E-Filed Document

Apr 24 2015 12:49:54

2015-TS-00605

Pages: 29

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-TS-00605

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 THE LEGISLATURE OF THE STATE OF
MISSISSIPPI IN SUPPORT OF THIS COURTS JURISDICTION
______________________________________________________________________________

Michael B. Wallace (MB #5904)

Charles E. Cowan (MB #104478)
WISE CARTER CHILD & CARAWAY, P.A.
Post Office Box 651
Jackson, Mississippi 39205-0651
Telephone: 601-968-5500

Attorneys for the Legislature of the State of Mississippi

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
STATEMENT OF THE CASE........................................................................................................2
ARGUMENT ...................................................................................................................................4
I.

THIS COURT MUST DETERMINE DE NOVO ITS OWN

JURISDICTION AND THE JURISDICTION OF THE CIRCUIT COURT. .......4

II.

THE CIRCUIT COURT HAD NO JURISDICTION UNDER 23-17-13

TO REVIEW THE BALLOT TITLE COMPOSED BY GENERAL HOOD
UNDER 23-17-33. ................................................................................................8

III.

A.

Ordinary principles of statutory construction establish that

General Hoods title under 23-17-33 may not be reviewed
by the Circuit Court under 23-17-13.........................................................8

B.

Judicial review of General Hoods title under 23-17-33

would raise insurmountable constitutional problems. ...............................15

THIS COURT HAS JURISDICTION OVER THE LEGISLATURES

APPEAL. ..............................................................................................................19

CONCLUSION ..............................................................................................................................22
CERTIFICATE OF SERVICE .....................................................................................................24
Exhibit 1-In re Stoner order
Exhibit 2-In re Stoner brief

TABLE OF AUTHORITIES
Cases:
Allred v. Webb, 641 So. 2d 1218 (Miss. 1994) ........................................................................11, 13
American Interinsurance Exchange v. Occidental Fire & Cas. Co.,
835 F.2d 157 (7th Cir. 1987) ..............................................................................................7
Atwood Chevrolet-Olds, Inc. v. Aberdeen Mun. Sch. Dist.,
431 So. 2d 926 (Miss. 1983) ..............................................................................................20
Baker v. Carr, 369 U.S. 186 (1962)...............................................................................................17
Barnes v. Barnett, 241 Miss. 206, 129 So. 2d 638 (1961) .......................................................16, 17
Belk v. Bean, 247 So. 2d 821 (Miss. 1971) ....................................................................................22
Board of Trustees of State Inst. of Higher Learning v. Ray,
809 So. 2d 627 (Miss. 2002) ..............................................................................................15
Boreri v. Fiat S.P.A. 763 F.2d 17 (1st Cir. 1985) ............................................................................7
Brumfield v. Brock, 169 Miss. 784, 142 So. 745 (1932) .........................................................16, 17
City of Houston v. Tri-Lakes, Ltd., 681 So. 2d 104 (Miss. 1996) ..................................................13
City of Natchez v. Sullivan, 612 So. 2d 1087 (Miss. 1992) ...........................................................10
Clark v. State ex rel. Miss. State Med. Assn, 381 So. 2d 1046 (Miss. 1980) .................................9
Crump v. Board of Supervisors, 52 Miss. 107 (1876) .............................................................19, 21
Derr Plantation, Inc. v. Swarek, 14 So. 3d 711 (Miss. 2009)..........................................................5
Dismukes v. Stokes, 41 Miss. 430 (1867).......................................................................................21
Ghane v. Mid-South Inst. of Self-Defense Shooting, Inc.,
137 So. 3d 212 (Miss. 2014) ..............................................................................................17
Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465 (1901) ....................................................................16
Gilmer v. State, 955 So. 2d 829 (Miss. 2007) ................................................................................10
Hansbrough v. State ex rel. Pittman, 193 Miss. 461, 10 So. 2d 170 (1942) .................................20
His Way Homes, Inc. v. Mississippi Gaming Commn,
733 So. 2d 764 (Miss. 1999) ..............................................................................................12
Hughes v. Hosemann, 68 So. 3d 1260 (Miss. 2011) ....................................................14, 15, 16, 17
ii

Issaquena Warren Counties Land Co. v. Warren County,

996 So. 2d 747 (Miss. 2008) ................................................................................................5
J. R. Watkins Co. v. Guess, 196 Miss. 438, 17 So. 2d 795 (1944)...............................................5, 6
Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481 (7th Cir. 2012) .....................................................7
Jefferson v. Mississippi State Hwy. Commn, 254 So. 2d 181 (Miss. 1971) ..................................6
Kellum v. Johnson, 237 Miss. 580, 115 So. 2d 147 (1959) ...........................................................21
Lawson v. Honeywell Internatl, Inc., 75 So. 3d 1024 (Miss. 2011) .............................................20
In re M.E.V. 120 So. 3d 405 (Miss. 2013) .......................................................................................5
Mauldin v. Branch, 866 So. 2d 429 (Miss. 2003) ..........................................................................17
McDaniel v. Cochran, ____ So. 3d _____,
2014 WL 5419723 (Miss. Oct. 24, 2014) ....................................................................16, 21
Mississippi Methodist Hosp. & Rehab. Ctr. v. Miss. Div. of Medicaid,
21 So. 3d 600 (Miss. 2009) ......................................................................................9, 10, 12
Power v. Ratliff, 112 Miss. 88, 72 So. 864 (1916) .........................................................................17
Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922) ................................................................16
In re Proposed Initiative Measure No. 20, 774 So. 2d 397 (Miss. 2000) .....................4, 14, 19, 22
Sanders v. State, 63 So. 3d 497 (Miss. 2011) ................................................................................20
Sasser v. City of Richland, 850 So. 2d 206 (Miss. App. 2003)......................................................21
Seward v. Dogan, 198 Miss. 419, 21 So. 2d 292 (1945) .........................................................11, 12
Smith v. Parkerson Lbr., Inc., 890 So. 2d 832 (Miss. 2003) ...........................................................5
State ex rel. Howie v. Brantley, 113 Miss. 786, 74 So. 562 (1917) ...............................................17
State v. County Sch. Bd., 181 Miss. 818, 181 So. 313 (1938) .......................................................15
In re Stoner, No. 1998-M-00945 (Miss. Oct. 14, 1998) ............................................................4, 19
Thorp Commercial Corp. v. Miss. Road Supply Co., 348 So. 2d 1016 (Miss. 1977) ....................21
USF&G Co. v. Conservatorship of Melson, 809 So. 2d 647 (Miss. 2002)....................................14
W. Horace Williams Co. v Federal Credit Co.,
198 Miss. 111, 21 So. 2d 582 (Miss. 1945) .........................................................................6
Whelan v. Johnston, 192 Miss. 673, 6 So. 2d 300 (1942) .............................................................20
iii

