the Legislature to pass laws regulating the cultivation, processing, and sale of hemp."
[¶88.] Reviewing the contents of Amendment A along with its title and the Attorney General's explanation, it is plain that the Amendment was intended to provide a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances. See Herried, 10 S.D. at 121, 72 N.W. at 97 (looking beyond the joint resolution proposing the amendment to identify its subject); Barnhart, 88 S.D. at 510, 222 N.W.2d at 135 (looking beyond the joint resolution and Attorney General's explanatory statement in identifying the purpose of the amendment).
[¶89.] Comprehensive plans are not prohibited in a single constitutional amendment if they are related to a single purpose. Herried, 10 S.D. at 120, 72 N.W. at 97 (it is not required "to submit, as separate amendments, the separate propositions necessary to accomplish a single purpose" (quoting Timme, 11 N.W. at 791)); Barnhart, 88 S.D. at 511, 222 N.W.2d at 136 (propositions may be submitted in a single proposal if "related to a single purpose, plan, or subject" (quoting Fugina v. Donovan, 259 Minn. 35, 104 N.W.2d 911, 914 (1960))). Propositions that "may be logically viewed as parts or aspects of a single plan" may be submitted as one amendment. Barnhart, 88 S.D. at 512, 222 N.W.2d at 136 (quoting Keenan v. Price, 68 Idaho 423, 195 P.2d 662, 678 (1948)). See also McConkey, 783 N.W.2d at 862 (rejecting requirements making amendment of the constitution "unduly difficult" for complex issues or overall changes).
[¶90.] The final step in the more than one subject analysis is to determine whether the propositions in Amendment A are "incidental to and necessarily connected with" its object or purpose. Herried, 10
[¶91.] Amendment A sets forth:
[¶92.] All of these propositions relate to marijuana or hemp and are "incidental to and necessarily connected with the object" or purpose of providing a comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances. See Herried, 10 S.D. at 121, 72 N.W. at 97; Barnhart, 88 S.D. at 511, 222 N.W.2d at 135. That any one of these propositions might have been submitted separately is not controlling because they are all "necessary to accomplish [the amendment's] single purpose." Herried, 10 S.D. at 120, 72 N.W. at 97 (quoting Timme, 11 N.W. at 791). Therefore, I would conclude that Amendment A contains a single subject and does not violate Article XXIII, § 1 of the South Dakota Constitution.
[¶93.] The majority notes that a review of the Amendment's propositions and their connectedness to one another that is divorced from a consideration of the object and purpose of the Amendment runs "the risk of defining the object or purpose ...
[¶94.] The majority offers a series of rationales for its approach. It sifts through the propositions in Amendment A on recreational marijuana, medical marijuana, and hemp, identifies only their separate objects or purposes, and concludes that the Amendment contains three separate subjects. In short, it looks for what separates the propositions in the Amendment instead of what connects them—the comprehensive plan for all phases of legalization, regulation, use, production, and sale of marijuana and related substances. A similar approach in Barnhart would have likewise concluded that the amendment in that case contained separate subjects. The amendment made more than 20 changes in the executive branch of state government, ranging from gubernatorial terms of office to the governor's power to correct errors in legislative bills. Barnhart, 88 S.D. at 510, 222 N.W.2d at 135. Beyond the fact that all of the propositions in the amendment involved the executive branch of state government, many of them had no other connected object or purpose. Yet, this Court upheld them all as related to the amendment's general purpose "to engender greater efficiency and responsibility in the executive branch of state government by gathering a multitude of independent boards and commissions under the control of the governor, and to eliminate unnecessary offices and burdensome restrictions on remaining offices." Id. Amendment A's comprehensive plan is entitled to equal deference.
