Attorneys

Sheriff, freeway patrol superintendent cannot sue the state, say attorneys previous to South Dakota’s marijuana showdown | Grand Forks Herald

Pennington County Sheriff Kevin Thom and Highway Patrol Superintendent Col. Kevin Miller sued in Hughes County Court two weeks after last November’s election, when over 54% of voters approved legalizing marijuana in the state constitution, arguing the measure failed “to adhere to the requirements” for constitutional amendments initiated by the public, including conforming to a single-subject ruled.

Ultimately, this rationale found favor with Judge Christina Klinger, who struck down Amendment A after a hearing in January in Pierre, lamenting the “far-reaching effects on the basic nature of South Dakota’s governmental system.”

But in a filing dated April 5, attorneys Brendan Johnson and Timothy Billion, representing a group of proponents, including South Dakotans for Better Marijuana Laws, argue “[Sheriff] Thom cannot bring this lawsuit in his official capacity because county officials cannot sue the state.”

“His job is to uphold the law,” continues the brief, “however the people or the legislature may enact it.”

Regarding the highway patrolman’s role in this lawsuit, attorneys for Better Marijuana tell the five-member state supreme court, who will hear oral arguments on Amendment A on Wednesday, argue that Miller is an improper stand-in for Gov. Kristi Noem, who opposed Amendment A and issued an executive order conferring her blessing on the lawsuit this January.

“Miller is an employee of a department of the executive branch of the state,” wrote the attorneys in another brief filed in March, arguing a “subordinate” to the governor can’t sue the state.

Attorneys representing Thom and Miller both shrug off those arguments, saying their clients are intervening in a matter, namely legal marijuana use, that could overturn their jobs’ ability to “keep the peace.”

“If marijuana use is legalized, highway safety is affected due to an office in intoxicated or drugged driving,” wrote Belle Fourche-based attorney Bob Morris, who is representing Sheriff Thom.

Attorneys Matthew S. McCaulley and Lisa Prostrollo, representing Miller, also referred to arguments that “the state has no business protecting” the state’s constitution “spurious.”

At the center of the debate is a 1999 case involving the school district in Edgemont, South Dakota, which sued the Department of Revenue over a state law assessing railroad property taxes. In the matter, the justices ruled that a plaintiff must be the “real party in interest” to sue and all-but booted “creations of the legislature” from suing the state.

Morris, however, argued the sheriff in Rapid City is not a “creation of the legislature,” noting Pennington County first hired a sheriff in 1877 — preceding statehood by 12 years.

“As such, there exists nothing to prevent him, in his official capacity, from challenging a constitutional amendment,” writes Morris.

Attorneys for Miller argue that the standard developed in the Edgemont case is not applicable in the Amendment A fight, as the highway patrol is “not a school district or political subdivision of the State.”

Regarding Noem’s executive order, they’re bullish, comparing the proponents’ charge that others can’t act on the governor’s behalf to saying that the “Governor must also personally arrest and extradite a fugitive.”

Oral arguments in the case will be heard on Wednesday at 10 a.m.

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