Leland Speed v. Delbert Hosemann

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2011-CA-01106-SCT

LELAND SPEED

v.

DELBERT HOSEMANN, SECRETARY OF STATE
OF MISSISSIPPI AND DAVID WAIDE

DATE OF JUDGMENT: 07/29/2011
TRIAL JUDGE: HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: LUTHER T. MUNFORD
ROBERT GREGG MAYER
FRED L. BANKS, JR.
RONALD D. FARRIS
ATTORNEYS FOR APPELLEES: OFFICE OF THE ATTORNEY GENERAL
BY: HAROLD EDWARD PIZZETTA, III
SAM E. SCOTT
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: VACATED AND DISMISSED - 09/08/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

LAMAR, JUSTICE, FOR THE COURT:

¶1. David Waide filed an Initiative 1 with Mississippi Secretary of State Delbert

Hosemann, and Hosemann has approved it for placement on the November 2011 general

election ballot.

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The Initiative – now known as Initiative 31 – attempts to restrict the state’s power
to transfer certain property to certain parties after taking it by eminent domain.
¶2. Leland Speed filed a complaint against Hosemann in the Hinds County Circuit Court,

along with a Motion for Expedited Declaratory and Injunctive Relief, asking the court to

declare Initiative 31 unconstitutional and to enjoin Hosemann from placing it on the ballot.

Speed argued that Initiative 31 “violates Section 273(5)(a) because that section prohibits use

of the initiative process for the ‘proposal, modification or repeal’ of ‘any portion’ of the

Constitution’s Bill of Rights.” Speed argued that Initiative 31 was a “‘proposal, modification

or repeal’ of the Bill of Rights . . . and more specifically of its Section 17, which governs

taking of private property for a public use.”

¶3. After Hosemann and Waide 2 responded to Speed’s pleadings, Speed filed a Motion

for Judgment on the Pleadings, in which he argued that the case “involve[d] a pure issue of

law with no material facts in dispute” and asked the court to enter judgment in his favor

under Mississippi Rule of Civil Procedure 12(c). The trial judge both denied Speed’s motion

for judgment on the pleadings and ruled on the merits, finding that Speed’s complaint should

be dismissed with prejudice and ordering that Hosemann be allowed to proceed in placing

Initiative 31 on the ballot.

¶4. On appeal, Speed asks this Court to reverse the trial judge, declare that Initiative 31

violates Section 273(5) of the Mississippi Constitution, and “keep Initiative 31 off the

November ballot.”

¶5. We find that the issue presented in this appeal, i.e., the constitutionality of proposed

Initiative 31, is not ripe for adjudication by this Court, such that any opinion thereon would

be improperly advisory. Speed filed his complaint only two months ago, and the case already

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The trial court granted Waide’s motion to intervene as a defendant.

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has arrived on our docket. This case has been rushed through the trial court and efficiently

punted to this Court for “expedited review.” We find no good reason for the frenetic, fast-

paced atmosphere surrounding this case, and we think there is “time enough to pass upon

such important questions when they are reached in due course, with proper parties, in a

proper proceeding.” Power v. Ratliff, 72 So. 864, 865 (Miss. 1916).

¶6. In Ratliff, contestants obtained an injunction against Secretary of State Joseph Power

to prevent him from “taking the steps necessary to refer . . . several acts of the Legislature

to an election by the people,” and Power appealed. Id. at 865. This Court dissolved the

injunction and dismissed the action, noting the general rule that “an injunction will not lie

to restrain the holding of an election.” Id. And regarding pre-election review of initiatives

specifically, the Ratliff Court observed 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 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. The complainants . . . 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 . . . 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.

Id. at 867 (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
passage or 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.”

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Id. (citation omitted) (emphasis added). So, as the Ratliff Court concluded, the “safer

policy” is to “refrain from interfering with the free exercise of the legislative functions of

government whether attempted to be exercised by the Legislature or by the people in their

sovereign capacity.” Id. at 869 (emphasis added).

¶7. We find this reasoning compelling and see no reason to retreat from it today. As it

presently stands, Initiative 31 is proposed legislation put forth for public debate and

discourse. It has not been “put into force and effect in a way to injure the parties

complaining.” Id. at 867. We find that general challenges to an initiative’s substantive

constitutionality, such as the one before us today, are not justiciable before the initiative has

been enacted by the electorate.