Statutes:
Miss. Const. 273 (1890) ................................................................................................1, 9, 17, 22
Miss. Const. 201 (1890) ..........................................................................................................1, 21
Miss. Code Ann. 1-3-39 (Rev. 2014)..........................................................................................12
Miss. Code Ann. 9-3-9 (Rev. 2014)......................................................................................19, 20
Miss. Code Ann. 11-51-3 (Supp. 1999) .............................................................................. passim
Miss. Code Ann. 11-51-75 (Rev. 2012)................................................................................19, 21
Miss. Code Ann. 11-51-81 (Rev. 2012)......................................................................................21
Miss. Code Ann. 23-17-1 (Rev. 2007)..............................................................................9, 11, 15
Miss. Code Ann. 23-17-9 (Rev. 2007)................................................................................ passim
Miss. Code Ann. 23-17-11 (Rev. 2007)......................................................................................10
Miss. Code Ann. 23-17-13 (Rev. 2007).............................................................................. passim
Miss. Code Ann. 23-17-23 (Rev. 2007)......................................................................................15
Miss. Code Ann. 23-17-25 (Rev. 2007)......................................................................................15
Miss. Code Ann. 23-17-29 (Rev. 2007)..............................................................................1, 9, 12
Miss. Code Ann. 23-17-31 (Rev. 2007)..................................................................................1, 11
Miss. Code Ann. 23-17-33 (Rev. 2007).............................................................................. passim
Miss. Code Ann. 23-17-45 (Rev. 2007)......................................................................................15
Miss. Code Ann. 51-9-115 (Rev. 2003)......................................................................................21
Miss. Code Ann. 63-11-26 (Rev. 2013)......................................................................................21
82 C.J.S. Statutes 252 (1953) ......................................................................................................22
Rules:
M.R.C.P. 54 ...................................................................................................................................20
M.R.C.P. 59 ...................................................................................................................................20
U.C.C.C.R 5.01-5.10........................................................................................................................8
iv

INTRODUCTION
Since 1890, Miss. Const. 273 (1890) has authorized the Legislature of the State of
Mississippi to propose to the electorate amendments to the Constitution. In 1998, the voters
approved an amendment to 273 permitting the people themselves to propose constitutional
amendments through the initiative process. Section 273(6) authorizes the Legislature to adopt,
amend, or reject a properly submitted initiative. Where the Legislature amends a proposed
initiative, 273(7) requires that both proposed amendments be submitted to the voters.
Since its most recent amendment in 1987, Miss. Const. 201 (1890) has read:
The Legislature shall, by general law, provide for the establishment,
maintenance and support of free public schools upon such conditions and
limitations as the Legislature may prescribe.
In 2014, Secretary of State Delbert Hosemann certified that sufficient signatures had been obtained
to propose to the electorate an amendment which he identified as Initiative Measure No. 42:
To protect each childs fundamental right to educational opportunity, the State shall
provide for the establishment, maintenance and support of an adequate and efficient
system of free public schools. The chancery courts of this State shall have the
power to enforce this section with appropriate injunctive relief.
Doc. 3, Ex. A.1 The Legislature, acting pursuant to Miss. Code Ann. 23-17-29 (Rev. 2007),
amended that proposal by proposal by adopting Alternative Measure No. 42A, which reads:
The Legislature shall, by general law, provide for the establishment, maintenance
and support of an effective system of free public schools.
Doc. 3, Ex. B. Pursuant to Miss. Code Ann. 23-17-31 (Rev. 2007), both proposals will be
presented to the voters on November 3, 2015.
The language that will actually appear on the ballot consists of the ballot titles composed
1

The Circuit Clerk has not yet filed the record with the Court. However, a full copy of the Circuit
Court File, together with the docket sheet, is attached as Exhibit 1 to the Legislatures pending motion to
expedite, filed April 17, 2015. This brief will refer to each document filed with the Circuit Court by the
document number it bears on the docket, together with a reference to the relevant page, paragraph, or
exhibit. The Court should note that the docket begins with document number 3; for some unexplained
reason, numbers 1 and 2 do not appear on the docket.

by Attorney General Jim Hood. Acting pursuant to Miss. Code Ann. 23-17-9 (Rev. 2007),
General Hood composed the following title for Initiative Measure No. 42:
Should the State be required to provide for the support of an adequate and efficient
system of free public schools?
Doc. 3, Ex. C. Acting pursuant to Miss. Code Ann. 23-17-33 (Rev. 2007), he declined to accept
the ballot title proposed by the Legislature for Alternative Measure No. 42A, and instead composed
the following title:
Should the Legislature provide for the establishment and support of effective free
public schools without judicial enforcement?
Doc. 3, Ex. H. Purportedly acting pursuant to Miss. Code Ann. 23-17-13 (Rev. 2007), the Circuit
Court for the First Judicial District of Hinds County, the Honorable Winston Kidd presiding,
rejected General Hoods title and instead imposed the following title for Alternative Measure No.
42A:
Should the Legislature establish and support effective schools, but not provide a
mechanism to enforce that right?
Doc. 16.
The question presented by this Courts order of April 17, 2015, is whether this Court has
jurisdiction to review the Circuit Courts final judgment.
STATEMENT OF THE CASE
On March 24, 2015, Adrian Shipman filed an unsworn petition, invoking 23-17-13 and
alleging that the ballot title composed for Alternative Measure No. 42A by Attorney General Hood
failed to satisfy the requirements of 23-17-33. Doc. 3. She named no adverse parties, but alleged
that she had delivered a copy of her petition to General Hood, Secretary Hosemann, Lieutenant
Governor Tate Reeves, and Speaker of the House of Representatives Philip Gunn. She asked that
the Court adopt its own ballot title, but sought no declaratory or coercive relief against anyone.

Although not named as a party, on March 27, 2015, General Hood filed a response to the
petition, asserting that his ballot title met the requirements of 23-17-33, as well as those imposed
by 23-17-9. Doc. 6. General Hood explained how his ballot title met those standards:
In twenty words, the ballot title for Legislative Alternative 42A highlights
the essential differences between the proposals in a fair, impartial, non-prejudicial,
and non-argumentative way:
a.

The title for Alternative 42A specifies that the amendment

imposes an obligation on the Legislature while the title for
Measure 42 reflects the imposition of an obligation on the
State.

b.

The title for Alternative 42A describes the nature of the

school system required by that measure as effective free
public schools as opposed to the language in the title for
Measure 42, adequate and efficient system of free public
schools. In addition, the effective versus adequate and
efficient terminology reflects the exact language used in the
full text of each proposed amendment.

c.

