IN THE SUPREME COURT OF MISSISSIPPI NO CA SCT LEGISLATURE OF THE STATE OF MISSISSIPPI. ADRIAN SHIPMAN, et al.

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1 E-Filed Document Jun :56: CA SCT Pages: 26 IN THE SUPREME COURT OF MISSISSIPPI NO CA SCT LEGISLATURE OF THE STATE OF MISSISSIPPI APPELLANT v. ADRIAN SHIPMAN, et al. APPELLEES On Appeal from the Circuit Court of the First Judicial District of Hinds County, Mississippi BRIEF OF MISSISSIPPI ATTORNEY GENERAL S OFFICE Paul E. Barnes (Miss. Bar No ) Special Assistant Attorney General STATE OF MISSISSIPPI Office of the Attorney General P.O. Box 220 Jackson, MS Telephone: (601) Facsimile: (601) pbarn@ago.state.ms.us Counsel for Mississippi Attorney General s Office

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ii INTRODUCTION SUMMARY OF THE ARGUMENT ARGUMENT I. The Initiative Process Is Unique and Requires Specialized Procedures II. III. IV. The Circuit Court Had Jurisdiction to Review the Ballot Title of Measure 42A Pursuant to Section The Court Should Apply the Plain and Unambiguous Language of Section Section Provides Dissatisfied Persons a Specific, Limited Right of Appeal to the Circuit Court Only, and The Decision of the Court Shall Be Final CONCLUSION CERTIFICATE OF SERVICE i-

3 TABLE OF AUTHORITIES Cases: Page Adams County v. State Educ. Finance Comm n, 91 So. 2d 524 (Miss. 1956) Bentonville Taylor v. Marion County, 51 Miss. 731, 1875 WL 6561 (1875) , 12 Board of Educ. v. State Educ. Finance Comm n, 138 So. 2d 912 (1962) Board on Law Enf. Off. Stds. & Tr. v. Voyles, 732 So. 2d 216 (Miss. 1999) Business Commc'ns, Inc. v. Banks, 91 So. 3d 1 (Miss. Ct. App. 2011), aff'd, 90 So. 3d 122 (Miss. 2012) City of Natchez v. Sullivan, 612 So. 2d 1087 (Miss. 1993) Dismukes v. Stokes, 41 Miss. 430, 1867 WL 2306 (Miss. Err. & App. 1867) ,11-13, 15, 18 Fleming v. State, 553 So. 2d 505 (Miss.1989) Fortune v. Lee County Bd. of Supervisors, 725 So. 2d 747 (Miss. 1998) Gill v. Miss. Dep't of Wildlife Conservation, 574 So. 2d 586 (Miss. 1990) Hughes v. Hosemann, 68 So. 3d 1260 (Miss. 2011) In re Proposed Ballot Title of State Question No. 319, Initiative Process No. 563, 685 P.2d 400 (Okla. 1984) In re Proposed Initiative Measure No. 20, 774 So. 2d 397 (Miss. 2000), overruled in part by Hughes v. Hosemann, 68 So. 3d 1260 (Miss. 2011) ii-

4 In re Proposed Initiative on Parental Notification of Abortion for Minors, 794 P.2d 238 (Colo. 1990) In re Stoner, No M (Miss. Oct. 14, 1998) , 18 Japan Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221 (1986) Jones v. Barnes, 463 U.S. 745, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983) Jones v. City of Ridgeland, 48 So. 3d 530 (Miss. 2010) Kellum v. Johnson, 237 Miss. 580, 115 So. 2d 147 (1959) Kerr v. Moore, 54 Miss. 286, 1876 WL 7427 (1876) Long v. McKinney, 897 So. 2d 160 (Miss. 2005) McDaniel v. Cochran, 158 So. 3d 992 (Miss. 2014) McDowell v. State, 807 So. 2d 413 (Miss. 2001) Mississippi Cent. R.R. Co. v. Kennedy, 41 Miss. 551, 1867 WL 3402 (Miss. Err. & App. 1867) Mississippi State and Sch. Empl. Life and Health Plan v. KCC, Inc., 108 So. 3d 932 (Miss. 2013) Spectrum Stores, Inc. v. Citgo Petro. Corp., 632 F.3d 938 (5th Cir. 2011) Speed v. Hosemann, 68 So. 3d 1278 (Miss. 2011) Sprouse v. Mississippi Emp. Sec. Comm n, 639 So. 2d 901 (Miss. 1994) iii-

5 Wooldridge v. Wooldridge, 856 So. 2d 446 (Miss. Ct. App. 2003) Constitutions and Statutes: Miss. Const , 18 Miss. Const. 273(8) Miss. Code Ann Miss. Code Ann , 15 Miss. Code Ann Miss. Code Ann Miss. Code Ann Miss. Code Ann , 3, 4-7 Miss. Code Ann Miss. Code Ann passim Miss. Code Ann Miss. Code Ann , 7 Miss. Code Ann , 3-4, 7 Miss. Code of 1857, art. 8, p Miss. Code of 1857, art. 33, p , 11 Miss. Code of , 12 Miss. Code of Miss. Code of iv-