¶8. Speed relies on this Court’s decision in In Re Proposed Initiative Measure No. 20,

774 So. 2d 397 (Miss. 2000), to bring this pre-election action. There, the proponent of a

proposed initiative appealed after the circuit court had held that her initiative would not be

placed on the ballot. Id. at 399-400. The Measure 20 Court agreed that the initiative could

not be placed on the ballot, because it did not include an economic impact statement (a defect

in form). Id. at 402.

¶9. But the Measure 20 Court went on to hold implicitly that substantive challenges to

proposed initiatives also are proper for pre-election review. Id. at 401-02. Citing no

constitutional, statutory, or caselaw authority, 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.” Id. at 401 (emphasis added). The lack of authority is no

surprise, as such authority is nonexistent. In fact, our existing caselaw has held exactly the

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opposite. According to Ratliff, “the courts . . . must deal altogether with the finished

product.” Ratliff, 72 So. at 867. While we agree that “minimum constitutional and statutory

requirements” must be met before a measure is placed on the ballot, a pre-election review of

an initiative is limited to matters of form, i.e., the sufficiency of signatures and/or the ballot

title or summary.3 See Miss. Const. art. 15, § 273(9); Miss. Code Ann. §§ 23-17-13, -23, -25

(Rev. 2007). For these reasons, and the reasons stated in Hughes v. Hosemann, a decision

also issued by this Court this date, Measure 20 is overruled to the extent that it allows pre-

election substantive review of proposed initiatives.

¶10. In sum, the present challenge to the substantive validity of Initiative 31 is not ripe for

consideration. There is time enough to consider whether the measure, if passed, is

substantively invalid. But since the voters of Mississippi may choose to reject this measure,

this Court “‘ought not . . . be called upon to anticipate conditions which may never arise.’”

Ratliff, 72 So. at 868 (citation omitted). Thus, we decline today to consider the issues raised

in Speed’s appeal. But we note, as did the Ratliff Court, that “[i]n declining to assume

jurisdiction it necessarily follows that we intimate no opinion whatever upon the merits of

the important questions attempted herein to be submitted for our decision.” Ratliff, 72 So.

at 869. We therefore vacate the circuit court’s judgment, and we dismiss Speed’s complaint

and this action without prejudice.

¶11. VACATED AND DISMISSED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
CHANDLER AND PIERCE, JJ., CONCUR. CHANDLER, J., SPECIALLY

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These matters are not contested in this case.

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CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.,
DICKINSON, P.J., RANDOLPH AND PIERCE, JJ. KING, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

CHANDLER, JUSTICE, SPECIALLY CONCURRING:

¶12. I write separately to clarify that Speed makes a constitutional challenge to the use of

the initiative process as the mechanism for enacting proposed Initiative 31. Certainly, our

constitution prohibits the use of the initiative process for the proposal, modification, or repeal

of a portion of the Bill of Rights. Miss. Const. art. 15, § 273(5). But the Court would have

to review the substance of proposed Initiative 31 to determine whether proposed Initiative

31 is a proposal, modification, or repeal of a portion of the Bill of Rights. Principles of

justiciability prevent us from undertaking substantive review prior to passage of the proposed

initiative. For this reason, I concur with the majority that this case is not ripe for our

consideration.

WALLER, C.J., DICKINSON, P.J., RANDOLPH AND PIERCE, JJ., JOIN
THIS OPINION.

KING, JUSTICE, DISSENTING:

¶13. With appropriate respect for the majority, I dissent.

¶14. At the outset, let me say that I, too, share the majority’s concern about the seemingly

frenetic speed with which this matter has moved through the trial court and landed on the

docket of this Court. However, I would be remiss if I did not also question the frenetic speed

with which this matter is being handled on this Court’s docket. This is particularly true when

one views the majority’s disposition of this case. While this is doubtlessly a matter of some

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importance, so too are the many other cases which are placed before the trial court and this

Court.

