Friday, December 11, 2020

Queen Moves Forward in Med Marijuana War

 Note: This is a complicated case so a synopsis is included at the beginning of the post.  Readers familiar with the case can skip over it to the next section. 

The trench warfare in the battle over the medical marijuana initiative continued at the Mississippi Supreme Court this week as Madison Mayor Mary Hawkins-Butler and her city filed their first brief Monday.  Initiative 65 garnered nearly 70% of the vote in November.  However, the plaintiffs challenged its certification for the ballot a few days prior to the election. 

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 Monday.  

Mayor Hawkins-Butler & Madison's Brief

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 can't resists the chance to skewer Mr. Watson over a bill he filed in 2015 and skewer it does.  Then-Senator Watson filed a bill in 2015 that would correct the 1/5 requirement in Section 273(3).  

The Mississippi Constitution provides very specific procedures on how the initiative process should be conducted. The Legislature could have placed "as now existing" after "any congressional district" but chose not to do so.   The Legislature has changed many a similar phrase to address changes in congressional districts but did not do the same for initiatives.  Seven bills have been filed to correct the language yet all have died in the Legislature. 

The Secretary of State and a party that attempted to intervene in the case argued the Court should consider the heavy support I65 received on election day.   Such consideration would be "tyranny by the majority" and has no basis in constitutional law.   The Mississippi Supreme Court invalidated the initiative process in 1922.  The voters went over 70 years without such an electoral tool before it was returned to the Constitution.  

 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. 

Voters approved two other initiatives nine years ago, Eminent Domain reform and Voter ID.  No one challenged those initiatives before their certification.  The petitioners argue laches is actually a "strong defense" to challenging their validity.  

 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.

The Secretary of State must submit his brief by December 28.  Mayor Hawkins-Butler and Madison asked for oral arguments. Amicus curiae briefs must be filed by Monday. 


Intervention

 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. 

Although both the Secretary of State and petitioners did not oppose intervention, the Court rejected the motion to intervene.  However, the Court said Ms. Durval could file an amicus curiae brief although it would be limited to 15 pages.

 

Court File Table of Contents

P.1: Petitioner's brief

P. 55: Petitioner's reply to SOS & Intervenors

P.  90: Opposition of Ashley Durval

P. 137: SOS Answer to Petition

P. 161: Emergency Petition


52 comments:

Anonymous said...

Pitiful....

Anonymous said...

Pretty wild that the Republicans are so openly attacking the will of the voters. It’s become a pattern of abuse and won’t stop unless the voters hold them accountable.

Anonymous said...

Can you just imagine marijuana dispensaries in Madison with Corinthian columns?

Anonymous said...

"We know better than you voters who supported this."


Thinking they are smarter than the public, and forgetting who they work for is a bipartisan trait among most politicians.


Anonymous said...

This will make great reading material for the Queen and her various subjects this morning over five pots of coffee. Who the hell else do you think will read all this boring minutia. I read through a bit of it and finally figured out half of it was Kingfish's commentary disguised as language in filings and statements from the Secty of State.

Anonymous said...

@8:43 so what is the point of your comment beyond your need to hear yourself talk?

Anonymous said...

Thank the Good Lord we have somebody like the Queen who believes in the rule of Law. Go Queen Go.

Anonymous said...

Who is funding this litigation for 3 lawyers ar $300/hr?

Anonymous said...

How does the city of Madison have legal standing to challenge the certification of a Statewide initiative? Just curious.

The Supreme Court should adopt an equitable interpretation of the constitution, especially in light of the will of the voters in this State and the failure of the government to correct an obvious outdated clause that will virtually guarantee that no initiative will ever be certified on the ballots.

The old-guard, "war on drugs" contingent is finally becoming the minority and it is entertaining to see them panicked. Maybe someone will send her some "medicine" for her anxiety. Just make sure it is of the indica variety.

Anonymous said...

" No proof of deliberate delay" in filing the suit relies on the belief that those filing the suit are "dumber than rocks".

The Queen is elected and not inexperienced in government but we are to think she was unaware that referendum would be on the ballot? She was also unaware that ballots have to be printed and waited until it was too late to print more?
If she's that incompetent, perhaps she should be removed from office and/or get tested for brain disorders.

