A scrum broke escalated into a war as the Medical Marijuana folks entered the fight between Madison and the Secretary of State over Initiative 65. Mayor Mary and Madison asked the Mississippi Supreme Court to declare invalid the initiative's certification on the ballot. The defendant Secretary of State fired back in court while Medical Marijuana supporters fired their own rounds at the petitioners. Hanging in the balance is the fate of an initiative that passed with 74% of the vote.
Madison Files Petition to Block Certification
Mayor Hawkins-Butler and the City of Madison filed an emergency petition
against Secretary of State Michael Watson on October 26 in the Mississippi
Supreme Court. The petition seeks to declare the initiative invalid. The 34-page
petition revolves around one central point: the Secretary of State
improperly certified the petition for Initiative 65 in 2019 by ignoring
the Mississippi Constitution's requirement that each congressional
district can only contribute 20% of the required signatures for an
initiative. Earlier post.
The petition accuses the Secretary of State of amending Section 273 (3) without the approval of the voters:
the Secretary of State nonetheless has followed an "amended" Section 273(3) and has inserted "the last five-district congressional district plan which was is effect prior to the adoption of the current four-district plan" into the text of the Constitution.1 Ignoring the plain language of Section 273(3) and violating Miss. Code Ann.§ 23-17- 23(b), the Secretary of State determined the petitions in support of Initiative Measure No. 65 were sufficient.
The entire controversy hinges upon Section 273(3) of the Mississippi Constitution:
(3) The people reserve unto themselves the power to propose and enact constitutional amendments by initiative. An initiative to amend the Constitution may be proposed by a petition signed over a twelve-month period by qualified electors equal in number to at least twelve percent (12%) of the votes for all candidates for Governor in the last gubernatorial election. The signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot. If an initiative petition contains signatures from a single congressional district which exceed one-fifth (1/5) of the total number of required signatures, the excess number of signatures from that congressional district shall not be considered by the Secretary of State in determining whether the petition qualifies for placement on the ballot.
The petitioners argue since Mississippi only has four Congressional districts, each district has 25% of the signatures. 25% is more than 20% and thus violates Section 273.
Mr. Watson replied a week ago. He claimed the Mayor had "years" to file the petition yet failed to do so until the week before the election. He also argued the doctrine of laches barred her petition.
The Secretary of State relied upon a 2009 Attorney General's opinion issued to then-Secretary of State Gilbert Hosemann. The opinion can be distilled into just a few sentences:
It would be mathematically impossible to satisfy the requirements of Section 273 using just four districts....
It is likewise our opinion that the geographic distribution requirement of Section 273 requires that not more than 20% of the total required number of initiative petition signatures must come from the last five-district congressional district plan which was in effect prior to the adoption of the current four-district plan.
The opinion didn't cite any law to support this interpretation. Earlier post & copy of opinion.
The Secretary of State claims the petitioners had "years" to file the petition. It is thus untimely even if "their interpretive argument is correct." The delay is "inexcusable and unreasonable." Laches bars the petition as well. The reply makes an expected "intent" argument. Mr. Watson argues the Court should look at the Legislature's intent "surrounding" the amendment and not just the plain text of Section 273. The intent of the amendment was to give the right to initiative and referendum to Mississippi voters.
He said the A.G.'s opinion did indeed cite law: the language of Section 273 itself.
Intervention
The pro-I65 forces joined the fray. I65 sponsor Ashley Durval filed a motion to intervene and a supporting memorandum opposing the petition. The petitioners and Secretary of State told the Court they had no opposition to the motion. I65 supporter Angie Calhoun joined in the intervention.
Durval and Calhoun argued the intent of Section 273 is "crystal clear": the people have the right to propose and enact constitutional amendments. The Queen seeks nothing less than to destroy the people's constitutional right to change the Mississippi Constitution through initiatives and referendums. She did nothing for over two years while the Secretary of State properly accepted and filed the initiative. Mrs. Hawkins-Butler should have filed her challenge within five days of when the initiative was first published in August 2018 since she is claiming the entire process is invalid.