[¶95.] The majority rejects any connected object or purpose between recreational marijuana, medical marijuana, and hemp based upon "their shared biological origin from the cannabis plant and a common plan to comprehensively regulate all products produced by" that plant. It dismisses any such connection as insufficient for purposes of Herried and Barnhart. But this dismissal ignores the history of dual regulation of marijuana and hemp dating back at least as far as the Marihuana
[¶96.] Based upon this history of dual regulation, it is logical that Proponents seeking legalization and regulation of marijuana also sought to make some provision for legalization and regulation of hemp at a time when hemp was not yet legal in South Dakota. In my view, this connected object or purpose is sufficient for purposes of Herried and Barnhart.
[¶97.] The majority concludes Amendment A represents precisely the type of logrolling Article XXIII, § 1 forbids. Yet, the majority makes no assertion that voters were misinformed about or confused by the Amendment. Despite that, the majority perceives the Amendment as forcing a choice on voters, compelling them to reject all three of its propositions because of one they disapprove of, or to accept two propositions they disapprove of to secure one they favor—medical marijuana. However, voters who favored only medical marijuana had that choice available in the 2020 election in IM 26, which also passed. The majority attempts to distill some meaning from the higher passage rate for IM 26, asserting it shows medical marijuana on its own is more popular than when combined with other propositions. But the significant point is that both amendments passed, one handily and one comfortably. Both, therefore, not just one, are entitled to the "strong presumption of constitutionality after adoption by the people...." Barnhart, 88 S.D. at 512, 222 N.W.2d at 136. In my view, the majority is mistaken in attempting to ascribe more meaning to the election results than that.
[¶98.] Citing Proponents' original statement of purpose for Amendment A as submitted for review by the Legislative Research Council, the majority concludes § 14 on medical marijuana and hemp was seemingly a tack on, resulting in logrolling. But the Proponents' statement of purpose referred to commercial production, businesses involved, cultivation, and products containing marijuana. More significantly, the Amendment as submitted defined both hemp and marijuana at the outset, distinguished between them, and included § 14 on medical marijuana and hemp. The section was not simply tacked on. The majority speculates about Proponents' motivations without evidentiary support or a record thereon. This again departs from the "strong presumption of constitutionality" we are to accord to Amendment A. Barnhart, 88 S.D. at 512, 222 N.W.2d at 136.
[¶99.] Heeding "the strong presumption of constitutionality after adoption by the people" and that an amendment "should be sustained unless it `plainly and palpably appear(s) to be invalid,'"
[¶100.] Such a holding by the Court would also require reviewing the circuit court's determination that Amendment A is unconstitutional because it is a constitutional revision that should have been submitted to the voters through a constitutional convention rather than by an initiative. The appropriate beginning for considering this question is Article XXIII, § 2 on constitutional conventions and revision, which originally provided:
S.D. Const. art. XXIII, § 2 (1889) (emphasis added).
[¶101.] During the first year of the Constitutional Revision Commission's (the Commission) work in 1970, one of its members prepared a report on the history of amendments and revisions of the constitution after statehood. W.O. Farber,
[¶102.] All of the governors' efforts to initiate conventions or commissions were unsuccessful until 1969. Id. at 11. The people also rejected legislative proposals to call a convention in both 1914 and 1924. Commission Recommendations at 6. Thus, this Court noted in Barnhart that "[f]or many years constitutional revision has been a recognized necessity for the State of South Dakota." 88 S.D. at 504, 222 N.W.2d at 132. The "1969 Legislative Session created [the Commission], whose stated purpose [was] to `enter into a comprehensive study of the Constitution of the State of South Dakota to determine ways and means to improve and simplify the Constitution.'" Commission Recommendations at 7.
[¶103.] Following a series of meetings and public hearings, and based upon its "in-depth" research into all of the articles of the constitution, the Commission determined that "many of [its] articles needed substantial revision and reorganization." Id. at 9. It submitted its recommendations, including proposed amendments and comments, to the Legislature. Id. The proposals included amendments to Article XXIII to permit the voters to initiate "[t]he calling of a constitutional convention" and to "specify how amendments and revisions proposed by a constitutional convention [should be] submitted to the voters." Id. at 70-71; 1972 S.D. Sess. Laws ch. 4, §§ 2-3. The voters approved the amendments to Article XXIII in 1972, and sections two and three were amended to read:
S.D. Const. art. XXIII, §§ 2-3 (emphasis added).