6 Miscellaneous: Miss. AG Op. Nunnelee, No , 1999 WL (Oct. 8, 1999) , 13 Miss. AG Op. Scott, No , 2001 WL (Sept. 20, 2001) v-

7 INTRODUCTION By order dated April 17, 2015, this Court previously solicited briefs from the parties and the Mississippi Attorney General s Office ( AGO ) on the issue of whether the circuit court s order of April 6, 2015 is appealable, but later deferred ruling on that issue, passing it on for 1 consideration with the merits. For the convenience of the Court, the AGO respectfully submits this brief concerning the jurisdictional and appealability issues raised by this appeal of the April 6, 2015 order of the Circuit Court of Hinds County, Mississippi, finalizing the ballot title for Legislative Alternative Measure 42A, filed by Appellant, Legislature of the State of Mississippi. The AGO fulfilled its duty in this matter by certifying a ballot title which complied with statutory requirements to give a true and impartial statement of the purposes of Measure 42A, to highlight the essential differences between Measure 42 and Measure 42A, and to do so in a nonargumentative, non-prejudicial way. See Miss. Code Ann , -33. The AGO appeared in defense of its ballot title in the circuit court, but this matter quickly shaped up into a dispute between the Appellant, Legislature of the State of Mississippi (an intervenor below), and Appellee Adrian Shipman. A separate group of state legislators (the House Intervenors ) intervened to support Ms. Shipman. At the close of a hearing held on April 2, 2015, the circuit court ruled from the bench, finalizing the ballot title for Measure 42A, which differed slightly from the ballot title formulated by the AGO. Tr On April 6, 2015, the circuit court filed a written order confirming its 1 In accordance with this Court s order dated April 17, 2015, the AGO filed a response to Appellant s Motion to Expedite Appeal addressing whether the circuit court s decision is appealable. By a second order dated May 7, 2015, this Court held that the House Intervenors Motion to Dismiss Appeal based on lack of appellate jurisdiction should be passed for consideration with the merits of this appeal. -1-

8 bench ruling. R On April 16, 2015, the Legislature of the State of Mississippi filed its notice of appeal. R The April 6, 2015 Order of the circuit court is not appealable, because in the court below Appellee Shipman relied solely on the limited right of appeal granted in section , which precludes further appeal by specifying that in this unique situation the decision of the circuit court shall be final. The general jurisdiction of the circuit courts pursuant to section 156 of the Mississippi Constitution is not implicated by this appeal. Consistent with the AGO's longstanding interpretation that Section does not authorize an appeal to this Court, see Miss. AG Op. Nunnelee, No , 1999 WL (Oct. 8, 1999), the AGO did not appeal the circuit court's decision and takes no position regarding the merits of the circuit court's ballot title. The adversarial parties in this appeal are the proponents of the two competing constitutional initiatives. They are the stakeholders who can articulate whether the circuit court's title is improperly argumentative, fails to indicate the essential differences between the competing measures, or otherwise prejudices or skews their planned appeal to the voters. SUMMARY OF THE ARGUMENT Read as a whole, the Mississippi Code provisions governing the initiative mechanism, Miss. Code Ann et seq., reflect that in section , the Legislature intended to provide only a limited right of appeal pertaining to ballot titles and/or summaries. The highly specialized and unique administrative requirements governing the initiative process, including the extremely short time-frame allowed for completion of each statutory requirement, reflect that time is of the essence, and interpreting the initiative provisions to grant an unrestricted right of appeal would be inconsistent with the urgent and necessitous nature of that process. Whether -2-

9 judicial review of other aspects of the initiative process might be available pursuant to other provisions is not a question before the Court in the present appeal. The issue here is whether a second appeal to this Court is permitted after a dissatisfied person appeals the wording of a ballot title to the circuit court in accordance with section The Legislature s argument that the circuit court has no authority pursuant to section to review or change the ballot title of a legislative alternative measure is central to the issue of appealability, but fails because it is inconsistent and incompatible with the plain language of sections , , , and That incompatibility is even more apparent when those statutes are collectively read together, in para materia. Moreover, this Court many years ago held that the use of the language the judgment of the circuit court shall be final in article 33 (p. 419) of the Code of 1857 precluded further appeal of decisions of the boards of police (the precursors to modern-day boards of supervisors) 2 despite the broad grant of appellate authority to the High Court of Errors and Appeals generally allowing review of circuit court decisions. See Dismukes v. Stokes, 41 Miss. 430, 1867 WL 2306 (Miss. Err. & App. 1867). Seven years later, in Bentonville Taylor v. Marion County, 51 Miss. 731, 1875 WL 6561 (1875), the newly renamed Supreme Court of Mississippi held that when article 33 was reenacted as section 1383 of the Code of 1871, the deletion of the phrase the judgment of the circuit court shall be final, created a right of appeal where none had previously existed. Dismukes and Bentonville Taylor are on point and controlling. ARGUMENT The text and structure of the pertinent statutes reflect that time is of the essence at each 2 Prior to 1868, what is now the Supreme Court was referred to as the High Court of Errors and Appeals. Long v. McKinney, 897 So. 2d 160, 184 n.37 (Miss. 2005). -3-

