In re Proposed Initiative Measure No. 20, No. 1999-CA-00912-SCT.

• Decision Date: 21 December 2000
• Docket Number: No. 1999-CA-00912-SCT.
• Citation: 774 So.2d 397
• Parties: In re PROPOSED INITIATIVE MEASURE NO. 20. Elizabeth Stoner v. Robert Mahoney, Odean Reed, Sherwood R. Bailey, Jr., Chevis C. Swetman, Clayton Henderson, Ernest J. Stebbins, And Mississippi Gaming Association, Inc.
• Court: Mississippi Supreme Court

774 So.2d 397

In re PROPOSED INITIATIVE MEASURE NO. 20.

Elizabeth Stoner v. Robert Mahoney, Odean Reed, Sherwood R. Bailey, Jr., Chevis C. Swetman, Clayton Henderson, Ernest J. Stebbins, And Mississippi Gaming Association, Inc.

No. 1999-CA-00912-SCT.

Supreme Court of Mississippi.

December 21, 2000.

Stephen M. Crampton, Michael Joseph Deprimo, Attorneys for Appellant.

John C. Henegan, Robert L. Gibbs, Thomas H. Walman, Office of The Attorney General by Maudine G. Eckford, Attorneys for Appellees.

EN BANC.

MILLS, Justice, for the Court:

¶ 1. On Court's own motion, the prior opinions issued in this case are withdrawn, and these opinions are substituted therefor.

STATEMENT OF THE CASE

¶ 2. This is an appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi declaring Proposed Initiative Measure No. 20 (Measure No. 20) null and void. On May 7, 1999, the circuit court entered judgment determining that Measure No. 20 is unconstitutional because it impermissibly attempts to prohibit rights granted to the people of the State of Mississippi under the Bill of Rights of the Mississippi Constitution and fails to include a government revenue impact statement as required by Section 273 of the Mississippi Constitution. Additionally, it found that the doctrines of res judicata and collateral estoppel barred any further legal claims by the measure's sponsor since two prior measures involving the same subject matter have already been litigated. Aggrieved by the judgment of the circuit court, the sponsor of Measure No. 20, Elizabeth Stoner (Stoner), appeals to this Court assigning two points of error:

1) Whether courts have jurisdiction over the merits of a proposed initiative to amend the Mississippi Constitution?

2) Whether the plaintiffs had standing to bring an action for declaratory judgment and other relief?

STATEMENT OF FACTS

¶ 3. On March 22, 1999, Elizabeth Stoner filed with the Secretary of State a proposed initiative measure to prohibit gambling within the state, except gambling sponsored by religious, educational or wildlife organizations. As required by Miss.Code Ann. § 23-17-5 (Supp.1999), the Secretary of State delivered the proposal to the Attorney General. The Attorney General reviewed the measure for form and style and issued a certificate of review pursuant to section 23-17-7 (Supp. 1999). The Secretary of State subsequently assigned a serial number to the proposal. Initiative Measure No. 20 was born.

¶ 4. Thereafter, the Attorney General drafted a ballot title and summary for Measure No. 20, as required by section 23-17-9 (Supp.1999), and sent it to the Secretary of State. The Secretary of State timely published the ballot title and summary pursuant to section 23-17-11 (Supp. 1999). Subsequently, Robert Mahoney, Odean Reed, Sherwood R. Bailey, Jr., Chevis C. Swetman, Clayton Henderson, Ernest J. Stebbins, Mississippi Gaming Association, Inc., Eric Clark, Secretary of State of the State of Mississippi and Michael C. Moore, Attorney General of the State of Mississippi (collectively "appellees"), filed their consolidated petition and complaint asking the circuit court to review and set aside Measure No. 20, alleging that the measure violates Section 273(4)-(5) of the Mississippi Constitution and its statutory equivalent, Section 23-17-1(3)(4) (Supp.1999). These sections provide, in summary, (1) that if a proposed initiative requires a reduction in any source of government revenue the sponsor must include in the text of the initiative the programs whose funding will be affected and (2) that the initiative process shall not be used to modify or repeal any portion of the Bill of Rights of the Mississippi Constitution.

¶ 5. Initiative Measure No. 20 proposes to amend the State Constitution to prohibit all forms of gambling within the State of Mississippi except for "activities regulated under educational, wildlife conservation or religious organizations...." The proposed measure provides that affected gaming establishments are subject to a "two year amortization period, at the conclusion of which all non-exempt ... gaming ... conducted in this State shall cease." This proposed initiative is Stoner's third attempt to exercise her right to propose a constitutional amendment making certain forms of gaming illegal in the State of Mississippi. The first two were Initiative Measures No. 12 and 13, filed on June 12, 1998 and July 10, 1998, respectively.

