How do Mississippi Supreme Court justices define the word "shall?" Depends on whether they're considering fully funding public education or giving themselves pay raises. Credit: Vickie D. King/Mississippi Today

The Mississippi Supreme Court on Friday issued a much-anticipated ruling that strikes down the Medical marijuana program enshrined in the state constitution by voters in November.

The ruling also voids — for now — the state’s ballot initiative process that allows voters to take matters in hand and pass constitutional amendments. The court ruled that the state’s ballot initiative process is “unworkable and inoperative” until lawmakers and voters fix state law and the constitution.

With six of the nine state justices agreeing, the court wrote, “We grant the petition, reverse the Secretary of State’s certification of initiative 65 and hold that any subsequent proceedings on it are void.”

Madison Mayor Mary Hawkins Butler filed a Supreme Court challenge to Initiative 65 just days before voters approved it on Nov. 3. Butler argued that Mississippi’s ballot initiative process is constitutionally flawed and Initiative 65 was not legally before voters. She said a provision requiring an equal number of signatures from Mississippi’s five congressional districts could not be met, because Mississippi has only had four districts for two decades.

Besides derailing the medical marijuana program, the ruling also jeopardizes six pending ballot initiatives, including one to expand Medicaid and others to reinstate the state’s 1890 state flag, allow early voting and to approve recreational marijuana use. The ruling also could open to challenge two constitutional amendments that voters have passed since they were allowed to do so in 1992, one limiting eminent domain powers over government to take private land and one requiring a government-issued ID to vote.

The now-voided constitutional amendment passed by voters would have required Mississippi to have a medical marijuana program up and running by August.

READ MORE: Mississippi Supreme Court medical marijuana case: What you should know

Justice Josiah Coleman, writing for the majority, said, “the loss of congressional districts did, indeed, break (the ballot initiative provision) so that, absent amendment, it no longer functions.”

Both sides in the legal battle had asked the high court to make a ruling based on “plain reading” of the constitutional provision — one side saying the four vs. five districts discrepancy plainly voids it, the other said the constitution plainly gives people the right to amend the constitution and that shouldn’t be thwarted by a technicality.

The court majority ruled that the provision plainly says signatures are to be gathered equally between five districts, one of which no longer exists.

The court said: “Unlike the other two branches of government, the courts may not act proactively to address problems such as the one here … It is our duty to interpret our Constitution when its meaning is put at issue … The Court does not have jurisdiction to review, affirm, or overturn the ‘will of the people’ … The November 2020 results are not before us … The reduction in Mississippi’s congressional representation renders (the ballot initiative provision) unworkable and inoperable on its face.”

READ MORE: Mississippi’s medical marijuana mess

The court noted that the Legislature has been well aware of the congressional district disparity in law and constitutional provisions for years, but has not changed it, even after seven failed attempts.

Justice Robert Chamberlin, in a dissenting opinion wrote that the majority ruling, “does not avoid absurdity, rather, it invites it.”

Concurring in the majority opinion were Chief Justice Michael K. Randolph and Justices Coleman, Leslie King, Dawn Beam, David Ishee and Kenneth Griffis. Justices Chamberlin, James Maxwell II and James Kitchens disagreed, with Maxwell and Chamberlin writing separate dissenting opinions.

Maxwell, in his dissent, noted the majority of the court correctly pointed out that it doesn’t have the authority to amend the state constitution, “Yet the majority does just that — stepping completely outside of Mississippi law — to employ an interpretation that not only amends but judicially kills Mississippi’s citizen initiative process.”

Chamberlin wrote that “it stretches the bounds of reason to conclude that the Legislature in 1992, when drafting (the ballot initiative process) would have placed a poison pill within the language of the provision that would allow the provision and the right of the people to amend the constitution through initiative to be eviscerated at the whim of a federal injunction (on congressional districts) of such limited scope.”

The Mississippi Medical Marijuana Association in a statement called the ruling “devastating for not only patients, but voters as a whole.”

“The Mississippi Supreme Court just overturned the will of the people of Mississippi,” said association Director Ken Newburger. “Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right. It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter.”

Angie Calhoun, an association member and mother of a son with a rare illness treatable by medical marijuana, said: “In addition to silencing the votes of three-fourths of the state, today the Supreme Court squashed the hope of thousands of patients like my son, who will now not be able to find relief through medical marijuana. As a mother of a patient, I am heartbroken and outraged that this was allowed to happen.”

Butler, in her lawsuit against Secretary of State Michael Watson, argued that the ballot initiative language added to Section 273 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. Problem is, Mississippi has had only four congressional districts since the 2000 Census showed it lost population. Therefore, 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%.

