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Mississippi Supreme Court Hears Challenge To Medical Marijuana Measure Approved By Voters

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“I believe our justices will do what’s right an uphold the will of the voters,” one of the ballot initiative’s supporters said.

By Geoff Pender, Mississippi Today

The medical marijuana program Mississippi voters approved in November, set to begin in August, hangs in the balance with the state Supreme Court, which heard oral arguments about Initiative 65 on Wednesday.

The arguments have nothing to do with medical marijuana or the program voters enshrined in the state constitution, but on procedural issues — whether Initiative 65’s placement on the ballot through a signature petition was constitutionally proper.

Chief Justice Michael Randolph indicated the nine-judge court would issue an opinion as quickly as possible and, “I know many people are waiting on this.”

“It’s in the judges’ hands now,” said Madison Mayor Mary Hawkins Butler, who filed a Supreme Court challenge to Initiative 65 just days before voters approved it on Nov. 3. “This is one of those defining moments for our state. Maybe we can take care of other antiquated laws that are hindering our progress and our growth.”

Hawkins left the high court’s chambers without taking further media questions Wednesday.

Secretary of State Michael Watson, who took office after the November elections, said “brilliant attorneys” on each side of Butler v. Watson made compelling arguments and regardless the outcome, “we’re all friends, we’re all Mississippians and we’ll move forward.”

Butler argues that the ballot initiative language added to Section 273(3) of the state constitution in 1992 requires proponents to gather signatures evenly from five Mississippi congressional districts — with no more than 1/5, or 20% coming from any single district — to ensure geographic parity.

But Mississippi has had only four congressional districts since the 2000 Census. Butler argues it’s a “mathematical certainty” that of the nearly 106,000 certified voter signatures collected from what are now four districts to put Initiative 65 on the ballot last year, signatures from at least one of the districts surpasses 20%.

Watson argues that while a panel of federal judges ordered Mississippi to use a four-district map for congressional elections, the Legislature never adopted it in state law and “five congressional districts exist under state law and may be used for anything but congressional elections.” The old districts are still used for appointments to state agencies, boards and commissions. Watson’s lawyers from the attorney general’s office say Watson’s predecessor, now Lt. Gov. Delbert Hosemann, properly certified Initiative 65 petition signatures using the five old districts in state law.

Lawyers on both sides argued Wednesday that “plain language” reading of the passage in the state constitution makes their case.

“(The) language is plain, and a congressional district is the area from where a member of Congress is elected,” said Kaytie M. Pickett, attorney for Butler. “We have four … Ask anybody on the street how many we have, they’ll say four … Qualified elector — those words matter, too … Someone cannot be a qualified elector of the fifth district … a district that does not exist.”

Deputy Attorney General Justin L. Matheny, representing Watson, said a plain reading of the entire ballot initiative section of the constitution makes clear voters have the right to amend the constitution at the ballot box, and the 1/5 petition signature requirement is simply to make sure they are geographically dispersed. Both stipulations were met with Initiative 65, Matheny told justices. He said the section also prohibits the Legislature from doing anything to impair voters’ rights to a ballot initiative.

Justices noted that state congressional districts have changed and will continue to change with population shifts. Matheny said this shows the intent of constitutional framers was not to have the initiative right nullified by a change in congressional districts.

“We don’t think the intent was to set up something impossible,” Matheny said.

Justice Kenny Griffis said he understood the Legislature in the 1990s was reluctant to allow voters to approve a ballot initiative process and did so “kicking and screaming.” He questioned whether some of the wording had the “intent of defeating the ability of people to change the constitution.”

Chief Justice Randolph’s questioning of Matheny was at times pointed and sharp.

“You want me to go to a statute in order to interpret the constitution?” Randolph told Matheny. “I’ve got a problem with that … The dictionary says a congressional district is a part of a state from which a member of the U.S. House of Representatives is elected … If the words are clear, everybody in this room including you agrees we have four congressional districts. Why go anywhere else? What license do we have to go past the plain language, outside of that?”

Justices Robert Chamberlin and James Maxwell II questioned Pickett why the Legislature and voters would have adopted a constitutional amendment thinking it would be subject to Census changes.

“Your position is the Legislature adopted this with the understanding it could be impossible to meet in 10 years or less?” Chamberlin said.

Maxwell said: “So if we lose a federal representative, through federal law, it means our citizens don’t have the means to change our state constitution? Somehow those two things are related?”

