Deborah Hughes v. Delbert Hosemann ( 2010 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2010-CA-01949-SCT
DEBORAH HUGHES AND CRISTEN HEMMINS
v.
DELBERT HOSEMANN, P. LESLIE RILEY, JR.
AND PERSONHOOD MISSISSIPPI
DATE OF JUDGMENT: 11/09/2010
TRIAL JUDGE: HON. S. MALCOLM O. HARRISON
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: ROBERT B. MCDUFF
J. CLIFTON JOHNSON, II
ALEXA KOLBI-MOLINAS
SUZANNE NOVAK
DIANA O. SALGADO AGUILAR
ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL
BY: HAROLD EDWARD PIZZETTA, III
STEPHEN M. CRAMPTON
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: VACATED AND DISMISSED - 09/08/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
PIERCE, JUSTICE, FOR THE COURT:
¶1. In November 2008, P. Leslie Riley and an organization known as Personhood
Mississippi filed an initiative, now known as Measure 26, with the Office of the Secretary
of State. The initiative was qualified by the Secretary of the State to be placed on the general-
election ballot. Thereafter, Deborah Hughes and Cristen Hemmins (“Plaintiffs”) filed a
complaint for declaratory and injunctive relief in Hinds County Circuit Court against
Secretary of State Delbert Hosemann, challenging Measure 26 as a violation of Article 15,
Section 273(5)(a) of the Mississippi Constitution.1
¶2. On August 10, 2010, Plaintiffs filed a motion for judgment on the pleadings. The
Secretary of State replied with a response to that motion. Then, on September 30, 2010, the
trial court entered and approved an Agreed Order, allowing Riley and Personhood
Mississippi (collectively,“Intervenors”) to intervene. In that same order, all parties agreed
that this case was “based on questions of law” and “should be resolved by way of judgment
on the pleadings.” Subsequently, after considering the motion and responses, having heard
oral argument,2 and being otherwise fully advised in these matters, the trial court denied
Plaintiffs’ motion for judgment on the pleadings, finding that they had not carried their heavy
burden in attempting to restrict the citizenry’s right to amend the Constitution.
¶3. Thereafter, the trial court entered an additional order, titled “Final Judgment.” The
trial court ruled that the denial of Plaintiffs’ motion for judgment on the pleadings disposed
of the case. Additionally, the trial court ruled that “final judgment is hereby entered in favor
of the” Secretary of State and the Intervenors. Plaintiffs now appeal the trial court’s
decision.
ANALYSIS
1
Plaintiffs did not dispute the form of the petition, as they did not challenge the
sufficiency of the petition and/or the ballot title or summary of the proposed initiative
measure. See Miss. Code Ann. §§ 23-17-13, -23, -25 (Rev. 2007).
2
In the trial court’s October 26, 2010, order, it stated that it had heard oral argument.
No transcript of an oral argument is in the record on appeal.
2
¶4. On appeal, Plaintiffs request that this Court reverse the judgment of the trial court,
find that Measure 26 is unconstitutional and invalid, and enjoin the Secretary of State from
placing Measure 26 on the ballot in the November 2011 election. This opinion in no way
speaks to the merits of Measure 26, but rather focuses on whether Measure 26 is ripe for
review by the judiciary, which is a question of law. This Court conducts a de novo review
of questions of law. Miss. Transp. Comm’n v. Fires, 693 So. 2d 917, 920 (Miss. 1997).
¶5. Throughout the record, Plaintiffs question the substance3 of Measure 26. However,
Plaintiffs have not raised any objections to the form of Measure 26 as set forth in Mississippi
Code Sections 23-17-1 to 23-17-61. To be clear, it is the province of this Court to interpret
the meaning of the Mississippi Constitution, and no opinion issued by this Court has
interpreted the meaning of the word person as it is used throughout the Constitution. The
dissent worries that Measure 26 “seeks to modify the definition” of “person or persons” as
they appear in the Mississippi Constitution. But those terms have never been defined.
Therefore, Measure 26 cannot modify a definition that does not now exist.
¶6. Essentially, Plaintiffs ask this Court to render judgment upon the substance of
Intervenors’ initiative – its constitutionality – in advance of the election. The dissent
questions the majority’s understanding of what Plaintiffs are seeking, yet it is clear that
Plaintiffs are requesting a ruling on the substance of the proposal – its text – which is the
essence of substantive review. Even my learned colleague admits in dissent that Plaintiffs
are attacking the “very text of Measure 26,” which, again, is the fundamental nature of a
3
They question the meaning of the words used within the text of Measure 26.
3
substantive inquiry. Issuing a ruling on whether the text comports with the Constitution
would be the same as issuing a substantive ruling on the constitutionality of the proposal
itself, which this Court is without authority to do. Power v. Ratliff, 72 So. 864, 867 (Miss.
1916); Barnes v. Barnett, 129 So. 2d 638, 642 (Miss. 1961). As a matter of judicial policy,
this Court does not issue advisory opinions.
¶7. Ultimately, the judiciary’s power is restricted in reviewing the constitutionality of a
proposal, regardless of whether that proposal is proffered by a legislator or through a voter
initiative. Our law provides that this Court cannot interfere with the legislative act of the
people, just as this Court cannot interfere with the attempt of the Legislature to pass a law.
See Ratliff, 72 So. at 867; see also Barnett, 129 So. 2d at 642. Moreover, this Court has
found that advance opinions will not be issued to remove alleged clouds or uncertainties from
proposed statutes or constitutional amendments. See Ratliff, 72 So. at 867. It is not within
the province of this Court to render advisory opinions. Sheldon v. Ladner, 38 So. 2d 718,
719-20 (Miss. 1949); see also Tallahatchie Gen. Hosp. v. Howe, 49 So. 3d 86, 93 (Miss.
2010) (“[T]his Court does not issue advisory opinions.”).
¶8. In 2000, this Court found that it did have authority to review the constitutionality of
proposed initiatives. In re Proposed Initiative Measure No. 20, 774 So. 2d 397, 401 (Miss.
2000). But the authority which would grant the Measure 20 Court that power is glaringly
absent from its analysis. Id. This Court cannot draw upon authority which it does not have.
Common Cause of Mississippi v. Smith, 548 So. 2d 412, 414 (Miss. 1989) (citing Jackson
v. Gordon, 11 So. 2d 901, 902 (Miss. 1943)).
4
¶9. In Measure 20, the Court was presented with a pre-election challenge to “a proposed
initiative measure to prohibit gambling within the state, except gambling sponsored by
religious, educational or wildlife organizations.” 4 Measure 20, 774 So. 2d at 398. The trial
court had held that the measure would not be placed on the ballot because, among other
things, it “impermissibly attempted to amend the Bill of Rights[,]” and “failed to include a
government revenue impact statement” as required by Article 15, Section 273(4) of the
Mississippi Constitution. Id. at 399. On appeal, the Measure 20 Court focused mainly on
the sponsor’s compliance with the government revenue-impact-statement requirement of
Article 15, Section 273(4). Id. at 401-02. The Court concluded that the measure “clearly
violate[d] Section 273(4)” as it did “not include a government revenue impact statement[,]”
a defect in form. Id. at 402.
