About That Initiative 65 Case…

Nathan Smith

Article by Nathan Smith Featured Author

Posted July 2021

On May 25, 2021, over 200 people 1 rallied in front of the Mississippi Supreme Court. Dubbed “We are the 74,” the group featured almost a dozen speakers who spoke out in opposition to the Supreme Court’s decision in In Re Initiative Measure No. 65 v. Watson . 2 The group then proceed to march around the Capitol, demanding a special legislative session to reverse the decision reached by the Court. The “ 74” stands for the 74 percent of voters who voted in favor of Initiative 65 in the 2020 election, which would have legalized, according to state law, so-called medical marijuana. 3 The group could more accurately have been titled the 58, since approximately 58 percent of votes cast at the election were in favor of Initiative 65. Seventy-four percent represents the percentage of voters who voted to legalize medical marijuana via either Initiative 65 or an alternative proposal, 65A. Regardless, it can be said with reasonable certainty that a majority of the Mississippians who voted in 2020 are unhappy with the Supreme Court’s decision to overturn their choice to legalize medical marijuana. Let us examine the offending case.

Facts

Following the authority given by Article 15, Section 273(3) of the Mississippi Constitution, the Mississippi Secretary of State certified Initiative 65 after it was satisfied that the required signatures had been collected, and placed it on the ballot for decision in the 2020 election. In October of 2020, prior to the election, Mary Hawkins Butler, in her individual and official capacity as the Mayor of Madison, Mississippi, filed an emergency petition before the Supreme Court, seeking a review of the legality of the constitutional initiative process. She argued that the signature requirement contained in Section 273(3) could not physically be satisfied because only four congressional districts exist (more on this later). The Petition was granted.

The Majority’s Opinion

The Court’s first order of business was to examine whether it had jurisdiction to review the initiative process. Given the fact that Section 273(9) provides, in part, “The sufficiency of petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court…” the Court found that it did, in fact, have jurisdiction to review the sufficiency of the petition.

The second housekeeping item was standing. What business does the mayor of Madison or the city of Madison have challenging a decision of the Secretary of State to place an initiative on the 2020 ballot? Tons of standing, as it turns out. The mayor was found to have standing in her individual capacity because she is a qualified elector. The city was found to have standing because of the adverse impact that could be caused to its zoning authority, which is distinct from any adverse effect that would be suffered by the general public. 4

Having dispensed with the housekeeping items, the majority moved on to the guts of the petition. Wait, there is one other housekeeping item. The doctrine of laches. Paraphrasing, the Secretary of State argued that the Mayor had left the initiative process alone for too long after it became law and that the office of the Secretary of State and the public were disadvantaged by the passage of time before the challenge was made. This is an interesting thought, because the initiative process began operating in 1992 and has been used, successfully, on a number of occasions since then. 5 Only when it was used to pass an unpopular-to-some law regarding medical marijuana was it challenged.

The court didn’t see it that way, however. The majority found that the office of the Secretary of State wasn’t prejudiced because the petitioners timely filed their constitutionally-authorized petition within the proper time frame after the specific Initiative 65 had been certified for the ballot. With respect to the public, the court found that they weren’t entitled to the equitable doctrine of laches under any circumstances, because of “republican and democratic principles.” That is a good point, because the public of Mississippi is governed by laws and a constitution. Thrusting the doctrine of laches into the mix and making it apply universally to the entire public would be ill-advised, at best.

Now, to the guts. The court framed the issue as whether “[t]he reduction in Mississippi’s congressional representation renders article 15, section 273(3), unworkable and inoperable on its face.” The court found that, yes, the common meaning of “congressional district” rendered the initiative process unworkable. For an initiative to be successfully placed on the ballot, Section 273(3) provides “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 its placement on the ballot.” Looking to the Merriam-Webster’s Collegiate Dictionary, the court found that a “congressional district… is a division of a state that elects a member of the United States House of Representatives.” The court found that Mississippi has only had four of these congressional districts since 2002. Importantly, the court also found that “congressional district” in Section 273(3) refers to current congressional districts, not congressional districts as they stood in 1992.

