Monday, December 21, 2020

Medical Marijuana Melee Mushrooms

 The medical marijuana melee mushroomed as more briefs were filed at the Mississippi Supreme Court in support of Mayor Mary's fight to stop Initiative 65.   The initiative amends the Mississippi Constitution to allow the production and sale of medical marijuana.  I65 and its legislative alternative garnered 61% of the vote in November.  I65 received 58% of the vote in the second round while 65A got 21%.  Madison Mayor Mary Hawkins-Butler and her city petitioned the Mississippi Supreme Court to block the enactment of the initiative a few days before the November referendum took place.  A synopsis of the case is posted below.

The Court accepted the petition and set a briefing schedule.  The petitioner's brief was due by December 7.  Amicus curiae briefs were due a week later.  Mayor Mary and Madison filed their brief right on time.  Several groups filed amicus curiae briefs on November 14: 

Mississippi State Department of Health

Mississippi Municipal League

Mississippi State Medical Association

American Medical Association

Mississippi Sheriff's Association

Senator Angela Hill, Representatives Jill Ford and Cathy Chism. 

The Court accepted some briefs while rejecting others.  The common thread running through the rulings is the Court will accept amicus curiae briefs that follow the scope of the original petition.  The Court rejected others that sought to introduce issues such as zoning or in effect re-fight the referendum all over again.   

The Secretary of State's brief is due December 27 while amicus curiae briefs in support of Mr. Watson are due a week later.  The petitioner's reply brief is due January 7.

Mississippi Sheriff's Association 

The Court accepted the Association's brief.  Secretary of State Michael Watson did not oppose the brief's submission. 

The Sheriffs argued  the medical marijuana amendment will increase illegal usage across all age groups. They claim there is little medical evidence to support medical marijuana.  Impaired driving, driving fatalities, and property crimes will increase while public health will worsen.   However, the brief concludes a "plain reading of the Mississippi Constitution will show I65 was wrongfully placed on the ballot.   Attorney William Allen represents MSA. 

Mississippi State Department of Health

The Health Department got some good news and bad news.  The Court approved part of the brief.  However, the Secretary of State objected.  He said the brief  introduced new issues and exceeded the scope of Madison's petition.  The Court agreed and rejected most of the Health Department's brief.   The Health Department asked for leave to file another brief. Phelps Dunbar attorneys  Todd Butler and Mallory Bland represent the Health Department.

 Mississippi Municipal League

Reject.  MML argued in its brief I65 voided a city's ability to regulate medical marijuana dispensaries through zoning.  Such a prohibition will lower property values and alter  investments in affected municipalities.  I65 will also limit the state's police power as well as harming the right of neighboring property owners to object to the dispensaries. I65 also withholds revenue from local governments because they can't tax it medical marijuana (However, prescription drugs are not taxed in Mississippi.). 

Mr. Watson objected to the brief's submission.  He said it exceeded the scope of Madison and the Mayor's petition and introduced new issues.  The Court agreed and rejected the brief.   MML filed a motion for reconsideration Friday. 

 Attorney John Scanlon represented MML. 

 American and Mississippi State Medical Associations

Accepted.  They adopted and expanded upon the constitutional arguments raised by the petitioners in their brief.  The Secretary of State did not object.  The "mathematical impossibility" is real.  The Court should follow it even if it means I65 is invalidated.  The Legislature chose not to fix the Constitution and separation of powers bars the Courts and Attorney General from rewriting Section 273 through interpretation just because a plain reading renders it invalid. 

 The Court accepted the brief.   The two associations are represented by attorney John Howell, III, no relation to Thurston.

Senator Angela Hill, Representatives Jill Ford and Cathy Chism

The Court granted their motion for leave to file an amicus curiae brief. The brief argues the Legislature is aware of the constitutional inconsistency in Section 273 and rejected seven attempts to fix it. Some statutes had similar language to Section 273 for various boards.  The Legislature amended those statutes to recognize the new Congressional districts.  Thus the Legislature's will is to invalidate initiative and referendum through its rejection to fix the "mathematical impossibility."  

The signatures in Application F have no reference to the congressional district where the signatories reside.  Petitioners and the legislators suggest this is because the live in an area that was in another Congressional district prior to the census.  Using their current district would doom I65.  It is suggested they live in Simpson County.