The phrase in the title for Alternative 42A, without judicial

enforcement, highlights that the full text of Measure 42
provides for a specific mechanism of judicial enforcement,
while Alternative 42A does not.

Doc. 6 at 6-7.
On March 30, 2015, the Legislature of the State of Mississippi moved to intervene, Doc.
7, and filed a motion to dismiss the petition on multiple grounds. Doc. 8. On April 1, 2015, Bobby
Moak and 49 other members of the House of Representatives moved to intervene and asked the
Court to deny intervention to the Legislature. Doc. 12.
On April 2, 2015, the Circuit Court conducted a hearing at which no evidence was
presented. In its judgment entered April 6, 2015, Doc. 16, the Court permitted intervention by the
Legislature and the 50 individual Representatives. The Court overruled the Legislatures motion
to dismiss, finding itself with jurisdiction over the petition pursuant to Miss. Code Ann. 2317-33, 23-17-9, and 23-17-13. The Court found that General Hoods title was not true and
3

impartial, as required by 23-17-9, even though Shipman made no such contention. The Court
also found that it failed to indicate as clearly as possible, the differences in the measure, as
required by 23-17-33. The Court gave no explanation of either finding. The Court adopted a
different title proposed by Shipman.
The Legislature filed its notice of appeal on April 16, 2015. Doc. 18.
ARGUMENT
I.

THIS COURT MUST DETERMINE DE NOVO ITS OWN JURISDICTION AND

THE JURISDICTION OF THE CIRCUIT COURT.
This Courts instruction to the parties in its order of April 17, 2015, to address whether

the Order entered by the Circuit Court of the First Judicial District of Hinds County on April 6,
2015, is appealable must be considered in light of its holding in an earlier case involving 2317-13 that the circuit courts 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). In re Proposed
Initiative Measure No. 20, 774 So. 2d 397, 399 (Miss. 2000).2 The difficulty is compounded by
Shipmans failure before the Circuit Court to give serious attention to that Courts jurisdiction,
saying only, The appeal procedures for the ballot title of a voter-sponsored initiative measure also
apply to a legislative alternative measure. Miss. Code Ann. 23-17-33, 23-17-9. Doc. 4 at 5
n.2. In that same paragraph, Shipman declared, The decision of the Circuit Court is final. Miss.
Code Ann. 23-17-13. Doc. 4 at 5.
Although she has never said so, presumably Shipman will argue that the last sentence of
23-17-13 deprives this Court of the appellate jurisdiction it has already held to be available
under 11-51-3. However, before this Court can consider Shipmans invitation to overrule In re

A copy of the In re Stoner order is attached hereto as Exhibit 1.

Proposed Initiative Measure No. 20, it must determine whether 23-17-13 vested the Circuit Court
with jurisdiction to review the ballot title for Alternative Measure No. 42A composed by General
Hood under 23-17-33. If 23-17-13 did not vest the Circuit Court with jurisdiction in the first
place, then it certainly cannot divest this Court of jurisdiction to reverse the Circuit Courts
unauthorized judgment. The resolution of this appeal, then, requires this Court to determine both
its own jurisdiction and that of the Circuit Court.
The April 17 order exemplifies the rule that this Court must determine its own jurisdiction.
See, e.g., In re M.E.V., 120 So. 3d 405, 407 (Miss. 2013) (Whether the parties raise the issue or
not, we must determine whether the judgment before us is an appealable one.). Accord, Smith v.
Parkerson Lbr., Inc., 890 So. 2d 832, 834 (Miss. 2003). Because the Circuit Court did not and
could not make any ruling on this Courts jurisdiction, jurisdiction here must necessarily be
determined de novo.
This Court applies the same rule when it reviews the judgment of a lower court.
Jurisdiction is a question of law, which this Court reviews de novo. Derr Plantation, Inc. v.
Swarek, 14 So. 3d 711, 715 (Miss. 2009), quoting Issaquena Warren Counties Land Co. v. Warren
County, 996 So. 2d 747, 749 (Miss. 2008). Ordinarily, of course, this inquiry concerns which
lower court properly had jurisdiction over a civil action.
Shipman, however, informed the Circuit Court at the hearing that her petition does not
constitute a civil action governed by the Mississippi Rules of Civil Procedure. She said that the
proceedings described in 23-17-13 constitute an appeal of a decision by the Attorney General.
While the issue rarely arises, this Court likewise reviews the jurisdiction of an intermediate
appellate court on a de novo basis.
In J. R. Watkins Co. v. Guess, 196 Miss. 438, 17 So. 2d 795 (1944), a plaintiff appealed
from the judgment of a Circuit Court which had reversed an earlier judgment entered in its favor
5

by a justice of the peace. Defendants, however, had failed to file a proper bond for their appeal to
the Circuit Court. This Court held, The requirement as to bond is mandatory and jurisdictional.
The appeal was a nullity. The circuit court had no jurisdiction. 17 So. 2d at 796 (citations
omitted).3 Because the Circuit Court had no appellate jurisdiction to hear this case on the merits,
this Court concluded that we have no such jurisdiction, and can only enter here the judgment
which the Circuit Court should have rendered, i.e., dismiss the appeal to the Circuit Court, leaving
the judgment of the justice of the peace in full force and effect. Id.
A similar issue arose the next year in W. Horace Williams Co. v. Federal Credit Co., 198
Miss. 111, 21 So. 2d 582 (Miss. 1945). A County Court rendered judgment in favor of a defendant
on its cross-bill, and the adverse parties appealed to the Circuit Court. The Circuit Court dismissed
the appeal, and this Court agreed that appellate jurisdiction properly lay in the Chancery Court.
This Court accepted jurisdiction of the appeal and ruled that the Circuit Court instead should have
transferred the appeal to the Chancery Court. 21 So. 2d at 583. This Court declined to touch
upon the merits of the case, but limited itself to making the order which the Circuit Court should
have made. Id. at 584.
In the process of determining its own jurisdiction, then, this Court will necessarily
determine whether the Circuit Court had jurisdiction over Shipmans petition. If the Circuit Court
lacked appellate jurisdiction, then this Court will order the petition dismissed, as the Circuit Court
should have done. If 23-17-13 did not vest the Circuit Court with appellate jurisdiction over
General Hoods decision, there can be no argument that any provision of that inapplicable statute
divests this Court of its jurisdiction to correct the erroneous judgment of the Circuit Court, as
properly exercised in J. R. Watkins and W. Horace Williams.

The Court rejected the argument that the Circuit Court could permit a subsequent cure of the
failure to post a proper bond, a holding overruled by Jefferson v. Mississippi State Hwy. Commn, 254 So.
2d 181, 182 (Miss. 1971).