The Mayor's interpretation of Section 273 (3) means the the right of voter initiative hinges upon a census that changes every ten years. There is no rational basis for tying the right to amend the Constitution to Mississippi's number of representatives. The Court should consider the "circumstances under which the constitutional provision was ordained."
The signature requirement should refer to the former five congressional districts as they existed when Section 273 was passed instead of the current number of said districts. (p.14)
The intervenors acknowledge legislators filed seven bills since 2000 to correct the problematic language in Section 273. However, such attempts are not a recognition the section is flawed but rather an attempt to better ensure "geographic diversity" than using the former five congressional districts. The legislature's failure to pass those bills means it thought the section was fine.
It is also argued the Court lacks the jurisdiction to hear the case. Durval and Calhoun claim all other legal challenges of initiatives have been filed in Circuit Court. Accepting the Mayor's claim would render the eminent domain and Voter ID initiatives suspect as well since their signatures were collected after Mississippi lost a congressional district.
Attorney Spencer Ritchie represented the intervenors.
Madison Responds
Never one to shy away from a fight, The Queen and Madison replied to Mr. Watson and the intervenors Monday.
The thrust of their argument is that the Secretary of State and Intervenors want the Court to rewrite the Mississippi Constitution. A plain reading of Section 273 yields a result they don't like so they seek a different interpretation in its penumbras. They don't claim the language is unambiguous so they ask the Court to use a "liberal interpretation" that treats the Mississippi Constitution as a living, breathing document subject to the whims of the Court.
The Secretary of State (allegedly) admits an amendment is necessary in his reply:
Secretary Watson still believes an amendment is necessary. Making a “pro rata share” or similar alteration to Section 273(3) would sensibly clarify its text, be consistent with its purpose of ensuring that proposed initiatives have sufficient support from electors throughout the State, and eliminate any possibility that the 2002 reduction of congressional districts prevents a proposed initiative from ever satisfying Section 273(3)’s signature requirements. A divergence of viewpoints regarding Section 273(3)’s text shows there is room for a good faith interpretative dispute, not that the section can only be interpreted to effectively bar any initiative from ever making it on the ballot, as petitioners erroneously contend. (P.10 of SOS reply)
The Legislature and voters are tasked with the duty of fixing the "mathematical impossibility" of Section 273. It is neither the Court or A.G.'s job to fix Section 273 by creating law out of thin air. The Legislature rejecting solving the "mathematical impossibility" when it rejected the bills of Mr. Watson and others seven times.
Intervenors make much noise about a favorable ruling to the Petitioners will invalidate the will of the people since I65 passed with 74% of votes cast. However it is a Court's job to interpret the law instead of confusing the I65 vote as permission to rewrite the Constitution. The actual referendum is only one part of changing the Constitution. The Constitution spells out the specific requirements that must be followed before it can be amended.
As for any questions of jurisdiction, the Constitution gives the jurisdiction to the Mississippi Supreme Court. Only the Intervenors claim otherwise as the Secretary of State accepted the Court's jurisdiction over the petition. Section 273 (9) states:
The sufficiency of petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the state, which shall have original and exclusive jurisdiction over all such cases.
Mr. Watson charged the petition should fail because it was "untimely filed." However, M&M argues Mr. Watson never provided a deadline but instead says the Mayor took too long even though she filed the petition in less than one year after he certified the initiative to be placed on the ballot. They also accuse the Secretary of State of not being transparent about the initiative:
And although the Secretary of State’s brief enumerates a lengthy timeline of events, it provides no evidence that all of this information actually was available to the public. Indeed, unlike with the voter ID initiative, the Secretary of State made no public announcement of acceptance of Initiative Measure No. 65 petition for filing. The Secretary of State published no notice of it, and nothing on the Secretary of State’s website reflects the filing date. There is a lack of transparency in this process. And Respondents cannot attribute knowledge to Petitioners of something the Secretary of State cannot prove he published.