¶10. Notwithstanding that dispositive conclusion, the Measure 20 Court expanded its
remarks gratuitously to consider whether all measures are subject to “substantive review by
the courts.” Id. at 401 (emphasis added). While the Measure 20 Court recognized Ratliff
for the proposition that “proposed initiatives will not be reviewed by this or any other court
4
The initiative and referendum amendment, which had been inserted into the
Mississippi Constitution following a general election in November 1914, was deemed
unconstitutional and void in 1922. See State ex rel. Moore v. Molpus, 578 So. 2d 624, 628
(Miss. 1991); Power v. Robertson, 93 So. 769, 775-77 (Miss. 1922). Thereafter, a specified
initiative process was nonexistent in Mississippi until 1992, when Article 15, Section 273
of the Mississippi Constitution was amended to provide that “[a]mendments to this
Constitution may be proposed by the Legislature or by initiative of the people.” Miss. Const.
art. 15, § 273(1) (emphasis added). In 2000, Measure 20 provided the first appellate
challenge to a proposed initiative measure following the 1992 amendment.
5
for their wisdom and merit[,] . . . [t]he voters make those decisions[,]” it then proceeded to
disregard the result and principles announced in Ratliff. Id. (citing Ratliff, 72 So. at 864).
¶11. Specifically, without any supporting citation, the Measure 20 Court stated that
“proposed initiatives are subject to review of form and, therefore, content inasmuch as
content affects form and form affects content. Simply put, initiatives must meet minimum
constitutional and statutory requirements, prior to being placed on the ballot to ensure full
disclosure and notice to the electorate.” Measure 20, 774 So. 2d at 401. The Measure 20
Court added further that there must be a “place” and “procedure” for reviewing the “facial
constitutionality of a proposed initiative . . . .” Id. But, given Measure 20’s holding that the
absence of a government revenue-impact statement “clearly violates Section 273(4)[,]” all
additional comments regarding the “substantive review” of proposed initiative measures were
mere dicta – surplusage, which no court is bound to follow.
¶12. For those who argue that these statements were necessary for the disposition of the
case, those conclusions are unfounded. Form and substance are separable, because content
relates to what composed something (i.e., the different fibers that together form cloth),
whereas form involves appearance or shape (i.e., the color or pattern of the cloth), apart from
the materials. If Measure 20 suggests that form is inseparable from content, such a notion
is unsupported both by existing law in this State and, more fundamentally, the basic laws of
6
physics.5 Legally, any attorney who objects to a leading question 6 can appreciate the
distinction. See URCCC 1.11; see also Miss. R. Civ. P. 7 cmt. (distinguishing substance and
form in motions). Physically, the fact that ice, snow, and steam are all different forms of the
same substance (water) undoubtedly illustrates the natural distinction between form and
content.
¶13. All can agree that “minimum constitutional and statutory requirements” must be met
before a measure is “placed on the ballot . . . .” Measure 20, 774 So. 2d at 401. There are
two stages for challenging an initiative-driven constitutional amendment: 1) pre-election, as
to form, and 2) post-election, as to substance. The Measure 20 Court muddied the water,
and to the extent that Measure 20 is read to provide pre-election substantive review of
proposed constitutional amendments, it is overruled.7 We agree with the dissent that the
wisdom and merit of proposed initiatives are best left to the purview of the voters. See
Measure 20, 774 So. 2d at 401 (citing Ratliff, 72 So. at 864). Thus, we must return to and
follow the proper standard as articulated in both Ratliff and Barnett. This Court is without
power to determine the constitutionality of a proposed statute, amendment, or initiative prior
to its approval by the Legislature or electorate.
5
The dissent erroneously finds that the Measure 20 Court did not equate content with
substance. Yet, that is exactly what that Court did in finding that content affects form and
form affects content. See Measure 20, 774 So. 2d at 401.
6
This is an objection to its form, although the content of the question may pertain to
the most critical element of the case.
7
We agree with the dissent’s proposition that the Measure 20 Court in no way
decided the case on the underlying merits of whether prohibiting gambling is
unconstitutional under the Bill of Rights, but to the extent Measure 20 is read otherwise, it
is overruled.
7
¶14. The dissent agrees that Ratliff prohibits substantive challenges, yet it equates the
situation at hand to “facial validity,” hinging on the notion that the issue before us concerns
“the very text of Measure 26." Yet, the dissent ignores the fact that this Court cannot address
the validity of a proposal prior to an election. The dissent relies upon Robertson to question
the validity of the petition, but there is no authority which allows this Court to address the
validity of the proposal prior to an election. The Robertson Court possessed the authority
to address validity – this is the distinguishing mark of Robertson. Robertson, 93 So. at 772.
There, the Court had the power to review validity, as the Constitution at that time allowed
validity to be attacked. See id. Nothing in our Constitution as it exists today gives this Court
the authority to review the validity of a proposal prior to its enactment, which is exactly what
Plaintiffs request this Court to do.8 This Court is without power to interfere with pre-election
proposals, because to do so may place the administration of government at the footstool of
the judiciary. Ratliff, 72 So. at 866-67.
¶15. In the trial court’s final order, it entered a judgment in favor of the Secretary of State
and Intervenors against Plaintiffs. However, neither the Secretary of State nor Intervenors
proffered a motion or counterclaim requesting any relief or judgment. Even though one
might allege that Measure 26 violates Article 15, Section 273(5)(a), that determination is
premature, because this Court would have to review the substantive constitutionality of the
8
“The making of the laws belongs to a co-ordinate branch of the government, and the
courts have nothing to do with the making, but must deal altogether with the finished
product.” Ratliff, 72 So. at 867 (emphasis added).
8
proposal prior to its enactment. Additionally, this Court would have to decide issues on
appeal that were not clearly or properly addressed by the trial court. We simply cannot
render a decision on the constitutionality of a proposal pre-election. See Ratliff, 72 So. at
867; see also Barnett, 129 So. 2d at 642. This Court repeatedly has held that we cannot and
will not rule upon issues not decided by the trial court below. “Logic is strained at the
thought of an appellate court affirming or reversing a decision never made.” Tricon Metals
& Servs., Inc. v. Topp, 516 So. 2d 236, 239 (Miss. 1987). Just as this Court cannot prohibit
legislators from offering proposals in the House or Senate, this Court cannot impede voters
from submitting proposals through the voter initiative process.
