State ex rel. Moore v. Molpus

• Decision Date: 03 April 1991
• Docket Number: No. 90-CA-696,90-CA-696
• Citation: 578 So.2d 624
• Parties: The STATE of Mississippi, ex rel. Michael C. MOORE, Attorney General of the State of Mississippi; Raymond Vecchio, Oliver E. Diaz, Jr., and Others Similarly Situated, v. Dick MOLPUS, Secretary of State of the State of Mississippi.
• Court: Mississippi Supreme Court

Page 624

578 So.2d 624

The STATE of Mississippi, ex rel. Michael C. MOORE, Attorney General of the State of Mississippi; Raymond Vecchio, Oliver E. Diaz, Jr., and Others Similarly Situated, v.Dick MOLPUS, Secretary of State of the State of Mississippi.

No. 90-CA-696.

Supreme Court of Mississippi.

April 3, 1991.

Mike C. Moore, Atty. Gen., Stephen J. Kirchmayr, Jr., Deputy Atty., and Wilson A. Carroll, Sp. Asst. Atty. Gen., Jackson, for appellants.

John C. Henegan, W. Wayne Drinkwater, Jr., J. Cal Mayo, Jr., Butler Snow O'Mara Stevens & Cannada, Constance Slaughter-Harvey, Reese J. Partridge, and Brian Wayne Wells, Office of Secretary of State, Jackson, for appellee.

En banc.

ROBERTSON, Justice, for the Court:

I.

Today's political cause celebre presents novel and important legal questions.We are asked to resurrect the long dormant Initiative and Referendum Amendment to the grant of legislative power within our Constitution and to give that amendment phoenix-like powers, all to the immediate end that the people may vote whether to repeal this state's constitutional ban on all lotteries.Deeper interests in stability, reliance and legal integrity loom large upon reflection.

The Circuit Court denied the claim.Law and prudence command that we stay our hand as well.We affirm.

II.

A.

Until recently, most had long forgotten that in its 1914 Regular Session, the Legislature, two-thirds of each House concurring, adopted House Concurrent ResolutionNo. 24. Miss.Laws, Ch. 520(1914).The Resolution directed referral to the people of an amendment which would have enshrined in the Constitution an initiative and referendum ("I & R") petition procedure.¹

The proposal would have vested in the electorate power to enact constitutional amendments and legislative measures ("Initiative") and the power to reject acts passed by the Legislature("Referendum").An Initiative petition, whether for a legislative measure or for a constitutional amendment, bearing the signatures of 7,500 qualified electors would have been placed on the ballot at the next succeeding statewide election.A Referendum petition would have required only 6,000 signatures and would have had to be filed within ninety days after the adjournment of the legislative session during which the questioned measure had been passed.The Governor would have had no authority to veto any Initiative or Referendum approved by a majority of those voting on the measure, nor could any such measure have been subsequently repealed or amended, save by a vote of three-fourths of the members of each house of the Legislature.

H.C.R. 24 directed that the proposed I & R Amendment be submitted to the voters at the general election to be held on November 3, 1914, ²"in accordance with the provisions of Section 273, of the Constitution,"³ Miss.Laws, Ch. 520(1914).

Following November 3, 1914, the Election Commissioners of the several counties compiled the returns of the election and certified them to the Secretary of State.These returns disclosed that 19,118 votes had been cast in favor of the I & R Amendment, while only 8,718 votes had been cast against it.The highest aggregate vote cast for any office voted for at the election was 37,583.In its 1916 Regular Session, the Senate adopted Senate Concurrent ResolutionNo. 18, directing that the amendment be inserted into the Constitution, and the House concurred on March 29, 1916.⁴ The I & R Amendment was then formally inserted into the Constitution and appeared there as Article 4, Section 33 in I Hemingway's Mississippi Code 151-153(1917).⁵ The legal validity of the I & R Amendment was immediately brought under fire.In 1917this Court considered the matter and held that the amendment had been properly submitted, ratified and added to the Constitution.State ex rel. Howie v. Brantley, 113 Miss. 786, 797-801, 74 So. 662, 666-67(1917).

Five years later, certain citizens filed an initiative petition that the then seemingly exorbitant $40,000 annual salary of the State Revenue Agent be slashed.Understandably motivated that his pay not be cut, Revenue Agent Stokes V. Robertson pulled out all the stops.He argued that the petition attacking his salary must fail because the I & R Amendment had been submitted to the voters in a form that offended Section 273's mandate that such amendments shall "be submitted in such manner and form that the people may vote for or against each amendment separately...."⁶ * The case reached this Court in record time and, Brantley notwithstanding and no doubt to the surprise of one and all, the Court did an about-face and held the I & R Amendment void on grounds it was in law "more than one amendment" and, contrary to Section 273, had been submitted in a form which combined in one measure the disparate subjects of legislative enactments and constitutional amendments.Power v. Robertson, 130 Miss. 188, 230-31, 93 So. 769, 775-77(1922).Central to the Power decision was the notion that initiating or repealing legislation and amending of the Constitution"are separate and distinct things."In the end, the Court overruled Brantley and flatly held that the Initiative and Referendum Amendment was "unconstitutional and void."Power, 130 Miss. at 235, 93 So. at 777.There the matter lay, dormant, for lo these many years, a Rip Van Winkle or a Sleeping Beauty, depending on one's point of view.