And, on the subject of " is it incompetence or a braid disorder?", Lynn Fitch joined a lawsuit on our behalf and failed to bother to discover the claims had already been investigated and found to be bogus. Unlike Ms Fitch, some people bothered to contact those mentioned in the suit and see if there was actual evidence ( there isn't). Since, the citizens of this State are her clients, as one, I feel my attorney acted unethically and without due diligence!

I also, though not an attorney, have a few legal words for trying to overthrow the will of the people...you know, that " of the people, by the people and for the people" principle. Instead, we have the Peter Principle at best.

Anonymous said...

To-ga! To-ga! "Who's with me?"

Anonymous said...

You think they're only billing $300/hr???

Anonymous said...

Why worry about following the law. We have proven over and over that law has nothing to do with MS politics. By the by 8:06, Republicans are not the only party that attacks the will of the people.

Macy Hanson said...

I'm not sure which Adam and Kaytie enjoy more: attacking the voter initiative process or forcing consumers into stacked arbitrations. These are Wells Fargo's go to lawyers Mississippi, after all.

They, and Andrew Harris, are incredibly good, unfortunately.

Anonymous said...

This whole deal reeks of a typical Gutless Gunn plan. He's butt hurt because he doesn't have the respect or stroke that previous "speakuhs" enjoyed. Sorry but people have figured his FAKE ass out.

Anonymous said...

Don't think a review of the comments dropped previously on this topic, and will be dropped today, will show it is the "old-guard" that is "panicked".

Anonymous said...

I have always voted for Mary because she is a good Mayor for Madison, but she is wrong on this. SIck people deserve access to this. Mary will not get my vote again, this is a very bad look for her and makes Madison look terrible.

Anonymous said...

Just another fart in a courtroom.

Kingfish said...

Funny how no one addresses the actual claims made in the brief. One could vote for 65 and still agree with the petition.

I don't think this was a clever trick by Gunn. He and his crowd would have done this to I42 several years ago if they knew about this constitutional problem.

Anonymous said...

These are Wells Fargo's go to lawyers Mississippi, after all.

Well, that is an interesting smear.

Anonymous said...

Had they brought this up the day after the initiative was certified, it might hold more water. Anyway, either the people have the right to petition to change the constitution or they don't. The constitution clearly says they DO have the right. Its the mechanics that are in question, and given that there are no mechanics available since the last census, that does NOT change the fact that the people have the right to petition for a vote to change the constitution. By not allowing for ballot initiatives, it is the plaintiffs who want to violate the state constitution that clearly says we have that right.

Anonymous said...

Kind of reeks of a Ross Barnett style appeal to the most ignorant among us, only to be thought of as a laughing stock a generation later.

Anonymous said...

@10:20, More water than pre-certification? Are you even in Mississippi?

Anonymous said...

Voter ID is now illegal, by Mary’s logic and that not all. Sure the legislature can quickly pass laws to take care of this. However these new laws will have to pass a constitution test. I wonder how much money and time that’s going to take up .
For what, weed is about to be legalized on the federal level, and the forces that got medical approved will just do it again . This time it will be a combo Medical/Personal use bill. It will pass because hardly anyone cares .

Anonymous said...

So if this statute and the initiative process are declared unconstitutional or invalid by the Supreme Court, does that mean that the GOP's beloved voter ID laws are also now invalid ? They were enacted via the same initiative statute and process.
Be careful what you wish for, Mary. You're about to piss off 70% of the State that voted for 65 and, at the same time, do away with voter ID.

Anonymous said...

Somebody needs to check the bottom drawer of her desk. She isn’t drinking coffee. She like the folks the 70’s who try to stop afros and long hair.

Anonymous said...

@11:20 why would it apply to voter id laws? The republicans want that. You see, they only challenge votes when it goes against them. As long as the people vote the way they are supposed to, then the right won’t challenge it.

Anonymous said...

“ Funny how no one addresses the actual claims made in the brief. One could vote for 65 and still agree with the petition.”

To me, it’s funny how everyone supporting Mary are against medical marijuana and have no issue with the “constitutional problem” except when it comes to this one particular vote. If you think they would have brought this suit for any other vote, then you obviously don’t need this law passed because you are already as high as a kite

Anonymous said...

"She like the folks the 70’s who try to stop afros and long hair." <- This is your brain on drugs. God help us.

Anonymous said...

The constitutional requirement for voter petition from 5 districts, when there are only 4 districts to provide signatures is interesting. When coupled with the legislature's refusal to correct that error in the constitution and the Mayor's insistence that the court system throw out the 70% vote to change the constitution, means that a "Do Nothing State" can continue to do nothing.