¶16. Pre-election challenges of voter-initiative proposals are subject only to the review of
the sufficiency of the petition 9 itself (i.e., its form) and not its constitutionality (i.e., its
substance). Miss. Const. art. 15, § 273(9); see also Miss. Code Ann. §§ 23-17-13,10 -23,11
9
When read in accordance with Mississippi Code Sections 23-17-1 to 23-17-61,
“sufficiency of petitions” found in Article 15, Section 273(9) refers to Mississippi Code
Sections 23-17-13, -23, -25.
10
Mississippi Code Section 23-17-13 allows a challenge of the ballot title or summary
formulated by the Attorney General. Miss. Code Ann. § 23-17-13 (Rev. 2007).
11
Mississippi Code Section 23-17-23 allows the Secretary of State to refuse to file an
initiative because: the petition is not in the proper form; the petition bears insufficient
signatures; one or more of the signatures on the petition is invalid; the time within which the
petition can be filed has expired; and the petition is not accompanied with appropriate filing
fee. Miss. Code Ann. § 23-17-23 (Rev. 2007).
9
-25 (Rev. 2007).12 This Court will exercise judicial restraint and follow the reasoning of the
majority of courts throughout the United States, both federal and state, which:
have articulated a policy of deference toward direct legislation processes. For
example, in an early case the United States Supreme Court declined to review
a challenge asserting that the initiative is inconsistent with the federal
constitutional guarantee of a republican form of government, declaring the
issue a nonjusticiable political question.
James D. Gordon, III & David B. Magleby, Pre-Election Judicial Review of Initiatives and
Referendums, 64 Notre Dame L. Rev. 298, 300-01 (1989) (citing Pacific States Tel. & Tel.
Co. v. Oregon, 223 U.S. 118, 150-51, 32 S. Ct. 224, 231, 56 L. Ed. 377 (1912)). We cannot
invade the territory of the Legislature or the electorate to review the substantive validity of
a proposed initiative, and thereby, we will honor the maxim embodied in the constitutional
mandate of separation of powers. Miss Const. art. 1, §§ 1, 2.
CONCLUSION
¶17. Measure 26 is not ripe for review. Thus, we vacate the trial court’s final judgment in
favor of Intervenors and Secretary Hosemann. We render judgment, finally dismissing
plaintiffs’ complaint and this action without prejudice.
¶18. VACATED AND DISMISSED.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR
AND CHANDLER, JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., CARLSON AND
12
Mississippi Code Section 23-17-25 provides that if the Secretary of State refuses
to file an initiative, the sponsor of the initiative can seek an order from this Court requiring
the Secretary of State to bring the petition before the Court and for a writ of mandamus
compelling him to file it. Then, this Court can review only the “legal form,” the signatures,
the time within which the initiative was filed, and whether the petition was accompanied with
the appropriate filing fee. Miss. Code Ann. § 23-17-25 (Rev. 2007).
10
DICKINSON, P.JJ., LAMAR, CHANDLER AND PIERCE, JJ. KITCHENS, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.
RANDOLPH, JUSTICE, SPECIALLY CONCURRING:
¶19. Hughes and Hemmins (“Opponents”) challenge the substantive, facial validity of
Proposed Initiative Measure No. 26 (“measure”) and are “anxious to have this [C]ourt pass
upon the case upon [those] merits . . . .” Power v. Ratliff, 112 Miss. 88, 72 So. 864, 865
(1916) (citation omitted). This, despite the fact that there remain underlying issues “so
serious” that this Court should not “feel justified in waiving or ignoring” them. Id. Those
subjects include the absence of justiciability and our judicial policy against issuing advisory
opinions, both of which have been astutely addressed by Justice Pierce. I am in complete
accord with his analysis, and write separately only to comment upon the subjects addressed
by Justice Pierce and to offer additional reasoning why the dissent’s proposed disposition,
reversing the judgment of the circuit court and rendering judgment in favor of the Opponents,
would be clearly erroneous.
STATUS OF THE PROCEEDINGS 13
¶20. In November 2008, P. Leslie Riley and Personhood Mississippi (“Proponents”)
submitted the language of what would become the measure to the Mississippi Secretary of
State’s office. Thereafter, some 106,325 certified signatures were collected in support of the
measure.14 In February 2010, the petitions were submitted for filing with Mississippi
13
I add the following to supplement Justice Pierce’s introduction and highlight the
procedural posture of this case when it arrived at our doorstep.
14
The Proponents contend that approximately 130,000 “signatures from qualified
electors” were collected. In either case, the figure far exceeded the requirement of 89,285
certified signatures, at least 17,857 of which were from each of Mississippi’s former five
11
Secretary of State Delbert Hosemann (“Secretary”) who, following review, stated that
“[p]ursuant to Mississippi Code Section 23-17-23, . . . having found none of the grounds for
refusal exists, [the measure] is accepted and filed.” After the Attorney General performed
his duties related to the ballot title and summary,15 the measure was filed with the
Legislature. The Legislature then had its opportunity to adopt, amend, or reject the measure.
See Miss. Code Ann. § 23-17-29 (Rev. 2007). But the Legislature chose none of the
aforementioned alternatives during the four months it was in session. Thus, the Secretary
followed his mandated duty and “place[d] the initiative on the ballot for the next statewide
general election.” Id.
¶21. Only then did the Opponents file a “Complaint for Declaratory and Injunctive Relief”
to “challenge the constitutionality of” the measure and enjoin the Secretary from placing it
on the ballot. They alleged that the measure “seeks to propose a new provision to the Bill
of Rights . . . and to modify the terms ‘person’ and ‘persons’ as used throughout the Bill of
Rights . . . .” The Secretary, as well as the Proponents, denied these allegations in their
respective Answers. The Opponents alleged standing “[a]s duly qualified electors and
taxpayers of the State of Mississippi[,]” which was likewise denied by the Secretary and the
Proponents. The Opponents prayed for the circuit court to declare the measure
“unconstitutional and invalid[;]” to enjoin the Secretary from even “delivering the measure
congressional districts. See Miss. Const. art. 15, § 273(3). I also note that In re Proposed
Initiative Measure No. 20, 774 So. 2d 397 (Miss. 2000), involved a suit filed before any
signatures were obtained by the sponsor.
15
See Miss. Code Ann. § 23-17-9 (Rev. 2007).
12
to the Legislature so that it may appear on the November 2011 ballot[;]” and also to enjoin
the Secretary “from placing [the measure] on the ballot.”
¶22. In the Opponents’ Rule 12(c) “Motion for Judgment on the Pleadings” and subsequent
“Combined Reply to Defendant Secretary of State and Defendant Intervenors Responses in
Opposition to Plaintiffs’ Motion for Judgment on the Pleadings” (with submitted
supplemental exhibits), they averred that they “do not here challenge the sufficiency of . . .
Measure 26, but instead challenge its facial constitutionality . . . .” (Emphasis added.)
