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Mississippi Supreme Court Overturns Legal Marijuana Amendment, Puts Several Other State Ballot Initiatives in Jeopardy


LOS ANGELES, CA - OCTOBER 19: Dave Warden, a bud tender at Private Organic Therapy (P.O.T.), a non-profit co-operative medical marijuana dispensary, displays various types of marijuana available to patients on October 19, 2009 in Los Angeles, California. Attorney General Eric Holder announced new guidelines today for federal prosecutors in states where the use of marijuana for medicinal purposes is allowed under state law. Federal prosecutors will no longer trump the state with raids on the southern California dispensaries as they had been doing, but Los Angeles County District Attorney Steve Cooley recently began a crackdown campaign that will include raids against the facilities. Cooley maintains that virtually all marijuana dispensaries are in violation of the law because they profit from their product. The city of LA has been slow to come to agreement on how to regulate its 800 to 1,000 dispensaries. Californians voted to allow sick people with referrals from doctors to consume cannabis with the passage of state ballot Proposition 215 in 1996 and a total of 14 states now allow the medicinal use of marijuana.

Dominated by Republican appointees, the Mississippi Supreme Court on Friday overturned a medical marijuana provision passed by an overwhelming majority of voters—and put every other ballot initiative passed in the state for the last two decades in jeopardy.

The majority justified its ruling on an archtextualist reading of statutory text, which a dissenting judge wrote invited “absurdity.”

In a 6-3 decision, the majority ruled that the ballot initiative violated the Mississippi Constitution. The state’s constitution gives voters the right to propose and enact constitutional amendments by initiative, but the majority found that the relevant section—Article 15, Section 273(3)—was inoperable since the state lost a congressional district following the 2000 Census.

“Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress,” the majority’s ruling states. “To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court.”

The lawsuit, initially filed by Butler Mayor Mary Hawkins Butler, argued that the process for amending the Constitution via initiative was out-of-date making it impossible for the vote on the medical marijuana amendment to be valid.

The text of Section 273, which passed in the 1990s, requires that all initiatives to amend the Constitution be submitted with an equal number of signatures from eligible voters in each of the state’s then-five congressional voting districts.

“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,” the statute says, in part.

Interpreting the text of the statute in its most literal sense, the court’s majority agreed with Mayor Butler, reasoning that because Mississippi now only has four congressional districts, it was not possible for the state to pass any ballot initiatives.

“[T]he intent evidenced by the text was to tie the twenty percent cap to Mississippi’s congressional districts, of which there are now four. In other words, the loss of congressional representation did, indeed, break section 273 so that, absent amendment, it no longer functions,” Justice Josiah D. Coleman wrote for the court’s majority decision.

After more than 200,000 citizens signed a petition, 67-percent of Mississippi voters in November voted in favor of Initiative 65, which would have added an amendment to the Constitution allowing for doctors to prescribe medical marijuana to patients as treatment for a number of ailments.

But because of Friday’s ruling, that measure has been voided—and any other ballot initiative measure that has been passed since the state lost its fifth congressional voting district has been put on shaky if not untenable ground. That includes initiatives to expand the state’s Medicaid program, permit early voting, and reinstate the 1890 Mississippi state flag. But future initiatives are effectively “kill[ed]” as well, a dissenting opinion said.

In the dissent, Justice Robert Chamberlin said the majority’s ruling “does not avoid absurdity; rather, it invites it.”

“The constitution is presumed capable of ordering human affairs decades beyond the time of ratification under circumstances beyond the prescience of the draftsmen,” he wrote. “The majority’s holding destroys such an ordering less than a decade after adoption, presumably finding legislative incompetence or malevolence and/or a desire of the people to put a self-destruct sequence into the initiative process they granted unto themselves.”

“The majority confidently and correctly points out that ‘[n]owhere therein does the Constitution allow amendment by the Supreme Court.’ 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 added.

Chamberlin did not stop there.

“I suggest the majority should have heeded its own words that constitutional changes should not be made by courts but ‘by those authorized so to do by the instrument itself—the people,'” he wrote. “But it has not. And through its actions, not only is this particular initiative dead, but so is Mississippi’s citizen-initiative process.”

Read the full ruling below.

Mississippi Supreme Court 5.14 Ruling by Law&Crime on Scribd

[Photo by David McNew/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.