The Intervenors’ position that Petitioners should have filed suit before any signatures were collected is infeasible. For example, if the Secretary of State had determined the signatures were insufficient, whether in number or form, then any challenge Petitioners might have brought before then would be moot. This demonstrates that Intervenors advocate for an impossibility. They claim Petitioners filed suit too late because Petitioners did not file before a suit was ripe. Intervenors’ position is illogical.
The reply closes by dealing with the question of whether a favorable ruling on the petition will invalidate the two initiatives that did pass. M&M state the current question should not affect their validity. M&M challenges I65 before it is certified. The other two initiatives have been certified for nearly ten years. The reply takes a shot at the Respondents in claiming they offered no "substantive analysis" why the two initiatives would be invalid.*
City Attonrey Chelsea Brannon and Jones Walker attorneys Kaytie Pickett, Adam Stone, and Andrew Harris represent Madison.
* Given the Legislature's current Republican supermajority as well as Mr. Hosemann's current office, it is a sure bet the Legislature would pass the same version of Voter ID.
Kingfish note: If you are into legal porn, read the briefs. They are quite good.
Madison & Mayor Mary Hawkins-Butler Reply: p.1
Intervenors' brief: p.36
SOS reply: p. 83
A.G. Opinion: p. 104
Madison & Mary Hawkins-Butler petition: p. 107
55 comments:
Ain’t nobody got time fo dat
“How bout zero regulation on a plant that just grows out of the goddamned ground”. -George Washington
I don't want to hear another word about Joe and Liberals wanting to run your life. The people have spoken.
Obviously the “real” intent of the legislature was to NEVER fix this. Several legislators including the current SOS tried and failed. The legislature doesn’t want to fix it for one simple reason, they don’t really want initiatives on the ballot anymore. If this wasn’t a problem why did they try at least 7 times to introduce legislation to change it?
Way too much yada yada and lengthy, monotonous, boring commentary from the Kingfish on this one. Who the hell wants to read all that crap. If you're an attorney, you already know all that crap and if you're not, you don't give a crap about all that crap. Nobody other than The Queen herself would read it and she read it five times and had her husband read it to her a sixth.
There's a simple answer to the problem of the legislature, vote the bastards out. %74 is plenty of people across the state to have a grass roots movement to replace the corrupt belligerent clowns that will not work for the will of the people. Vote the bastards out.
It will be funny to see marijuana dispensaries across the street from the Madison City Hall, Ridgeland PD and the Madison County Detention Center.
One person (Mary Hawkins-Butler eyeliner) can block the will of the people after the people voted for it.
Mississippi is looking like Putin's Russia.
I saw Madam Mayor on TV knocking down that building on the site where he new building will be erected, with her bulldozer.
Did they take any video of her driving stakes for that black plastic barrier they erected on the south side of the site.
Are there any plans to video tape her pushing a Georgia Buggy of concrete when they start pouring the slab.
If she is serious, she will do her duty to her voters and continue helping with her glory project. She seems like a helpful Mayor, so I am certain the video will eventually emerge on Channel 3.
These are things she needs to be doing much more important than stopping very sick people from the ability to purchase things they to address their pain and physical suffering, offering them quality of life.
Shame on her!
We the people have spoken on the medical marijuana issue. Mayor (who would be Queen) Mary needs to STFU and tend to her duties as mayor.
Madison was nothing when she took over. Now it's the best town in the state. It's also listed as one of the top 10 safest cities in America which is remarkable considering it's sandwiched between Jackson and Canton.
She could govern circles around some of these other suburban mayors and has--repeatedly.
You have a right to disagree with her but you have to admit she is highly competent and willing to take on the powerful "good ol boys" network. She has a backbone which is more than you can say for 99% of the "men" in power in this state.
Whoever eventually replaces her will have some awfully big shoes to fill.
Mayor Mary doesn’t file to lose.