[¶104.] For all of its efforts, the Commission failed to offer a specific definition of "revision" in Article XXIII, §§ 2-3. Yet, the Commission's history makes clear that it viewed "revision" as something far-reaching, complete, comprehensive, and substantial. See Davis v. State, 2011 S.D. 51, ¶ 77, 804 N.W.2d 618, 644 (Gilbertson, C.J., concurring in result) ("the intent of the drafting bodies and the historical context of [a] provision" are appropriate secondary sources for constitutional construction).
[¶105.] In Bess v. Ulmer, 985 P.2d 979, 982 (Alaska 1999), the Alaska Supreme Court noted that its founders similarly did not define "revision." Therefore, it was difficult to determine whether a ballot proposition was an amendment or revision. To define revision, the court found it "helpful to look to the law of California, a state which has considered the issue carefully over a period of nearly one hundred years." Id. at 984. Among the California authorities cited was Amador, 149 Cal.Rptr. 239, 583 P.2d 1281, a case this Court relied upon in Baker, 2001 S.D. 49, ¶ 24, 625 N.W.2d at 273. See Bess, 985 P.2d at 985.
[¶106.] In Amador, the California Supreme Court considered whether Proposition 13, an initiated constitutional amendment adopted by the voters to limit taxes, was a revision that could only be accomplished by a constitutional convention. 149 Cal.Rptr. 239, 583 P.2d at 1283-84. The court identified a quantitative and qualitative analysis for determining the revision or amendment issue. The quantitative analysis focused on the enactment's "deletion or alteration of numerous existing provisions" and whether they were "so extensive... as to change directly the `substantial entirety' of the Constitution...." Id., 149 Cal.Rptr. 239, 583 P.2d at 1286 (emphasis added). The qualitative prong focused on whether a "relatively simple enactment [might] accomplish such far reaching changes in the nature of [the] basic governmental plan as to amount to a revision...." Id. (emphasis added). The court cited as an example an enactment purporting "to vest all judicial power in the Legislature...." Id.
[¶107.] Applying its quantitative/qualitative analysis, the Amador court found the amendment had no quantitative effect upon existing constitutional provisions despite impacting many of the 33 sections of an article on taxation and assessment procedures. Id. In terms of qualitative analysis, the court determined:
Id., 149 Cal.Rptr. 239, 583 P.2d at 1288.
[¶108.] The Amador court concluded:
Id., 149 Cal.Rptr. 239, 583 P.2d at 1289.
[¶109.] The Amador court's quantitative/qualitative analysis comports with the Commission's view of constitutional revision in South Dakota as something far-reaching, complete, comprehensive, and substantial. Thus, Amador provides an appropriate framework for resolving whether Amendment A is a revision.
[¶110.] Here, it is claimed Amendment A, § 6's grant of "exclusive power" to the Department of Revenue infringes on the Legislature's policy prerogatives and ability to delegate authority to other agencies and that this is a far-reaching change to South Dakota's governmental plan constituting a revision. Amendment A, § 6 grants "exclusive power" to the Department to "license and regulate" six areas related to marijuana and to "administer and enforce" the article. The six regulated areas are: "cultivation, manufacture, testing, transport, delivery, and sale...." Amendment A, § 6. The four subdivisions of the section address licensing in these regulated areas. Id.
[¶111.] Amendment A defines the Department as "the Department of Revenue or its successor agency" and preserves the Governor's authority to reorganize departments. Amendment A, § 1(1) (emphasis added); S.D. Const. art. IV, § 8; SDCL 1-32-2(11). Despite the use of the word "exclusive" in Amendment A, § 6, the Department remains a department in the executive branch led by a secretary appointed by the Governor with the consent of the Senate. SDCL 1-32-2(11); SDCL 1-47-1.1 to -2; SDCL 10-1-1. The secretary and the Department provide reports to the Governor and the Legislature. SDCL 10-1-3, -35 to -36. The Governor has budgetary authority over the Department "through the Bureau of Finance and Management...." SDCL 4-7-3. The Governor and Bureau submit budget reports to the Legislature. SDCL 4-7-9.