10 stage of the initiative process, and consistent with the time-sensitive nature of the process, the Legislature intended to provide only a limited and expeditious right of appeal of a ballot title or summary formulated by the AGO, if brought via the limited right of appeal granted by section Further, the use of the specific language [t]he decision of the court shall be final in that section demonstrates that no right of appeal beyond the circuit court was contemplated by the Legislature, notwithstanding the general right to appeal decisions of the circuit courts to this Court provided in Miss. Code Ann , which is not implicated in this context. Any other interpretation of section would render the language [t]he decision of the court shall be final mere surplusage. Appellant s position that the circuit court lacked jurisdiction over Ms. Shipman s appeal of the ballot title for Measure 42A is central to whether the April 6, 2015 order of the circuit court is appealable. From the outset of this litigation it was clear that the Legislature and the AGO respectfully disagreed on the proper interpretation of the relevant statutes concerning the circuit court s authority and jurisdiction. At the circuit court hearing on April 2, 2015, the AGO unambiguously expressed its position that the circuit court had specific statutory authority, pursuant to section , to review the ballot title of Measure 42A and revise that ballot title if necessary. Tr. at In formulating the ballot title for Measure 42A, the AGO acted in accordance with the authority granted in section and When the circuit court finalized the ballot title at issue, which differs slightly from the ballot title formulated by the AGO, that court acted pursuant to the express authority the legislature saw fit to grant to that specific court in section Furthermore, the political question doctrine does not deny the circuit court the authority to review the content of a ballot title. -4-

11 I. The Initiative Process Is Unique and Requires Specialized Procedures. By its nature, the initiative process, which permits the general public to directly participate in amending our state constitution, is unique, and the statutory framework governing that process is necessarily detailed and specialized. One of those special features is the administrative procedure created in section by which any person... dissatisfied with a ballot title formulated by the AGO may seek review in one court, and one court only, the Circuit Court of the First Judicial District of Hinds County, Mississippi. Section also imposes stringent conditions on the exercise of the limited right to appeal a ballot title, such as the short five-day window for filing the appeal in circuit court, which differs from a typical administrative appeal. Another significant and unusual aspect is that section places the AGO in a nonadversarial position, requiring the AGO to act as a neutral party in formulating ballot titles that are true and impartial, not intentionally argumentative, nor likely to create prejudice either for or against a measure. Miss. Code Ann Also, section specifically grants authority to the circuit court to certify a ballot title that it determines will meet the requirements of Section Miss. Code Ann (emphasis added). The authority granted to the circuit court by section thus appears to be a notable exception to the general rule that a court reviewing an administrative decision has no authority whatsoever to consider the merits of that decision. See generally, e.g., Board on Law Enf. Off. Stds. & Tr. v. Voyles, 732 So. 2d 216, 218 (Miss. 1999) (citing Sprouse v. Mississippi Emp. Sec. Comm n, 639 So. 2d 901, 902 (Miss. 1994)). Time is of the essence at each state of the initiative process. The entire process is governed by short deadlines and narrow windows of time to complete each statutory phase or -5-

12 requirement. Interpreting section to provide a general right of appeal which extends beyond the decision of the circuit court would be inconsistent with the importance that timeliness plays in that process. When the Secretary of State receives a proposed initiative measure, he submits the proposed measure to the Attorney General. Miss. Code Ann The Attorney General has ten (10) working days to review the proposal, recommend revisions to the proponent, and issue a certificate of review. Id. The proponent of the measure has only fifteen (15) working days from the date the proposal is submitted to the Attorney General (not from the date of the certificate of review) to file the measure and the certificate of review with the Secretary of State. Id. The Secretary of State assigns a serial number to the proposed measure and must then return a copy bearing the official serial number to the Attorney General forthwith. Miss. Code Ann The Attorney General has seven (7) calendar days after receipt to formulate the ballot title and summary and transmit them to the Secretary of State. Miss. Code Ann After the initiative measure has bounced back onto the Secretary of State s side of the court, the Secretary has ten (days) to publish the title and summary in a newspaper of general circulation. Miss. Code Ann An appeal of the wording of a ballot title or summary is governed by section : If any person is dissatisfied with the ballot title or summary formulated by the Attorney General, he or she may, within five (5) days from the publications of the ballot title and summary by the office of the Secretary of State, appeal to the circuit court of the First Judicial District of Hinds County by petition setting forth the measure, the title or summary formulated by the Attorney General, and his or her objections to the ballot title or summary and requesting amendment of the title or summary by the court. A copy of the petition on appeal together with a notice that an appeal has been -6-