Y’all need get your beer - these attorneys are on a mission too!
^^^ 7:46
You can bet every person on Supertalk that spoke against 65 are pulling for Mary on this one. And the law is what it is. Go Mary.
Don't pay any attention to this Dobbs, the people have spoken and I expect to have medical cannabis available by August 15, 2021.
Ahhhhhh, my glaucoma hurts!
There's a really simple solution to this, check to see that the people that signed the petition fall under the 20% threshold using the old district lines. Why is that so freakin' difficult?
FYI, I am not an attorney, but this just seems so very simple to me and I voted against the stupid marijuana initiative.
Legal porn for sure in the briefs. It’s like a who’s who of attorneys and parties.
Leave Queen Mary alone ! We the People of Madison are on the hook for only $20 million dollars for her new office and parking spot.
I'd say her new digs are only 2 football fields waay from her current office.
9:21 - We can discuss the legality of your suggestion later, but, if you think that would be simple, you're obviously out to lunch.
Mississippi needs more people like Ashley Durval and Angie Calhoun and less people that act like Jill Ford and Mary Hawkins-Butler.
I love it how everyone that is for this weed talks about libertarian values. I’m all for that.
In the same vein, then pay for it yourself, don’t ask your insurance to pay for it. In addition, if you want this libertarian approach, then you can pay for your own medical bills when you get lung cancer. And, when you go from pot to harder drugs, you can pay for your rehab yourself.
Everyone wants to say “the people have spoken” and that may be true. If so, don’t come asking for my tax dollars to fund your drug use.
Finally, BankCorp South should be ashamed. They have given the weed lobby initiative a $800,000 loan to push this on people. I’ll be moving my money from that drug-pushing bank on Monday. They are disgusting.
7:46 - you are correct that Madison was nothing. She had no slums to deal with or blighted areas, no aging infrastructure, no homeless. She didn't have all the challenges that face Canton and Jackson. Hell, given that, most anyone could have done what she has done.
How is this possibly a good use of tax dollars? Somebody (cough cough) should send a public records request and find out how much $ the City of Madison is paying Jones Walker to pursue this frivolity.
7:46, you are partially right. Madison was nothing 30 years ago for sure. Now, its the most affluent suburb of Jackson. But that's it. Oxford and Ocean Springs are much better places to live and have much more culture, less traffic and nicer people. The best thing about Mary is her timing. White flight out of Jackson was just taking off around the time she prioritized zoning ordinances. Good for her. But Madison will be a victim of its own success. Its already started.
Its easy to have solid infrastructure when its all brand new. Come back and see me in 100 years.
I’m still fascinated how joe blow on the street thinks by voting on calling something medicine actually makes it medicine. If that’s the case we could vote dog shit as medicine. I bet half of y’all would swallow it and swear on a stack of bibles it cured your ailments.
When the phrase "white flight" is used, you know the author has no valid points. It is economic flight, pure and simple. Just ask the two black doctors that live in my small Madison neighborhood. It isn't racist to desire low crime and good schools.
Even the groovy liberals like Donner K and Tom don't live in mid-town, west or south Jackson. Antar doesn't live in those areas either.
1:26, um, you must not be from around here. Black folks moving to the burbs in 2000-2020 moved for the reasons you state. White folks who moved out by the tens of thousands from 1970-2000 very much represented white flight. Jackson was a prospering city pre-1980, the current bunch of clowns running it didn't get the exodus kicked off. The white flight started when Jackson was majority white, run by all-white mayors and city councils. But school integration was too much for many to handle and nobody could plug the hole in the damn.
10:42 And Others - You people love to drop the phrase white-flight. Did you know that two in twenty-five households in Madison are made up of people who used to live in Jackson? And those are black folk. I live in Madison and I don't know anybody who flew out of Jackson while white.
People don't flee a community because of race. They leave because of crime and piss poor leadership. We're quite happy up here in a mixed race community. There are no porch-sitters, paper sack beer drinkers, vagrants, panhandlers, 1994 Pontiacs with black windows, bars on windows, pool halls, pay-day loan businesses, cash for titles store-fronts or people afraid to walk the neighborhoods after dark.