Justice Josiah Coleman noted the state statute with five congressional districts “has never been declared unconstitutional, we’ve never been asked to declare it so.” Pickett responded that “a statute cannot change the plain meaning of the constitution.”

Justice Dawn Beam at the outset of the hearing noted her children were watching a livestream of the proceedings, “and I want to make clear, it is totally irrelevant what this court thinks about or how we voted on Initiative 65” but the court will make its decision on constitutional issues. Medical marijuana was barely mentioned during Wednesday’s hearing.

Justices James Kitchens and Leslie King did not ask any questions of either side during Wednesday’s arguments.

Some legal and political observers have questioned whether an adverse ruling on Initiative 65 could open other ballot initiatives from the last 20 years, such as limits on eminent domain and voter ID requirements, to being challenged and overturned.

Watson said he believes that is not a concern because the “doctrine of laches” barring unreasonable delays in legal challenges would prevent such issues. He said laches should also have prevented Butler’s challenge of Initiative 65 just days before the Nov. 3 election.

But Watson said he is concerned about current and future initiatives, and noted that “three or four are to the point of gathering signatures now” amid uncertainty until, and maybe after, the court rules.

It would appear a ruling totally accepting Butler’s arguments would nullify voters’ rights to ballot initiatives until the Legislature and voters changed both the constitution and state law.

Angie Calhoun of Puckett, one of the leaders of the citizen-led drive for medical marijuana in Mississippi, attended Wednesday’s high court hearing and had signed on as an amicus, or friend of the court, on Watson’s side. Calhoun is the mother of a son who suffered medical problems she said could have been treated with marijuana. Her son, now an adult, eventually moved out of state so he could use medical marijuana.

“I believe our justices will do what’s right an uphold the will of the voters,” Calhoun said. “… I feel like our Legislature obviously has failed us.”

After lawmakers failed for years to approve use of medical marijuana despite a groundswell of public support, voters took matters in hand in November with Initiative 65. The Legislature tried this session to pass a “backstop” or alternative medical marijuana program should the Supreme Court strike down the one voters pass, but the legislation was killed after much debate. Initiative 65 supporters viewed it as a legislative move to usurp the will of voters.

This story was first published by Mississippi Today.

Alabama Medical Marijuana Bill Moves Closer To Floor Vote With House Committee Action

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Illinois Will ‘Blow Past’ $1 Billion In Legal Marijuana Sales In 2021, Chamber Of Commerce President Says

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“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” the Chamber leader said.

By Elyse Kelly, The Center Square

Illinois’s cannabis industry is growing up fast, with adult-use recreational cannabis sales expected to hit $1 billion by year-end.

In March alone, Illinoisans spent $110 million on recreational marijuana.

Todd Maisch, president and CEO of the Illinois Chamber of Commerce, said one factor contributing to Illinois’ explosive growth is that most neighboring states haven’t legalized marijuana yet.

“What we saw early on in states like Washington and Colorado is they did have demand come in from surrounding states, which frankly benefits our industry and benefits the taxes collected,” Maisch said.

Cannabis sales have already surpassed alcohol’s tax revenues for the state, and Maisch said he thinks $1 billion estimates are conservative.

“Are we going to get to a billion dollars? I think we’re going to blow past the billion dollars based on the experience in smaller states,” Maisch said.

There are only a couple of things that could stop Illinois’ explosive cannabis market growth, Maisch said. He said that policymakers could ruin things by pushing taxes too high as evidenced by the tobacco market.

“As taxes have gone up and up and up, they’ve pushed people all the way into the black market or they’ve created this grey market in which people are ostensibly paying some of the taxes, but they’re still getting sources of tobacco products that avoid much of the tax,” Maisch said.

The other thing that could head off continued growth is other states opening up recreational-use markets.

“So if you start to see surrounding states go to recreational, that’s definitely going to flatten the curve because we’re not going to be pulling in demand from other states,” Maisch said.

Maisch points out some concerns that accompany the explosion of Illinois’s recreational cannabis market including workforce preparedness.

“All of those individuals who are deciding to go ahead and consume this product are really taking themselves out of a lot of job opportunities that they would otherwise be qualified, so there’s a real upside and a downside,” Maisch said.

While it’s easy to track the revenues this industry brings into state coffers, he points out, it will be harder to track the lack of productivity and qualified individuals to operate heavy machinery and other jobs that require employees to pass a drug test.

This story was first published by The Center Square.