13 taken shall be served upon the Secretary of State, upon the Attorney General and upon the person proposing the measure if the appeal is initiated by someone other than that person. Upon the filing of the petition on appeal or at the time to which the hearing may be adjourned by consent of the appellant, the court shall accord first priority to examining the proposed measure, the title or summary prepared by the Attorney General and the objections to that title or summary. The court may hear arguments, and, within ten (10) days, shall render its decision and file with the Secretary of State a certified copy of such ballot title or summary as it determines will meet the requirements of Section The decision of the court shall be final. Miss. Code Ann Once the circuit court renders its decision and files its ballot title with the Secretary of State, the ballot title is finally established, and used for all further purposes. Miss. Code Ann II. The Circuit Court Had Jurisdiction to Review the Ballot Title of Measure 42A Pursuant to Section Appellant contends that the circuit court lacked jurisdiction because section applies only to the appeal of the ballot title of a voter-sponsored initiative, and does not apply to the appeal of the ballot title of an alternative measure offered by the Legislature pursuant to However, section specifies that for an alternative measure, the Secretary of State shall obtain from the Attorney General a ballot title in the manner provided by Section Miss. Code Ann (emphasis added). Section includes the statement that [t]he ballot title formulated by the Attorney General shall be the ballot title of the measure unless changed on appeal. Miss. Code Ann (emphasis added). Section says that [i]f any person is dissatisfied with the ballot title or summary formulated by the Attorney General, he or she may... appeal to the circuit court of the First Judicial District of Hinds County. Miss. Code Ann (emphasis added). The initiative statutes thus do not differentiate between a ballot title for an alternative measure and a ballot title for a votersponsored measure in this regard, and any appeal of the wording of a ballot title is governed by -7-

14 3 section To put it simply, a ballot title is a ballot title. The Legislature argues that it could not have intended... [section ] to apply in such a piecemeal fashion, Appellant s Br. at 18, and emphasizes that in para materia statutes must be read as a whole, yet it is actually the Legislature s interpretation that takes the language of the initiative statutes out of context, breaking the statutory text down into isolated words and phrases so the text can be interpreted in a piecemeal fashion inconsistent with the overall import of those statutes. Further, Appellant s contention that the political question doctrine prohibits judicial review of the ballot title for the Legislature s Alternative Measure 42A is incorrect. See Appellant's Br. at At its core, the political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. Spectrum Stores, Inc. v. Citgo Petro. Corp., 632 F.3d 938, 949 (5th Cir. 2011) (quoting Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986)). The drafting of ballot titles is not constitutionally committed exclusively to either the legislative or executive branches. Indeed, it is commonplace among states that statutes authorize executive branch officials to draft ballot titles and authorize judicial review of a contested title. See, e.g., In re Proposed Initiative on Parental Notification of Abortions For Minors, 794 P.2d 238, 240 (Colo. 1990); In re Proposed Ballot Title of State Question No. 319, Initiative Petition No. 563, 3 In a related sense, in this regard, a measure is a measure. Section 273(8) of the Mississippi Constitution refers to a legislative alternative both as an amended version and also as an alternative measure. Miss. Const. 273(8). Later, that same subsection says the ballot titles of both such measures shall be so printed on the official ballots and says the voters get the final say, by voting for the approval of either measure or against both measures, and secondly, by voting for one measure or the other measure. Id. (emphasis added). -8-

15 685 P.2d 400, 402 (Okla. 1984). Appellant s related contention that an alleged lack of judicially discoverable and manageable standards for reviewing a ballot title implicates the political question doctrine is also incorrect. First, the proposition proves too much and would prohibit judicial review of ballot titles authored by the Attorney General for both citizen proposed initiatives and legislatively proposed alternatives as the standards for both ballot titles are materially similar. Second, Mississippi s statutory requirements for ballot titles are materially similar to statutes used in other states, and the judiciary of those other states have found themselves to be competent to review challenged titles. See, e.g., In re Proposed Initiative On Parental Notification of Abortions For Minors, 794 P.2d at 240 (reviewing whether title correctly and fairly express the true intent and meaning of the proposed measure, be brief, and unambiguously state the principle of the proposal ); In re Proposed Ballot Title of State Question No. 319, 685 P.2d at 402 (reviewing whether the title reflect[s] the character and purpose of the proposition ). Such a review is not unlike the routine work performed by trial court s as a matter of routine. See McDowell v. State, 807 So. 2d 413, 422 (Miss. 2001) (reviewing objections to examination questions on the grounds they are argumentative or speculative); Business Commc'ns, Inc. v. Banks, 91 So. 3d 1, 13 (Miss. Ct. App. 2011), aff'd, 90 So. 3d 1221 (Miss. 2012) (courts must review and reject jury instruction that misstates the law, or that, through its content, phrasing or order, will mislead the jury in its deliberation ). The Attorney General s Office believes Mississippi s judiciary to be capable as the judiciary of other states in the matter of reviewing whether a ballot title complies with the relevant statute. Moreover, the Mississippi Legislature has explicitly authorized the Hinds County Circuit Court to undertake such a review. -9-

