E-Filed Document Jun 1 2015 10:57:39 2015-CA-00605-SCT Pages: 50

IN THE SUPREME COURT OF MISSISSIPPI

LEGISLATURE OF THE STATE OF MISSISSIPPI APPELLANT

v. 2015-CA-00605-SCT
201S-CA-0060S-SCT

ADRIAN SHIPMAN, ET AL. APPELLEES

APPEAL FROM THE CIRCUIT COURT OF

HINDS COUNTY, MISSISSIPPI

BRIEF OF APPELLEE ADRIAN SHIPMAN

James A. Keith (MSB No. 3546)

ADAMS AND REESE LLP
1018 Highland Colony Parkway, Suite 800
Ridgeland, Mississippi 39157
Telephone: 601-353-3234
Facsimile: 601-355-9708
iim.keith@arlaw.com

Carroll Rhodes (MSB No. 5314)

Law Offices of Carroll Rhodes
Post Office Box 588
119 Downing Street
Hazlehurst, MS 39083
39083
Telephone: 601-894-4323
Facsimile: 601-894-1464
crb 9de@bellsouth.net

Attorneys for Adrian Shipman

 IN THE SUPREME COURT OF MISSISSIPPI

LEGISLATURE OF THE STATE OF MISSISSIPPI APPELLANT

v. 2015-CA-00605-SCT

ADRIAN SHIPMAN, ET AL. APPELLEES

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that, in addition to the parties identified in the

brief of Appellant Legislature of the State of Mississippi, the following listed persons have an

interest in the outcome of this case:

• Appellee Adrian Shipman adopts the Certificate of Interested Parties provided by

Appellees Representative Bobby Moak et al. in their May 29, 2015 merits brief to this

Court, and Ms. Shipman states that she is not aware of any other parties interested in

the outcome of this appeal.

These representations are made so that the Justices of the Supreme Court may evaluate possible

disqualifications or recusal.

s/ James A. Keith
James A. Keith

1
 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS .............................................................................. i

TABLE OF AUTHORITIES ......................................................................................................... iv

INTRODUCTION AND QUESTIONS PRESENTED .................................................................. 1

STATEMENT OF THE CASE ....................................................................................................... 2

I. The Constitutional and Statutory Framework for Initiative Measures ................... 4

II. Procedural History of Measure 42, Alternative Measure 42A, and The
Attorney General's Ballot Titles for Both Measures .............................................. 6

SUMMARY OF THE ARGUMENT ............................................................................................. 8

ARGUMENT ................................................................................................................................ 12

I. This Court lacks appellate jurisdiction because the Mississippi Legislature

prohibited further appeals from the circuit court under Section 23-17-13 ........... 12

A. The plain language of Section 23-17-13 prohibits further appeals

from the circuit court's decision in an appeal of the Attorney
General's ballot title .................................................................................. 12
B. The Mississippi Legislature has the power to create and limit
appeals processes, and it has properly exercised that power under
Section 23-17-13 ....................................................................................... 15
C. The order denying mandamus relief in In re Stoner does not
establish a right to appeal from decisions issued pursuant to
Section 23-17-13 ....................................................................................... 17
II. The Attorney General's ballot title for alternative measures is reviewable
by the circuit court pursuant to Section 23-1 7-13 ................................................. 19

A. Section 23-17-13 provides for appeals of alternative titles ...................... 19

B. The Legislature's arguments for prohibiting review of the Attorney
General's ballot title should be rejected by this Court .............................. 22
1. Section 23-17-13 permits appeals of ballot titles, not
"measures," and the legislative alternative measure is a
measure in any event. .................................................................... 22
2. Permitting appeals of the Attorney General's alternative
ballot title to the circuit court does not render other
provisions of the Act superfluous ................................................. 24

11
 3. The Act permits the circuit court to adopt a ballot title that
satisfies the requirements of Section 23-17-9 and 23-17-33
on appeal. ...................................................................................... 25
III. The circuit court's review of the Attorney General's ballot title does not
run afoul of the political question doctrine ........................................................... 26

IV. The Attorney General's ballot title for the legislative alternative measure
did not meet the requirements of Section 23-17-33 .............................................. 29

A. Measure 42 creates an enforceable right to an adequate and

efficient public school system ................................................................... 29
B. Alternative Measure 42A provides for an "effective" public school
system, not an adequate and efficient one, and provides no
enforcement mechanism should the Legislature fail to act ....................... 32
C. The ballot title for Alternate Measure 42A must indicate the
essential differences of the two measures as clearly as possible .............. 32
D. The Attorney General's ballot title does not fairly and accurately
indicate essential differences in the two measures ................................... 33
E. The circuit court's review of the Attorney General's ballot title was
de nova ...................................................................................................... 35
V. The circuit court's ballot title satisfies Sections 23-17-9 and 23-17-33 ............... 37

