South Dakota isn’t the only place where elected officials are using tricky legal arguments to kill cannabis legislation and the initiative process. Last Friday, the Mississippi Supreme Court invalidated a voter-approved medical marijuana measure, Initiative 65, by finding that Mississippi’s entire initiative process has been illegal since 2001 due to redistricting:
Justice Josiah Coleman said, “To work in today’s reality, it will need amending – something that lies beyond the power of the Supreme Court.” This then led to the Court’s decision on the entire ballot initiative process: “The reduction in Mississippi’s congressional representation renders it unworkable and inoperable on its face.”
The backstory here is that Mississippi had five congressional districts at the time the law was written in 1992 but went down to four after congressional districts were redrawn following the 2000 census. Mississippi’s constitution states that signature gathering for ballot initiatives must occur in five congressional districts. Since 2000, Mississippi has only had four districts. The language referring to the initiative process was never amended. The power to change that wording lied in the state’s legislature – which ignored the language issue that led to this ruling.
The reason it even came to the court is because Madison Mayor, Mary Hawkins-Butler, reacting to the passedmedical marijuana Initiative 65 that passed with 73% of voters – sued to block this initiative by attacking the initiative process itself [Ballot Initiative Strategy Center, “Supreme Court Kills Mississippi’s Ballot Initiative Process,” retrieved 2021.05.19].
This decision opens the door for anyone who has opposed any of the eight ballot measures approved in Mississippi since 2001 to walk into court and overturn them:
Legal experts say even if the state legislature resolves the medical marijuana issue, the court ruling opens up the possibility of major legal challenges against previous ballot initiatives.
Eight initiatives were approved by the electorate following the 2001 redistricting, according to state voter records. One of the most controversial ballot initiatives during that period was the 2011 Initiative 27 that required voters to show ID at the polls.
As of Tuesday, no suit or court challenge has been filed against any of the previous ballot measures.
Ronald J. Rychlak, a distinguished professor at the University of the Mississippi School of Law, told ABC News that potential challenges to the voter ID initiative and other initiatives would be a test of the laches doctrine [Ivan Pereira, “Court Decision Leaves Mississippi Medical Marijuana, Other Ballot Initiatives in Limbo,” ABC News, 2021.05.18].
The situation is similar to what is happening here in South Dakota, where Governor Kristi Noem has used constitutional pretexts to overturn Amendment A, the voter-approved constitutionalization of marijuana, but will establish, if she prevails in the Supreme Court, a precedent that could lead to a chaotic overturning of numerous past statutes.
Mississippi’s constitutional technicality also warns us that we should not let our legislators write geographical quotas and other unnecessary restrictions on and complications of our initiative and referendum process into law. The more technicalities our legislators pile onto the process, the more opportunities they create to monkey-wrench the process with technical gaps and traps.
It has been a long time since I have even sniffed the practice of law, so question for more active members of the bar like BCB: does laches apply when the underlying legal process depended on for a measure was still legal at the time of passage, but has since been declared illegal? It feels counterintuitive to argue that a law reasonably believed to be controlling that was subsequently overturned cannot then be used to challenge the statute passed under the authority of said law.
South Dakota, Mississippi, their interchangeable aren’t they. Tate and Kristi are pretty much the same. Why argue with your rulers people, they know whats good for you. As far as being the peoples representatives, well were along way past that one.
Mr. Anderson, your grammar and punctuation in that blogging above this one just boggle grudznick’s mind.
Did you know that high school students can drink whiskey in Mississippi?
You can’t stop them after they turn 21.
Nothing makes an elected or appointed official crazier than weed. They are, in fact the ONLY people so afflicted by the cannabis plant.
Cory isn’t this just another power grab by this new insane rightwing? States rights bullsheit.
Dicta, my understanding of laches is that it is an equitable defense that can be used to prevent one party (say for e.g., “Robert”) from asserting a legal right against against another person (say for e.g. Raymond”) due to Robert’s unreasonable delay in bringing the action once Robert knew or should have known he had the right to seek relief against Raymond. As one of my Lakota friends would tell Robert, laches means that if: “You snooze you lose.” It is sort of an ambiguous equitable doppelganger to a legally enforceable statute of limitations.
To the best of my understanding, however, if Raymond tries to use laches to argue that a court should validate an unconstitutional law or enforce an unconstitutional law as a shield against Robert’s claim, Raymond will lose. Laches is simply never applied to validate an unconstitutional law or uphold an invalid law. I think this analysis applies to Dicta’s hypothetical – if a law has been found to be unconstitutional, laches would not provide a basis for applying that law to resolve a dispute. Rather, only under appropriate and unique circumstances can laches be applied as a matter of equity to achieve a fair result in resolving a single dispute, such as justifying a court in refusing to hear Robert’s complaints about the behavior of Raymond, without regard to whether there is a valid or invalid law that might otherwise support Robert’s case.
Thus, based on my limited experience, I doubt that laches will play any role in whether the SD Supreme Court declares Amendment A to be a valid or invalid provision of the State Constitution. I would be very surprised if the SD Supreme Court gives much time, if any, to considering whether the Plaintiff’s claim was filed too late to challenge an otherwise invalid Constitutional Amendment. The timing of a legal challenge simply cannot transform an unconstitutional law into a valid law or vice versa.
Grudz, my grammer died well before I was born and my first comment, much longer, was censored somehow. So it was a quickie perhaps sticky.
Grammatical technicality: “……the wording (lay),,,,,” (not lied), See – now this whole article and is null and void. :)
Pass this initiated constitutional amendment and end ALL of this nonsense.
Consent of the Governed Act:
“Any initiated act or Constitutional Amendment passed by a direct vote of the people, shall not be nullified or altered or amended in any way by any means other to a direct vote of the people.”
I’ve been saying this for YEARS and no one is listening. Instead, all carrying on with the fools game of initiatives we have today.
An argument for why removing cannabis from the books is better for the people than creating oligopolies and adding layers of unnecessary legislation.
Well, there are always mushrooms, booyah! https://med.nyu.edu/departments-institutes/population-health/divisions-sections-centers/medical-ethics/education/high-school-bioethics-project/learning-scenarios/ptsd-treatment-psychedelics
Truth is, drugs can be great for you. We allow and promote our military to use methamphetamines’ to fly long distance or just to stay on the alert. Legalize and control use of any drug like other states and country’s do.
My guess is that Ma GNOem smoked a little grass in her youth…. and liked it. Just like any other Debbie Downer, she now acts innocent of her use.