¶ 6. The appellees in this case also previously filed suit to have Initiative Measure No. 12 set aside, naming the State Attorney General, the Secretary of State, and Stoner as respondents to the petition and the Secretary of State and Stoner as defendants to the complaint. The Circuit Court of the First Judicial District of Hinds County ruled in 1998 that Initiative Measure No. 12 was unconstitutional because it violated the state Constitution's Bill of Rights and failed to include a government revenue impact statement as required by section 273(4) of the Mississippi Constitution and Miss.Code Ann. § 23-11-1(3) (Supp.1999). As a result, the circuit court found Measure No. 12 to be legally insufficient; rendered it null and void; and declared that the ballot title and summary could not be finally established.

¶ 7. Stoner collaterally attacked the circuit court's order disposing of Measure No. 12 by filing an emergency petition for writ of mandamus in this Court. Stoner argued that the circuit court had no jurisdiction to enter a ruling addressing the content or subject matter of her proposed measure and that the appellees lacked standing. We dismissed the petition, holding that the circuit court's order was a final judgment under Miss.Code Ann. § 11-51-3 (Supp.1999) and that, therefore, "the proper mode of review ... is by way of direct appeal, and not by writ of mandamus." In re Stoner, No.1998-M-00945 (Miss. Oct. 14, 1998) Stoner did not take a direct appeal from the circuit court's July 24, 1998, order.

¶ 8. On July 10, 1998, Stoner filed her second anti-gaming initiative, subsequently designated Initiative Measure No. 13. Appellees again timely filed their suit to have Measure No. 13 set aside. The circuit court found that Measure No. 13 shared the constitutional infirmities of Measure No. 12; i.e., it impermissibly attempted to amend the state constitution's Bill of Rights and failed to include a governmental revenue impact statement. Further, the circuit court held that the doctrines of res judicata and collateral estoppel precluded Stoner from relitigating the same issues addressed by the circuit court's first order because Measure No. 13 was nearly identical to Measure No. 12.

¶ 9. Stoner did not appeal the circuit court's second order but instead filed her third anti-gaming proposal, dated March 22, 1999. As noted, this proposal was designated as Initiative Measure No. 20. This measure suffered the same fate as the previous two. Appellees filed suit to have Measure No. 20 set aside, and Stoner answered citing lack of jurisdiction and lack of standing. The circuit court again held that the anti-gaming initiative impermissibly attempted to amend the Bill of Rights and failed to include a government revenue impact statement. (The court below failed to identify which part of the Bill of Rights was being impermissibly amended. We see no impingement. Accordingly, the circuit court's ruling in that regard will be treated as mere surplusage affecting neither Stoner's assignments of error nor appellees' rights on appeal.). Additionally, the circuit court held that the doctrines of res judicata and collateral estoppel precluded Stoner from relitigating the issues based on the two previous judgments setting aside Stoner's two prior anti-gaming measures. From the order dated May 6, 1999, Stoner appeals to this Court.

ANALYSIS

¶ 10. The Mississippi Constitution places certain guidelines and limitations upon the use of the initiative process. Article 15, Section 273(3) reads:

The people reserve unto themselves the power to propose and enact constitutional amendments by initiative. An initiative to amend the Constitution may be proposed by a petition signed over a twelve-month period by qualified electors equal in number to at least twelve percent (12%) of the votes for all candidates for Governor in the last gubernatorial election. The 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. If an initiative petition contains signatures from a single congressional district which exceed one-fifth (1/5) of the total number of required signatures, the excess number of signatures from that congressional district shall not be considered by the Secretary of State in determining whether the petition qualifies for placement on the ballot.

Miss. Const. art. 15, § 273(3).

¶ 11. A sponsor of an initiative must also disclose certain budget information as set forth in section 273(4) of the state Constitution:

The sponsor of an initiative shall identify in the text of the initiative the amount and source of revenue required to implement the initiative. If the initiative requires a reduction in any source of government revenue, or a reallocation of funding from currently funded programs, the sponsor shall identify in the text of the initiative the program or programs whose funding must be reduced or eliminated to implement the initiative. Compliance with this requirement shall not be a violation of the subject matter requirements of this section of the Constitution.

Miss. Const. art. 15, § 273(4), codified in Miss.Code Ann. § 23-17-1(3)(4).

¶ 12. We must determine whether these constitutional provisions have been satisfied here.

1) Whether courts have jurisdiction over the merits of a proposed initiative to amend the Constitution?

¶ 13. Whether the circuit court had jurisdiction to...