Butler’s lawyers also argued that there have been at least seven unsuccessful attempts in the Legislature to address the congressional district issue, and that other parts of the constitution either refer to congressional districts “as now existing” or referring to their makeup at a specific date.

Butler did not respond to requests for comments on Friday.

Kendra James, a spokeswoman for Watson said: “We received a copy of the Supreme Court’s opinion this afternoon and are currently in the process of reviewing it. Once our office has had a chance to digest the opinion, we will issue an official statement.”

After years of inaction by the Legislature despite growing grassroots, bipartisan support, voters in November approved Initiative 65. It’s a constitutional amendment mandating and specifying a state medical marijuana program. But opponents — some who said they support medical marijuana in general — said such a program has no place in the constitution and opposed the program not allowing any legislative oversight or taxation.

State Rep. Robert Johnson, D-Natchez, the House minority leader, questioned why the Supreme Court would take away from the people the initiative process on what he called a technicality.

“It has been like this for 20 years and no one has said a word,” he said. “Now they don’t like the results and they do this after the people have spoken. I can’t say it better than Justice Chamberlin – it is absurd.”

He said expanding Medicaid, an ongoing initiative effort, like legalizing marijuana is popular. He said the action of the Supreme Court takes away the voice of the people to act on popular issues when the Legislature will not.

House Ways and Means Chairman Trey Lamar, R-Senatobia, on Friday said: “If I have said it once, I feel like I’ve said it 1,000 times. The language of Initiative 65 that would have gone into our constitution was not good for the people of Mississippi. I thank our Supreme Court for having the courage to rule according to the law and for protecting our citizens from the unintended consequences of Initiative 65. Now, we should craft a legitimate medical marijuana program that will truly help the people who would benefit from it without all of the unintended consequences that would have come with 65.”

Andy Taggart, an attorney, politico and author who had vocally opposed the Initiative 65 campaign, in a statement on Friday said: “The hardest job an elected Supreme Court ever faces is when it has to apply the law in the face of political opposition. I think the Court reached the correct decision, but no matter how anyone voted in the referendum, we all owe the Court our respect for following the law as it was written.”

Earlier this year, the state Senate passed an “alternative” medical marijuana program that proponents said could serve as a backstop in case the court struck down Initiative 65,but that measure was killed in the House. House Speaker Philip Gunn said lawmakers could consider a medical marijuana program in the event the court voided Initiative 65.

Lt. Gov. Delbert Hosemann, who presides over the Senate, on Friday said, “The senate passed backstop legislation which we anticipate revisiting in January.”

Friday’s ruling marks the second time the state Supreme Court has killed Mississippi’s initiative process. While the current initiative process has been in effect since 1992, in the 1910s, legislators also gave Mississippians the opportunity to vote to enact an initiative process. They voted overwhelmingly to do so, but in the 1920s, because of what the Mississippi Supreme Court justices saw as a problem with the wording in that initiative, they threw it out. Legislators did not enact a new initiative until 70 years later.

Tim Moore, president of the Mississippi Hospital Association and a leader of the move to expand Medicaid through a ballot initiative said the court’s ruling “came as quite a surprise.”

“We’re going to evaluate all of the parameters and go from there,” Moore said. “I don’t have an answer for you right now. We just have a lot of questions. We’re going to meet with the powers that be and determine where we go from there.”

READ MORE: Mississippi Today’s full coverage of the medical marijuana fight


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Geoff Pender serves as senior political reporter, working closely with Mississippi Today leadership on editorial strategy and investigations. Pender brings 30 years of political and government reporting experience to Mississippi Today. He was political and investigative editor at the Clarion Ledger, where he also penned a popular political column. He previously served as an investigative reporter and political editor at the Sun Herald, where he was a member of the Pulitzer Prize-winning team for Hurricane Katrina coverage. Originally from Florence, Mississippi, Pender is a journalism graduate of the University of Southern Mississippi and has received numerous awards throughout his career for reporting, columns and freedom of information efforts.

Bobby Harrison, Mississippi Today’s senior capitol reporter, covers politics, government and the Mississippi State Legislature. He also writes a weekly news analysis which is co-published in newspapers statewide. A native of Laurel, Bobby joined our team June 2018 after working for the North Mississippi Daily Journal in Tupelo since 1984. He is president of the Mississippi Capitol Press Corps Association and works with the Mississippi State University Stennis Institute to organize press luncheons. Bobby has a bachelor's in American Studies from the University of Southern Mississippi and has received multiple awards from the Mississippi Press Association, including the Bill Minor Best Investigative/In-depth Reporting and Best Commentary Column.