[¶112.] The Legislature approves the budget by virtue of its appropriation power. S.D. Const. art. XII, § 1, § 2. Amendment A requires the Department to promulgate rules to implement and enforce the article in a timely manner. Amendment A, § 7. Section 12 of Amendment A requires the Department to adopt its rules in compliance "with chapter 1-26 of the South Dakota Codified Laws." Under SDCL chapter 1-26, a legislative committee conducts hearings, reviews rules, and essentially must approve them or "revert" them for further rule-making. SDCL 1-26-1.1 to -1.2, -4.1 to -4.4, -4.7, -4.9. The Legislature has the authority to constitutionally empower the committee to suspend promulgated administrative rules from going into effect for a fixed time. S.D. Const. art. III, § 30. The legislative committee can do so whenever it questions a rule's necessity, constitutionality, authorization, or violation of legislative intent. SDCL 1-26-38.
[¶113.] Section 12 of Amendment A directs that "[a]ny person aggrieved by a decision of the department is entitled to appeal the decision in accordance with chapter 1-26...." This is in addition to SDCL 10-1-41, which grants a right of appeal to aggrieved persons from the Department's decisions pursuant to SDCL chapter 1-26. SDCL 1-26-30.2 makes the Department's decisions appealable to circuit court. Lastly, under SDCL 1-26-37, there is a right of appeal to this Court from the final judgments of the circuit court in administrative cases.
[¶115.] The six limited areas of exclusive power granted to the Department by Amendment A do not have a "quantitative effect" upon existing constitutional provisions. Compare Amador, 149 Cal.Rptr. 239, 583 P.2d at 1286 (declining to find a quantitative effect in an amendment affecting many of the 33 separate sections of an existing constitutional provision on taxation and assessment procedure), with McFadden, 196 P.2d at 796 (holding a proposed initiative measure repealing or substantially altering at least 15 of 25 articles in the existing constitution to be an attempted revision). Qualitatively, based upon the Governor's and Legislature's continued oversight of the Department and the opportunity for judicial review of the Department's decisions, Amendment A "does not change our basic governmental plan." Amador, 149 Cal.Rptr. 239, 583 P.2d at 1288. See also McFadden, 196 P.2d at 796 (holding a measure to be an attempted revision where "the functions of both the legislative and the judicial branches of ... state government would [have been] substantially curtailed").
[¶116.] It is further claimed that Amendment A, § 5 removes the ability of the Legislature to enact civil penalties for non-criminal marijuana violations and that this changes South Dakota's basic governmental plan. Amendment A, § 5 provides five civil penalties for non-criminal cultivation infractions, smoking offenses, underage possession, and use and distribution violations. The maximum penalty is two hundred fifty dollars. Amendment A, § 5. Quantitatively, five civil penalties with a maximum of two hundred fifty dollars do not amount to "deletion or alteration of numerous existing provisions" nor are they "so extensive ... as to change directly the `substantial entirety' of the Constitution...." Amador, 149 Cal.Rptr. 239, 583 P.2d at 1286. In terms of qualitative effect, the civil penalties are a limited incursion on the Legislature's ability to enact such penalties, but are not "far reaching changes...." Id. They do not approach the Amador example of a qualitative change; i.e., an enactment purporting "to vest all judicial power in the Legislature...." Id. To the contrary, they are modest "in concept and effect and [do] not change our basic governmental plan." Id., 149 Cal.Rptr. 239, 583 P.2d at 1288.
