Medical Marijuana Lawsuit

Mississippi Supreme Court Chief Justice Michael Randolph questions attorneys presenting arguments over a lawsuit that challenges the state's initiative process and seeks to overturn a medical marijuana initiative that voters approved in November 2020, Wednesday, April 14, 2021, in Jackson, Miss. (AP Photo/Rogelio V. Solis)

JACKSON • Medical marijuana was hardly mentioned Wednesday as attorneys argued over whether Initiative 65, the voter-approved pot legalization program, should be overturned by the Mississippi Supreme Court.

Instead the debate focused on congressional districts and a seemingly innocuous section of the Mississippi Constitution that suggests there are five districts when the state now has just four.

"This is not about the wisdom of legalizing medical marijuana; it is about the plain language of (the constitution)," said attorney Kaytie Pickett, representing Madison Mayor Mary Hawkins Butler, who filed the lawsuit challenging the initiative.

Still, the outcome of the case will decide whether Mississippians get access to medical marijuana any time soon. And it might cast legal doubt on past ballot initiatives approved by Mississippi voters, while disrupting initiative signature-gathering drives just getting underway.

It's unclear exactly when the court will rule, but Chief Justice Michael Randolph noted Wednesday that justices plan to move "as quickly as possible."

The city of Madison and its mayor filed the lawsuit against Secretary of State Michael Watson challenging Initiative 65 just days before the Nov. 3 general election in which 74% of voters backed the proposed constitutional amendment.

Butler is worried that under Initiative 65, the city won't be able to regulate where marijuana businesses are located, which could hurt property values and impact the health and safety of citizens.

The lawsuit, which seeks to block the marijuana program, argues the way the ballot question was approved was improper, and it should not have been placed on the ballot in the first place.

The Mississippi Constitution, as amended in 1992, said petitioners must collect an even number of signatures from the state's congressional districts if they want their question on the ballot. "The signatures of the qualified electors from any congressional district shall not exceed one-fifth of the total number of signatures required to qualify an initiative petition for placement upon the ballot," the constitution states.

At the time of the amendment, Mississippi had five congressional districts, thus the one-fifth language. But the state switched to four districts after the 2000 Census, and the constitutional language was never updated.

According to Butler's complaint, this change created a "mathematical impossibility" since one-fifth of signatures can't be evenly spread across only four congressional districts.

The Mississippi Attorney General's Office in 2009 issued an opinion that said collecting signatures from the former five districts meets constitutional requirements. Meanwhile, lawmakers have tried at least seven times since 2003 to propose a constitutional amendment that would clean up the congressional district language, but all of their resolutions died.

Former Secretary of State Delbert Hosemann ultimately approved Initiative 65 for the ballot in 2019 after organizers gathered enough signatures from the five former districts.

But Pickett, the attorney for the Madison mayor, argued Wednesday the constitution's language shows that Initiative 65's backers did not meet the requirements, and Hosemann should not have signed off. When the constitution says "congressional district," she said, it means the current four congressional districts, not the pre-2000 five districts.

Pickett argued that Mississippi cannot have two separate sets of congressional districts used for different purposes — one for electing members of Congress and one for gathering signatures for ballot initiatives.

She said the constitutional language is "unambiguous," and the court should not interpret the section differently simply to "avoid an unintended result" of killing the popular medical marijuana initiative.

Justin Matheny, representing Watson, said the "fairest and best" reading of the constitutional provision that deals with signature gathering is to continue to use five districts, just as Initiative 65's backers did. He pointed to a state statute that still describes five districts, and noted five districts continue to be used for purposes other than congressional representation, such as selecting members to several state boards.

"There are purposes for these districts other than conducting congressional elections," said Matheny, who works in the attorney general's office.

He added that using five districts to evenly collect signatures, rather than four, still ensures an even geographical representation of citizens who support a particular ballot initiative.

"You're still meeting the purpose of making sure one part of the state isn't ganging up on another part of the state," Matheny said.

Both Watson and Butler attended Wednesday's oral arguments, as did Attorney General Lynn Fitch. Watson later told reporters the court's decision could impact past ballot initiatives, including one that mandates voters show a photo ID at the polls, as well as five pending initiative efforts. Those include proposals to create early voting, expand Medicaid, and hold another vote on the state flag.

Watson said three or four of those groups are already gathering signatures under the five-district requirement.

"It's an important issue that's going to shape the future of our state, dealing with medical marijuana and other issues, the legislative process and the initiative process, and how that interacts," he said.

Mississippi legislative leaders have pledged to pass a replacement medical marijuana program if the Supreme Court invalidates Initiative 65. But that would mean a significant delay: Under Initiative 65, patients could receive the drug as soon as late summer, but lawmakers likely could not approve their own legalization program until early next year.

Lawmakers proposed solving this problem by preapproving a backup marijuana program, which would only take effect if the Supreme Court threw out Initiative 65. But that plan died earlier this year amid concerns that the Legislature's program deviated significantly from the version voters approved.

The Mississippi State Department of Health is working toward an August deadline to set up Initiative 65's production, regulatory and licensing systems. A panel of a dozen officials and experts met several times in recent months to discuss proposed rules for the program, which must be in place by July.

Despite the ongoing legal uncertainty, dozens of medical marijuana businesses and nonprofits have started in Mississippi in recent months in anticipation of the state program's rollout.

Among the attendees at Wednesday's oral arguments was Angie Calhoun, a medical marijuana advocate whose son suffers from a debilitating medical condition.

"I hope that our justices will come through and do what is right, and support the will of 74% of Mississippi voters that supported initiative 65," she told reporters. "By doing so, it will definitely help medical marijuana patients across our state who so desperately need help."

LUKE RAMSETH is a Jackson-based reporter covering the 2021 session of the Mississippi Legislature for the Daily Journal. Email him at lramseth@gmail.com, and follow him on Twitter at @lramseth.

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