Hughes v. Hosemann

• Decision Date: 08 September 2011
• Docket Number: No. 2010–CA–01949–SCT.,2010–CA–01949–SCT.
• Citation: 68 So.3d 1260
• Parties: Deborah HUGHES and Cristen Hemminsv.Delbert HOSEMANN, P. Leslie Riley, Jr. and Personhood Mississippi.
• Court: Mississippi Supreme Court

68 So.3d 1260

Deborah HUGHES and Cristen Hemmins

v.Delbert HOSEMANN, P. Leslie Riley, Jr. and Personhood Mississippi.

No. 2010–CA–01949–SCT.

Supreme Court of Mississippi

Sept. 8, 2011.

Robert B. McDuff, J. Clifton Johnson, II, Alexa Kolbi–Molinas, Suzanne Novak, Diana O. Salgado Aguilar, attorneys for appellants.Office of the Attorney General by Harold Edward Pizzetta, III, Stephen M. Crampton, attorneys for appellees.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

¶ 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 substance ³ 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 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, 112 Miss. 88, 72 So. 864, 867 (1916); Barnes v. Barnett, 241 Miss. 206, 129 So.2d 638, 642 (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, 205 Miss. 264, 38 So.2d 718, 719–20 (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, 194 Miss. 268, 11 So.2d 901, 902 (1943)).

¶ 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.” ⁴Measure 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 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 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...