In the past quarter century many of our sister states in search of sorely needed public revenues have begun operating lotteries.Mississippi's Constitution bans lotteries, Miss. Const. Art. 4, Sec. 98(1890), ⁷ and measures have been proposed to repeal the ban.The death of these measures in the 1990 legislative session gave birth to the present action.

B.

Our Plaintiffs are (1)Michael C. Moore, Attorney General of Mississippi, suing in his official capacity and in the name of the State of Mississippi; and two members of the Mississippi House of Representatives, (2)Raymond Vecchio, Representative, District 112, Jackson County, an adult resident citizen of Gautier, Mississippi; and (3)Oliver E. Diaz, Jr., Representative, District 116, Harrison County, an adult resident citizen of Biloxi, Mississippi.On March 28, these three presented Dick Molpus, Secretary of State of Mississippi, with an initiative petition calling for a public election on repeal of Section 98's lottery ban.⁸ Secretary Molpus refused the petition, as in law he was bound to do, given Power v. Robertson.

Later that same day, March 28, 1990, Plaintiffs filed suit in the Circuit Court for the First Judicial District of Hinds County.Their complaint seeks, inter alia, a declaratory judgment that the I & R Amendment is valid and enforceable.SeeRule 57, Miss.R.Civ.P.They also ask an order compelling Secretary Molpus to place on the ballot for the next succeeding statewide general election their initiative proposing repeal of Section 98.Later, Plaintiffs caused the Circuit Court to issue a writ of certiorari to Secretary Molpus.

Secretary Molpus answered, challenging, among other things, Plaintiffs' standing to sue.More substantially, Secretary Molpus presented the final judgment in Power v. Robertson and invoked res judicata, collateral estoppel, stare decisis and related principles of finality and repose.SeeRule 8(c), Miss.R.Civ.P. Secretary Molpus then moved for summary judgment, arguing that Power v. Robertson was still good law and that it rendered the Initiative and Referendum Amendment wholly unenforceable.

On June 29, 1990, the Circuit Court granted Secretary Molpus' motion and dismissed the Complaint with prejudice.Timely appeals by both parties followed.⁹

III.

Plaintiffs ask today that we overrule Power v. Robertson and thus remove the principal impediment to calling the initiative election they seek.They charge we have done so in effect through our 1988 decision in Burrell v. Mississippi State Tax Commission, 536 So.2d 848, 855-58, 876-77(Miss.1988), and request we express what they say Burrell implies.Modesty does not attend the request.

The Circuit Court acted within the pleadings ¹⁰ and solely on grounds Power v. Robertson was controlling and dispositive of the outcome determinative legal questions.Because of this, we treat the judgment below as though the Court had dismissed the complaint for failure to state a claim upon which relief may be granted.Rule 12(b)(6), Miss.R.Civ.P.;Walton v. Bourgeois, 512 So.2d 698, 699-700(Miss.1987);Millican v. Turner, 503 So.2d 289, 292(Miss.1987).

In our present procedural posture we take as true the well-pleaded allegations of the complaint.SeeCity of Mound Bayou v. Johnson, 562 So.2d 1212, 1213(Miss.1990);Petters v. Petters, 560 So.2d 722, 724-25(Miss.1990);Tucker v. Hinds County, 558 So.2d 869, 872(Miss.1990);Common Cause of Mississippi v. Smith, 548 So.2d 412, 415(Miss.1989);Wilkinson v. Merchantile National Bank, 529 So.2d 616, 618(Miss.1988).

IV.

The first issue we confront is the Plaintiffs' standing to sue.Our rules have evolved but seem settled.

Parties may sue or intervene when they assert a colorable interest in the subject matter of the litigation or experience an adverse effect from the conduct of the defendant, [citations omitted], or as otherwise authorized by law [citations omitted].

Harrison County v. City of Gulfport, 557 So.2d 780, 782(Miss.1990).Standing is like any other charge of a party's pleading.It is subject to the rule just noted that we take as true the allegations on the face of the complaint.

There can be no serious doubt of the standing of the Attorney General, in his official capacity, to bring this action on behalf of the State of Mississippi.See, e.g., Frazier v. State ex rel. Pittman, 504 So.2d 675, 690-92(Miss.1987);Alexander v. State ex rel. Allain, 441 So.2d 1329, 1334(Miss.1983);State ex rel. Allain v. Mississippi Public Service Commission, 418 So.2d 779, 783-84(Miss.1982).

Reps. Vecchio and Diaz fall...