To preserve the Circuit Courts judgment, then, Shipman must persuade the Court on both
issues. First, Shipman must establish that 23-17-13 entitled her to appeal to the Circuit Court
the ballot title composed by General Hood. Second, she must convince the Court that the last
sentence of 23-17-13 divests this Court of jurisdiction to consider the Legislatures appeal.
Failure to persuade the Court on the second question requires this Court to proceed to the merits;
failure to convince the Court on the first question resolves the merits and requires reversal of the
Circuit Courts judgment.

Because a proper construction of 23-17-13 determines both

jurisdiction and the merits, this Court may wish to consider postponement of the jurisdictional
question for determination along with the merits. Such a course of action will allow this Court to
consider its jurisdiction with a full understanding of all aspects of the case.4 That may be
particularly important here, where the written record is so sparse. Much was said by the parties at
the hearing to clarify their positions, but the hearing has not yet been transcribed. The full record
may assist with the resolution of all issues.
Nevertheless, if this Court wishes to determine its jurisdiction without a full set of briefs
on the merits and oral argument, it may certainly do so. The answer, as demonstrated hereafter, is
that 23-17-13 vests no jurisdiction in the Circuit Court to consider General Hoods decision
under 23-17-33, nor, even if it did, does 23-17-13 divest this Court of jurisdiction to review
the Circuit Courts final judgment.

It is not uncommon in the federal appellate system for questions of jurisdiction to be considered
at the same time as the merits. When a jurisdictional issue arises, appellate courts will often instruct the
parties to brief both jurisdiction and the merits and will consider those questions together after oral
argument. See, e.g., Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 485 (7th Cir. 2012); American
Interinsurance Exchange v. Occidental Fire & Cas. Co., 835 F.2d 157, 158-59 (7th Cir. 1987); Boreri v.
Fiat S.P.A., 763 F.2d 17 (1st Cir. 1985).

II.

THE CIRCUIT COURT HAD NO JURISDICTION UNDER 23-17-13 TO

REVIEW THE BALLOT TITLE COMPOSED BY GENERAL HOOD UNDER 2317-33.
Shipmans petition made clear what she wanted the Circuit Court to do, but she gave no

clear statement of the basis of the Courts jurisdiction. She invoked the Courts jurisdiction by
filing a document entitled PETITION APPEALING THE ATTORNEY GENERALS BALLOT
TITLE FOR LEGISLATIVE ALTERNATIVE MEASURE 42A. Doc. 3. Paragraph 9 of the
petition simply declared, This appeal is taken within the time allowed by Mississippi Code 2317-13 for appealing a ballot title formulated by the Attorney General. Although she filed no
notice of appeal under U.C.C.C.R. 5.04,5 she announced at the hearing that she was pursuing an
appeal and not a civil action governed by the Mississippi Rules of Civil Procedure.
Here, General Hood composed a ballot title for Alternative Measure No. 42A under the
authority delegated to him by the Legislature under 23-17-33. The Circuit Courts jurisdiction
in this case depends upon whether the Legislature in 23-17-13 authorized the Circuit Court to
review General Hoods discharge of his duties under 23-17-33.6 Ordinary principles of judicial
construction dictate that 23-17-13 does not authorize judicial review of General Hoods conduct
under 23-17-33. In addition, the principle of constitutional avoidance dictates that 23-17-13
must be construed as not permitting judicial review of a decision under 23-17-33.
A.

Ordinary principles of statutory construction establish that General Hoods

title under 23-17-33 may not be reviewed by the Circuit Court under 2317-13.

Acting under 23-17-33, General Hood composed a title for the Legislatures Alternative
5

Indeed, she complied with none of the rules governing appeals set forth in U.C.C.C.R. 5.01-5.10.

It is not necessary to determine whether some other provision of law might also authorize judicial
review of General Hoods ballot title adopted under 23-17-33. The last sentence of 23-17-13, which
arguably divests this Court of appellate jurisdiction, can apply only to Circuit Court proceedings conducted
under 23-17-13. Even if judicial review could be conducted under some other provision of law, there is
no language anywhere which would divest this Court of its ordinary appellate jurisdiction under 11-513.

Measure No. 42A. The Circuit Court rejected Hoods title and substituted its own under the
purported authority of 23-17-13, even though 23-17-13 does not, and was never meant to,
provide for appeal of ballot titles for legislative alternatives. The right to appeal ballot titles under
23-17-13 is unambiguously limited to a measure, which is defined in Miss. Code Ann. 2317-1(1) (Rev. 2007) as an amendment to the Mississippi Constitution proposed by a petition of
qualified electors under Section 273, Mississippi Constitution of 1890. Section 23-17-13 on its
face authorizes a review of the title or summary formulated by the Attorney General and requires
a petition setting forth the measure. Service of the petition must be made upon the person
proposing the measure. The statute requires the Circuit Court to examin[e] the proposed
measure and, if dissatisfied with the Attorney Generals work, to devise such ballot title or
summary as it determines will meet the requirements of Section 23-17-9. The word measure
appears three times in 23-17-13, and each time it bears the meaning prescribed by 23-17-1(1).
At no point does 23-17-13 refer to the alternative constitutional initiative which may be
adopted by the Legislature under 23-17-29. There is no ambiguity whatsoever on the face of
23-17-13.
Even if this Court should find that 23-17-13 is ambiguous on its face, as it must before
engaging in statutory construction, Mississippi Methodist Hosp. & Rehab. Ctr. v. Miss. Div. of
Medicaid, 21 So. 3d 600, 607 (Miss. 2009), the governing rules compel a finding that 23-17-13
does not authorize revision of ballot titles of legislative alternatives. An examination of 23-1713s text demonstrates that it was never the Legislatures intent to allow a court, for the first time
under the Constitution of 1890, to review the ballot titles of its own proposed constitutional
amendments. The Hinds County Circuit Court erred by allowing Shipmans challenge.
The primary consideration in interpreting 23-17-13 is the Legislatures intent in crafting
it, and the best evidence of that intent is the text of the statute. Id. (emphasis added). See Clark
9