It should be noted Senator Hill introduced a medical marijuana bill last year.  It died in committee.   

Mr. Watson did not object. 

Attorney Nathan Farmer represents the trio. 

Kingfish note: The Court is definitely taking this case seriously.  It will be surprising if the Court does not hold oral arguments. 

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.

 

46 comments:

Anonymous said...

'Roll me another one, just like the other one!"

Anonymous said...

Mayor Mary needs to retire.

Anonymous said...

Blame this one on our Legislature. This problem has been around for years but leadership kicked the can. Now the can has hit the rabid dog and it is biting.

Anonymous said...

Cha-ching cha-ching cha-ching said the attorneys. I wonder the aggregate total of $ spent in a desperate effort to overturn the will of the people? Mayor Mary should be removed from office.

Anonymous said...

KF: I fixed the headline for you....

Mayor Mary Meanders in Meaningless Madness as Medical Marijuana Melee Mushrooms

Anonymous said...

Passing a law to permit MJ use is one thing, but to make it an amendment to the Constitution is way out of line.

Anonymous said...

In order to diffuse the situation the legislature on day one of the next session needs to pass a law that reflects the will of the people. Arguing over procedures when an overwhelming majority of the voting population supported the initiative goes against everything our democracy stands for.

The reality is most people support recreational marijuana use. Go ahead and legalize it and tax it accordingly.

If the legislators would do their jobs we wouldn't be in this predicament.

Anonymous said...

all of this shit from mother mary and the sheriffs and the rest of these ass backwards uneducated rednecks is a classic example of why mississippi is considered a third world backwater somewhere in sub saharan africa

Anonymous said...

@8:31. The legislature refused to pass a law while the state uses taxpayer dollars to grow marijuana for medical use at Ole Miss. The hypocrisy is glaring.

Anonymous said...

to 8:31......i realize you are not a lawyer but you play one on JJ.
pass it one way pass it another.
there is nothing wrong with the people of mississippi voting to amend the mississippi constitution.
at the risk of ruining your ignorant bliss, its done all the time.
the united states constitution can only be amended by the states. i guess you think thats a bad idea too, however im willing to bet you never even knew that in the first place.
mississippi does not have ''states'', so they use the people.
you really should go back to junior high and repeat 8th grade civics.

Anonymous said...

@8:31 - take it up with the voters. They decided to make it part of the constitution because they couldn’t trust the legislature. That mistrust is proving well founded as we now see all these same people who campaigned against the law try to overturn the vote. This list of dissenters is a good reminder of who can not be trusted to act on behalf of the voters.

Anonymous said...

Waiting for the harpies to correct you KF that the measure passed with an 87% approval rate.

Anonymous said...

Let’s be honest, this has little to do with marijuana. Mayor Mary has plenty of doobie smoking citizens already in her town. What this is really about is whether the will of the people must always be subverted to the representatives/senators we elect who subsequently sell us out OR whether, on occasion, the people’s will is actually done.

My guess: Supreme Court will give the Legislature an opportunity to fix in 2021. If the Legislature doesn’t fix the IR procedure (and perhaps the marijuana situation), the Supreme Court will issue its decision post-session putting the booster cables on a special session - sorta similar to the Torts Claim situation circa early 90’s.

Madison will be fine either way; well run municipality with plenty of tax revenue.

Anonymous said...

@8:31 most voters disagree. YOU LOSE!

Anonymous said...

Republican leadership continues to crush personal freedom. Crush that marijuana. Crush the idea that people can get a wine of the month club. Crush that idea that people can get wine and liquor in grocery stores at lower prices. Crush that idea that voters count.

They should push on. Stop freedom of the press. Stop allowing people to vote. Stop allowing people to go to church. Keep it up Republicans. There is a chance you will make us North Korea Number Two but climbing.

Anonymous said...

@ 8:03

You are 100% correct. Our cowardly state legislature should have acted on this years ago. They were so afraid taking a stand one way or the other would cost them a vote or two that they did in fact just "kick the can down the road". Shame on them.

Anonymous said...

Its all about the money, baby!LEO always saying they need more money to fight War on Drugs. Taking a popular drug off the list hurts LEO arrest stats. Low stats = Legislature reduces funding.