CONCLUSION ............................................................................................................................. 40

CERTIFICATE OF SERVICE ..................................................................................................... 41

111
 TABLE OF AUTHORITIES

Cases

Alexander v. State ex rel. Allain,

441 So. 2d 1329 (Miss. 1983) ..................................................................................... 38, 39

Arkansas. Lake View Sch. Dist v. Huckabee,

91 S.W. 3d 472 (Ark. 2002) .............................................................................................. 37

Baker v. Carr,
369 U.S. 186 (1962) .......................................................................................................... 28

Bickham v. Department of Mental Health,

592 So. 2d 96 (Miss. 1991) ............................................................................................... 15

Chevron US.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984) .......................................................................................................... 24

Citizens United v. Federal Election Comm 'n,

558 U.S. 310 (2010) .......................................................................................................... 25

City of Belmont v. Miss. State Tax Comm 'n,

860 So. 2d 289 (Miss. 2003) ............................................................................................. 38

Clinton Municipal Separate School Dist. v. Byrd,

477 So.2d 237 (Miss. 1985) .............................................................................................. 31

Dialysis Solution, LLC v. Miss. State Dept. of Health,

31 So. 3d 1204 (Miss. 2010) ............................................................................................. 36

Dismukes v. Stokes,
41 Miss. 430 (Miss. Err. & App. 1867) ...................................................................... 13, 15

Div. of Medicaid v. Miss. Independent Pharmacies Ass 'n,

20 So. 3d 1236 (Miss. 2009) ............................................................................................. 36

Ghane v. Mid-South Institute of Self Defense Shooting, Inc.,

137 So. 3d 212 (Miss. 2014) ....................................................................................... 27, 28

Gill v. Miss. Dep 't of Wildlife Conservation,

574 So. 2d 586 (Miss. 1990) ............................................................................................. 15

Grant Ctr. Hosp., Inc. v. Health Group ofJackson, Inc.,

528 So. 2d 804 (Miss. 1988) ............................................................................................. 36

Gulf & Ship Island R. Co. v. Harrison County,

4 So. 2d 717 (Miss. 1941) ................................................................................................. 15

lV
Harpole v. Kemper County Democratic Executive Comm.,
908 So. 2d 129 (Miss. 2005) ............................................................................................. 33

Hill Bros. Constr. & Engineering Co., Inc. v. Mississippi Transp. Comm 'n,
909 So. 2d 58 (Miss. 2005) ............................................................................................... 36

Hughes v. Hosemann,
68 So. 3d 1260 (Miss. 2011) ............................................................................................. 32

In re Hooker,
87 So. 3d 401 (Miss. 2012) ......................................................................................... 26, 27

In re Proposed Initiative Measure No. 20,

No. 1998-M-00945 (Oct. 19, 1998) ............................................................................ 17, 18

Jackson v. Franklin County School Board,

806 F.2d 623 (5th Cir. 1986) ...................................................................................... 30, 31

Japan Whaling Ass 'n v. American Cetacean Soc.,

478 U.S. 221 (1986) .................................................................................................... 26, 27

Lake View Sch. Dist No. 25 of Phillips County v. Huckabee,

91 S.W.3d 472 (Ark. 2002) ............................................................................................... 34

Lane v. Halliburton,
529 F.3d 548 (5th Cir. 2008) ............................................................................................ 27

Lawson v. Honeywell Int 'l, Inc.,

75 So. 3d 1024 (Miss. 2011) ....................................................................................... 12, 13

Levitz Furniture Corp. v. Prince George's County,

527 A.2d 813 (Md. Ct. Spec. App. 1987) ......................................................................... 18

Loflin v. George County Bd. Of Educ.,

183 So. 2d 621 (Miss. 1966) ............................................................................................. 39

Marbury v. Madison,
1 Cranch 137 (1803) ................................................................................................... 34, 38

Miss. Ethics Comm 'n v. Grisham,

957 So. 2d 997 (Miss. 2007) ............................................................................................. 36

Miss. State Dept. of Health v. Baptist Mem. Hospital-DeSoto, Inc.,

984 So. 2d 967 (Miss. 2008) ............................................................................................. 36

Mississippi Gaming Commission v. Imperial Palace of Mississippi, Inc.,

751 So. 2d 1025 (Miss.1999) ............................................................................................ 24