¶23. In response, the Proponents averred that the measure “proposes no new right, . . .
modifies no existing right, and . . . repeals no portion of the existing Bill of Rights.” They
cited Article 3, Sections 5 and 6 of the Mississippi Constitution to “underscor[e] the
sovereignty of the people[,]” 16 and pleaded that the Opponents’ efforts “to force the issue off
the ballot” would “den[y] the citizens of this great State the right to vote and express
themselves on this weighty issue of public importance.” The Proponents also contested
standing and subject-matter jurisdiction, which they asserted are “threshold” inquiries that
“must be determined before the court has authority to decide whether plaintiff has stated a
16
Article 3, Sections 5 and 6 of the Mississippi Constitution provide, in pertinent part,
that:
Sec. 5. All political power is vested in, and derived from, the people; all
government of right originates with the people, is founded upon their will
only, and is instituted solely for the good of the whole.
Sec. 6. The people of this state have the inherent, sole, and exclusive right to
regulate the internal government and police thereof, and to alter and abolish
their constitution and form of government whenever they deem it necessary
to their safety and happiness . . . .
Miss. Const. art. 3, §§ 5, 6 (1890).
13
claim upon which relief may be granted.” Schmidt v. Catholic Diocese of Biloxi, 18 So. 3d
814, 821 (Miss. 2009); Luckett v. Miss. Wood Inc., 481 So. 2d 288, 290 (Miss. 1985).
¶24. The Opponents submitted no evidence or proof to the circuit court to support either
a declaratory judgment or an injunction prior to the “Order” denying the Opponents’ “Motion
for Judgment on the Pleadings.” The circuit court first noted that no sufficiency issues were
present, as the measure had “the required number of signatures certified by the various clerk
offices, was timely submitted to the [Secretary] and has received an official ballot title and
summary as required by Miss. Code Ann. Section 23-17-9.” The circuit court further found
that the Opponents “carry a heavy burden in attempting to restrict the citizenry’s right to
amend the Constitution[,]” as “the Constitution recognizes the right of citizens to amend their
Constitution.” The circuit court concluded that the Opponents “have not met their burden[,]”
and denied the relief sought. Fourteen days later, the circuit court entered a “Final
Judgment” (agreed as to form only), finding “that order disposes of the case.” (Emphasis
added.)
ANALYSIS
(1) Ripeness
¶25. “It is not the policy of this state to have elections and other political matters of
government reserved to legislative discretion to be interfered with by the judges and officers
of the judicial department of the government.” Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465,
465-66 (1901). Rather, “the inclination of judicial thought in this state is that elections of all
sorts are not to be interfered with by the courts.” Id. at 466 (citing Ex parte Wimberley, 57
Miss. 437 (1879); Ferguson v. Board, 71 Miss. 524, 14 So. 81 (1893)). See also Power v.
14
Robertson, 130 Miss. 188, 230-31, 93 So. 769, 774 (1922) (citing Ratliff, 72 So. at 864)
(“declin[ing] to take jurisdiction of [its] controversy, on the ground that equity had no
jurisdiction to enjoin elections or enforce political rights . . . .”).
¶26. As recognized by Justice Pierce, the Ratliff Court addressed proposed initiative
measure-type cases, stating that when:
qualified electors . . . are . . . attempting the performance of a legislative act,
. . . courts have no more right to interfere with this legislative act of the people
than they have to prevent an abortive attempt of the Legislature to pass a law.
The making of . . . laws belongs to a co-ordinate branch of the government,
and . . . courts have nothing to do with the making, but must deal altogether
with the finished product. The complainants in the present proceedings are
seeking an advance opinion as to the validity of a constitutional amendment
before that amendment has been enforced in a way to affect the substantial
property rights of anyone. There is no law authorizing a bill of complaint to
remove an alleged cloud on or uncertainty about a statute or constitutional
amendment before the same has been put into force and effect in a way to
injure the parties complaining.
Ratliff, 72 So. at 867 (emphasis added). The Ratliff Court determined that to rule otherwise
“would tend too much to government by injunction. It is time enough to elicit an expression
of the court as to the validity of a law or constitutional amendment when the substantial
rights of litigants have been invaded.” Id. (emphasis added). As such, only:
[w]hen laws have been passed no doubt in a proper case the inquiry can then
be made as to whether or not the requirements of the fundamental law . . . in
their provisions have been observed, but in the first instance the body to which
has been delegated the power to pass laws must be left untrammeled, to act in
such matters as its wisdom may dictate.
Id. (quoting O’Reilly v. Mills, Sec’y of State, 30 Colo. 262, 265, 70 P. 322, 323 (1902))
(emphasis added). Thus, the Ratliff Court concluded that the “safer policy” was for it to
“refrain from interfering with the free exercise of the legislative functions of government
15
whether attempted to be exercised by the Legislature or by the people in their sovereign
capacity.” Id. at 869 (emphasis added).
¶27. At present, the measure is mere legislation in process, a not-yet-finished product put
forth for debate and consideration by the people, but which has not derived any “vital force”
via “the action of the people at the ballot-box . . . .” Green v. Weller, 3 George 650, 32 Miss.
650, at *21 (Miss. Err. & App. 1856). As the measure is now only a “political matte[r] of
government[,]” i.e., a political question, it ought not “be interfered with by the judges and
officers of the judicial department of the government.” Gibbs, 29 So. at 465-66. See also
Int’l Longshoremen’s & Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222, 224, 74
S. Ct. 447, 448, 98 L. Ed. 650 (1954) (“Determination of the scope and constitutionality of
legislation in advance of its immediate effect in the context of a concrete case involves too
remote and abstract an inquiry for the proper exercise of the judicial function.”). To do so
plainly conflicts with separation-of-powers principles. See Miss. Const. art. 1, §§ 1, 2;
Tilson v. Mofford, 153 Ariz. 468, 737 P.2d 1367, 1369 (1987) (“[j]ust as under the
separation of powers doctrine the courts are powerless to predetermine the constitutionality
of the substance of legislation, so also they are powerless to predetermine the validity of the
substance of an initiated measure.”); Ratliff, 72 So. at 867 (quoting O’Reilly, 70 P. at 322)
(“[t]he judicial department can no more interfere with . . . the successive steps necessary to
be taken to amend the Constitution than it can with the [Legislature] in the passage of other
laws, because the judicial cannot directly interfere with the functions of the legislative
department.”). In exercising the same judicial restraint exhibited by the Ratliff Court, we
have validated the sovereign right of the people to vote on this measure, affirming the
16
principle that government is “of,” “by,” and “for” the people, not their elected officials. See
Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863). Today’s decision respects the
rights of 106,325 citizens who signed these petitions and an incalculable number of citizens
who otherwise support a vote, pro or con, on the measure. See Green, 32 Miss. 650, at *21
(a proposition is “to be submitted to the action of the people[,]” and necessarily “derives all
its vital force from the action of the people at the ballot-box . . . .”).