Anonymous said...

So, do the voters of Mississippi have the right to amend the constitution or not? What other question is there? Because if they do, then this is all a waste of time because what the voters said was clear. The number of petition signers greatly exceeded what was required, and so did the votes in favor.

If the supremes rule for Mary, then they are saying it is impossible for Mississippi voters to petition to change the state constitution, even though the Constitution says they can.

Anonymous said...

By entertaining all of this, the state supreme court appears to be hunting for a valid way to over turn the result of the ballot and the will of the people.

Anonymous said...

@10:35 AM - Civics fail! The legislature doesn't fund Madison PD. Most LEOs would prefer not to have to deal with MJ smokers.

Kingfish said...

Why don't some of you people screaming "will of the people" actually discuss the merits or flaws of the petition.

If it succeeds, the blame goes to Jim Hood and the Legislature. Jim Hood for inverting the law, as he did numerous times, and the Legislature for refusing to fix the problem. The Legislature never liked the idea of initiative and referendum. It has tried to sabotage it several times. While you are ranting about Republicans, it was Democrats who ran the legislature in the 90's and part of the 2000's. It still controlled the House through the decade. Neither party wanted to give the people that right. Period.

Anonymous said...

11:05 -- So state LEO doesn't receive federal grants? Regardless, a traffic stop in Rankin or Madison that reveals a decent amount of MJ usually results in a forfeiture proceeding that goes unchallenged most of the time. Seized property is then sold and proceeds used to buy new LEO toys. Thus, no more MJ cases to make means less property to seize and sell.

Anonymous said...

Laches.

Anonymous said...

I don't care about the legislature. They play fast and loose with wording and kicked the can for decades. The writing was on the wall for MM and once this became serious they put out 65A saying "We PROMISE we'll get to this..." which they wouldn't. I'm glad this is happening and the Constitution will already be amended by the time the case is decided. Sorry Mary, but you can't get your way all the time. Madison is not the state of Mississippi and if the Supreme Court goes against the will of the people in a overwhelming popular vote, I would suspect they would have a hard time being reelected. It's amazing to me in a state ran by people that swear they are interested in bringing jobs and taking care of the economy, they can't think outside of the scope of putting their finger on something to purposely fail and to give their buddies all the contracts.

WILL OF THE PEOPLE

Anonymous said...

There have been over 3500 peer reviewed studies done on Medical Marijuana just in 2020. It's crazy that people are saying this stuff hasn't been researched.

Anonymous said...

The pro Mary Jane folks like myself caught them napping. But my guess is it will be thrown out.
All of the amendments passed since it became 4 districts are probably illegal. The only technicality they could probably use is if the signatures where still collected based on 5 districts. Even if the numbers add up after the fact there could be a chance they let it stand. Otherwise they are no better than Hood, they are making up law.

Anonymous said...

Geez, Meathead, with your doobie disrupted mind, you're wrong in so many ways. Do you really believe dope smoking is the end all be all experience in life? What a maroon. To think the majority of Meatheads on this board consider themselves smarter than the average Mississippi redneck, but when asked why cigarette smoking is harmful and maryjane smoking isn't they have no response. Well, let me correct that. One had an asinine retort about nicotine being addictive but THC wasn't, really, really cementing my opinion that maryjane smokers were not smarter than a fifth-grader.

Fan Dango said...

I think this will has out one of two ways:

1. The court will hold that the statue allowing constitutional amendments by initiative was effectively "repealed" when the number of districts was changed and the legislature did not act to amend it and therefore the initiative vote was invalid; OR

2. The court will hold that it is powerless to act in light of the statute and the vote to approve the initiative.

I don't see much middle ground.

Anonymous said...

@11:11 am
Correct Kingfish!

Anonymous said...

KF: the pot smokers posting here never read the petition. You know, the one written by the marijuana lobbyists. The one that sets the tax on medicine at 7% when no other medicine in ms is taxed. Why did they do that? Because they know that the state would add a 30% tax to the Vice like they do for alcohol.

It’s a bad law written by lobbyists that played in the emotions of the undereducated.

Anonymous said...

