Process, not marijuana, issue of Initiative 65 appeal

An appeal to consider the constitutionality of an initiative legalizing medical marijuana is about the plain language of the state Constitution and a reduced number of Congressional districts, not the wisdom of legalizing medical marijuana itself, Madison Mayor Mary Hawkins-Butler says.

The state Supreme Court agreed last month to hear the appeal filed by Hawkins-Butler and the city of Madison in October before Initiative 65 was passed overwhelmingly by voters in November. Legalized marijuana is not set to be rolled out until later this year and the court will hear the case before then, but no date has been set.

Hawkins-Butler says Initiative 65 was put before voters unconstitutionally. Her appeal technically challenges the sufficiency of the petition itself, not the marijuana language.

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

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

The mayor is arguing 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 percent 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 argues 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 argues in response that 100 percent 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. 

Voters on the ballot saw a much shorter version than the actual language that contains about six pages of text made up of 10 sections with its own definitional section.

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.  

Proponents of I-65 

disagree

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 said 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.”

Other agencies side with Hawkins-Butler

The amicus brief from the Mississippi Department of Health, argued about the content problems with the amendment, such as its conflicts with existing state and federal law. 

Initiative 65 had tasked the department with the administration and oversight of the medical marijuana program, something the department claimed it shouldn’t be told to perform. 

The lawmakers’ brief stated that additionally, many in the Legislature recognized the language in Section 273(3) that referred to congressional districts could not be reconciled with the loss of a congressional seat in 2000 and needed to be amended. 

“Indeed, the Secretary of State himself introduced a resolution in 2015 intended to do just that. Sadly, the resolution died in committee,” the brief continued. “Nevertheless, bringing Section 273(3) into compliance with the current congressional districts remains the responsibility of the legislature branch, not the judicial branch.”

The Mississippi Municipal League, one of the opposers of Initiative 65, supports the state’s cities and towns. They argued Initiative 65 badly impacts the state’s “home rule” statute and will cause harm to municipalities in zoning laws being enforced. They also argued that cities will continue to police and provide governmental services related to the medical marijuana program with no opportunity for financial recovery. 

The Mississippi Sheriff’s Organization included their argument, which states marijuana is already the most frequently used drug in the country. Increased usage of it would have an increase in addictions, and cause health issues such as declining IQ and mental health problems. 

The Sheriff’s Organization believes Initiative 65 should be voided, as placing it on the Nov. 3 ballot was unconstitutional. 

According to the Mississippi State Medical and American Medical Associations, declaring Initiative 65 as unconstitutional would have a big negative effect, which would be waiting for the Legislature to fix the error. On the other hand, the consequences of upholding the law through a rewrite are far worse. 

As of now, no hearing date has been set. For more information on this case, visit www.courts.ms.gov.