16 III. The Court Should Apply the Plain and Unambiguous Language of Section When a statute is not ambiguous, the courts should simply apply the statute according to its plain meaning and should not use principles of statutory construction. City of Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1993). Regardless, the ultimate goal of this Court in interpreting a statute is to discern and give effect to the legislative intent. Id. However, [i]f a statute is deemed ambiguous and the Court resorts to statutory construction, then all statutes in pari materia are taken into consideration and the legislative intent is deduced from the consideration as a whole. Mississippi State and Sch. Empl Life and Health Plan v. KCC, Inc., 108 So. 3d 932, 936 (Miss. 2013) (internal quotation marks and citations omitted). The text of section is not ambiguous, and the Court should apply the statute as written: the decision of the court shall be final. The Court should not engraft on to the end of section the phrase for purposes of further appeal. This Court has long recognized that the right of appeal is statutory, and the Legislature can choose not to provide a right to appeal so long as it does not encroach on this Court s inherent authority to establish procedural rules. See, e.g., Jones v. City of Ridgeland, 48 So. 3d 530, (Miss. 2010) (holding unconstitutional the three court rule because it prevented the Court from hearing appeals from cases originating in the justice or municipal courts of the twenty counties having county courts, thus usurping the Court s power to establish procedural rules). [W]e have consistently held that a litigant s right to an appeal is statutory and not based on any inherent common law or constitutional right. Id. at 536 (citing Gill v. Miss. Dep't of Wildlife Conservation, 574 So. 2d 586, 590 (Miss.1990); Fleming v. State, 553 So. 2d 505, 506 (Miss.1989) (citing Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, , 77 L. Ed. 2d 987 (1983)). However, even if the -10-

17 Court determines section to be ambiguous, and resorts to the rules of construction, by reading the initiative statutes as a whole, in para materia, the import of [t]he decision of the court shall be final for this case becomes readily apparent: the April 6 Order finalizing the ballot title cannot be further appealed in this procedural context, where Appellee Shipman has relied on the right of appeal granted in section IV. Section Provides Dissatisfied Persons a Specific, Limited Right of Appeal to the Circuit Court Only, and The Decision of the Court Shall Be Final. A fair reading of the text of section shows that statute does not contemplate the prosecution of an appeal of a ballot title beyond limited review in the circuit court. Section expressly provides dissatisfied persons a limited right of appeal to the Circuit Court of the First Judicial District of Hinds County and no other court. The use of the language [t]he decision of the court shall be final, which immediately follows the requirement that the circuit court render its decision and file with the Secretary of State a certified copy of such ballot title or summary shows that when it used the word final, the legislature meant just that, and not final for purposes of further appeal as argued by Appellant. Almost 150 years ago this Court held that the use of the phrase the judgment of the circuit court shall be final, in article 33 (p. 419) of the Code of 1857 barred an appeal to the High Court of Errors and Appeals of decisions of the board[s] of police (precursors to the modern-day boards of supervisors). Dismukes v. Stokes, 41 Miss. 430, 1867 WL 2306 (Miss. Err. & App. 1867); see also Mississippi Cent. R.R. Co. v. Kennedy, 41 Miss. 551, 1867 WL 3402 (Miss. Err. & App. 1867) (holding section of Mississippi Code that provided that appeals of justice court rulings to the county court could not be further appealed, because the relevant statute stated the judgments of the circuit court on all such appeals shall be final ); Kerr v. -11-

