A synopsis of the case is at the bottom of the post.
The Mississippi State Department of Health joined the city of Madison and Mayor Mary Hawkins-Butler in a court fight to block Initiative 65. The initiative legalized medical marijuana. The agency filed an amicus curiae brief with the Mississippi Supreme Court today.
The Health Department's brief makes several points:
* Mississippi citizens have no inherent right to amend the Constitution. Citizens gained the power to amend the Constitution in 1914 but the Supreme Court ruled it unconstitutional in 1922. 70 years passed until the Legislature created the initiative process in 1992.
* The amendment is too broad and is in reality a collection of 14 different amendments. This point is probably the crux of the agency's argument. The brief states:
The amendment spans from healthcare²⁸ to advertising²⁹ and impacts everything in between, including education,³⁰ employment,³¹ and insurance.³² It addresses how the medical marijuana program is to be funded³³ and requires MSDH to implement, administer, and enforce a comprehensive regulatory scheme.³⁴ It alters the criminal code³⁵ and removes zoning power from local authorities. It exempts medical marijuana from all state and local taxes. It contains public reporting requirements³⁸ and requires judicial oversight of licensing.³⁹ Even public-record requests⁴⁰ and interstate agreements⁴¹ are not left unscathed. Overall, it would be difficult to imagine a more expansive coverage area.
* I65 is in direct conflict with the Legislature's power to appropriate funds. The Mississippi Constitution gives such power to the Legislature. I65 authorizes the Health Department to money collected under the medical marijuana program without any authorization or appropriation from the Legislature. The agency can't send any surpluses to the general fund. The amendment thus transfer the power to appropriate funds from the legislative to the executive branch in direct violation of the Constitution.
The amendment also does not provide enough funding for the program. The Legislative Budget Office estimated it will cost $24 million to implement the program. Annual expected revenue is $13 million. The Health Department is authorized to issue a $2.5 million line of credit. How will the Health Department obtain the remaining $8.5 million to implement the program?
* I65 attempts to provide immunity to state and federal criminal charges even though it only amends the Mississippi Constitution.
The brief is posted below. Phelps Dunbar attorneys Todd Butler and Mallory Bland represent the Health Department.
Expect more such briefs to be filed. The word on the street is the MML will file a brief as well as a law enforcement association.
Synopsis of Case
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
because it was (allegedly) improperly certified to be placed on the
ballot. It 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 claims 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.
Secretary of State Michael Watson relied upon a 2009 Attorney General's opinion issued to then-Secretary of State Hibbet Hosemann for his defense. 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.
The Supreme Court ordered Madison to submit a brief. Madison filed the brief last week. Today is the deadline for amicus curiae briefs supporting the petitioners.
The brief expands the arguments made in the petition and adds some additional observations. Madison states "no text supports" Mr. Watson's interpretation. The Secretary of State is attempting to perform mental gymnastics because a "plain reading" of the Section 273(3) makes voter initiatives impossible today. The petitioners accuse the conservative Secretary of State of using a "liberal interpretation" to get the result he desires.
The Separation of Powers doctrine requires the Legislature and voters to correct Section 273, not the Secretary of State nor the Court.
The brief argues laches will not protect the Secretary of State. The common law doctrine of laches is a statute of limitations of sorts for lawsuits that are not timely filed or are not prosecuted for quite some time. Mr. Watson can't prove there was an unreasonable delay in the filing of the petition. Mr. Watson never defines the so-called "delay", he just states there was one. The Secretary of State made no public announcement the initiative was accepted. No notice was published nor did the SOS website make any mention of it taking place. Indeed, the petitioners complain about "a troubling lack of transparency in this process." The petition was filed less than a year after its placement on the ballot.
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 petitioners and Secretary of State did not oppose the attempted intervention but the Supreme Court rejected it anyway. The Court said the would-be intervenors could submit an amicus curiae brief. Such briefs are limited to 15 pages.
Court File Table of Contents
P.1: Health Department brief
P.25: Petitioner's brief
P. 79: Petitioner's reply to SOS & Intervenors
P. 114: Opposition of Ashley Durval
P. 161: SOS Answer to Petition
P. 185: Emergency Petition
47 comments:
If the legislature would do its job and implement the will of the people instead of acting like the ruling elite we wouldn't have this problem. Put to a true vote of the people I guarantee recreational marijuana would be legalized. They should be happy the are just getting medical marijuana taken out from their ivory tower and not the whole thing.
