Mississippi medical marijuana hangs in balance with Supreme Court

Published 6:52 am Thursday, April 15, 2021

By Geoff Pender

Mississippi Today 

The medical marijuana program Mississippi voters approved in November, set to begin in August, hangs in the balance with the state Supreme Court, which heard oral arguments about Initiative 65 on Wednesday.

The arguments have nothing to do with medical marijuana or the program voters enshrined in the state constitution, but on procedural issues — whether Initiative 65’s placement on the ballot through a signature petition was constitutionally proper.

Chief Justice Michael Randolph indicated the nine-judge court would issue an opinion as quickly as possible and, “I know many people are waiting on this.”

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“It’s in the judges’ hands now,” said Madison Mayor Mary Hawkins Butler, who filed a Supreme Court challenge to Initiative 65 just days before voters approved it on Nov. 3. “This is one of those defining moments for our state. Maybe we can take care of other antiquated laws that are hindering our progress and our growth.”

Hawkins left the high court’s chambers without taking further media questions Wednesday.

Secretary of State Michael Watson, who took office after the November elections, said “brilliant attorneys” on each side of Butler v. Watson made compelling arguments and regardless the outcome, “we’re all friends, we’re all Mississippians and we’ll move forward.”

Butler argues that the ballot initiative language added to Section 273(3) of the state constitution in 1992 requires proponents to gather signatures evenly from five Mississippi congressional districts — with no more than 1/5, or 20% coming from any single district — to ensure geographic parity.

But Mississippi has had only four congressional districts since the 2000 Census. Butler argues it’s a “mathematical certainty” that of the nearly 106,000 certified voter signatures collected from what are now four districts to put Initiative 65 on the ballot last year, signatures from at least one of the districts surpasses 20%.

Watson argues that while a panel of federal judges ordered Mississippi to use a four-district map for congressional elections, the Legislature never adopted it in state law and “five congressional districts exist under state law and may be used for anything but congressional elections.” The old districts are still used for appointments to state agencies, boards and commissions. Watson’s lawyers from the attorney general’s office say Watson’s predecessor, now Lt. Gov. Delbert Hosemann, properly certified Initiative 65 petition signatures using the five old districts in state law.

Lawyers on both sides argued Wednesday that “plain language” reading of the passage in the state constitution makes their case.

“(The) language is plain, and a congressional district is the area from where a member of Congress is elected,” said Kaytie M. Pickett, attorney for Butler. “We have four … Ask anybody on the street how many we have, they’ll say four … Qualified elector — those words matter, too … Someone cannot be a qualified elector of the fifth district … a district that does not exist.”

Deputy Attorney General Justin L. Matheny, representing Watson, said a plain reading of the entire ballot initiative section of the constitution makes clear voters have the right to amend the constitution at the ballot box, and the 1/5 petition signature requirement is simply to make sure they are geographically dispersed. Both stipulations were met with Initiative 65, Matheny told justices. He said the section also prohibits the Legislature from doing anything to impair voters’ rights to a ballot initiative.

Justices noted that state congressional districts have changed and will continue to change with population shifts. Matheny said this shows the intent of constitutional framers was not to have the initiative right nullified by a change in congressional districts.

“We don’t think the intent was to set up something impossible,” Matheny said.

Justice Kenny Griffis said he understood the Legislature in the 1990s was reluctant to allow voters to approve a ballot initiative process and did so “kicking and screaming.” He questioned whether some of the wording had the “intent of defeating the ability of people to change the constitution.”

Chief Justice Randolph’s questioning of Matheny was at times pointed and sharp.

Chief Justice Michael Randolph poses a question during oral arguments regarding Initiative 65 on medical marijuana Wednesday morning in Jackson. Credit: Vickie D. King/Mississippi Today
“You want me to go to a statute in order to interpret the constitution?” Randolph told Matheny. “I’ve got a problem with that … The dictionary says a congressional district is a part of a state from which a member of the U.S. House of Representatives is elected … If the words are clear, everybody in this room including you agrees we have four congressional districts. Why go anywhere else? What license do we have to go past the plain language, outside of that?”

Justices Robert Chamberlin and James Maxwell II questioned Pickett why the Legislature and voters would have adopted a constitutional amendment thinking it would be subject to Census changes.

“Your position is the Legislature adopted this with the understanding it could be impossible to meet in 10 years or less?” Chamberlin said.

Maxwell said: “So if we lose a federal representative, through federal law, it means our citizens don’t have the means to change our state constitution? Somehow those two things are related?”

Justice Josiah Coleman noted the state statute with five congressional districts “has never been declared unconstitutional, we’ve never been asked to declare it so.” Pickett responded that “a statute cannot change the plain meaning of the constitution.”

Justice Dawn Beam at the outset of the hearing noted her children were watching a livestream of the proceedings, “and I want to make clear, it is totally irrelevant what this court thinks about or how we voted on Initiative 65” but the court will make its decision on constitutional issues. Medical marijuana was barely mentioned during Wednesday’s hearing.

Attorney Kaytie Pickett before the Mississippi Supreme Court during oral arguments challenging ballot Initiative 65 on medical marijuana Wednesday morning in Jackson. Credit: Vickie D. King/Mississippi Today
Justices James Kitchens and Leslie King did not ask any questions of either side during Wednesday’s arguments.

Some legal and political observers have questioned whether an adverse ruling on Initiative 65 could open other ballot initiatives from the last 20 years, such as limits on eminent domain and voter ID requirements, to being challenged and overturned.

Watson said he believes that is not a concern because the “doctrine of laches” barring unreasonable delays in legal challenges would prevent such issues. He said laches should also have prevented Butler’s challenge of Initiative 65 just days before the Nov. 3 election.

But Watson said he is concerned about current and future initiatives, and noted that “three or four are to the point of gathering signatures now” amid uncertainty until, and maybe after, the court rules.

It would appear a ruling totally accepting Butler’s arguments would nullify voters’ rights to ballot initiatives until the Legislature and voters changed both the constitution and state law.

Angie Calhoun of Puckett, one of the leaders of the citizen-led drive for medical marijuana in Mississippi, attended Wednesday’s high court hearing and had signed on as an amicus, or friend of the court, on Watson’s side. Calhoun is the mother of a son who suffered medical problems she said could have been treated with marijuana. Her son, now an adult, eventually moved out of state so he could use medical marijuana.

“I believe our justices will do what’s right an uphold the will of the voters,” Calhoun said. “… I feel like our Legislature obviously has failed us.”

After lawmakers failed for years to approve use of medical marijuana despite a groundswell of public support, voters took matters in hand in November with Initiative 65. The Legislature tried this session to pass a “backstop” or alternative medical marijuana program should the Supreme Court strike down the one voters pass, but the legislation was killed after much debate. Initiative 65 supporters viewed it as a legislative move to usurp the will of voters.

This story republished with permission by Mississippi Today.