So what? Well, to reiterate, Section 273(3) provides that “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 on the ballot.” The court referred to this as a “twenty percent cap,” and tied it to the five congressional districts. The effect of the cap was to guarantee “that each congressional district would be equally a part of the process.” But with only 4 districts, it is “mathematically impossible” 6 to get the correct percentage of signatures from qualified electors from each district. Presumably, under the current four districts, the language would need to provide for the signatures of 25% of the qualified electors from each district, because 100% of electors should be represented. But the language only speaks of fifths. Thus, the initiative process is unworkable and inoperable on its face.

This was a fairly simple open and shut conclusion for the majority, although a considerable amount of the opinion is spent arguing with the two dissents. Having worked in an appellate judge’s chambers years back, I can only imagine how many times the opinion made the rounds while rebuttals were made to rebuttals.

Dissents

Justice Maxwell was first up to bat in disagreeing with the majority’s conclusion. The crux of his argument was that Mississippi Code Annotated Section 23–15-1037 lays out five congressional districts in the State of Mississippi. He noted that the statute is unchanged, but that for voting purposes, a panel of three federal judges has enjoined the statute and reduced Mississippi to four districts. Justice Maxwell had no beef with the federal injunction, but he did not believe that it applied for any purpose other than voting. He postulated that Section 273 didn’t come into the federal panel’s consideration when they ruled on voting districts in 2002, nor would it have, because federal courts may not interpret state constitutions. 7 Thus, Section 23–15-1037 is still controlling for purposes of defining “congressional districts” in Section 273 of the Mississippi Constitution.

He added that Section 23–15-1039 does not erase the congressional districts established by Section 23–15-1037, but merely establishes a holding pattern until the Legislature redraws the districts. Justice Maxwell saw no federal question present in the decision, and saw no reason to look beyond Mississippi law in making a decision. His parting shot across the bow was that the majority found the initiative process “unworkable,” but that “the Attorney General, the Secretary of State, and the majority of voters who passed Initiative 65 and two prior initiatives believe that it works just fine.”

In keeping with the theme of giving federal law no bearing on the outcome, Justice Chamberlin also dissented from the majority’s conclusion. He noted that there is a presumption that the constitution is “capable of ordering human affairs decades beyond the time of ratification, under circumstances beyond the prescience of the draftsmen.” 8 He observed that the judicial branch is entrusted by the people to interpret the constitution, but believed that the majority had disabled “the very thing it was designed to interpret and enforce.”

Specifically, he agreed with the opinion of the Attorney General, No. 2009–00001, which the majority cited, but did not adopt. That opinion concluded 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.” Thus, Justice Chamberlin argued that Section 273 signature requirement should operate according to the five congressional districts in effect in 1992 when the initiative process was enshrined in the constitution. He believed that the majority’s dictionary definition of “congressional district,” while not unreasonable, was not supported by historical or textual context. In his view, the majority’s holding would have to mean that the legislature included a “poison pill” in the form of the 1/5 signature requirement, one that would kill the initiative process if any subsequent event changed the districts. Like Justice Maxwell, he noted that the initiative process had worked just fine since its adoption, and that there had been multiple successful amendments to the constitution. 9 He noted that the job of the judiciary was to make the constitution work, to “adopt a construction of the statutes which purges the legislative purpose of any constitutional invalidity, absurdity, or unjust equality.” 10

Who Was Right?

It’s difficult 11 to look at any of these interpretations and say they are “right” or “wrong.” Clearly the six-justice majority wrote the controlling opinion and we no longer have an initiative process. The governor has suggested calling a special session to pass legislation to incorporate many of the provisions of the law contained in Initiative 65, but separate legislation would be necessary to “fix” Section 273, since the court has deemed it broken.