¶28. In sum, the present challenge to the substantive, facial validity of the measure is not
ripe for consideration. There is time enough in the future to consider whether the measure,
if passed, is substantively, facially invalid, vel non. But since the voters of Mississippi may
choose to reject this measure, we have properly refused “to anticipate conditions which may
never arise.” 17 Ratliff, 72 So. at 868.
(2) Advisory opinion
¶29. Without presenting any facts or evidence, the Opponents seek an impermissible
“advance opinion as to the validity of” the measure before the measure “has been enforced
in a way to affect the substantial property rights of anyone.” Ratliff, 72 So. at 867. Today,
we follow our long standing policy that we do not “settle questions in the abstract or . . . issue
advisory opinions.” Tallahatchie Gen. Hosp. v. Howe, 49 So. 3d 86, 93 (Miss. 2010)
(quoting Scoggins v. Baptist Mem’l Hosp.-DeSoto, 967 So. 2d 646, 649 n.1 (Miss. 2007)).
(Maj. Op. at ¶ 7).
¶30. According to learned jurist Felix Frankfurter, “[o]ur national experience makes it clear
that it is extremely dangerous to encourage extension of the device of advisory opinions to
17
If the measure is not passed, there will be no issue requiring judicial determination.
17
constitutional controversies, in view of the nature of the crucial constitutional questions and
the conditions for their wise adjudication.” Felix Frankfurter, A Note on Advisory Opinions,
37 Harv. L. Rev. 1002, 1002 (1924). Fundamentally, the reluctance to issue advisory
opinions is rooted in separation-of-powers principles. The constitutionally-imposed duty of
the courts is to “decid[e] litigated cases . . . .” Id. at 1007 (citation omitted). But courts are
not called upon to “sit in judgment upon the wisdom or fairness or utility of legislation. The
Supreme Court is not a House of Lords with revisory power over legislation. . . . Such
deference is not merely a gesture of courtesy. It is the formulation of a basic truth in the
distribution of governmental powers.” Id. at 1003. Furthermore, in the absence of facts
presented, the “tendency to deal with [such issues] abstractedly, to formulate them in terms
of sterile legal questions, is bound to result in sterile conclusions unrelated to actualities.” 18
Id. at 1003. The danger in “ill-considered advisory opinions” detached from real, factual
contexts is that their well-intentioned propositions may well become “millstones around the
necks of succeeding generations[,]” and create the risk that:
[o]ne step taken by the legislature or judiciary in enlarging the powers of
government opens the door for another, which will be sure to follow; and so
the process goes on, until all respect for the fundamental law is lost, and the
powers of the government are just what those in authority please to call them.
Id. at 1008 n.18; Bell v. City of West Point, 51 Miss. 262, 1875 WL 4692, at *15 (Miss.
1875) (Peyton, C.J., dissenting) (citation omitted). Today, this Court wisely avoids these
dangers by rejecting the plea to issue a premature and unnecessary advisory opinion.
18
For instance, “[c]oncepts like ‘liberty’ and ‘due process’ are too vague in themselves
to solve issues. They derive meaning only if referred to adequate human facts. Facts and
facts again are decisive.” Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. at
1004-05.
18
(3) Failure to State a Cause of Action
¶31. Robertson held that the initiative-and-referendum amendment at issue in that 1922
decision permitted challenges to both “the sufficiency and validity of the petition.” 19
Robertson, 93 So. at 772 (emphasis added). As such, the Robertson Court held that “any
qualified elector has a right to question the sufficiency and validity of the petition.” Id. at
773 (emphasis added). By contrast, we find no present constitutional authority exists for pre-
election appeals regarding the validity of petitions. (Maj. Op. at ¶ 15).
¶32. Additionally, in their pleadings, the Opponents have not claimed or offered any proof
or evidence to suggest that submission of this measure to the people will result in an invasion
of substantive rights resulting in injury. Because there is no “amendment [that] has been
enforced in a way to affect the . . . rights of anyone[,]” nothing “has been put into force and
effect in a way to injure the parties complaining.” Ratliff, 72 So. at 867. As such, where is
the “irreparable injury [that] will be done . . . by submission of this question to a vote of the
people[?]” Id. at 866. No civil rights will be trampled upon and no property will be
damaged. Therefore, “[i]t cannot possibly hurt any one for the people to register their choice
or will” on this measure. Id. Any adverse effect is only “fanciful or theoretical” at this point.
19
Notably, the former initiative-and-referendum amendment also provided that “[i]n
the event of legal proceedings in any court to prevent giving effect to any petition upon any
grounds, the burden of proof shall be upon the person or persons attacking the validity of
the petition.” Robertson, 93 So. at 772 (quoting Chapter 159, Laws of 1916) (emphasis
added).
19
Id. See also Conner v. Gray, 88 Miss. 489, 41 So. 186, 189 (1906) (“They cannot maintain
[a] bill simply because they fear some invasion may be made upon their rights as officers.”).
¶33. Given the absence of any claim of injury or loss of a civil right in the Opponents’
pleadings, where is the justiciable issue? “The proper remedy will be appropriate action to
prevent the execution of any proposition voted for[,]” if an adverse effect can be shown, and
the law is unconstitutional. Ratliff, 72 So. at 866 (citing Thompson v. Mahoney, 136 Ill.
App. 403 (1907)) (emphasis added). At that point, “if any person’s rights are affected
thereby the courts are open for him to test the legality of the” constitutional amendment.
Ratliff, 72 So. at 868.
(4) “Motion for Judgment on the Pleadings”
¶34. The circuit court was presented only with a “Motion for Judgment on the Pleadings”
by the Opponents. The circuit court’s “Order” denying the Opponents’ “Motion for
Judgment on the Pleadings” was nonappealable. Nonetheless, the circuit court’s subsequent
“Final Judgment,” from which this appeal proceeds, was entirely predicated upon the
“Order” denying the Opponents’ “Motion for Judgment on the Pleadings.” Specifically, the
“Final Judgment” provided that the “Order” acted to “dispos[e] of the case.” But that
“Order” was not case-dispositive, such that this matter is not even properly before this
Court.20 (Maj. Op. at ¶ 15).
¶35. Notwithstanding, with this Court having been provided the pleadings and arguments
of the parties only on the “Motion for Judgment on the Pleadings,” the dissent is ready to
20
Typically, when a plaintiff’s “Motion for Judgment on the Pleadings” is denied, the
parties will meet and prepare a scheduling order and otherwise prepare for a trial.
20
address a significant constitutional issue, regarding the substantive merits of the measure, and
concludes that the measure “runs afoul of the minimum constitutional requirements of Article
15, Section 273(5)(a) . . . .” (Diss. Op. at ¶ 37). Any such conclusion is premature at this
stage of the proceedings.
