MS health dept. urges court to do away with Initiative 65, medical pot. Here’s why.
The state agency charged with setting up Mississippi’s medical marijuana program under Initiative 65 is arguing in court that it shouldn’t have to complete “such a Herculean feat.”
On Monday, the Mississippi State Department of Health filed an amicus brief in support of the lawsuit brought by Madison’s Mayor Mary Hawkins Butler shortly before Election Day, arguing that Initiative 65 never should have made it to the ballot.
Her argument is procedural, saying that Initiative 65 supporters, and supporters of other ballot initiatives, are essentially mathematically barred from following the procedure laid out in the state Constitution, and therefore Initiative 65 shouldn’t have qualified and now should be junked.
The department of health lays out more substantive objections.
“The City’s objection is only the tip of the iceberg,” the brief says. “There are many content problems with the amendment, including its wide-ranging scope and conflicts with existing state and federal law.”
The department of health also opposed Initiative 65 during the campaign. State Health Officer Dr. Thomas Dobbs claimed it would turn Mississippi into a “Wild West” of cannabis. He compared it to Oklahoma’s medical marijuana program, where limited regulations have created the country’s biggest medical marijuana market per capita.
Now, their amicus brief claims that Initiative 65 touches health care, advertising, education, employment, the criminal code, zoning and insurance. However, the text of Initiative 65 says that educational institutions and employers don’t have to allow the use of medical marijuana, and that insurers don’t have to help pay for it.
The brief claims Initiative 65 is an example of “logrolling,” in which a number of provisions are wrapped into one voter initiative. Mississippi voters saw just one simple question for Initiative 65: “Should Mississippi allow qualified patients with debilitating medical conditions, as certified by Mississippi licensed physicians, to use medical marijuana?”
The brief argues they should have had the chance to approve numerous others pertaining to zoning specifications, taxes and limits on the number of medical marijuana treatment centers.
“The reach of Initiative 65 goes much further than the 19-word question on the ballot,” the brief says. “The actual text of the amendment includes 2,565 words that will change the fabric of Mississippi forever.”
The department of health argues that Initiative 65 usurps the Legislature’s “power of the purse” by requiring the agency to collect and administer all the revenue brought in from the new medical marijuana industry, without legislative oversight.
It also claims that Initiative 65 conflicts with federal law barring the use of cannabis with no medicinal exception.
State attorneys defending the initiative must file their responses by Dec. 28.
A mathematical impossibility?
The department of health has said it is working on setting up the medical marijuana program in time to meet the deadlines laid out in Initiative 65.
“We are working very hard conducting assessments and planning to meet the aggressive time frame of August 2021,” department spokeswoman Liz Sharlot said in early November.
On Wednesday, Sharlot said the filing of the brief did not change that.
“The Mississippi Board of Health filed the brief through our agency,” she said. “We will continue to work on putting together a successful medical marijuana program as the situation continues to unfold.”
The brief urges the high court to side with Madison and Hawkins Butler.
“MSDH fully intends to carry out its obligations under the law,” the brief concludes. “But the City has raised a serious challenge to the Initiative 65 petition. And the amendment’s content amplifies the challenge even more.”
Madison’s challenge points out that the constitutional language establishing the ballot initiative process says that a ballot initiative must get no more than one-fifth of its qualifying signatures from each congressional district, but since the 2000 U.S. Census the state has only had four districts. That means each congressional district must provide more than one-fifth of the signatures.
An attorney general’s opinion in 2009 said ballot initiative supporters should get enough signatures from the old congressional districts. In 2019, then-Secretary of State Delbert Hosemann said Initiative 65 qualified for the ballot because it had enough signatures in the old five districts.
Madison’s suit claims that only the Legislature, not an attorney general’s opinion or secretary of state decision, can fix the initiative process.
The Mississippi State Medical Association and Mississippi Sheriffs’ Association have also filed briefs supporting Madison’s challenge.
This story was originally published December 16, 2020 at 11:25 AM.