v. State ex rel. Miss. State Med. Assn, 381 So. 2d 1046, 1048 (Miss. 1980) (The primary rule of
construction is to ascertain the intent of the legislature from the statute as a whole and from the
language used therein.). This is true irrespective of whether the statute is ambiguous. City of
Natchez v. Sullivan, 612 So. 2d 1087, 1089 (Miss. 1992). One maxim of statutory construction is
particularly relevant here. As this Court has said before: When reasonable, this Court is obliged
to reach an interpretation that gives effect to all of the statutory language. Mississippi Div. of
Medicaid, 21 So. 3d at 608 (emphasis added), citing Gilmer v. State, 955 So. 2d 829, 835 (Miss.
2007). By reading 23-17-13 to apply to General Hoods composition of a ballot title under 2317-33, the Circuit Court reached an interpretation that gives no operative effect to multiple parts
of the statute.
The first major portion of the statute given no effect whatsoever under the Circuit Courts
reading is the time for appeal provision, which determines, procedurally, whether an individuals
challenge of the Attorney Generals ballot title is timely. Section 23-17-13 provides that any
person dissatisfied with the ballot title or summary formulated by the Attorney General . . . 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 Hinds County Circuit Court. (Emphasis added.) Under Miss.
Code Ann. 23-17-11 (Rev. 2007), the Secretary of State must publish the title and summary for
an initiative measure within ten (10) days after filing such title and summary in a newspaper or
newspapers of general circulation throughout the State of Mississippi. There is, however, no
corresponding requirement that the Secretary of State publish the title drafted by the Attorney
General under 23-17-33 for a legislative alternative.7 To the contrary, once ascertained, the
ballot title for the measure adopted by the Legislature must be sent to the counties for printing

Because Shipman failed to name Secretary Hosemann as a party to her petition, he had neither
the duty nor the opportunity to explain his view of the publication requirement.

10

on the ballots. Miss. Code Ann. 23-17-31 (Rev. 2007).8

The lack of any notice requirement for the titles of legislative alternatives begs the question
of when exactly an individual would bring a challenge to a legislative alternatives title under the
Circuit Courts erroneous interpretation. For voter initiatives, 23-17-13 provides a strict deadline
of five days from publication to bring an appeal.

However, since there is no publication

requirement for the title of legislative alternatives, there is no way to determine whether an appeal
under the statute is timely or not. When construing a statute, all possible repercussions and
consequences should be considered. Allred v. Webb, 641 So. 2d 1218, 1222 (Miss. 1994) (citation
omitted). Without a publication requirement, the time for appeal provision in 23-17-13 has no
effect whatsoever when applied to legislative alternatives. The Circuit Court should not have
attributed this result to a simple mistake on the part of the Legislature. Unless it is unavoidable
and clearly manifest, courts must not impute inadvertence to the Legislature . Seward v.
Dogan, 198 Miss. 419, 21 So. 2d 292, 294 (1945). The Legislature could not have intended for
the Circuit Court to simply read the time for appeal provision out of the statute and ignore the
statutes reliance on a process that applies only to measures as defined in 23-17-1(1).
A second major portion of 23-17-13 has no effect under the Circuit Courts reading of
the statute. The notification provision of the statute requires that a copy of the appeal, along with
a notice that an appeal has been taken, be served to three interested parties: (1) the Secretary of
State; (2) the Attorney General; and (3) the person proposing the measure if the appeal is initiated
by someone other than that person. This provision functions effectively when applied to a
measure, as defined in 23-17-1(1), which is proposed by a single qualified elector of the state
under 23-17-1(2) (also known as a sponsor or person proposing under 23-17-1(3) and (4)).

The fact that the Legislature did not institute a notice period for the title given to legislative
alternatives is strong evidence that it did not intend for the general public to be permitted to challenge those
titles as Shipman did here.

11

This provision, however, cannot be applied to a legislative alternative.

Legislative

alternatives are not the product of one person or one sponsor. Rather, they are the product of
the legislative body as a whole. Legislative alternatives must be adopted by a majority vote of
each house of the Legislature, under 23-17-29.

The Legislature is not a person as

authoritatively defined by Miss. Code Ann. 1-3-39 (Rev. 2014), which reads:
The term person, when used in any statute, shall apply to artificial as well
as natural persons; and when used to designate the party whose property may be
the subject of offense, shall include the United States, this state, or any other state,
territory, or country, and any county, city, town or village which may lawfully own
property in this state; also all public and private corporations, as well as individuals.
The Legislature is neither an artificial nor a natural person, nor is it a public or private corporation.
Lieutenant Governor Reeves and Speaker Gunn do qualify as persons, but neither one of them
is the person proposing the measure, within the meaning of 23-17-13.
Thus, a significant portion of 23-17-13s notification provision has no effect under the
Circuit Courts reading of the statute. Section 23-17-13s reference to this third interested party,
the person proposing the measure, evidences the Legislatures intent that 23-17-13 apply only to
initiative measures and not legislative alternatives. Again, to the extent the Circuit Court attributed
this to some inadvertence on the part of the Legislature in drafting 23-17-13, that view is not
favored. See Seward, 21 So. 2d at 294; His Way Homes, Inc. v. Mississippi Gaming Commn, 733
So. 2d 764, 769 (Miss. 1999) (Presumptions are indulged against inadvertent omissions or
oversights.). In sum, no one person is proposing the Legislatures alternative measure, and, unless
one reads person in 23-17-13 to include the Legislature, its notification provision has no
effect with respect to the third interested party listed. The Legislature could not have intended this
result.
The Circuit Courts reading of 23-17-13 fails to give effect to both the time for appeal
and notification provisions present in the statute. See Mississippi Div. of Medicaid, 21 So. 3d at
12

608 (When reasonable, this Court is obliged to reach an interpretation that gives effect to all of
the statutory language.) (emphasis added). These provisions are not mere technicalities. They
serve an important purpose. The Legislature could not have intended this statute to apply in such
a piecemeal fashion. [T]his Court cannot omit or add to the plain meaning of the statute or
presume that the legislature failed to state something other than what was plainly stated. City of
Houston v. Tri-Lakes, Ltd., 681 So. 2d 104, 107 (Miss. 1996). The Circuit Court ignored the time
for appeal and rewrote the notification provision in adopting its interpretation of 23-17-13.
The more reasoned interpretation applies the plain language of the statute, limiting the process of
appeal under 23-17-13 to ballot titles belonging to measures rather than legislative alternatives.
There is another notable problem with the Circuit Courts reading of 23-17-13. By
hearing Shipmans appeal, it had to certify that Alternative Measure No. 42A had a ballot title that
me[t] the requirements of Section 23-17-9, as 23-17-13 requires.9 Its review, purportedly
under 23-17-13, ignored whether General Hoods title for the legislative alternative complied
with the additional requirement imposed by 23-17-33, which provides that a legislative
alternatives ballot title be different from the ballot title of the measure in lieu of which it is
proposed, and [that it] indicate, as clearly as possible, the essential differences in the measure. It
defies logic that the Legislature would have intended for the Circuit Court to ensure that a
legislative alternative ballot title complies with 23-17-9, but not 23-17-33. When no valid
reason exists for one of two possible constructions of a statute, the interpretation with no valid
reason ought not be adopted. Allred, 641 So. 2d at 1222 (citation omitted). Section 23-17-13
limits the Circuit Courts review to compliance with the requirements in 23-17-9, which strongly
suggests that the Legislature never meant 23-17-13 to apply to the formulation of ballot titles for

Section 23-17-9 requires that a measures ballot title be a true and impartial statement of the
purpose of the measure and that the title not intentionally be an argument, nor likely to create prejudice,
either for or against the measures.