Who other than Butler (with a servant reading it to her out loud) will read this crap?
Voter ID is illegal, I expect it will be abolished and I will sue for damages since I was denied the right to vote when I didn’t have my ID. I expect Madison county and the State to pay.
I'm also a lawyer and would love for someone to pay me to write a brief on this matter....
Funny how the Republicans preach that they dislike "big government", but yet now they're acting like "big government". Hypocrisy at its finest. 70% of the voters voted to legalize medical marijuana, but the Republican party doesn't approve of the will of the people and now wants to overturn it. It appears that the party who claims they are for the people are actually against them.
Mayor Mary and the MSDH don't believe the people are entitled to govern themselves or to amend the Constitution if the majority so desires. Only the government can tell us what we can and cannot do.
It has been pointed out that there were 7 different bills/attempts to amend the initiative statute to recognize the fact that we now only have 4 congressional districts and not 5 as we did when the statute was written. But the Legislature didn't address the issue and voted against amending the statute. Personally I think they did so for this very reason. If we the people were to enact an amendment to the Constitution via the initiative process as has now been done, but yet the Legislature in its infinite wisdom didn't approve of that amendment, they gave themselves a back door to now come back and argue the statute is invalid and thus the amendment is invalid. It's a back door way for them to take away the peoples' right to the initiative process, rather than they themselves voting to overturn that statute, which would not be a very wise or politically smart move for them to do.
I did not vote for Initiative 65 or to legalize medical marijuana. But I respect the fact that 70% of our citizens chose to do so. I do not respect the government ignoring the will/vote of the majority of its citizens.
proof yet again that the ms st dept of health dont know shit about peoples health.
they want to block medical marijuana , but dont do jack shit about the fact 60% of mississippians are obese . all the while , the big politically connected law firm of phelps dunbar get to bill the state millions.
... since I was denied the right to vote when I didn’t have my ID
Absolute BS.
House District 58 and House District 64 are going to have a lot in common come '23. You heard it here first!
... 70% of the voters voted to legalize medical marijuana.
Might want to check those certified numbers Sparky. More like 61.65%. Little bit more effort by those against, especially to draw attention to the Federal gun law problem, and the measure would have lost.
This is the kind of crap that makes me thankful that I moved to Colorado!
Land of the Free
Home of the Brave!
They need to listen to 68.6% of their constituents on this one.
Colorado has become a cesspool of liberal rot.
So nice of Queen Mary to dictate what’s good for Mississippi and what’s bad. People call your senator and congressmen. Let them know their asses will be kicked to the curb if the people’s right to self governance can be stomped on so easily. You can take it to the bank the legislature sat on their thumbs just to make sure the people are under their control, not the other way around. Let these clowns know who running Mississippi. If we do nothing but bitch and complain we grantee these self imposed kings will do nothing for the thousands of people hurting in the state that need this legislation passed. CALL YOUR CONGRESSMAN!!! NOW!!
This is the establishment at work. One can only wonder how many strings they’ll pull to try to get this to just go away.
How long is this going to take? I just need to know if I need to buy that lot in Arkansas, so I can move my trailer.
These briefs just reiterate that they think marijuana is “bad.” None confront the secretary’s legal
interpretation of the constitution. Hmmmm
Health Department doesn’t have the chops to enter such a fight without direct order from the Gov.
mother mary and the republican party in mississippi are getting what that want......total political confusion and chaos. this is a prime example of why mississippi is considered a corrupt third world backwater bullshit country . its disgraceful. the people approved medical marijuana by 70% of the vote and now an uptight mayor from a fake town full of '' beautiful people '' ,and a bull shit administrative agency run by a appointee of a republican governor, want to invalidate the will of the people.
10 years ago i moved from to a small country in the caribbean to escape this kind of total political hypocrisy.
god only know how much $ the stuffed shirt law firm of phelps dunbar will be allowed to bilk the taxpayers on this redicilious lawsuit . but thats the way business is done in mississippi , not in order to achieve a more perfect union, rather to achieve total chaos, because thats how the plantation aristocracy makes money. when they have total chaos.