Myers v. Board of Supervisors,

125 So. 718 (Miss. 1930) ............................................................................................ 30, 31

v
Newell v. State,
308 So. 2d 71 (Miss. 1975) ............................................................................................... 39

Nixon v. United States,

506 U.S. 224 (1993) .......................................................................................................... 27

Orick v. State,
105 So. 2d 465 (Miss. 1925) ............................................................................................. 34

Pitalo v. GPCH-GP, Inc.,

933 So. 2d 927 (Miss. 2006) ............................................................................................. 32

Presley v. Miss. State Highway Comm 'n,

608 So. 2d 1288 (Miss. 1992) ........................................................................................... 39

Public Employees' Retirement System v. Howard,

905 So. 2d 1279 (Miss. 2005) ........................................................................................... 36

Riley v. Clayton,
441 So. 2d 1322 (Miss. 1983) ............................................................................... 12, 15, 16

Runnels v. State,
1 Miss. 146 (1823) ...................................................................................................... 38, 39

Ryals v. Board ofSupervisors of Pike County,

48 So. 3d 444 (Miss. 2010) ............................................................................................... 36

Scialabba v. Cuellar de Osorio,

134 S. Ct. 2191(2014) ...................................................................................................... 21

Speed v. Hosemann,
68 So. 3d 1278 (Miss. 2011) ....................................................................................... 32, 33

Sumrall v. Munguia,
757 So. 2d 279 (Miss. 2000) ............................................................................................. 17

Taylor v. Marion County,

51 Miss. 731(Miss.1875) ................................................................................................ 13

United States v. Nixon,

418 U.S. 683 (1974) .......................................................................................................... 39

Wilson v. Yazoo & M V.R. Co.,

6 So. 2d 313 (1942) ........................................................................................................... 20

Statutes

Miss. Code§ 11-51-3 .............................................................................................................. 14, 18

Miss. Code§ 23-17-1 .................................................................................................................. 1, 4

VI
Miss. Code§ 23-17-1(1) ............................................................................................................... 22

Miss. Code § 23-17-1 (2) ........................................................................................................... 4, 40

Miss. Code§ 23-17-11 .............................................................................................................. 5, 24

Miss. Code § 23-17-13 ........................................................................................................... passim

Miss. Code§ 23-17-15 ................................................................................................................ 4, 5

Miss. Code§ 23-17-21 ................................................................................................................ 2, 5

Miss. Code§ 23-17-29 .................................................................................................................... 5

Miss. Code§ 23-17-3 ...................................................................................................................... 4

Miss. Code§ 23-17-31 .............................................................................................................. 5, 23

Miss. Code§ 23-17-33 ........................................................................................................... passim

Miss. Code§ 23-17-37 ............................................................................................................ 16, 23

Miss. Code§ 23-17-5 ...................................................................................................................... 4

Miss. Code § 23-17-7 ...................................................................................................................... 4

Miss. Code§ 23-17-9 ............................................................................................................. passim

Miss. Code§ 9-3-9 ........................................................................................................................ 14

Miss. Code § 9-4-1 ........................................................................................................................ 17

Miss. Laws Ch. 518, § 1 ............................................................................................................... 17

Other Authorities

2A Sutherland Statutory Construction§ 46:5 (7th ed.) ................................................................ 20

Black's Law Dictionary 333 (7th ed. 2000) ....... ,........................................................................... 14

Leslie H. Southwick, The Mississippi Court ofAppeals: History, Procedures, and First
Year's Jurisprudence, 65 Miss. L.J. 593 (1995-1996) ..................................................... 17

Miss. Const. § 124 ........................................................................................................................ 27

Miss. Const.§ 156 ........................................................................................................................ 18

Miss. Const. § 201 .............................................................................................................. 2, 31, 32

Miss. Const. § 273 .................................................................................................................... 4, 22

Miss. Const. § 273(3) .................................................................................................................. 2, 5

Vll
Miss. Const. § 40 (1890) ......................................................................................................... 35, 39

Miss. Const. art. 15, § 273(8) .................................................................................................. 16, 24

Miss. Const. art. 3, § 24 ................................................................................................................ 25

Miss. R. App. P. 35-A(b) .............................................................................................................. 18

The Clarion Ledger, March 19, 2015 ............................................................................................. 7

www.merriam-webster.com/ dictionary/final ............................................................................... 13

Vlll
 INTRODUCTION AND QUESTIONS PRESENTED

This case is fundamentally about the Mississippi Legislature's authority to create (and

limit) appeal procedures in election-law proceedings, as it has always done and as it did in the

Voter Initiative Act, Miss. Code§ 23-17-1 et seq., at issue on appeal. Section 23-17-13 of the

Act provides for an appeal of the Attorney General's ballot titles to the circuit court and declares

that "the decision of the court shall be final." The language could not be clearer.