13

legislative alternatives under 23-17-33. The Circuit Courts reading of the statute completely
ignores the obvious lack of any reference in 23-17-13 to the requirements for alternative measure
ballot titles in 23-17-33. The absence of any reference to the requirements for legislative
alternatives in 23-17-33 is strong evidence that the Legislature intended the judicial review
process under 23-17-13 to apply only to the titles of initiative measures composed under 2317-9.
This Court has stated that its duty is to support a construction [of a statute] which would
purge the legislative purpose of any invalidity, absurdity or unjust inequality. USF&G Co. v.
Conservatorship of Melson, 809 So. 2d 647, 660 (Miss. 2002). The Circuit Courts interpretation
of 23-17-13 as applied to titles composed for legislative alternatives under 23-17-33: (1)
contemplates a virtually unlimited time for appealing legislative alternative ballot titles; (2)
requires that notice of appeal be given to a non-existent person; and (3) inexplicably requires that
the Court ensure that legislative alternative ballot titles comply with the requirements in 23-179, but not 23-17-33. These glaring problems were not a mere oversight on the Legislatures part.
Rather, each proves that the Legislature did not intend for the Circuit Court here to review the
ballot title of Alternative Measure No. 42A.10
This Court itself has already given a narrow construction to the scope of issues subject to
review under 23-17-13. This Court overruled In re Proposed Initiative Measure No. 20 to the
extent it purported to provide pre-election substantive review of proposed constitutional
amendments in an action under 23-17-13. Hughes v. Hosemann, 68 So. 3d 1260, 1264 (Miss.

10

The provision in 23-17-33 that the Secretary of State shall obtain from the Attorney General
a ballot title in the manner provided by Section 23-17-9 does not make General Hoods determination
under 23-17-33 subject to review under 23-17-13, which is nowhere mentioned in 23-17-33. The
requirement imposed on Secretary Hosemann by the quoted language was fully satisfied when General
Hood discharged his duty, imposed by the first sentence of 23-17-9, to formulate and transmit to the
Secretary of State a concise statement. No other provision of 23-17-9 is mentioned in 23-17-33.

14

2011). It limited permissible pre-election review of the sufficiency of petitions to issues arising
under Miss. Code Ann. 23-17-13, -23, and -25 (Rev. 2007). Id., at 1265 n.7. Review under
23-17-13 of issues arising under 23-17-33 is not available because 23-17-33 applies only to
legislative alternatives, and not to petitions circulated by qualified electors.
For all of these reasons, 23-17-13 authorizes review only of the titles, prepared under
23-17-9, of measures, as defined in 23-17-1(1). No review is authorized of the titles of
legislative alternatives under 23-17-33.
B.

Judicial review of General Hoods title under 23-17-33 would raise

insurmountable constitutional problems.

As demonstrated in Part II.A, application of ordinary rules of statutory construction leads

inexorably to the conclusion that the Legislature did not provide for judicial review under 2317-13 of the title for Alternative Measure No. 42A drafted by General Hood under 23-17-33.
Should this Court have any doubt on the subject, it must apply the rule of constitutional avoidance.
An ambiguity in a statute will not be resolved in a way that requires the resolution of a
constitutional question.

Instead, a permissible construction will be adopted that makes it

unnecessary to address the constitutional issue. When one construction of a statute would
endanger its constitutionality, it will be construed in harmony with the Constitution if, under the
language of the statute, this may reasonably be done. Board of Trustees of State Inst. of Higher
Learning v. Ray, 809 So. 2d 627, 636 (Miss. 2002), quoting State v. County Sch. Bd., 181 Miss.
818, 181 So. 313, 315 (1938).
Clearly, the Legislature viewed General Hoods discharge of his duty to compose a title
for Alternative Measure No. 42A under 23-17-33 as part of a broader initiative to educate the
public. Under 23-17-45 (Rev. 2007) Secretary Hosemann must include General Hoods ballot
title in a pamphlet which must be published in every county in the State. The pamphlet must also
include the fiscal analysis prepared by the Chief Legislative Budget Officer and the argument or
15

explanation on the measure to be prepared either by the sponsor or the Secretary of State. No
statute provides for judicial review of any of these materials before publication to the electorate.
Indeed, judicial review of the sponsors argument or explanation on the measure would raise
grave problems under the First Amendment.
Mississippi cases suggest similar restraint even with regard to the title prepared by General
Hood. From the earliest days under our Constitution, courts have declined involvement in
elections, at least before they take place. Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465 (1901),
involved an effort to enjoin a county referendum on the prohibition of liquor sales. This Court
help the effort improper. It is not the policy of this state to have elections and other political
matters of government reserved to legislative discretion to be interfered with by the judges and
officers of the judicial department of the government. 29 So. at 465-66. Seven Justices of this
Court relied on Gibbs in their concurring opinion in Hughes. Declining to review the substance
of a proposed constitutional amendment, those Justices declared, As the measure is now only a
political matte[r] of government[,] i.e., a political question, it ought not be interfered with by
the judges and officers of the judicial department of the government 68 So. 3d at 1269
(Randolph, J., concurring), quoting Gibbs, 29 So. at 465-66. See also McDaniel v. Cochran, ____
So. 3d _____, 2014 WL 5419723 47 (Miss. Oct. 24, 2014) (Randolph, J., concurring) (courts
do not determine political questions).
Our Legislature would certainly have been aware that this Court had applied Gibbs to
preclude courts from interfering with the conduct of an election to consider a proposed amendment
to the Constitution. Brumfield v. Brock, 169 Miss. 784, 142 So. 745, 746 (1932), citing Gibbs.
The same result was reached in Barnes v. Barnett, 241 Miss. 206, 129 So. 2d 638 (1961).11 This

11

While it might be argued that the Court in Power v. Robertson, 130 Miss. 188, 93 So. 769 (1922),
entertained a pre-election challenge to an amendment proposed by the Legislature, the successful challenger
actually attacked the initiative amendment previously approved by the voters in 1916. This Court