18 Moore, 54 Miss. 286, 1876 WL 7427 (1876). In Dismukes, the Court said: When the legislature determines this question and fixes the rule in any particular case, the question is thereby settled, whether or not the right to prosecute a writ of error or an appeal exists, and whether it comes within the jurisdiction properly belonging to a Court of Errors and Appeals. The general rule, therefore, clearly is, that the legislature has the power to deny the right of prosecuting a writ of error or an appeal in this court, in any particular case, and that a rule so enacted will be conclusive of the question of jurisdiction, unless it be in contravention of a positive right, with a clear indication of the remedy in the constitution. The denial of the right might, in our opinion, work a hardship to individuals, and be, on the whole very inexpedient in its effect. Yet the power to establish the rule is within the province of the legislature, and it would not be our province to set aside their action. Dismukes, 41 Miss. 430, 1867 WL 2306, at *2. When the shall be final language construed in Dismukes was not carried forward in section 1383 of the Code of 1871, this Court held that the revised language created a newly minted right of appeal where none had previously existed. Bentonville Taylor v. Marion County, 51 Miss. 731, 1875 WL 6561 (1875). At the time the Court concluded in Dismukes and other cases that certain further appeals were barred by the shall be final language, the Court otherwise had general jurisdiction as this Court does now under current law to review the decisions of the circuit courts pursuant to article 8 (p. 562) of the Code of 1857, which provided: The high court of errors and appeals, shall have such jurisdiction as properly belongs to a court of errors and appeals, and shall hear and determine all manner of please, plaints, motions, causes and controversies, civil and criminal, which are now pending therein, or which may be brought before it, from any circuit court, chancery court, probate court, or other inferior tribunal, from which by law a cause may be removed, either by appeal or writ of error, or other legal means, and which shall be cognizable in said high court of errors and appeals, according to the constitution and laws of this State; but no cause shall be removed in said court by appeal, writ or error, or otherwise, until after final judgment in the court below, except in cases particularly provided for by law. -12-

19 Miss. Code of 1857, p. 562, art. 8. For comparison, the statute concerning this Court s jurisdiction now states: The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals, and shall hear and determine all manner of pleas, complaints, motions, causes, and controversies, civil and criminal, which are now pending therein, or which may be brought before it, and which shall be cognizable in said court; but a cause shall not be removed into said court until after final judgment in the court below, except as provided by Section 9-4-3, or in cases particularly provided for by law; and the Supreme Court may grant new trials and correct errors of the circuit court in granting or refusing the same. Miss. Code Ann The conclusion that the use of the language [t]he decision of the court shall be final in section precludes appeal beyond the circuit court is the AGO s longstanding interpretation of that statute. See Miss. AG Op. Nunnelee, No , 1999 WL (Oct. 8, 1999) ( [t]he statutory mandate that the decision of the court shall be final appears to give no right of appeal to an aggrieved person); cf. Miss. AG Op. Scott, No , 2001 WL (Sept. 20, 2001) ( [i]f an appeal is exercised pursuant to Section , the ballot title and summary is finally established upon the order of the [circuit] Court ). That interpretation is entirely consistent with Dismukes and its progeny. Appellant argues that Dismukes has limited precedential value because the Legislature rejected Dismukes by excluding the offending language from the 1871 Code, Appellant s Br. at 12 n.9. Appellant then cites McDaniel v. Cochran, 158 So. 3d 992, (Miss. Oct. 24, 3014) for the proposition that when the Legislature reenacts a statute without change, a judicial interpretation of that statute is deemed adopted. It is true that [t]he Legislature is assumed to be aware of judicial interpretations of its statutes such that legislative silence may be considered acquiescence to a judicial decision. McDaniel, 158 F.3d at However, that principle -13-

20 logically works only when the judicial interpretation at issue has read into a statute a requirement that was not contained in the text of the statute, and which is then accepted by legislative acquiescence. When a legislature finds it necessary to remove specific language from a statute to produce a different result, the implication is that the judicial interpretation of the meaning and impact of that language was correct, requiring a change in the text of the statute. For example, in the case McDaniel was interpreting, Kellum v. Johnson, 237 Miss. 580, 115 So. 2d 147 (1959), the court addressed the fact that section 3144 of the Code of 1942 did not include a specific time limit for filing an election contest for an office covering multiple counties. McDaniel, 158 F.3d at 998. However, section 3143, which governed contests for single-county offices, did include an express twenty-day time limit. In Kellum, the court concluded that the twenty-day time limit also applied to contests under section 1344, effectively reading into section 1344 a time limit that was not explicitly indicated in the statutory text. McDaniel, 158 F.3d at 998. Thus, in McDaniel, this Court held that [t]his Court s interpretation of the statutes in Kellum was approved by the Legislature, and, absent legislative action, has become a part of the statute. Id. at The relevant question here is not whether legislative silence indicates adoption of a judicial interpretation should be considered engrafted onto the statute, but whether the subsequent deletion of a specific phrase lessens the precedential value of the judicial interpretation of that phrase. The fact that the Legislature took the judgment of the circuit court shall be final language out of the 1871 Code reflects the legislative understanding that the inclusion of the shall be final language in a statute meant that no further appeal would be permitted, so to create a different result the Legislature had to delete that language. That the Legislature found it necessary to change the specific phrase construed in Dismukes to create a -14-

