Marijuana initiative invalidated by state Supreme Court

The state's medical marijuana initiative was invalidated by the state Supreme Court on Friday in an appeal by Madison Mayor Mary-Hawkins-Butler.

“Pursuant to the duty imposed on us by article 15, section 273(9), of the Mississippi Constitution, we hold that the petition submitted to the Secretary of State seeking to place Initiative 65 on the ballot for the November 3, 2020, general election was insufficient,” Justice Josiah D. Coleman writes in the 58-page majority opinion.

The court sided with Hawkins-Butler, who had said Initiative 65 was put before voters unconstitutionally. Her appeal technically challenged the sufficiency of the petition itself, not the marijuana language.

“Because Initiative 65 was placed on the ballot without meeting the section 273(3) prerequisites for doing so, it was placed on the ballot in violation of the Mississippi Constitution,” Coleman’s decision states. “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. To work in today’s reality, it will need amending — something that lies beyond the power of the Supreme Court. We grant the petition, reverse the Secretary of State’s certification of Initiative 65, and hold that any subsequent proceedings on it are void.”

The Supreme Court heard oral arguments April 14 on an appeal to consider the constitutionality of the initiative legalizing medical marijuana.

“Initiative 65 gives marijuana providers greater rights than any other lawful business,” Hawkins has said. “Such a significant change must be lawfully adopted.”

Justice James D. Blackwell wrote the dissenting opinion Friday and was joined in part by Robert P. Chamberlin who dissented in a separate opinion joined by James W. Kitchens.

“With respect to the majority, this case involves a pure question of Mississippi law—interpretation of Mississippi’s Constitution,” Chamberlain wrote in the dissenting opinion. “And I strongly disagree that the Secretary of State acted in an unconstitutional manner by following Mississippi law. I am also hard pressed to see how a federal court’s almost twenty-year-old injunction, aimed solely at federal congressional elections, has now somehow unintentionally destroyed Mississippi’s 28 constitutional citizen-based ballot-initiative process. But that is exactly what the majority is saying.”

The mayor has said she is not opposed to a well-regulated pure medical marijuana program for the truly suffering.

The mayor argued in the appeal that the Mississippi Constitution itself provides that a petition by voters proposing an amendment to the constitution must have no more than 20% of its required signatures from each of the state’s congressional districts.

The state had five congressional districts some 20-plus years ago with the initiative and referendum option was passed.

The mayor’s appeal argued that because the state Constitution itself contains the 20-percent rule, it is a mathematical impossibility to have the required number of signatures as 20 percent times four Congressional districts equals 80, not 100. 

The Secretary of State argued in response that 100% can be achieved because the meaning and intent behind the law is to use the former five districts as they existed before 2000. 

Hawkins-Butler says amending the constitution is a solemn process and the solution is for the Legislature to amend Section 273(3) given the loss of a congressional district.

She insists the sick and dying people of Mississippi deserve a controlled, well-regulated program overseen by universities, doctors, and pharmacists — which is why she opposes Initiative 65.

The language in the Constitution decriminalizes the purchase, prescribing, sale and processing of medical marijuana, provides for annual cards — not prescriptions — and exempts the holder from criminal or civil sanctions. It also allows for the possession of up to 2.5 ounces per 14-day period or 250 marijuana pipes.

One of the most concerning aspects for the mayor is the restriction on a city’s ability to zone “medical marijuana treatment centers” which includes growers and processors. She feels that such significant changes written into the Mississippi Constitution should be enacted lawfully and has not.

In support of the mayor, amicus briefs have stacked up, including briefs from State Sens. Angela Hill and Kathy Chism, State Rep. Jill Ford, the Mississippi Municipal League, the Mississippi Sheriff’s Association, the Mississippi State Medical Association, and the American Medical Association. 

The case, In RE Initiative Measure No. 65: Mayor Mary Hawkins Butler, In Her Individual and Official Capacities, and the City of Madison v. Michael Watson, in his Official Capacity as Secretary of State for the State of Mississippi, is on file and the Court has indicated it will decide the case. No decision will be made until Madison files a brief today (Jan. 7). 

“We are not against a well-regulated medical marijuana program for the suffering,” Hawkins-Butler told the Journal. “We have grave concerns about what Initiative 65 contains, and more importantly to our suit, how it was passed.”

Initiative 65 is not what voters in the Nov. 3 election thought they were voting for, the mayor insists.

Initiative 65 does not allow doctors to write specific prescriptions and the law grants an “identification card” that’s good for a year, and allows five ounces of marijuana a month for smoking, which equals about 300 joints a month. 

Initiative 65 puts no limits on edible marijuana or marijuana for vaping and it doesn’t control the strength or content of the marijuana. 

The law also prohibits limits on how many growers and dispensaries the state can have, and it bars any limits on the cost of marijuana. 

Furthermore, the mayor argues, it prevents cities from regulating who can grow or sell medical marijuana and where.

Under the new law, pot shops and other dispensaries cannot operate until they are licensed by the Mississippi Department of Health, which has not issued any regulations or licenses yet. 

“If the amendment is struck down, then dispensaries can’t operate unless the Mississippi Legislature enacts legislation to replace the amendment,” Butler said.  

Ridgeland’s Spencer Flatgard, a partner at the law firm Watkins & Eager PLLC and the original drafter of Initiative 65, is confident they will prevail.

He previously told the Journal he is grateful that Mississippi patients will have access to medical marijuana like most of the nation, and that Mississippi voters overwhelmingly supported Initiative 65 with 74 percent of the vote, carrying all 82 counties including Madison and the city of Madison. 

“The mayor’s petition now seeks to nullify the election in which over a million Mississippians voted for medical marijuana,” Flatgard said. “They used the same process they have for decades to amend their constitution.”

Americans for Prosperity, a dozen physicians and medical advocates such as the Mississippi Sickle Cell Foundation all filed amicus briefs in support of Initiative 65 and the referendum’s validity.