¶15. The majority, relying on Power v. Ratliff, 112 Miss. 88, 72 So. 864 (Miss. 1916),

holds that “the present challenge to the substantive validity of the measure is not ripe for

consideration.” If as the majority finds, this case is not yet ripe for resolution, then it must

also follow that the frenetic pace at which this case has been addressed, both by the trial court

and this Court, is not warranted. However, I believe that the majority’s reliance on Ratliff

is misplaced.

¶16. Initiative 31 and Ratliff are clearly distinguishable. Initiative 31 concerns a voter-

driven initiative. This method of amending the Constitution did not even exist until 1992,

well after the Ratliff decision. See 1992 Miss. Laws 1318-1322. Ratliff, on the other hand,

addressed whether laws passed by the Legislature – specifically laws concerning liquor,

hunting, and fishing – could be subject to popular vote. Ratliff, 72 So. at 865-66. Also, the

proposed measures in Ratliff did not seek to propose, modify, or repeal any section of the

Bill of Rights. Furthermore, Mississippi Constitution Article 15, Section 273(5) did not exist

at that time. See 1912 Miss. Laws. 450-51. In other words, “the gravamen of the bill after

all is an injunction against the exercise by the people of a veto power upon the legislature in

question.” Ratliff, 72 So. at 866. Ratliff did not address the issue before us today.

¶17. However, In Re Proposed Initiative Measure No. 20, 774 So. 2d 397 (Miss. 2000),

is an analogous case. Measure 20 addressed a voter-driven initiative to prohibit gambling

within the state, with exceptions. Id. at 398. Yes, it is true that the Measure 20 Court

ultimately resolved that case on whether the sponsor of the initiative had failed to provide

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a government revenue-impact statement. Id. at 401-402 (¶¶18-20). But equally true, the

Measure 20 Court also addressed the issue before us today – whether the content of a voter-

driven initiative is subject to review. Id. at 400-401 ((¶¶13-17).

¶18. The majority dismisses that holding of Measure 20 as merely dicta. I disagree.

Black’s Law Dictionary defines “dictum” as “[a] statement, remark, or observation. Gratis

dictum; a gratuitous or voluntary representation; one which a party is not bound to make.

Simplex dictum; a mere assertion; an assertion without proof.” Black’s Law Dictionary 454

(6th ed. 1990). The holding of the Measure 20 Court fails to come within either definition

of dictum. The Measure 20 Court specifically held that courts have jurisdiction to review

the constitutionality of a proposed measure before it is placed on the ballot, stating that:

Stoner argues that the proper and only time that the courts may review the
constitutionality of a proposed initiative is after the electoral die is cast in a
general election. In effect, she argues for unbridled ballot box chaos. This
argument runs counter to all notions of ballot box efficiency and notice to the
electorate.

We hold today that §§ 23-17-1 et seq. do not divest the Circuit Court of the
First Judicial District of Hinds County of its jurisdiction as set forth in section
156 of the Constitution. As such, this circuit court is the proper venue and has
jurisdiction to review the facial constitutionality of proposed initiatives.

Measure 20, 774 So. 2d at 401 (¶¶15-16). Beyond question, the issue of the authority of the

Court to conduct a pre-ballot review of the facial constitutionality of proposed initiatives was

before the Measure 20 Court. The Measure 20 Court acknowledged that proposed initiatives

should not be reviewed for merit or lack thereof. Id. at 401 (¶17) (citing Ratliff, 72 So. 864).

But the Court held that proposed initiatives should be reviewed for form, and content is

reviewed “inasmuch as content affects form and form affects content.” Id.

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¶19. The majority claims that the Measure 20 Court did not cite authority for its position

and, thus, its holding is only dicta. Once again, I disagree. The authority for that holding is

implicit in the Mississippi Constitution.

¶20. Circuit courts have jurisdiction to determine whether proposed initiatives violate the

constitution. Section 156 of the Constitution provides, in part, that “[t]he circuit court shall

have original jurisdiction in all matters civil and criminal in this state not vested by this

constitution in some other court . . . .” Miss. Const. art 6, §156. Section 146 of the

Constitution provides this Court with appellate jurisdiction of such matters, providing, in

part: “The Supreme Court shall have such jurisdiction as properly belongs to a court of

appeals and shall exercise no jurisdiction on matters other than those specifically provided

by this Constitution or by general law.” Miss. Const. art 6, §146.