CONCLUSION
¶36. I am “not unmindful of the fact that . . . on constitutional questions . . . ‘an
interpretation once deliberately put upon the provisions of such an instrument should not be
departed from without grave reasons.’” State ex rel. Collins v. Jones, 106 Miss. 522, 64 So.
241, 253 (1914). However:
we must remember that the nature of our government is such that the
Constitution is necessarily committed into the keeping of this [C]ourt; and,
when this [C]ourt has erroneously interpreted that instrument, and no harm can
follow the correction of such erroneous interpretation, its plain duty is to do so,
and thereby enable the express will of the people to be carried into effect.
Especially is this true when the erroneous interpretation has restricted the
people in the exercise of a right which they have expressly reserved to
themselves.
Id. (emphasis added). Under the Mississippi Constitution:
There is nothing in the nature of the submission which should cause the free
exercise of it to be obstructed, or that could render it dangerous to the stability
of the government; because the measure derives all its vital force from the
action of the people at the ballot-box, and there can never be danger in
submitting, in an established form, to a free people, the proposition, whether
they will change their fundamental law. The means provided for the exercise
of their sovereign right of changing their Constitution, should receive such a
construction as not to trammel the exercise of this right. Difficulties and
embarrassments in its exercise are in derogation of the right of free
government, which is inherent in the people.
Id. at 248 (quoting Green, 32 Miss. 650, at *21). Finally, as the Robertson Court stated:
It is always a matter of regret that a court feels called upon to change a
decision once reached; but official integrity requires a court, when it is fully
21
convinced that its decision is wrong and will result injuriously, to overrule it
and decide correctly the proposition put up to it. I am not a believer in
overruling decisions, when they are not clearly wrong and hurtful. A
Constitution, however, is much more important and sacred than a decision of
any court. The people by the Constitution establish a policy for the good of
the people themselves. Where a court misconstrues the Constitution or
misjudges a case, and its attention is called to it in the proper way, it should
make a correction at the earliest date possible.
Robertson, 93 So. at 777 (citation omitted). These well-reasoned principles dictate my
departure from the dissent’s reliance upon Measure 20.
WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, CHANDLER
AND PIERCE, JJ., JOIN THIS OPINION.
KITCHENS, JUSTICE, DISSENTING:
¶37. The majority finds that this matter is not ripe for review because we are asked to
review the constitutionality of Measure 26 without its having been placed on the ballot and
enacted by the voters of this state.21 Because, as a matter of law, this controversy is ripe for
21
I note that Secretary of State Hosemann, in his brief and in reliance on In re
Proposed Initiative Measure No. 20, 774 So. 2d 397 (Miss. 2000) (“Measure 20”), states:
“Initiative Measure No. 26's compliance with Section 273 of the Constitution is subject to
judicial review prior to inclusion on the ballot.” He goes on to concede: “[T]his matter is
ripe for resolution.” Moreover, neither the trial court nor any of the parties has raised the
issue of the Mississippi courts’ authority to hear this case.
I acknowledge that subject matter jurisdiction may be raised sua sponte by the Court
and is never waived. Esco v. Scott, 735 So. 2d 1002, 1006 (Miss. 1999) (“[S]ubject matter
jurisdiction may not be waived and may be asserted at any stage of the proceeding or even
collaterally.”) (citation omitted). However, I believe the Secretary’s reliance on Measure
20 is a testament to the importance of stare decisis and the need to preserve the holding of
Measure 20. See State ex rel. Moore v. Molpus, 578 So. 2d 624, 634 (Miss. 1991) (“[S]tare
decisis proceeds from that first principle of justice, that, absent powerful countervailing
considerations, like cases ought to be decided alike.”).
22
review, I must respectfully dissent from the contrary view of my learned colleagues in the
majority. Measure 26, facially (as a matter of form) runs afoul of the minimal constitutional
requirements of Article 15, Section 273(5)(a), of the Mississippi Constitution; thus, I would
reverse the judgment of the Hinds County Circuit Court, First Judicial District, and render
judgment in favor of the plaintiffs.
We are faced with a challenge as to form, not of substance.
¶38. The majority concedes that “‘minimum constitutional and statutory requirements’”
must be met before a measure is “‘placed on the ballot . . . .’” Maj. Op. at ¶ 13 (quoting
Measure 20, 774 So. 2d at 401). The opinion goes on to say that “There are two stages for
challenging an initiative-driven constitutional amendment: 1) pre-election, as to form, and
2) post-election as to substance.” Maj. Op. at ¶ 13. Indeed, prior to an election, this Court
has jurisdiction to decide cases in which a challenge to a proposed initiative is directed at its
form and to the question of whether, on its face, the measure meets minimum constitutional
and statutory requirements. Where my esteemed colleagues and I disagree is whether at
present this Court is faced with a substantive challenge and whether the Court, in In re
Proposed Initiative Measure No. 20, 774 So. 2d 397 (Miss. 2000) (“Measure 20"), made
provision for a substantive review of proposed constitutional amendments.
¶39. The majority erroneously finds that “Plaintiffs ask this Court to render judgment upon
the substance of the Intervenors’ initiative – its constitutionality – in advance of the
election.” Maj. Op. at ¶ 6 (emphasis added). Rather, what Plaintiffs are asking this Court to
decide is whether the text of the amendment comports with the minimal constitutional
23
requirements of Section 273 of the state constitution. I would hold that Measure 26 is
defective in that regard, because the text of the measure purports to add a new section to this
state’s Bill of Rights and to modify the meaning of two words which appear some twenty
times in our Bill of Rights. This is in direct contravention of Section 273(5)(a) of our state
constitution, which reads: “The initiative process shall not be used [f]or the proposal,
modification or repeal of any portion of the Bill of Rights to this Constitution.”
¶40. The majority is remiss in its reliance on Power v. Ratliff, 112 Miss. 88, 72 So. 864(Miss. 1916), for three reasons: (1) the rule announced in Ratliff does not apply to challenges
of an initiative based on form, which is the question before us in today’s case; (2) the Court’s
holding in Ratliff was limited to the facts of that case, involving principles of equity and the
requirements for obtaining injunctive relief; and (3) the Ratliff court was interpreting the
initiative and referendum process as it existed in our constitution in 1916. Thus, it provides
no binding legal precedent for interpreting Section 273 as it now appears in the constitution,
which did not exist in its current form until 1992. Likewise, the Court, in Barnes v. Barnett,
129 So. 2d 638 (Miss. 1961), did not announce a blanket prohibition on courts to decide
whether initiatives have met minimum statutory and constitutional requirements. To the
contrary, the Barnett Court found that the proposed initiative met minimum constitutional
requirements under Section 273 as it existed in 1961. Barnett, 129 So. 2d at 640-41
(“Constitution Sec[tion] 273 prescribes the necessary publication, and the method followed
in the instant case was sufficient compliance with the constitutional requirement.”).