" Madison was nothing when she took over. Now it's the best town in the state. "
" but you have to admit she is highly competent".
I agree with both observations. I think most people would agree with you as well.
Mary has done a stellar job with Madison (considering what it was in 1982).
Not sure I'd call it the best town in Mississippi. I also lean toward Ocean Springs for that award.
However, this is not about building codes.
Pot has been all over "Madison, the City" since her first day in office.
A good analogy are some in the few "dry" counties that think beer and liquor aren't consumed within their domain, Hell, Walthall County voted overwhelmingly to go "wet" a few weeks ago. Even the evangelical preachers knew it was a lost cause to oppose the people's will., The only ones pissed-off were the "moonshiners".
Yes moonshiners still exist in 2020.
But Madison County is no different when it comes to marijuana.
Success went to her head a long time ago. Its a nice suburb with really pretty big box stores. It will never be anything more. A bricked up Walmart and Burger King is still a Walmart and Burger King, but she thinks she has the power to trump the SOS, legislature and supreme court.
Remember when Mary was crowing that Madison was now a college town? That was when Tulane opened one of those mail order branches up there, but you couldn't actually get a degree there.
I wish Mary was as obsessed with getting the meth and ecstasy out of the high school bathrooms as she is keeping dying people from getting relief. The local ambulance parks at Madison Central during most school days knowing that is likely where the next call will come from.
Ok, I know where this is going. more Jackson v. Burbs v. Madison crap. No more in this thread. Stick to the subject of the post which is the various filings and their arguments.
Kingfish, why can't the signatures be verified in the old five districts and see if they meet the 20% threshold?
KF, thank you, and no more "fake stucco" comments. God bless Mayor Mary. I would like to see some of the naysayers do a better job.
We don't want pot shops in Madison, period!
Kingfish, this is ALL about the Queen and has very little to do with initiative 65. The lawsuit itself is more about the Queen than it is 65
Why isn't Mary starting an initiative to make Madison county dry? Or out-lawing prescription opioids? Or bashing the schools system for all of the passed-out over-dosed kids in the parking lot that have to be rushed to the hospital? Legal pot for people who are dying and hurting is an easy target, but not Madison's biggest problem by far. The affluent, entitled teens in "Madison, the City" are a dealer's dream. Most have graduated many miles past a little hit on a joint.
The vote has nothing to do with it. Either the proper procedures were followed or they were not. The vote should not even enter into the discussion among the justices.
7:08, BS kingfish. The whole purpose of the language in question is to make sure that the support of putting the initiative on the ballot is evenly spread over the state. And 70% approval in an election that shattered turn-out records is very much relevant.
And I agree with the person who said just go back and look at the signatures using the old districts. Its a no-brainer. Like most things that Joel does, this initiative went FAR beyond what was required.
So getting back to the proper procedures issue — and to stick to the thread. Maybe there is a question, but the argument seems like a stretch. Seems like Watson’s legal team out briefed this one for sure.
Are there still people out there who think the mayor actually had anything to do with this whole thing other than agreeing to affix her signature to a complaint?
To the clown who keeps chirping about passed out students and ambulances on standby, either put up or shut the hell up with your Niknar absurdities.
11:46PM
Niknar, specifically NWRHS, apparently has similar issues alleged by the clown touting MCHS's issues. I even hear that Clinton has a small issue as well.
To stay on topic, I'll pass on the dispensaries in my neck of the woods also. They will eventually be overrun by burnouts with their ill-gotten cards.
11:46, ask any parent of a high schooler. They are vaping anything they can get their hands on.
I'll bet that because of the ballot confusion, MOST who voted AGAINST EITHER 65 or 65a (BOTH) but failed to vote for an item below that (either FOR or AGAINST) were not counted at all... therefore not being counted in the % at all. It either didn't count my vote AGAINST BOTH, or it DEFAULTED to one of the 65/65a (below that) WHICH WAS NOT MY SELECTION AT ALL - I VOTED AGAINST BOTH.