16

Court relied on Brumfield when it took all Mississippi courts out of the business of congressional
redistricting. Mauldin v. Branch, 866 So. 2d 429, 433-34 (Miss. 2003), citing Brumfield, 142 So.
at 746. All of these cases would require careful examination if this Court were to conclude that
the Legislature had ignored them, vesting the Circuit Court with the power to edit the title adopted
by General Hood under 23-17-33.
The federal standards governing political questions were generally approved by this Court
in Ghane v. Mid-South Inst. of Self-Defense Shooting, Inc., 137 So. 3d 212 (Miss. 2014).
Particularly important here is the principle announced in Baker v. Carr, 369 U.S. 186 (1962). A
case presents a nonjusticiable political question where there is a lack of judicially discoverable
and manageable standards for resolving it. Id., at 217, quoted in Ghane, 137 So. 3d at 217. The
standards set forth in 23-17-9 for the title of an initiative proposed by the public may very well
be manageable. Courts every day attempt to determine the truth, and their constant experience
with the adversary system gives them some expertise in distinguishing a partial statement from an
impartial statement. An additional factor, however, is added by 23-17-33. When devising a title
for an alternative measure proposed in conjunction with a popular initiative, the title shall
indicate, as clearly as possible, the essential differences in the measure. Courts have some
experience in construing statutes and constitutions, but the identification and explanation of the
essential aspects of a mere proposal are matters of opinion and politics, not law.
In Shipmans opinion, Initiative Measure No. 42 has four essential features:
i.

It defines the education that it guarantees: an adequate and efficient system

of free public schools.

concluded that the initiative amendment had been adopted by means that violated 273 of our Constitution
as it then read, and it therefore overruled State ex rel. Howie v. Brantley, 113 Miss. 786, 74 So. 562 (1917),
which had erroneously approved the initiative amendments addition to the Constitution. This Court
recognized in Hughes that cases like Barnes and Power v. Ratliff, 112 Miss. 88, 72 So. 864 (1916), had
consistently rejected judicial interference with legislative proposals placed before the electorate. Hughes,
68 So. 3d at 1263. Here, there is no reason to think that the Legislature intended in 23-17-13 to depart
from that tradition by allowing pre-election judicial review of its proposed amendments for the first time.

17

ii.

It defines the nature of the right it creates, and the holders of that right: each
child possesses a fundamental right to educational opportunity.

iii.

It places responsibility for guaranteeing that right on the State, and not on
any one branch of government or state agency.

iv.

It creates a specific enforcement mechanism should the State fail to

discharge its constitutional obligation.

Doc. 4 at 10. Not surprisingly, she overlooks its principal essential feature the repeal of the
Legislatures duty and power to provide free public schools by general law and the investiture of
all such power in the Chancery Court. Even on her own terms, at most two of her four essential
features were incorporated into the title devised by General Hood under 23-17-9. That title
described the nature of the education and arguably the placement of responsibility on the State. It
said nothing about creating an enforceable right or an enforcement mechanism, but, of course,
General Hood had no responsibility for defining its essential elements; truth and impartiality are
enough under 23-17-9.
The determination of the supposed essential features of Alternative Measure No. 42A is
equally subjective. Moreover, the responsibility to contrast those features with the supposed
essential features of Initiative Measure No. 42 is complicated by the failure of 23-17-9 to require
the inclusion of those essential features in its ballot title. Add the responsibility of doing all of that
in 20 words, and the lack of judicially discoverable and manageable standards should be
obvious.
It is simply inconceivable that the Legislature ever intended to impose such an inescapably
subjective and political duty upon any court of this State. Section 23-17-13 should be construed
so as to exclude review of General Hoods discharge of his duty under 23-17-33. However,
should this Court construe that statute to authorize review of General Hoods title, then it runs
afoul of the political question doctrine and must be found unconstitutional.

18

III.

THIS COURT HAS JURISDICTION OVER THE LEGISLATURES APPEAL.

Although the petition itself gives no such indication, Shipmans counsel declared at the

hearing that she had taken an appeal from a decision of Attorney General Hood much like the
appeals authorized from inferior tribunals by Miss. Code Ann. 11-51-75 (Rev. 2012). Further
appeals in such matters from the Circuit Court to this Court have been recognized at least since
Crump v. Board of Supervisors, 52 Miss. 107 (1876). Indeed, as noted in Part I above, In re
Proposed Initiative Measure No. 20 held that the resolution of a proceeding initiated under 2317-13 constitutes a final judgment which must be appealed under 11-51-3.12
The propriety of this statutory construction cannot be questioned.

Section 11-51-3

unambiguously provides that [a]n appeal may be taken to the Supreme Court from any final
judgment of a circuit or chancery court in a civil case. The judgment entered by the Circuit Court
in this case brought under 23-17-13 unquestionably constitutes a final judgment in a civil
case. The statute creates an exception for a judgment by default, but it allows no other
exceptions from the right of appeal. There is no statutory ambiguity for this Court to resolve.
The last sentence of 23-17-13 reads, The decision of the court shall be final. Indeed it
is. Every judgment appealed to this Court is final; that is what 11-51-3 requires. Similarly, Miss.
Code Ann. 9-3-9 (Rev. 2014) precludes consideration by this Court until after final judgment
in the court below. Here, nothing remains to be done in the Circuit Court; its handiwork is ready
for review here, as in any other case. This Court has recognized that legal concepts like finality
should be given their established meaning in statutory construction. In construing a statute
relating to legal proceedings, the legislature will be presumed, when using a legal term, to have

12

Remarkably, one of Shipmans own lawyers made exactly that argument in In re Stoner, signing
the brief in support of the motion to dismiss the petition for writ of mandamus, a copy of which is attached
as Exhibit 2. After advising this Court on page 7 of the language of the last sentence of 23-17-13, counsel
added on page 10 that there was no statute or case authority that suggests an appeal of Judge Russells
Order (July 24, 1998), is not permitted by law.

19

employed the term in the sense as understood in the law appertaining to that term. Hansbrough
v. State ex rel. Pittman, 193 Miss. 461, 10 So. 2d 170, 171 (1942). Accord, Whelan v. Johnston,
192 Miss. 673, 6 So. 2d 300, 303 (1942). ([W]ords which have a clear and definite meaning at
common law should be given that meaning when used in a statute .). In 23-17-13, final
has the same clear and definite meaning it does in 9-3-9, 11-51-3, and M.R.C.P. 54; it means
that the Circuit Courts decision can be appealed.
Should this Court nevertheless perceive an arguable conflict between 11-51-3 and 2317-13, it must attempt to construe them harmoniously. When statutes are in pari materia,
although apparently conflicting, they should, if possible, be construed in harmony with each other
to give effect to each. Sanders v. State, 63 So. 3d 497, 507-08 (Miss. 2011), citing Atwood
Chevrolet-Olds, Inc. v. Aberdeen Mun. Sch. Dist., 431 So. 2d 926, 928 (Miss. 1983). Here, full
effect can be given to the closing sentence of 23-17-13 by construing it to mean that the decision
rendered by the Circuit Court is not subject to further revision there. That makes sense, given the
speed required by 23-17-13. The statute demands a decision be rendered within 10 days after
the filing of the petition. Here, the petition was filed on March 24, 2015. Doc. 3. The hearing
took place nine days later, on April 2, 2015, and the decision was entered on the thirteenth day,
April 6, 2015. Doc. 16. Ordinarily, any party would be entitled to file a motion for a new trial or
to amend the judgment for another 10 days after its entry, pursuant to M.R.C.P. 59. Given the
importance of speed in resolving disputes over constitutional amendments being presented to the
electorate, it would make sense for the Legislature to bar post-judgment proceedings in the Circuit
Court so that the final resolution in this Court may not be delayed.
This Court may not assume that the Legislature intended an unprecedented denial of the
right of appeal. In general, a new statute will not be considered as reversing long-established
principles of law and equity unless the legislative intention to do so clearly appears, Lawson v.
20

