The Mississippi Supreme Court on Friday struck down a medical cannabis initiative that was passed by 74% of voters in November. The decision comes less than two months before the Mississippi State Department of Health was set to announce regulations for the program.
The court’s ruling also marks a step in the opposite direction for Mississippi from some states in the region, including Alabama, where the governor on Monday signed a medical cannabis bill into law, as Cannabis Wire reported.
Mississippi’s Initiative 65, passed by voters in November, would have allowed medical patients with at least one of twenty-two qualifying conditions to register with the Department of Health to legally buy cannabis at a licensed dispensary. It passed with broad support over another measure brought by legislators that would have established a more limited program.
The initiative was challenged days before the November election by Madison Mayor Mary Hawkins Butler, who raised concerns that it could restrict the state’s ability to zone medical cannabis facilities. But Butler’s challenge did not hinge on her objections to cannabis or cannabis policy, but rather focused on a technicality. What Butler and the City of Madison challenged was the language of the process for getting measures on the ballot, which had been laid out in a 1992 constitutional amendment that had not been updated to reflect changing population circumstances.
Referred to in section 273 of the Mississippi Constitution, that amendment grants citizens the ability to propose initiatives. Measures can qualify for the ballot if signatures are collected evenly from each of the state’s five congressional districts.
However, the state no longer has five districts. After the 2000 Census, the state lost a congressional seat. Amendment language referring to five congressional districts rather than four remained despite the change. Since then, state lawmakers have proposed changing the citizen initiative amendment to reflect Mississippi’s new congressional reality. But none of the attempts has made it out of committee.
“The loss of congressional representation did, indeed, break section 273 so that, absent amendment, it no longer functions,” Justice Josiah D. Coleman wrote in the majority opinion.
Butler did not respond to a request for comment on the decision.
The six justices who made up the majority recognized the decision imperils future citizen-led attempts to put measures on the ballot unless legislators address the issue.
Supporters of the initiative reacted in frustration.
“The Mississippi Supreme Court ruled against the state’s ballot initiative process, killing the medical marijuana program 74% of Mississippians voted to pass in November,” the Mississippi Medical Marijuana Association said in a statement. “This is devastating for not only patients, but voters as a whole.”
The Facebook group MS Cancer Patients for Initiative 65 called for an emergency legislative session to update the ballot initiative process and for lawmakers to move ahead with the alternative measure, Initiative 65A, which the legislature put forth on the November ballot.
Three justices opposed the court’s ruling. In their dissents, those justices expressed concern that the Supreme Court was blocking an avenue for citizens to amend the state’s constitution.
“Interpretation should involve a joint effort between reading the actual words and the context in which they are found,” Justice Robert P. Chamberlain wrote in his dissent. “To be blunt, it effectively slams the lid on the initiative process. This surely cannot be the intent of the Legislature and the people.”
Foreseeing that the court might strike down the initiative, state Senator Kevin Blackwell offered an alternative program to both Initiative 65 and Initiative 65A during the 2021 legislative session. The Mississippi Medical Cannabis Act was designed to go into effect if Initiative 65 was invalidated. It largely mirrored the voter-passed measure with a few differences, including giving oversight to the Department of Agriculture and Commerce instead of the Department of Health. But Initiative 65 supporters opposed the measure, saying it was an attempt by the legislature to supplant the citizen-approved amendment. The bill passed in the Senate but died in the House.
Blackwell did not return a request for comment on the Supreme Court decision.
The Department of Health has been drafting regulations for the medical cannabis program, but had shown signs months earlier that the process was going to strain the agency. The department wrote an amicus brief supporting Mayor Mary Hawkins Butler and the city of Madison’s challenge, saying it would be a “herculean feat” to establish rules for the new industry by the initiative’s July 1 deadline.
“The amendment touches nearly all areas of society, including healthcare, criminal justice, zoning, education, taxes, appropriations, employment, insurance, interstate commerce, advertising, public records, and legal oversight,” the Health department wrote in December, in the amicus brief. “Unless the Judicial Branch intervenes, MSDH will be forced to create a large database and write complex regulations in less than seven months.”
Richard Gershon, a professor and former dean of the University of Mississippi School of Law, supports medical cannabis legalization but admits that the Department of Health may not have been equipped to create the system. “There are some logistical problems that I think need to be worked out,” he told Cannabis Wire. “But those are things that can be worked out.”
Gershon expressed disappointment at the Supreme Court’s decision but believes the legislature will take the issue up again. That too raises concerns for him. “I am worried that they will create one that benefits big companies and will keep smaller businesses out of the mix,” he said.
Even with its status up in the air, the potential for a cannabis industry in Mississippi was attracting interest. Denver-based GrowGeneration, a hydroponic and organic gardening store, announced it had signed a lease for a 40,000-square-foot warehouse in Jackson on April 27, less than two weeks after justices heard oral arguments challenging the medical cannabis program. The company has stores in twelve states.
“Mississippi is exactly the kind of new and emerging cannabis market GrowGen is looking to enter,” Darren Lampert, CEO of GrowGeneration said in a statement announcing the Jackson lease.
The 2021 legislative effort, the Mississippi Medical Cannabis Act, appeared to favor big cannabis businesses in its first draft. The bill initially proposed an upfront fee of $20,000 for dispensary licenses, with an annual renewal fee of $10,000. It also proposed a $200,000 license application fee for cultivation and processing facilities. A later draft reduced those costs significantly.