I guess a grass root petition to correct the constitution, by popular vote in a referendum, with no help from the legislature is also not possible because the requirement of 5 district representation on the petition is not possible.

The perfect Catch 22 for do nothing politicians in power.

Anonymous said...

To the people who support marijuana sales in MS, what is your plan when The City wins this case?

Anonymous said...

These comments are hilarious 😂

Anonymous said...

Hey 2:04 l plan to keep picking my weed up in the store parking lots throughout Madison County, just like I been doing for 20 Years.

Anonymous said...

@2:04 - continue living in pain and taking the same current prescriptions that I wish I didn’t have to. That and cursing Queen Mary and the GOP until the day I die. What’s your plan for when the court doesn’t overturn all these votes?

Anonymous said...

KF - Just because Bomgar and his investors claim that I65 received 0ver 70% of the vote, don't accidently become a shill for them by believing their talking point. According to the SOS final certified results, I65 receied 61% of the vote. Just like Trump's claims to have won PA, MI, and WI because he was leading at halftime, but when all the votes were counted he lost, the I65 70%+ number was election night results, before all the counties were in and none were complete.

Yes, I know that even halftime scores can be bad omens, particularly for some football team from the Bayou, but even there they don't count. They might let the coach on the other side take his foot off the pedal, and they may well hold up. But I65's 70% claim didn't hold through to the end.

Anonymous said...


let me get this straight; mary is suing because it's impossible to have 20% of the vote from each of the 5 districts because there are now only 4 districts?? am i right so far?? so, let's pretend for a minute here, let's pretend there are still 5 districts. did each of those 5 districts have at least 20% of the total vote?? if so, then why is she suing? also, why the hell has the Constitution not been updated to read something like; "total number of ballots cast for an initiative must be equally split amongst the current number of districts at the time of the vote." this would cover it regardless of how many districts we have. or does this make too much sense?

Anonymous said...

Let’s remember we talking about Missippi with about 2.5 million people .
Most people with an education or common sense have left.
Most who gets transferred here form out of state, jump at the chance to transfer out .

Anonymous said...

What most of you are missing is this: All of this discussion and legal stuff is way above The Queen's pay-grade and way beyond her ability to understand and challenge violations of law or the Constitution. I saw her at City Hall today grinning like a chessie-
cat thinking she's the star witness in a Perry Mason episode. She plateaued out when she objected violently to that black woman's plastic peacock on the roof Christmas eight years ago.

Anonymous said...

MHB gets re-elected next year in another romp.

Anonymous said...

Marcus Dupree is the King of the Pot Shops in Oklahoma. He wants to put 1 shop in his adopted hometown of Flora and 3 in Madison.

Anonymous said...

"My job is not finished here until there's a sidewalk in every front yard and every homeowner has been summoned to John Reeves court at least once!"

Anonymous said...

always a bitch spoil sport around. god must love those cause he makes so many.

Anonymous said...

4:15, so? A win is a win.

Anonymous said...

"...when she objected violently to that black woman's plastic peacock on the roof Christmas eight years ago." December 11, 2020 at 8:31 PM

So glad you brought that up (again), because it gives those of us who were actually around at the time, a chance to tell what REALLY happened.

Neighbors in the vicinity of "The House of Blue Lights" had been desperately pleading with City Hall, to do something about a multitude of problems emanating from that home. Around town, we heard, from multiple sources, that this residence was being used in ways not generally allowed by code, in ANY neighborhood of single-family homes, in ANY suburb. "Flophouse" and "felons", are words people were using.

When the peacock, featuring a lot of bright BLINKING BLUE LIGHTS, visible and objectionable from quite a distance, went up on the roof, the Mayor took some sort of tentative action (again, in response to urgent pleas from nearby homeowners), since peacocks are not traditional symbols of Christmas, in the USA (Christmas lights being one of the few allowable uses for gaudy light displays). But, within minutes of her initial action, one of Mary's people looked-up something like, "Christmas Peacocks", to be sure. As it turned out, peacocks are, or were, traditional... somewhere... (obviously not somewhere anywhere near here)...probably someplace really tacky.

So, within a couple of hours, Good Queen Mary cancelled her TENTATIVE action against The House of Blue Lights, and the tacky blinkin' blue peacock was allowed to remain on the roof. This WOULD HAVE BEEN the end of the story.