That 74% would be a dramatically lower number! 30%..45%?
I don't think Mary has the standing to file this thing in the first place. This is a state issue. Initiative supporters followed state law, and the petition was certified by a state official as provided in state law and it was approved in a statewide vote. Mary should run for legislature or SOS if she wants to run the initiative process.
When the legislature approved putting 65a on the ballot, didn't the legislature implicitly say that 65 was legitimate to be on the ballot? So, we have the SOS and the legislature saying this is not a constitutional issue.
As much as I dislike the heavy-handed way Mary runs things in Madison, she IS right on this, you know? The state constitution says what it says, and the language is unambiguous. Period. Furthermore, the legislature KNEW a problem existed with the current language, following the 2000 census, and that's why they tried to change it several times. Unfortunately for this current situation, those attempts to change it were unsuccessful.
So, if no problem existed with the current wording of the state constitution, why did the legislature make attempts to correct it? Likewise, why would it matter what any parts of the constitution say, if in the end, it doesn't really mean what it says?
The proponents' argument is that "the people have spoken;" however, that doesn't override the fact that the procedure by which they "spoke" was invalid. Just like we all know there is no "privacy clause" in the U.S. Constitution, the MS Supreme Court should refrain from interpreting the MS Constitution in a way that allows them to accept an erroneous position. Again, the state constitution says what it says, and it's not a matter of "well, what the legislature meant was....." No, it means what they stated. The fact that calculations were incorporated in the language prove it means what it says to a mathematical certainty.
Anyway, that's one person's opinion.......
9:36, if that makes you feel better, keep believing that.
It is amazing how many elected officials were publicly voicing apposition to I65 and yet it passed with a large margin. Maybe elected officials should listen to their constituents! Voters make note and voice your disapproval next election.
After actually reading this, looks like Queen Mary hired some damn sharp attorneys. What's right is right and what's law is law. Blame the legislature for this one.
1:34 No, it actually makes me feel worse.
I now know that my (and many other people's) vote WAS NOT counted in the totals... which means there are hundreds of 1000s of others whose votes were not included on that item, therefore not included or represented in the 74/26 % numbers.
To say 70-74% approval is a lie. If half of 1.2 million votes were not counted on that item, then the 74% (someone claims),would actually be 37% -- 444,000 vs 888,000.
The trickery in the way it was offered on the ballot was intentional obfuscation.
This is all totally on the legislature.
They didn't want I&R in the first place. SOmeone had the audacity to get the signatures required to place term limits on the ballot. It lost but they learned their lesson.
They came back and made it tougher to pass an initiative. Hence the advent of the alternative amendment.
As for medical marijuana, they killed every MM bill in committee. Nothing will ever come up for a vote with these guys.
If the petitioners win, the fault rests solely on the legislature. There will be a backlash against them and there should be for several reasons. They knew there was a problem with the 1/5 language but did nothing to fix it. It gave them a little poison pill, you see. They didn't want MM but didn't count on Bomgar calling their bluff. There are flaws in 65 but the legislature is the one who put everyone here. They deserve the blame.
I've been voting for 40 years in multiple states and have never seen a ballot question so confusing. I supported 65 so I voted yes and yes. No confusion there. But the legislature, because they are idiots who refuse to let up or down votes on a number of issues important to the people of Mississippi, decided to confuse the question in an effort to derail the initiative. I assume most voters thought their vote was counted only if they voted yes and then yes/no. Anyway, it passed and the 1/5 issue is total BS. Common sense dictates that the 1/5 is a mote point since we only have four congressional districts but who knows what the MS Supreme Court will decide.
Amen Kingfish. And humor me this, by putting 65a on the ballot, didn't the legislature tacitly condone the SOS opinion that the original initiative (65) met the requirements?
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