Supreme Court Entert ...

Supreme Court Entertains Oral Argument on Constitutionality of Mississippi Medical Marijuana Program and the Initiative Process

April 14, 2021 | by Mark W. Garriga

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What happened.

On April 14, 2021, the Mississippi Supreme Court heard oral arguments concerning a lawsuit brought challenging the constitutionality of Initiative 65, the measure adopted by state voters in November of 2020, amending the Mississippi Constitution to establish a Medical Marijuana program in the state. Lawyers representing the Attorney General and Secretary of State defended the constitutionality of the provision while opponents, represented by counsel for Mary Hawkins Butler, the Mayor of Madison, argued that the Secretary of State’s decision to certify initiative petitions used to gather signatures was unconstitutional.  A decision is expected soon.

What it means. 

The Mississippi Medical Marijuana program, supported by more than 73% of the voters voting in the last statewide election, hangs in the balance after the Justices of the Supreme Court entertained oral argument lasting for more than an hour. Article 15, Section 273(3) of the Mississippi Constitution, the state’s initiative provision enacted in 1992, provides: “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.” Counsel for opponents of Initiative 65 argued that the Secretary of State’s certification of the petitions that were used to gather signatures for the cannabis measure was unconstitutional because, following an Attorney General Opinion published in 2009, the Secretary used the five (5) congressional districts as they exist in state statute (Miss. Code Ann. § 23-15-1037) instead of the four (4) congressional districts that have existed pursuant to federal court orders since the state lost a seat in the 2000 Census.  The state’s counsel argued that since the state apportions various boards and commissions according to the five districts still provided for in state statute, no such inconsistency or unconstitutionality exists.  Arguments and questions by the Justices covered a wide range of other topics, including legislative intent, separation of powers, and federal preemption.

The closely watched case has implications not only for the Medical Marijuana program, but also for the initiative process in Mississippi.  The adoption of the initiative amendment to the state’s constitution followed years of political wrangling in the legislature and was the subject of heated political debate both inside and outside the capitol in the 1980’s and early 90’s.  A ruling by the Supreme Court that the Secretary should have used the boundaries of the current four congressional districts would also, necessarily, mean that it would be impossible to satisfy the Mississippi Constitution’s “one-fifth” requirement, thus spelling doom for the initiative process in the state unless and until a fix or a new measure can be enacted.

The current deadline for final regulations to be released under Initiative 65 remains July 1, 2021, unless the Supreme Court rules otherwise.  We will provide further updates on this important case and the Department of Health’s promulgation of regulations to govern the Mississippi Medical Marijuana program in the interim.