¶41. First, the rule announced in Ratliff touches on substantive challenges. As previously
mentioned, the majority mistakenly concludes that Plaintiffs have made a substantive
24
constitutional challenge and thus erroneously rely on Ratliff to announce that this Court has
no jurisdiction in such matters. The majority cites Ratliff for the premise that “this Court has
found that advance opinions will not be issued to remove alleged clouds or uncertainties from
proposed statutes or constitutional amendments.” Maj. Op. at ¶ 7; see Ratliff, 72 So. at 867.
This prohibits substantive challenges, not challenges to the facial validity of a proposed
measure. The question before us is whether the form of Measure 26, on its face, meets
minimum constitutional standards.22
¶42. Additionally, in Ratliff, 72 So. at 865, the complainants had obtained an injunction
in chancery court to prevent the secretary of state from referring two proposed initiatives, one
providing for alcohol prohibition and one described as the game and fish law, for a vote in
accordance with the initiative and referendum amendment. The Court, relying on traditional
principles of equitable jurisdiction, reversed the chancellor and dissolved the injunction
because the plaintiffs had failed to show that a submission of the initiatives to the electorate
would result in irreparable injury. Id. at 865-66. The reasoning behind this holding was that
22
Since the challenge before this Court in this case is not whether the substance of
Measure 26 is in direct contravention of the Bill of Rights, I reserve for another day a
discussion of whether I believe this Court can be divested of its jurisdiction by the
Legislature in cases involving substantive, pre-election challenges. See Miss. Const. art. 6,
§ 146 (“The Supreme Court shall have such jurisdiction as properly belongs to a court of
appeals . . . .”); Miss. Const. art. 1, § 1 (“The powers of the government of the state of
Mississippi shall be divided into three distinct departments, and each of them confided to a
separate magistracy, to-wit: those which are legislative to one, those which are judicial to
another, and those which are executive to another.”).
25
the plaintiffs had failed to show that their petition for injunctive relief triggered property
rights or civil rights. Id. at 865. The Court went on to say that, generally, equity does not
provide for enjoining an election. Id. However, the Court also observed:
It is not necessary to say that this rule obtains to the extent that equity will
never restrain the holding of an election, for the door of the court is always
open to those who seek protection in matters of property and the maintenance
of civil rights or who reasonably apprehend the infliction of irreparable injury
. . . [I]f an election is attempted to be held without authority of law, equity
might well interfere.
Id. Thus, Ratliff does not say that an election will never be enjoined if it is to be held
without authority of law. If Measure 26 is placed on the ballot, not having met minimum
constitutional standards under Section 273, this, indeed, will be an election conducted
without authority of law.
¶43. It is noteworthy that the standards applied in Ratliff were those apropos to obtaining
injunctive relief. Thus, the analysis in Ratliff is limited to its facts, namely, whether those
plaintiffs were entitled to injunctive relief under traditional principles of equity. The Court
first distinguished Ratliff in Power v. Robertson, 130 Miss. 188, 93 So. 769, 774 (Miss.
1922): “[T]he only thing that the court decided [in Ratliff] was that equity had no jurisdiction
in such cases. Quite a different question is presented here, because it is a circuit court whose
jurisdiction is invoked, and whose judgment is sought to be reviewed in this case.” As the
Robertson Court explained, Ratliff was decided “on the ground that equity had no
jurisdiction to enjoin elections or enforce political rights,” a conclusion with which the Court
concurred. Robertson, 93 So. at 774. However, the Robertson Court found that jurisdiction
was proper in circuit court where the challenge involved the sufficiency of the petition in
favor of the initiative, namely the qualifications of the electorate. Id. at 775 (“[C]ircuit court
26
has jurisdiction of all questions cognizable in the courts that have not been exclusively vested
in other courts.”) (citations omitted). In so doing, the Court reasoned:
In our opinion any qualified elector has a right to question the sufficiency and
validity of the petition. The initiative proceeding, reserving the legislative
power in the people, makes each elector, if the amendment is valid, a part of
the legislative machinery, and with rights as such in the enactment and
proposal of legislation. The people who oppose the measure in our opinion
have equal rights with those who favor the measure.
Id. at 773. Although Robertson interpreted the initiative process as it existed in 1922, it is
clear that the Court was deciding, in advance of the election, whether the petition was valid
and thus, whether the proposed initiative met minimum constitutional requirements, the same
question before us today.
¶44. Finally, this Court, in State ex rel. Moore v. Molpus, 578 So. 2d 624, 639 (Miss.
1991), explained that constitutional interpretation by this Court is tied to the text of our
constitution as it existed at the time the decision was handed down.
[Power v. Robertson, 93 So. 769 (Miss. 1922)] is an interpretation of Section
273 as it existed prior to 1959. Courts do not normally overrule readings of
statutes which have been amended. The obvious reason is that the amendment
itself overrules the prior interpretation, which becomes for all practical
purposes relegated to history. There is no reason why the same principle
should not apply to a provision of the Constitution such as Section 273.
Thus, Ratliff has no binding precedential value on this Court’s interpretation of the
requirements of Section 273 of the state constitution, since it did not exist in its current form
until 1992. Just as Justice King astutely recognizes in his dissent in today’s companion case,
Speed v. Hosemann, 2011-CA-01106, Measure 20 is the only binding legal precedent that
interprets the current initiative process.
27
¶45. In Measure 20, 774 So. 2d at 399, the Court was presented with the issue of whether
the circuit court had exceeded its authority in setting aside a proposed initiative making
gaming illegal in this state due to the proposed measure’s failure to include a government
revenue-impact statement, as required by both statute and Section 273(4) of the Mississippi
Constitution, and due to the measure’s attempted prohibition of rights granted to citizens of
this state under the Bill of Rights of the state constitution. The Court in Measure 20, having
decided that jurisdiction had been proper in the circuit court under Article 6, Section 156, 23
of the state constitution, affirmed the circuit court’s finding that the proposed measure was
unconstitutional for its failure to include the government revenue-impact statement, as
required by Section 273(4) of the state constitution. Id. at 402. In reaching that holding, the
Court reasoned:
[P]roposed initiatives are subject to review of form and, therefore, content
inasmuch as content affects form and form affects content. Simply put,
initiatives must meet minimum constitutional and statutory requirements, prior
to being placed on the ballot to ensure full disclosure and notice to the
electorate.
Id. at 401. This language clearly is not dictum, as the majority suggests, because it is directly
linked to the holding in the paragraph immediately following, in which this Court decided
that Measure 20, on its face and in its form, did not comport with Section 273(4) of the state
constitution, due to its omission of a government revenue-impact statement. See id. at 401-02.
Thus, the measure did not meet the minimal constitutional standards of Section 273 and could
23
Article 6, Section 156, of the Mississippi Constitution states: “The circuit court shall
have original jurisdiction in all matters civil and criminal in this state not vested by this
Constitution in some other court.”