¶21. Mississippi Constitution Article 15, Section 273(5), provides, in pertinent part, that:

“The initiative process shall not be used . . . [f]or the proposal, modification or repeal of any

portion of the Bill of Rights of this Constitution[.]” Any proposed initiative which runs

contrary to Section 273(5) does not meet the procedural requirements for submission as a

voter-driven initiative. The Constitution strictly prohibits any such act. It follows that circuit

courts must review the content of a proposed initiative to determine whether it procedurally

violates Section 273(5). Such an inquiry does not (and should not) address the merits or lack

thereof of the proposed initiative. Logically, it follows that this Court has jurisdiction to

review the circuit court’s ruling.

¶22. The majority further seeks to dismiss this Court’s holding in Measure 20 by saying,

“But the Measure 20 Court went on to implicitly hold that substantive challenges to

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proposed initiatives are also proper for pre-election review. Citing no constitutional,

statutory, or caselaw authority, 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.’ The lack of authority is no surprise, as such authority is nonexistent. In

fact, our existing caselaw has held exactly the opposite.” (Citations omitted).

¶23. First, it must be noted that, to the extent the ruling in Measure 20 conflicts with prior

rulings of this Court, such as Ratliff, it is the last-adopted ruling and should take priority.

The Supreme Court has stated that “when we embark upon [a] new interpretation [of the

Constitution] we must divine that interpretation which best fits the constitutional text and

which flows from the best justification that may be given for the continued inclusion of that

text in the Constitution.” State ex rel. Moore v. Molpus, 578 So. 2d 624, 637 (Miss. 1991)

(citations omitted). One year after the Supreme Court’s ruling in Molpus, Section 273 was

amended to include, among others, subsections 3 and 5. See 1992 Miss. Laws 1318-1322.

¶24. The Molpus court also stated that:

[Power v. Ratliff] 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.

Molpus, 578 So. 2d at 639. That reasoning applies here as well. Section 273 was

substantially amended in 1992. See 1992 Miss. Laws 1318-1322. Ratliff is an interpretation

of Section 273 as it existed prior to 1992. See 1912 Miss. Laws. 450-51. The 1992

amendment, for all practical purposes, negated the prior interpretation. Thus, the Supreme

Court’s interpretation of Section 273 in Measure 20 should control today’s decision.

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¶25. Second, while this Court expresses a commitment to the principle of stare decisis, by

a simple majority vote, it has not hesitated to ignore or overrule prior decisions when deemed

appropriate. This observation is not intended to suggest that I take lightly the principle of

stare decisis. However, a slavish devotion to prior decisions can produce irrational results.

Perhaps the best example is the doctrine of “separate but equal.” In 1896 the United States

Supreme Court upheld segregation laws. Plessy v. Ferguson, 163 U.S. 537, 16 S. Ct. 1138,

41 L. Ed. 256 (1896). If the United States Supreme Court had blindly followed the principle

of stare decisis, it would have continued to uphold those laws. Thankfully, the Court had the

wisdom and fortitude to ignore its prior precedent and overrule the separate-but-equal

doctrine. Brown v. Bd. of Educ., 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

¶26. Section 273(5) clearly states that the initiative process shall not be used to propose,

modify, or repeal any portion of the Bill of Rights. Miss. Const. art. 15, §273(5). To

determine whether an initiative seeks to propose, modify, or repeal a portion of the Bill of

Rights, reviewing courts must consider the content of the proposed initiative for that limited

purpose. Thus, we shall not allow initiatives that seek to propose, modify, or repeal any

portion of the Bill of Rights on the ballot. Ratliff is inapplicable. Measure 20 is not an

unreasonable reading or application of the 1992 amendments to Article 15, Section 273. Nor

has this Court’s holding in Measure 20 been overruled. I would therefore proceed actually

to address the matter which this Court accepted on an expedited basis, but now declines to

address.

¶27. Since the majority does not address whether Initiative 31 violates Section 273(5), I

reserve my views of that matter until it once again returns to this Court.

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KITCHENS, J., JOINS THIS OPINION.

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