My former law school classmate and colleague Matthew Thompson wrote in his blog that the majority decision demonstrates the Doctrine of Absurdity. “In law, strictly literal interpretations of statutes can lead to seemingly absurd results. The doctrine of absurdity holds that common-sense interpretations should be preferred in such cases, rather than literal readings.” 12

Justice Chamberlin wrote in a footnote that “the majority’s interpretation is like a well-manicured lawn whose caretaker focuses on one isolated blade of grass – here, the term ‘congressional district’ — while ignoring the weed 13 that is context.” He goes on to note that the majority “slams the lid on the initiative process. This surely cannot be the intent of the Legislature and the people.”

My thinking goes doggedly back to the question of standing, which is intertwined with these thoughts. A single city and its zoning board was given the opportunity to overturn a provision agreed to by a majority of voting Mississippians and even the initiative process itself. It seems wrong, but perhaps that is where the true poison pill lies: that the law presented in Initiative 65 did not give individual municipalities enough latitude to “opt-out” of the presence of medical marijuana. 14 After all, approval of alcohol within municipal borders is a far more local matter for decision, which has resulted in a “patchwork quilt” of rules across the state. I realize there is no such thing as “medical alcohol,” but I think we can also agree that the use of the “medical” modifier with the word “marijuana” is the subject of some disagreement.

Regardless of the medical marijuana context, I am discouraged to see the initiative process declared inoperable, and do hope to see a fix proposed and passed by the legislature.

  1. This figure comes from the article entitled “’No special session, no reelection’: Mississippians call for legislators to fix initiative process” https://www.clarionledger.com/story/news/politics/2021/05/25/medical-marijuana-advocates-rally-for-initiative-65-mississippi/5239877001/, retrieved June 9, 2021.
  2. 2021 Miss. LEXIS 123.
  3. Given that the word “marijuana” is mentioned only once in the Court’s opinion, one is left to speculate whether the true grievance of the entire litigation was purposefully reduced to a single sentence.
  4. The Secretary of State pointed out that the zoning board was worried about the “curbing of its zoning authority.” In other words, the zoning board’s gripe was that an adverse impact that would result from the substance of the law, i.e. the location of marijuana dispensaries. The law itself wasn’t being challenged, however, only the initiative certification process. But none of the nine justices seemed concerned about the standing issue and perhaps I shouldn’t be either.
  5. Foreshadowing of Justices Maxwell’s and Chamberlin’s dissents, although they don’t mention this in the context of laches.
  6. Miss. Att’y Gen. Op., No. 2009-00001.
  7. Citing Pro-Choice Miss. v. Fordice, 716 So. 2d 645, 665 (Miss. 1998).
  8. Citing Myers v. City of McComb, 943 So. 2d 1 (Miss. 2006).
  9. Both of these arguments are somewhat similar to the Secretary of State’s argument regarding the doctrine of laches, i.e., the process has worked for nearly 30 years, and it is improper and/or harmful to stop it now.
  10. Citing Mississippi Practice Series: Encyclopedia of Mississippi Law § 68:75 (2d ed.), which in turn quoted Univ. of Miss. Med. Ctr. v. Robinson, 876 So. 2d 337, 340 (Miss. 2004).
  11. But not impossible…
  12. https://bowtielawyer.ms/2021/05/18/mississippi-just-said-no-to-drugs-your-right-to-ballot-initiatives-legal-absurdity/ (retrieved June 15, 2021).
  13. Pun intended? If so, bravo Justice Chamberlin!
  14. The offending language is in Section 8(5) of the initiative law, which provides in relevant part “any zoning ordinances, regulations and/or provisions of a municipality or county shall be consistent with Section 1 of this article and shall not impair the availability of and reasonable access to medical marijuana. Zoning provisions applicable to retail dispensaries shall be no more restrictive than those for a licensed retail pharmacy and zoning provisions applicable to other businesses that fall within the definition of medical marijuana treatment centers shall be no more restrictive than other comparably sized and staffed lawful commercial or industrial businesses.” (emphasis supplied). No wonder the Madison County zoning board had beef! Still, it is unfortunate that their beef with Section 8(5) also negated the entire constitutionally-enshrined initiative process.