28
not be placed on the ballot. It is inescapably obvious that this was a pre-election
determination by Mississippi’s judiciary.
¶46. The issue that the Measure 20 Court did not reach was the substantive challenge to the
measure, specifically, whether the circuit court had exceeded its authority in setting it aside
because it was an attempted prohibition of rights guaranteed to citizens under our Bill of
Rights. In fact, the Court explicitly declined to do so, citing Power v. Ratliff, 72 So. 864(1916), for the premise that neither this Court nor “any other court” may review proposed
initiatives “for their wisdom and merit,” because that is solely within the discretion of the
voters. Measure 20, 774 So. 2d 401.
¶47. The majority finds it necessary to overrule Measure 20 “to the extent that [it] is read
to provide pre-election substantive review of proposed constitutional amendments” and
complains of its glaring lack of authority in holding that the circuit court may decide a
substantive challenge pre-election. Measure 20 explicitly holds that initiatives are “subject
to review of form,” not substance. Id. at 402. Contrary to the majority’s reading of Measure
20, the Court in that case did not equate content with substance, but rather referred to content
merely to mean the plain language, i.e., text, of the initiative and whether that text comported
with the applicable statutory requirements and the requirements of Section 273 of the state
constitution. Given that the Court in Measure 20 was in no way deciding the case on the
underlying merits of whether prohibiting gambling was unconstitutional under the Bill of
Rights, the Court’s holding did not hinge on the substantive issue.
¶48. The same task is before us today: to decide whether the text of Measure 26 meets the
minimal constitutional requirements of Section 273. None of the parties has argued that
29
Measure 26 runs afoul of the rights guaranteed the citizens by our Bill of Rights. Whether
Measure 26 limits or expands the rights enumerated within Mississippi’s Bill of Rights is of
no moment, for this Court is asked only whether the plain language of Measure 26 makes the
initiative a “proposal, modification or repeal” of any portion of the Bill of Rights as
prohibited by Section 273(5)(a).
This Court has subject matter jurisdiction over today’s case.
¶49. In the present case, just as in Measure 20, jurisdiction was proper in the circuit court.
Article 6, Section 156, of the state constitution is the source from which the circuit court
derives its authority to hear certain civil matters. Where proper jurisdiction is present in the
court below, this Court has “such jurisdiction as properly belongs to a court of appeals.” Miss.
Const. art. 6, § 146. Accordingly, proper jurisdiction of the direct appeal of this case lies with
this Court. Hence, this matter was ripe for review upon final judgment of the trial court.
Measure 26 does not meet the minimum constitutional requirements.
¶50. In order to initiate a proposed amendment to the constitution of this state, any qualified
elector may do so by filing with the Secretary of State a typewritten copy of the proposed
initiative, as well as an affidavit stating that the sponsor of the initiative is a qualified elector.
Miss. Code Ann. § 23-17-1(2) (Rev. 2007). The text of the proposed initiative must identify
“the amount and source of revenue required to implement the initiative,” any programs
requiring a reduction or reallocation of funding in order to implement the initiative, and “all
information required under Section 273, Mississippi Constitution of 1890.” Miss. Code Ann.
§ 23-17-1(3),(4) (Rev. 2007). One such requirement under Section 273(5)(a) is that the
initiative must not include language that holds the amendment out to be a “proposal,
30
modification or repeal” of our Bill of Rights. Miss. Const. art. 15, § 273(5)(a). Measure 26,
is in fact, both a proposal to and a modification of the Bill of Rights.
¶51. Measure 26 reads as follows:
SECTION 1. Article III 24 of the constitution of the state of Mississippi is
hereby amended BY THE ADDITION OF A NEW SECTION to read:
Section 33. Person defined. As used in this Article III of the state constitution,
“The term ‘person’ or ‘persons’ shall include every human being from the
moment of fertilization, cloning, or the functional equivalent thereof.”
(Capitalization original.) Thus, the text of Measure 26 purports, on its face, to be a new
section of the Bill of Rights, in other words, a proposal concerning the Bill of Rights,
explicitly prohibited by Section 273(5)(a).
¶52. The words person and persons appear some twenty times throughout the Bill of Rights.
Measure 26 seeks to modify the definition of these words. The several articles of our state
constitution are numbered in Arabic numerals, not Roman numerals, as appears in SECTION
1 of Measure 26. It is clear, however, that the plain language of Measure 26 seeks to amend
Article 3 of our state constitution, which contains our state Bill of Rights, and nothing else.
To amend is to modify; these familiar English words are interchangeable. To attempt to make
an addition to the portion of a constitution that is the Bill of Rights, and nothing but the Bill
of Rights, is without question, a proposal to make a modification to a fundamental, bedrock
portion of our law that the people clearly have the right to modify, but not in this manner. The
judiciary of this state has not only the authority, but the duty, to enjoin such an obvious
24
Article 3 of the Mississippi Constitution is entitled BILL OF RIGHTS.
31
violation of the state constitution that every member of this state’s judicial branch of
government has taken a solemn oath to uphold.
¶53. Measure 20, 774 So. 2d at 402, stands for the premise that a pre-election challenge to
a proposed amendment may properly be had in circuit court to determine whether the
amendment meets minimum statutory and constitutional requirements. Today’s case should
be decided under this established premise, and Measure 20's interpretation of Section 273
should be upheld for the sake of constitutional stare decisis, not further confused with an
erroneous interpretation. In deciding this issue, I am reminded of the wise analysis of Justice
Robertson, writing for the Court in Moore, 578 So. 2d at 638:
Constitutional stare decisis bears a separate dimension. It addresses the
legitimacy of process more than immediate results or specific interpretations,
about which judges inevitably will differ. At stake is public confidence in our
disinterestedness. Expositions of the Constitution should be grounded in law
and not the proclivities of individuals, nor the politics of the moment. Legal
interpretation does and should change with the times and the frequent agent of
that change is a change in judicial personnel, but it is accepted that public
confidence in the law requires substantial stability in the face of such changes.
We must be careful lest our interpretations reflect the idiosyncratic views of
judges rather than the shared and enduring values of the people embodied in the
Constitution we are sworn to serve.
The people of Mississippi have reserved for themselves in Section 273(5)(a) the constitutional
guarantee that their Bill of Rights shall not be added to, modified, or repealed by the initiative
process. This Court is sworn to uphold the will of the people as voiced in their constitution,
not sacrifice it for the will of the proponents or opponents of any particular measure.
¶54. For these reasons, I find that Measure 26 is invalid on its face, because it is both a
proposed addition to and a modification of the Bill of Rights. Therefore, I would reverse the
32
circuit court’s denial of Plaintiffs’ motion for judgment on the pleadings, and enjoin the
placement of Measure 26 on the ballot.
KING, J., JOINS THIS OPINION.
33