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Pot advocates cry foul on Noem using state funds for lawsuit

March 5, 2021 GMT

PIERRE, S.D. (AP) — Advocates for a voter-passed measure to legalize marijuana in South Dakota are crying foul about a taxpayer-funded lawsuit from Gov. Kristi Noem opposing it as the battle over the issue enters its final round at the state Supreme Court.

At one point during the legal proceedings, taxpayers were paying for lawyers on opposing sides of the court room. The attorney general’s office was defending the constitutional amendment against lawyers for Highway Patrol Superintendent Col. Rick Miller, who was effectively acting on behalf of the Republican governor.

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The attorney general’s office has since withdrawn from the case, leaving marijuana advocates to appeal to the Supreme Court in an effort to reverse a circuit court judge’s ruling. Last month, Circuit Judge Christina Klinger found the constitutional amendment — known as Amendment A — would have violated the state constitution.

South Dakotans for Better Marijuana Laws, the group behind voter-approved ballot campaigns to legalize both medical marijuana and recreational marijuana, has launched a fundraising effort that includes a live-streamed concert they are calling “Freedom We’re On It” — poking at two idioms the Republican governor is famous for using. The group says it needs the money for its Supreme Court case.

“Advocates are working very hard to raise the funds needed to defend Amendment A in court. Unlike our opponent, Gov. Noem, we are not permitted to use taxpayer funds to pay our legal bills,” said Matthew Schweich, a director of South Dakotans for Better Marijuana Laws. “We are at a disadvantage, but it is a disadvantage we have to deal with.”

Ian Fury, the governor’s spokesman, said the fees for the lawsuit have not been billed, but they will be paid from a fund the state maintains for extraordinary legal costs. The Legislature allotted $400,000 to that fund this year.

In the lawsuit, Noem’s administration has been represented by lawyers from the Redstone Law Firm, which holds contracts with governor’s office both for lobbying the Legislature and legal representation.

The firm currently bills the governor’s office for legal services at a rate of $190 an hour for partners and $170 an hour for associates, according to a contract with the firm. But Fury said the firm would bill for the lawsuit under a separate agreement. Two partners and one associate from the firm have been listed on court filings.

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Pennington County Sheriff Kevin Thom, who filed the lawsuit alongside Miller, has made it clear that taxpayer funds are not being used to fund his lawsuit but has declined to discuss how he is funding it.

Schweich, who also works for a national organization called the Marijuana Policy Project, said the attorney general’s decision to withdraw from the appeal has placed a greater burden on marijuana advocates. He said a total figure for the legal costs has not been settled, but is expected to run into the hundreds of thousands of dollars.

“We remain confident that the South Dakota Supreme Court will make the right decision and uphold Amendment A,” he said.

Noem has remained adamant in her opposition to legalizing recreational pot, even if 54% of voters supported it in November.

“I still believe that it is a bad idea for our state,” she said last month, indicating she would likely veto any efforts from the Legislature to legalize it.

The circuit court judge didn’t strike down the voter-passed constitutional amendment because it legalized marijuana, but rather because of technicalities in the law’s language. The judge ruled that it violated constitutional law on ballot initiatives and authority granted to the Department of Revenue, the agency that was tasked with overseeing a pot program under the amendment.

Some Republican lawmakers have acknowledged recreational pot could still become legalized on July 1, as originally required under the amendment. The Supreme Court could either reverse the lower court ruling entirely or strike certain sections from the law that are deemed unconstitutional, while keeping the parts that legalize pot.

Lawyers for both sides have agreed to an expedited schedule to file their arguments, with the marijuana advocates written arguments due to the Supreme Court by Wednesday, and opposing arguments due two weeks later.