21 different result does not lessen the value of Dismukes, it heightens it. Dismukes is on point. May the Legislature constitutionally grant a right to appeal a specific type of administrative decision only to the circuit court, but preclude further appeal? Dismukes says Yes. How may that be accomplished? By including the language the judgment of the circuit court shall be final. In section , the Mississippi Legislature said the decision of the court shall be final. No further interpretation is needed. Appellant reads far too much into the isolated reference in the procedural history of In re Proposed Initiative Measure No. 20, 774 So. 2d 397 (Miss. 2000) (overruled in part by Hughes v. Hosemann, 68 So. 3d 1260 (Miss. 2011) to an unpublished order entered by a three-judge panel in an earlier, separate lawsuit. In the Measure 20 opinion, the Court was addressing the substance and content of a proposed anti-gambling initiative, which was only the latest of three such initiatives an anti-gambling advocate had championed in the months leading up to that decision. Id. at The wording of the ballot title was not at issue in Measure 20. In the statement of the case, the Court described the procedural outcome of the court battle over one of the earlier initiatives ( Measure 12") (which had already been resolved and was not before the Court): 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 (Supp. 1999) and that, therefore, the proper mode of review... is by way of direct appeal, and not by writ of mandamus. In re Proposed Initiative Measure 20, 774 So. 2d at 399 (citing In re Stoner, No M-00945) (Miss. Oct. 14, 1998)). That opinion s reference to an unpublished order, in another case, issued -15-

22 by a three judge panel, has no binding precedential value. Another aspect of the Measure 20 opinion bears mention. In a section of that opinion (a 4 section presumably overruled by Hughes v. Hosemann, 68 So. 3d 1260 (Miss. 2011)) the Measure 20 court further muddied the waters, interpreting section to address venue only, and suggesting that the circuit court had original jurisdiction over all initiative matters pursuant to Section 156 of the Constitution. Id. at 400. Specifically, the Measure 20 court said: Section deals merely with the legislature s authority to direct venue, not jurisdiction. The legislature has chosen to direct all matters concerning the initiative process to the Circuit Court of the First Judicial District of Hinds County. The statute merely directs venue, not jurisdiction. Jurisdiction is conferred upon the circuit court by Section 156. Venue is selected by *** We hold today that 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 The text of section simply cannot bear the interpretation articulated by the Measure 20 court, which did not expressly interpret the shall be 5 final language used in section By the use of the language may... appeal, section 4 To the extent Measure 20 is read to provide pre-election substantive review of proposed constitutional amendments, it is overruled. Hughes, 68 So. 3d at This Court did construe similar language in educational context in Board of Educ. v. State Educ. Finance Comm n, 138 So. 2d 912 (1962), and concluded that [t]he phrase whose decision shall be final, does not mean that there can be no appeal to the courts. It means that the matter is final insofar as action of school authorities is concerned. Id. at 916. However, that case is limited to its context, i.e., whether judicial review of the decisions of a particular educational board was totally precluded: [t]his Court has from time to time found it necessary to advise school authorities acting in a legislative capacity that the phrase The Board s decision shall be final does not mean that the parties involved in school disputes are prevented from having their day in court. Id. at (quoting Adams County v. State Educ. Finance Comm n, 91 So. 2d 524 (Miss. 1956)). Also, that case shows that the use of language in a statute must be interpreted in the context of the specific statute at issue. The issue in the case now before the Court is the meaning of the shall be final language in section , in the context of the -16-

23 grants a right of appeal solely with respect to the ballot title or summary formulated by the Attorney General.... Miss. Code. Ann That section does not merely address venue, nor does it grant a right of appeal for any aspect of the initiative process other than the ballot title and/or summary. With respect, the discussion in Measure 20 limiting the application of section to venue is a misinterpretation of the statutory text, just one of several problems with that now-disfavored opinion. Also, in Measure 20, the primary issue on appeal was whether the proposed initiative violated constitutional requirements, including the prohibition against using the initiative process to amend the Bill of Rights, and the requirement that the proponent of an initiative measure include a rationally based government revenue statement. Measure 20, 774 So. 2d at 399, 402. This Court expressly overruled Measure 20 to the extent it held or implied that the circuit court had general jurisdiction over pre-election substantive challenges to the wording of the initiative measure. Hughes, 68 So. 3d at ; Speed v. Hosemann, 68 So. 3d 1278, 1281 (Miss. 2011). The wording of the ballot title was not an issue in that appeal because the circuit court declared the proposed initiative unconstitutional, and refused to finalize the ballot title so the measure could be placed on the ballot. In Measure 20 the Court was considering whether the text of the actual initiative measure itself complied with statutory requirements, not the sufficiency or wording of the ballot title. In this case, the actual wording of the ballot title for Measure 42A is the primary dispute that generated the appeal to the circuit court, not the text of the actual initiative measure, and not whether the measure will appear on the final ballot. Perhaps most importantly, the appealability of the order in this case does not turn on the initiative process. Appellant readily admits that the Educational Finance Commission cases are distinguishable. Appellant s Br. at 13 n