However, a certain local "news personality" (reputed to be a prominent late-middle-aged member of the "'Yacht Club Chapter' of 'The Pineapple-upside-down Club'") seems to have had some sort of relationship with one of the residents of The House of Blue Lights. The "news personality" saw this story as a great scoop, and, as they say, "put it on Blast".

"Never let facts get in the way of a good story", seems to be the Mainstream Media's new code. And so, the story, full of omissions and distortions, made national news.

By the way... I grew up watching Perry Mason. I don't remember any star witnesses "grinning like chessie cats" (or like Cheshire Cats, either). Your recollections of our Mayor's words, deeds, and state-of-mind, are as hinky as your memories of Perry Mason. I doubt you've had extensive exposure to either.

Anonymous said...

"My job is not finished here until there's a sidewalk in every front yard and every homeowner has been summoned to John Reeves' court at least once!"

Anonymous said...

I love all the loser potheads crying here. “The will of the people”

Well, the “will of the people” didn’t want to integrate schools in the 1960’s. The “will of the people” didn’t want to free slaves on the 1860’s. Sometimes, the “will of the people” is wrong.

How about this for all you dope smokers: W e make it all legal. Go ahead and smoke up. But, before you do, you will sign an agreement that you will not have the state carry the burden of your health issues when they occur. Since your weed is what “cures all” then you will not have any assistance from the government or your insurance when your health problems start. How about that?

You know who smokes weed? Scumbags and losers.

Kingfish said...

Like I said, you can support 65 and still objectively look at this and think the Mayor has a point, or she doesn't have a point.

As for the Peacocks, the woman had a drug dealing son who liked to get into shootouts in Canton. The police had been called out to the house over a dozen times. There was all kinds of crap taking place at that house.

Earlier post

Second earlier post

Anonymous said...

" Let’s remember we talking about Missippi with about 2.5 million people".

Mississippi had 3 million people this time last year.

As Boomhauer would say:
"Danged ole Covid killed nearly everybody".

Anonymous said...

"(Christmas lights being one of the few allowable uses for gaudy light displays)."

That's about funny as hell. You're not familiar with the Richardson Light Display, one of the gaudiest displays in the United States of America that the same mayor protected and promoted for years? What you just did was illustrate how The Queen will run you out of town if you displease the crown and refuse to bow, when demanded to do so.

Funny how you base all your commentary on neighborhood anxiety, rumors of her son's criminal activity, the fact that the woman was a renter, the rumor mill and your assumptions that are leaping out your ass. The Queen Bee dropped her objection to the peacock because her legal counsel told her she was farting in a whirlwind. It's always good to be Queen but sometimes the court prevails.

Kingfish said...

Rumors?

I posted the police reports, knucklehead. Cops went to that house fourteen times. Maybe people don't want gun-shooting drug dealers living near them. Can't imagine why.

Anonymous said...

It seems that most are missing the actual issues. Constitutionally, I don’t see how this will not prevail. It’s just the facts of the case. The real blame falls on the legislators for not resolving this conflict back in 2000. Also the answer lies with the same. They could simply pass legitimate medical marijuana laws and solve this whole debacle. Don’t demonize Madison and their excellent attorneys, they are just forcing the legislature to own this fiasco.

Anonymous said...

Anyone who thinks the queen is doing this to make sure pot shops don’t spring up in Madison is numb on both ends. Mary and most of the Republican legislature don’t want marijuana anywhere near Mississippi. The legislature knew what they were doing when they failed to fix 273(3). They also are not interested in the people of the state making any changes to the constitution as they could have fixed the issue seven times and failed to do so. So they sat on their thumbs until now.

Hell Jim Hood knew he was leading the SOS down a political rabbit hole when he told them to get the signatures for 65.
The legislature could have passed medical marijuana over twenty times to have control over the process but it never reached the floor
Now everyone except Our Ladies of the Poor has joined with amicus briefs that are as stupid as hell. In fact the legislature itself joined in on the 14th saying hey you can’t pass this even though we didn’t do our jobs. These folks have nothing but contempt for the voters in Mississippi. So Mississippi you want to fix this? Call your congressman and senator and tell them if they don’t get on board THEY ARE FIRED!!! Oh......And @9:09 blow it out your ass and go get drunk. You can piss beer all day but I can’t puff a blunt...


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