DEA Finally Ready To End Federal Marijuana Research Monopoly, Agency Notifies Grower Applicants

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DEA Finally Ready To End Federal Marijuana Research Monopoly, Agency Notifies Grower Applicants

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The Drug Enforcement Administration (DEA) on Friday notified several companies that it is moving toward approving their applications to become federally authorized marijuana manufacturers for research purposes.

This is a significant development—and one of the first cannabis-related moves to come out of the Biden administration. There is currently a monopoly on federal cannabis cultivation, with the University of Mississippi having operated the only approved facility for the past half-century.

It was almost five years ago that DEA under President Barack Obama first announced that it was accepting applications for additional manufacturers. No approvals were made during the Trump administration. And the delay in getting acceptances has led to frustration—and in some cases, lawsuits—among applicants.

But on Friday, organizations including the Biopharmaceutical Research Company (BRC), Scottsdale Research Institute (SRI) and Groff NA Hemplex LLC were notified by the agency that their requests were conditionally accepted.

“DEA is nearing the end of its review of certain marijuana grower applications, thereby allowing it to soon register additional entities authorized to produce marijuana for research purposes,” DEA said. “Pending final approval, DEA has determined, based on currently available information, that a number of manufacturers’ applications to cultivate marijuana for research needs in the United States appears to be consistent with applicable legal standards and relevant laws. DEA has, therefore, provided a Memorandum of Agreement (MOA) to these manufacturers as the next step in the approval process.”

The Wall Street Journal first reported on the move, and it’s unclear just how many organizations have received a DEA communication so far.

Matt Zorn, who has represented SRI in a suit against DEA over the processing delays, told Marijuana Moment that the agency explained that it is “moving forward” with the facility’s application and that it appears to be “consistent with public interest” to give the institute the ability to grow marijuana for study purposes.

SRI’s Dr. Sue Sisley is in a process of completing a memorandum of agreement that DEA requested “so that it can be executed and official,” according to a press release.

BRC CEO George Hodgin said in another press release that after being finalized, “this federal license will forever change the trajectory of our business and the medicinal cannabis industry.”

“The DEA’s leadership will set off a nationwide wave of innovative cannabis-derived treatments, unlock valuable intellectual property and create high quality American jobs,” he said. “The BRC team is already familiar with DEA compliance procedures based on our extensive history of controlled substances activity, and our world class staff is ready to hit the ground running on this new business arm that the DEA has authorized.”

DEA said it has presented applicants that appear to meet legal requirements “with an MOA outlining the means by which the applicant and DEA will work together to facilitate the production, storage, packaging, and distribution of marijuana under the new regulations as well as other applicable legal standards and relevant laws.”

“To the extent these MOAs are finalized, DEA anticipates issuing DEA registrations to these manufacturers,” the agency said. “Each applicant will then be authorized to cultivate marijuana—up to its allotted quota—in support of the more than 575 DEA-licensed researchers across the nation.”

DEA said it “will continue to prioritize efforts to evaluate the remaining applications for registration and expects additional approvals in the future” and will publicly post information about approvals as they are finalized.

Following a 2019 suit against DEA by SRI, a court mandated that the agency take steps to process the cultivation license applications, and that legal challenge was dropped after DEA provided a status update.

That suit argued that the marijuana grown at the University of Mississippi is of poor quality, does not reflect the diversity of products available on the commercial market and is therefore inadequate for clinical studies.

That’s also a point that several policymakers have made, and it’s bolstered by research demonstrating that the federal government’s cannabis is genetically closer to hemp than marijuana that consumers can obtain in state-legal markets.

Last year, DEA finally unveiled a revised rule change proposal that it said was necessary to move forward with licensing approvals due to the high volume of applicants and to address potential complications related to international treaties to which the U.S. is a party.

SRI filed another suit against DEA in March, claiming that the agency used a “secret” document to justify its delay of approving manufacturer applications. And that was born out when the Justice Department Office of Legal Counsel document was released last year as part of a settlement in the case, revealing, among other things, that the agency feels that its current licensing structure for cannabis cultivation has been in violation of international treaties for decades.

Mississippi Supreme Court Overturns Medical Marijuana Legalization Ballot That Voters Approved

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Mississippi Supreme Court Overturns Medical Marijuana Legalization Ballot That Voters Approved

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A voter-approved initiative to legalize medical marijuana in Mississippi has been overturned by the state Supreme Court.

On Friday, the court ruled in favor of a Mississippi mayor who filed a legal challenge against the 2020 measure, nullifying its certification by the Secretary of State. The lawsuit was unrelated to the merits of the reform proposal itself, but plaintiffs argued that the constitutional amendment violated procedural rules for placing measures on the ballot.