6:11
How so? I am usually in the know of the legislature.
"Colorado has become a cesspool of liberal rot." Don't worry, the remainder of this country is about to follow their path quite quickly.
4:44, maybe they'll do away with the requirement for a Drivers License and mandatory Insurance and the dumb as shit seat belt laws as well.
8:46, How'd you form that opinion? Have you visited lately?
Colorado has it's share of problems, but they haven't tried to hijack the will of the voters. Mississippians have spoken, and the leaders refuse to lead. That's a sad state of affairs.
Health Department doesn’t have the chops to enter such a fight without direct order from the Gov.
This comment betrays your ignorance.
TLDR:
We wrote the bill to be confusing as possible so it wouldnt pass. Now that it actually passed, we are going to file a motion on something that we knew about, but didnt say when we actually had time, and has been brought up before. Faq every one of them. Mayor Mary, your days are numbered.
If I could go back I'd vote against 65.
Oh Mayor Mary... plenty of folks in your town already smokin' the weed. Nothing will change. Legal or not.
What standing does the Health Dept have in a constitutional argument? They are doctors, not lawyers right?
Health Department be like, that sounds like a lot of work!
Come on MDOT. What are you waiting for?
Check out the comments on Facebook about this one. People are PISSED. Lots of "what's the point in voting if they don't listen?" This decision has the potential to seriously impact the legitimacy of state government in Mississippi. People won't let this go quietly.
Madison County was well over 80% FOR Medical Marijuana. Mayor Mary is making a mistake. Maybe if the state actually tried for once instead of sitting on their hands and giving contracts to friends, this state could make some progress. It's a shame that they are trying to not listen to the people.
Madison County was well over 80% FOR Medical Marijuana. Mayor Mary is making a mistake.
@11:12, Do you EVER think before you comment. The final tally in Madison County was 60.13% in favor. Statewide it was not 70%, it was 61.65% in favor.
This decision has the potential to seriously impact the legitimacy of state government in Mississippi.
@11:04, Nope.
Both comments are from the same loser.
Rest assured the next ballot initiative will be about revamping the legislature composition, SLURP, and elected official pay. I expect record amounts of contributions toward the effort.
What about DHS? Don’t they have an opinion on the constitutionality of this?
They are worried about how much money it will cost? How much is the state/county spending on legal fees for all this? Who signed the approvals to pay legal? Our taxes will spend a small fortune in legal fees and man/woman hours worked. Just publicity...all this is. Maybe Mary needs to eat some edibles and calm her butt down.
11:59
It was 70%
I can't wait to see the next slate of ballot initiatives. State leaders are about to get set straight.
When an agency uses taxpayer money to essentially sue against the will of over 70% of the taxpayers, they should have to foot the bill themselves. This is horrible.
I clerk at the Supreme Court and I also moonlight for the AG.
I know for a fact that weed will soon be legal everywhere.
People are flocking in to Mississippi to spend money on every facet of production and distribution.
Watch the damn private planes!
CO and OK weed moguls are headed East....
I don’t have a dog in this fight, I didn’t even vote. I Been getting my weed from BoBo and I am going to keep getting from BoBo.
Dobbs is two-faced. He is doing the exact opposite of what he said he would do if the initiative passed. He clearly never agreed with it, but now it’s his job to implement the program not fight against it. Shame on him! Now this is worth a riot!
I clerk at the Supreme Court and I also moonlight for the AG.
Sure. Troll.
12:31
Prove it.
You can't.
That empty Walgreens is perfect , already has a drive thru, and it could easily be secured with some of Mary’s favorite fencing!
Will locally-grown weed be available next summer at the Madison and Livingston weekly farm-to-market events? Some vendors are selling Florida hot-house tomatoes, so how can we be sure about the weed?
The same set of Meatheads that want maryjane legalized are probably the same set of Meatheads that want to prohibit cigarette smoking. Some of you idgits tell me the difference.
Hey 9:43 it’s called nicotine it’s addictive..... thc on the other hand is not. I know I have indulged in both.
Weak, weak, is the excuse coming from the pothead. Cigarette smoking is supposed to be a no-no because of nicotine? I'm going to give you another chance to explain your ignorant, hypocritical position before I rip you a new one, Meathead.
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