Honeywell Internatl, Inc., 75 So. 3d 1024, 1029 (Miss. 2011), quoting Thorp Commercial Corp.
v. Miss. Road Supply Co., 348 So. 2d 1016, 1018 (Miss. 1977). There is no statute in Mississippi
jurisprudence providing that the first court to address a matter should also be the last court to
address it. As already noted, appeals from inferior tribunals to the Circuit Court under 11-51-75
are subject to further appeals to this Court.13 Appeals from Justice Courts and Municipal Courts
may be taken to the County Court and the Circuit Court under Miss. Code Ann. 11-51-81 (Rev.
2012). With regard to non-constitutional issues, 11-51-81 says that there shall be no appeal
from the circuit court to the Supreme Court, demonstrating that the Legislature knows how to
prohibit an appeal without ambiguity when it so intends.14 Even in those cases, further appeal to
this Court is permitted by the statute where in the determination of the case a constitutional
question be necessarily involved. See, e.g., Sasser v. City of Richland, 850 So. 2d 206 (Miss.
App. 2003).
Every question in this case, of course, is a constitutional question. The dispute concerns
the ballot to be presented to the electorate for its determination of whether and how to amend 201
of the Constitution. The question of the Circuit Courts jurisdiction is necessarily constitutional.
Its disregard of the political question doctrine is constitutional. Its substitution of its own judgment
in place of the discretion delegated to General Hood by 23-17-33 is constitutional.

13

In 1867, this Court interpreted an 1857 statute as precluding further appeal in such cases after
resolution by the Circuit Court. Dismukes v. Stokes, 41 Miss. 430 (1867). The Legislature promptly
excluded the offending language from the 1871 Code, as this Court recognized in Crump, where it permitted
further appeal from the Circuit Courts review of a board decision. 52 Miss. at 110. The Legislatures
prompt rejection of the Dismukes opinion stands in stark contrast to its approval of Kellum v. Johnson, 237
Miss. 580, 115 So. 2d 147 (1959), when it reenacted without pertinent change the statute construed therein.
McDaniel, 2014 WL 5419723 23-27. When adopting 23-17-13 in 1993, the Legislature would
certainly have expected its language to be interpreted in light of similar statutes and rules then in existence,
not by a statutory interpretation promptly repudiated by the Legislature in 1871.
14

See also Miss. Code Ann. 51-9-115 (Rev. 2003) (such order for an election shall be
interlocutory and not appealable); Miss. Code Ann. 63-11-26 (Rev. 2013) (the person shall not be
entitled to any judicial review or appeal).

21

It beggars belief to suggest that the Legislature intended to create an exception to the
jurisdictional grant of 11-51-3 to prevent this Courts review of such important constitutional
questions.15 Any suggestion that the jurisdictional grant of 11-51-3 has been amended by
implication is contrary to general principles of statutory construction. Belk v. Bean, 247 So. 2d
821, 827 (Miss. 1971), citing 82 C.J.S. Statutes 252 (1953). This Court properly concluded in
In re Proposed Initiative Measure No. 20 that a notice of appeal perfected its jurisdiction over a
case involving 23-17-13. That jurisdiction must be exercised here.
CONCLUSION
For the reasons stated herein, this Court should rule that it has jurisdiction over the
Legislatures appeal. In addition, this Court should rule that the Circuit Court had no jurisdiction
over Shipmans petition, and it should therefore reverse the judgment of the Circuit Court and
order the dismissal of her petition. Alternatively, this Court should order full briefing on the
merits, at which time the Legislature will also demonstrate that General Hoods title fully satisfied
the requirements of 23-17-33, while demonstrating that the title imposed by the Circuit Court is
both false and partial, in violation of 23-17-9.

15

This is especially true in light of the original and exclusive jurisdiction conferred on this Court
by 273(9) of the Constitution to review [t]he sufficiency of petitions. There is no reason to suppose
that the Legislature would deny this Court authority to review the titles that actually go on the ballot.

22

This the 24th day of April, 2015.

Respectfully submitted,
LEGISLATURE OF THE STATE
OF MISSISSIPPI, Appellant
By: s/Michael B. Wallace
Michael B. Wallace (MSB #6904)
Charles E. Cowan (MSB #104478)
WISE CARTER CHILD & CARAWAY, P.A.
Post Office Box 651
Jackson, Mississippi 39202-0651
Telephone: 601-968-5500
mbw@wisecarter.com
Attorneys for Appellant

23

CERTIFICATE OF SERVICE
I, the undersigned counsel, do hereby certify that I have this day electronically filed the
foregoing with the Clerk of the Court using the MEC system, which sent notification of such filing
to the following:
Hon. Jim Hood
Paul Eldridge Barnes
MISSISSIPPI ATTORNEY
GENERALS OFFICE
Walter Sillers Building
550 High Street, Suite 1200
Jackson, MS 39201
pbarn@ago.state.ms.us

James A. Keith
ADAMS AND REESE, LLP
1018 Highland Colony Parkway
Suite 800
Ridgeland, MS 39157
jim.keith@arlaw.com

Carroll Rhodes
LAW OFFICES OF CARROLL RHODES
Post Office Box 588
Hazlehurst, MS 39083
crhode@bellsouth.net

Danny E. Cupit
LAW OFFICE OF DANNY E. CUPIT
304 North Congress Street
Jackson, MS 39225
decupit@aol.com

Latrice Westbrooks
THE LAW OFFICE OF LATRICE
WESTBROOKS, LLC
Post Office Box 14203
Jackson, MS 39236
westbrookslegal@gmail.com
I further certify that I have mailed a copy, via United States mail postage pre-paid to the
following:
Hon. Winston Kidd
Circuit Court Judge
Post Office Box 3027
Jackson, MS 39205
This the 24th day of April, 2015.

s/Michael B. Wallace
Michael B. Wallace

24