24 original jurisdiction of the circuit courts under section 156 of the Constitution. Appellee Shipman brought her appeal in the circuit court pursuant to section Shipman did not bring this matter as a general civil action within the original jurisdiction of the circuit court, nor did she rely on section 156 of the Constitution. Therefore, even if the Measure 20 court was right on that point, it would not change the result here. The issue before the Court is whether an appeal of a ballot title to the circuit court, brought pursuant to section , can then be further appealed to this Court. Whether judicial review of different aspects of the initiative 6 process might be available through other procedural vehicles is not an issue for this appeal. As a matter of judicial policy, this Court does not issue advisory opinions. Hughes, 63 So. 3d at The precedents on point are Dismukes and its progeny, which held that the use of shall be final language in the context of the circuit courts precluded further appeal and was constitutional. Viewed in the specific context of the highly specialized and time-sensitive 6 For example, in Hughes and Speed, the challengers sought declaratory and/or injunctive relief asking the courts to address whether the content of the initiative measures satisfied constitutional requirements. The sufficiency of the ballot title was not at issue in either of those cases. Hughes, 69 So. 3d at 1262 n.1; see Speed, 68 So. 3d at 1281 n.3. Further, this Court explained that Measure 20 was a correct decision to the extent it held that the initiative measure did not comply with statutory requirements because it did not include the required economic impact statement, a matter of form; otherwise the Measure 20 court overstepped its authority. Thus, any language in those cases which implies that the wording of a ballot title could be reviewed in this Court is dicta. The unpublished order in In re Stoner was unquestionably the holding of that case, and necessary to that decision. Appellant s Br. at However, that holding was not necessary to the Court s ruling in the published Measure 20 opinion, which resolved a subsequent, separate lawsuit, and merely mentioned In re Stoner (a prior lawsuit) in the procedural history. Measure 20, 774 So. 2d at 399. The holding in the unpublished order issued by a three judge panel in the In re Stoner case has no binding precedential value. See, e.g., Wooldridge v. Wooldridge, 856 So.2d 446, 449 (Miss. Ct. App. 2003) ( This Court's prior opinion was unpublished; thus, it is not public policy. ) (citing Fortune v. Lee County Bd. of Supervisors, 725 So. 2d 747, 751 (Miss. 1998)). The Measure 20 opinion s reference to that unpublished order, in another case, issued by a three judge panel, has no binding precedential value. Further, in the unpublished order in the In re Stoner case, the panel did not specifically interpret the impact of the shall be final language in

25 initiative process, and read with the other, in para materia statutes, the use of the shall be final language shows the Mississippi Legislature intended the circuit court s order finalizing a ballot title to be the last word on that issue, at least when review is sought pursuant to the right of appeal granted by section Of course, the Legislature has the power to change the language of the relevant statute(s) if it sees fit. CONCLUSION WHEREFORE PREMISES CONSIDERED, the Mississippi Attorney General s Office respectfully submits that the April 6, 2015 Order of the Circuit Court of the First Judicial District of Hinds County is not appealable. This the 1st day of June, Respectfully submitted, STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, MS Telephone No. (601) Facsimile: pbarn@ago.state.ms.us MISSISSIPPI ATTORNEY GENERAL'S OFFICE s/paul E. Barnes BY: PAUL E. BARNES, MSB No SPECIAL ASSISTANT ATTORNEY GENERAL -19-

26 CERTIFICATE OF SERVICE This is to certify that I, Paul E. Barnes, Special Assistant Attorney General for the State of Mississippi, do hereby certify that on this date I caused a true and correct copy of the above and foregoing document to be filed via the MEC electronic filing system, which provided notice of such filing, via electronic mail, to the following: Michael B. Wallace, Esq. Charles E. Cowan, Esq. Wise Carter Child & Caraway, P.A. P.O. Box 651 Jackson, Mississippi ATTORNEYS FOR LEGISLATURE OF STATE OF MISSISSIPPI James A. Keith, Esq. ADAMS AND REESE LLP 1018 Highland Colony Parkway, Suite 800 Ridgeland, Mississippi jim.keith@arlaw.com Carroll Rhodes, Esq. The Law Offices of Carroll Rhodes P.O. Box 588 Hazlehurst, Mississippi crhode@bellsouth.net ATTORNEYS FOR APPELLEE ADRIAN SHIPMAN Danny E. Cupit, Esq. Law Offices of Danny E. Cupit Latrice Westbrooks, Esq. Law Office of Latrice Westbrooks P.O. Box Jackson, Mississippi dcupit@aol.com ATTORNEYS FOR BOBBY MOAK, ET AL. This the 1st day of June, s/paul E. Barnes PAUL E. BARNES -20-