United States: Mississippi Supreme Court Strikes Down Medical Marijuana And The Initiative Process

What happened.

On May 14, 2021, the Mississippi Supreme Court in the case of In Re Initiative 65: Mayor Mary Hawkins Butler, In Her Individual and Official Capacities and the City of Madison v. Michael Watson, et al., ruled that the 2002 reduction in Mississippi's congressional representation from five districts to four rendered the Mississippi Constitution's initiative process unworkable and inoperable on its face.  As a result, the Court held that the Secretary of State's certification of the petitions containing signatures supporting Initiative 65, legalizing medical marijuana in Mississippi, was unconstitutional.

What it means. 

Article 15, Section 273(3) of the Mississippi Constitution, adopted by the Legislature and Mississippi voters in 1992, provides that the constitution may be amended through initiative if a measure's sponsors collects signatures equal to twelve percent (12%) of all votes cast for Governor in the preceding gubernatorial election.  At issue in the Hawkins case was the additional requirement 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 upon the ballot." Signatures gathered from any congressional district that exceed twenty percent (20%) of the required signatures "shall not be considered" when making the determination.

In 2018, supporters of the legalization of medical cannabis presented petitions to the Secretary of State proposing the amendment of the Mississippi Constitution to allow qualified patients with debilitating medical conditions, as certified by Mississippi licensed physicians, to use medical marijuana. Pursuant to procedures outlined in Section 273(3), the Secretary certified that the petitions contained the requisite number of signatures using the five congressional districts in existence when Section 273(3) was adopted.  The Secretary did so in conformity with a 2009 Attorney General Opinion in which the AG opined that sufficiency of the signatures should be measured by the last five-district congressional district plan in effect prior to the adoption of the current four-district plan in 2002 (by order of a three-judge panel of the federal United States District Court for the Southern District of Mississippi). As the Supreme Court noted, the Attorney General also observed in his opinion that "[i]t would be mathematically impossible to satisfy the requirements of Section 273 using just four districts."

In overruling the Secretary's certification of the medical marijuana petitions the Supreme Court, by a vote of 6-3, ruled that "the text of section 273 fails to account for the possibility that has become reality in Mississippi, i.e., that our representation in the United States House of Representatives and corresponding congressional districts would be reduced....In other words, the loss of congressional representation did, indeed, break section 273 so that, absent amendment, it no longer functions."  The ruling has the effect of not only nullifying Initiative 65 and the legalization of medical marijuana in the state, it also means that the initiative process under the Mississippi Constitution, in the words of the Court, is "unworkable and inoperable on its face."

Today's ruling marks the second time that the Mississippi Supreme Court has struck an initiative and referendum process from the Mississippi Constitution. The constitutional validity of the previous initiative provision of the state constitution was upheld in the 1917 Mississippi Supreme Court decision of Howie v. Brantley, 74 So. 662, 666-67 (1917). Five years later, in a surprising about-face, the Court ruled that the initiative amendment was "unconstitutional and void." Power v. Robertson, 93 So. 769, 777 (1922). Two state legislators attempted to have the Mississippi Supreme Court revisit and overturn the Power decision in the 1991 case of Moore v. Molpus, 578 So.2d 624, 644 (Miss. 1991), but the Court declined to do so.

The Supreme Court's decision in Hawkins brings to a halt, at least for now, the work of the Mississippi State Department of Health to promulgate regulations governing the new medical marijuana program. Since the initiative process is no longer, the ruling also means that supporters of medical marijuana must look to the Mississippi Legislature if a new law is to become a reality any time soon.  One such bill was passed by the Senate during the last session, but failed in the House.  The next Regular Session of the legislature is scheduled for January of 2022.  However, the Governor also has the authority to call the body back into Special Session before then, should he so choose.

Butler Snow will continue to review and analyze the Supreme Court's decision and provide additional information in the days ahead. Click here to access the full ruling issued by the Mississippi Supreme Court.

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