State court relies on literal reading for ruling

Published 6:17 pm Friday, May 21, 2021

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Gov. Tate Reeves made three appointments last week to the Mississippi Community College Board — appointments from the same five congressional districts that resulted in the demise of a medical marijuana program and of the state’s initiative process that allowed people to gather signatures to place issues on the ballot.

The law, which is still on the books, enacted a Community College Board in 1986 and mandated the governor to appoint members to staggered terms from five congressional districts. Other agencies of state government also are governed by appointees from those infamous districts that are so disdained by the Supreme Court majority.

Earlier this month the Mississippi Supreme Court in a landmark 6-3 decision struck down the medical marijuana initiative approved overwhelmingly by voters in November and the initiative process itself because of those five pesky districts.

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The court ruled, in a lawsuit filed by Madison Mayor Mary Hawkins Butler, that the initiative process was unconstitutional because it required signatures to be gathered equally from five congressional districts to place an initiative on the ballot. The problem is that Mississippi has four congressional districts, having lost one based on the 2000 U.S. Census data. That, the majority reasoned, voided the medical marijuana initiative and the overall initiative process.

Northern District Supreme Court Justice Josiah Coleman, writing for the majority, seemed to place blame for the ruling squarely on the shoulders of Mississippi legislators — those who passed the language creating the initiative process that was approved by voters in 1992, and those who did not fix the process after the state lost a congressional seat in 2000. He reasoned that perhaps the initiative would not have been struck down by he and his colleagues if only legislators had placed the word “current” in front of congressional districts in the proposal creating the initiative process. Then, he reasoned, everyone would have known that the Legislature intended for the 1992 districts to be used to gather the signatures. Interestingly, the word “current” is not part of the law saying the Community College Board and others are to be appointed from five districts.

Coleman wrote that perhaps the legislative drafters of the ballot initiative process “foresaw or even hoped for a drop in congressional representation that would render the ballot initiative process unworkable.” With all due respect to legislators, it is difficult to imagine they were that smart or even that devious. But regardless, it is clear that was not the intent of Mississippi voters who approved the ballot initiative process.

Both the Legislature and Attorney General in an official opinion issued in 2009 surmised that it was understood that it was referring to the districts as they existed in 1992.

In his opinion, Coleman said the Legislature made “no serious attempt” to change the wording in the Constitution to address the issue that the state had lost a district. Perhaps legislators, though, did not take up the issue because they were relying on a commonsense interpretation of the language, meaning that of course the language was referring to the five districts as they existed in 1992. But the Supreme Court eschewed commonsense for a literal reading of the language as is, of course, the right of the justices to do.

While there might be disagreement about whether to deal with the Supreme Court decision in special session or in the 2022 regular session, both House Speaker Philip Gunn and Lt. Gov. Delbert Hosemann, who presides over the Senate, have gone on record as supporting the Legislature enacting a medical marijuana law and also fixing the initiative process so people can still gather signatures to place issues on the ballot.

Bobby Harrison covers government for Mississippi Today.