KF,

What party has run the show for the last two to four election cycles in state government? Why was it not fixed under their watch? The Dems were voted out of power in the state since they didn't give the people what they wanted.

I understand your point, but do not deflect from the current powers-that-be.

Anonymous said...

KF, has The One & Only, the Heavyweight Champion of Legal Expertise in this state, publicly commented about this litigation yet?

For those who may be new to Mississippi, we are referring to the distinguished Professor Matthew Steffey. When He speaks, we all listen.

Anonymous said...

Gosh, maybe they will get around to it this year? Or not!

Anonymous said...

The signature collectors at Mississippi State were openly telling students that medical marijuana had to be passed first to pave the way for formal legalization. Please don't tell me otherwise because I heard them with my own ears.

Anonymous said...

Why was it not fixed under their watch?

Legislative inaction doesn't de facto remove the impairment.

Anonymous said...

I'm glad this is happening and the Constitution will already be amended by the time the case is decided.

Yup, chiseled in stone and you, yourself, are equally as dense.

Anonymous said...

12:45, the state would not only tax it like they tax alcohol, they would fork it up also, just like the ABC. Ask any restaurant owner what they think of ABC these days. EVERY restaurant owner and liquor store owner you ask will tell you how incompetent ABC is...and getting worse by the day.

Anonymous said...

9:22...the legislature already DOES have the opportunity to fix this. Come up with some common sense restrictions and put constitutional amendment on the next ballot. If they are reasonable with it and stop all of the stonewalling, the MM people will likely push it over the finish line.

Anonymous said...

So, isn't the burden on Mary to prove that they didn't get sufficient signatures under the 5 district rule? Nobody has said alleged they didn't. But if you did allege such, you should bring it up prior to the SOS approving the initiative, not after. The SOS in his constitutional role in such things ruled that the initiative was proper and should be on the ballot. Mary failed to challenge that at the proper time.

If the Supremes punted on the McQuirter case against Archie by not usurping the HC Democratic party's ruling on residency, then I can't fathom they will over-rule the SOS and the voters in this one.

Anonymous said...

3:09...you are a MSU student? BS, you are 60 years old or older or you would not be fighting against the initiative.

Anonymous said...

The legislature itself put this initiative on the ballot. The SOS approved the initial language, then the legislature added 65A without EVER questioning the validity of 65. So you have several hundred thousand signatures, the SOS approval and the legislature not objecting, but instead, adding to.

Now Mary wants a redo. Its Mary vs the people, the SOS and the legislature.

Anonymous said...

“The Secretary of State claims the petitioners had "years" to file the petition.” The same argument could be made by the other side. The legislature had “years” to pass legislation to fix the problem yet failed to do so. What’s good for the goose your honor.

Anonymous said...

@7:59 my daughter at USM told me the same thing as @3:09. Not all of our young people are pot smokers.

Anonymous said...

Hey @12:45 that was some awesome words you puked up there. I guess I’m one of those uneducated folks who doesn’t read well. But I did read the petition, three times and every amicus brief after. Just go to Mississippi Supreme Court and type in the case number 2020-M-01199. It’s pretty easy to follow even for someone from Mississippi. Basically it’s a hodgepodge of double speak and piss poor maneuver. Why you can’t pass this proposition, the Legislature hasn’t done its job and never will. And no we don’t have to repeal voter ID and right to work because WE like those. But WE don’t like MM so no way.
Hell even an uneducated red neck from Mississippi can see right through the garbage written by The Queen Mary and her harpies

And anyone who thinks the legislature will allow the voters of this state change the constitution are numb on both ends. Some have tried. In fact seven times before, legislation has been introduced. All seven died the slow death. Same with Medical Marijuana. twenty different bills have been written only to see the same fate.

How in the heck was this lawsuit even brought before the Supreme Court in the first place? Usually suits are decided in the lower courts and then bumped up from there. This tells me the supremes will in fact strike down 65. Then when that happens voters will voice their anger towards the legislature. Unless the people are ready to throw some of these servants of the people to the curb then expect the same old BS!!!

Anonymous said...

Who will be first to claim victory...Jill Ford or Mary Hawkins?

Anonymous said...

Sounds like the people of Mississippi should have voted on a referendum on Section 273. One more vice is exactly what the last state in the union needs.



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