While the court acknowledged that a “strong, if not overwhelming, majority of voters of Mississippi approved Initiative 65” to legalize medical cannabis in the state, Madison Mayor Mary Hawkins Butler’s (R) petition was valid for statutory reasons.

Madison’s challenge cites a state law stipulating that “signatures of the qualified electors from any congressional district shall not exceed one-fifth (1/5) of the total number of signatures required to qualify an initiative petition for placement upon the ballot.” But that policy went into effect when Mississippi had five congressional districts, and that’s since been reduced to four, making it mathematically impossible to adhere to.

The secretary of state and other officials pushed back against the lawsuit and argued that a plain reading of the state Constitution makes it clear that the intention of the district-based requirement was to ensure that signatures were collected in a geographically dispersed manner—and the result of the campaign met that standard.

But in the court’s 6-3 ruling released on Friday, the justices said that their hands were tied. The legislature or administration might be able to fix the procedural ballot issue, but it had to follow the letter of the law.

“We find ourselves presented with the question squarely before us and nowhere to turn but to its answer,” the decision states. “Remaining mindful of both the November 3, 2020 election results and the clear language in section 273 seeking to preserve the right of the people to enact changes to their Constitution, we nonetheless must hold that the text of section 273 fails to account for the possibility that has become reality in Mississippi.”

In sum, a Census-driven change in the number of congressional districts in Mississippi “did, indeed, break section 273 so that, absent amendment, it no longer functions,” meaning there’s no legal way to pass a constitutional ballot initiative in the state.

“Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress. To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court.”

“We grant the petition, reverse the Secretary of State’s certification of Initiative 65, and hold that any subsequent proceedings on it are void,” the court ruled.

One justice who dissented said that the district-based requirement is arbitrary as it concerns Mississippi elections. While the federal government defines the state as having four congressional districts, the state Constitution “lays out the five districts,” and “there have been zero changes to the five districts” as far as the state’s laws are concerned.

In any case, this marks a major defeat for cannabis reform activists in the state who collected more than 214,000 signatures for their initiative. Sixty-eight percent of voters approved a general ballot question on whether to allow medical cannabis, and 74 percent signed off on advocates’ specific measure in a separate question.

“The Mississippi Supreme Court just overturned the will of the people of Mississippi,” Ken Newburger, executive director for the Mississippi Medical Marijuana Association, said in a press release. “Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right.”

“It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter,” he said.

Under the voter-approved initiative, patients with debilitating medical issues would have been allowed to legally obtain marijuana after getting a doctor’s recommendation. The proposal included 22 qualifying conditions such as cancer, chronic pain and post-traumatic stress disorder, and patients would have been able to possess up to 2.5 ounces of marijuana per 14-day period.

There was an attempt in the legislature to pass a bill to legalize medical marijuana in the event that the court overruled the voter-approved initiative, but it failed to be enacted by the session’s end.

The Mississippi State Department of Health told WJTV that it will cease work on developing medical cannabis regulations in light of the court ruling.

“However, the agency has certainly learned a lot in the process of putting together a successful medical marijuana program, and we stand ready to help the legislature if it creates a statutory program,” Liz Sharlot, director of the Office of Communications for the department, said.

This is the latest state Supreme Court setback to affect cannabis reform efforts.

Last month, the Florida Supreme Court dealt a critical blow to marijuana activists working to legalize marijuana in the state—killing an initiative that hundreds of thousands of voters have already signed and forcing them to start all over again if they want to make the 2022 ballot.

While a Nebraska campaign collected enough signatures to qualify a reform initiative in 2020, the state Supreme Court shut it down following a legal challenge. It determined that the measure violated the state’s single-subject rule, much to the disappointment of advocates.

In South Dakota, the fate of an adult-use legalization initiative that voters approved last November is also in the hands of the state’s Supreme Court, where a sheriff is challenging its constitutionality based on a single subject rule as well.

Opponents to a Montana marijuana legalization measure that was approved by voters have also filed lawsuits contesting the voter-approved initiative for procedural reasons, arguing that its allocation of revenue violates the state Constitution. While the state Supreme Court declined to hear the case last year, it did not rule on the merits and left the door open to pursuing the case in district and appeals court, which plaintiffs then pursued.

Read the Mississippi Supreme Court ruling on the medical cannabis initiative below: 

Mississippi Supreme Court m… by Marijuana Moment

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