[¶117.] Next, it is claimed that Amendment A establishes a new cause of action against the Department for failing to promulgate rules in a timely manner and violating the Legislature's power under S.D. Const. art. III, § 27 to "direct by law in what manner and in what courts suits may be brought against the state." Amendment A, § 12 sets forth a time limit for the Department to exercise its rule-making responsibilities under the amendment and makes a mandamus action available as a remedy if the Department fails to do so or adopts rules inconsistent with Amendment A.
[¶118.] Rule-making must comply with SDCL chapter 1-26, which essentially requires approval of the rules by a legislative committee. Amendment A, § 12; SDCL 1-26-4.7, -4.9. Mandamus is not a new cause of action; it was available at common law and has been broadened by statute. Smith
[¶119.] Lastly, it is claimed that Amendment A's overall abdication or delegation of legislative authority and reallocation of authority among branches of government makes far-reaching changes to South Dakota's government plan constituting a revision. Miller complains that these changes are "comprehensive" and "enshrined into the Constitution" and that the constitution is not the place for them.
[¶120.] "The Constitution is the mother law ... not the baby." Davis, 2011 S.D. 51, ¶ 76, 804 N.W.2d at 643 (Gilbertson, C.J., concurring in result) (quoting Poppen v. Walker, 520 N.W.2d 238, 242 (S.D. 1994)). "[U]nder our system of government the powers of government are derived from the people." Brendtro, 2006 S.D. 71, ¶ 22, 720 N.W.2d at 678. Although the constitution originally granted legislative power to the Legislature without reservation, the amendment approving the initiative was approved in 1898 in which "the people expressly reserved to themselves `the right to propose measures'...." Id. ¶¶ 23, 26, 720 N.W.2d at 678-79. In 1972, this right was extended to constitutional amendments. S.D. Const. art. XXIII, § 1, Historical Notes. "The Legislature's power is only concurrent with the power of the people to initiate a law on any subject." Brendtro, 2006 S.D. 71, ¶ 29, 720 N.W.2d at 680 (quoting State v. Pyle, 55 S.D. 269, 272, 226 N.W. 280, 281 (1929)).
[¶121.] "The purpose of the initiative is not to curtail or limit legislative power to enact laws, but rather to compel enactment of measures desired by the people, and to empower the people, in the event the legislature fails to act, to enact such measures themselves." Id. (quoting Byre, 362 N.W.2d at 79).
[¶122.] Considering the Commission's expansive view of constitutional revision as evaluated according to Amador's quantitative and qualitative analysis, Amendment A's limited reallocation of power from the Governor and the Legislature to the Department by initiative is not a far-reaching change "in the nature of [the] basic governmental plan." Amador, 149 Cal.Rptr. 239, 583 P.2d at 1286. Instead, it is part of it. Therefore, I would hold that it is not a revision required to be submitted by a constitutional convention. Id.
INITIATED CONSTITUTIONAL AMENDMENT A
That the Constitution of the State of South Dakota be amended to a new Article to read as follows:
ATTORNEY GENERAL'S STATEMENT
This constitutional amendment legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older. Individuals may possess or distribute one ounce or less of marijuana. Marijuana plants and marijuana produced from those plants may also be possessed under certain conditions.
The amendment authorizes the State Department of Revenue ("Department") to issue marijuana-related licenses for commercial cultivators and manufacturers, testing facilities, wholesalers, and retailers. Local government may regulate or ban the establishment of licensees within their jurisdictions.
The Department must enact rules to implement and enforce this amendment. The amendment requires the Legislature to pass laws regarding medical use of marijuana. The amendment does not legalize hemp; it requires the Legislature to pass laws regulating the cultivation, processing, and sale of hemp.
The amendment imposes a 15% tax on marijuana sales. The tax revenue will be used for the Department's costs incurred in implementing this amendment, with remaining revenue equally divided between the support of public schools and the State general fund.
Judicial clarification of the amendment may be necessary. The amendment legalizes some substances that are considered felony controlled substances under current State law. Marijuana remains illegal under Federal law.
Commission Recommendations, at 69 (emphasis added).