Yet, in a remarkable concession of Legislative power, the "Legislature" (which is really

just a group of unidentified legislators represented by Mr. Wallace) argues that the Mississippi

Legislature has no power to limit appeals in election matters, and goes so far as to say that the

Legislature itself has no right to appeal the Attorney General's ballot title for legislative

alternative measures even if the Attorney General's hand-picked ballot title is plainly deficient

under the Act. This could not have been the Legislature's intent when it enacted the law in 1993.

(It is no wonder that over 50 members of the Legislature have intervened in this action, objected

to Mr. Wallace's appearance on behalf of the institution, and opposed the institution-diminishing

arguments that Mr. Wallace makes in this Court.)

With this background, the Questions Presented are:

1. Does Section 23-17-13 preclude the Legislature's appeal to this Court because the

statute, by its plain terms, limits parties to a single appeal of the Attorney General's ballot title

for an alternative measure and requires that such an appeal be taken to the circuit court?

2. Does Section 23-17-13, consistent with its provisions for appeals of the original

measure's ballot title, permit appeals of the alternative measure's ballot title to the circuit court?

3. Does Mississippi's narrowly-applied political question doctrine prohibit the

circuit court's review of the Attorney General's ballot title for compliance with the Legislature's

statutorily-prescribed standards?
1
 4. Did the circuit court err by reviewing de nova the Attorney General's ballot title

for compliance with the Legislature's statutorily-prescribed standards?

5. Does the alternative ballot title adopted by the circuit court satisfy the

requirements of Section 23-17-33 and 23-17-9 by providing a non-argumentative statement as to

the effect of the alternative measure and, at the same time, highlighting as clearly as possible the

essential differences between Measure 42 and Alternative Measure 42A.

STATEMENT OF THE CASE

This appeal arises out of a voter-sponsored constitutional initiative, Measure 42, which

seeks to protect the fundamental right of Mississippi children to educational opportunity.

Measure 42 would amend Section 201 of the Mississippi Constitution to "provide for the

establishment, maintenance and support of an adequate and efficient system of free public

schools." The full text of Measure 42 is as follows:

To protect each child's 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.

R.12. The petition supporting the adoption of Measure 42 was signed by the number of qualified

electors required by Section 23-17-21 of the Mississippi Code and Section 273(3) of the

Mississippi Constitution. Accordingly, Measure 42 will appear on the ballot at the 2015 general

statewide election and, if adopted by the voters, will become part of Mississippi's Constitution.

Alternative Measure 42A was adopted by the Mississippi Legislature at the 2015 Session

as an alternative to Measure 42. Alternative Measure 42A provides as follows:

The Legislature shall, by general law, provide for the establishment, maintenance
and support of an effective system of free public schools.

R.14-16 (House Concurrent Resolution No. 9).

2
 Each of these measures will appear under a ballot title, which must be a true and

impartial statement, not to exceed 20 words, that describes the purpose of the measure. Miss.

Code § 23-17-9. The ballot title for Alternative Measure 42A has an additional statutory

function that the ballot title for Measure 42 does not. As a proposed legislative alternative

measure to Measure 42, the ballot title for Alternative Measure 42A must indicate the essential

differences between the two measures. Miss. Code § 23 -17 -33.

The Attorney General of Mississippi has the statutory obligation of formulating ballot

titles for both measures. Miss. Code § 23-17-9. The ballot title for Measure 42 has been finally

established, and is not at issue on this appeal. It is as follows:

Should the State be required to provide for the support of an adequate and
efficient system of free public schools?

R.17.

On March 12, 2015, the Attorney General formulated the ballot title for Alternative

Measure 42A. It read as follows:

Should the Legislature provide for the establishment and support of effective free
public schools without judicial enforcement?

R.33. The Appellee, Adrian Shipman, was dissatisfied with the Attorney General's ballot title

for Alternative Measure 42A because, as she argued in the circuit court, it was not a true and

impartial statement of the purpose of that measure and it failed to indicate the essential

differences between Measure 42 and Alternative Measure 42A ..

Accordingly, and as discussed below, Ms. Shipman successfully pursued her statutory

right to appeal the ballot title formulation to the Circuit Court of the First Judicial District of

Hinds County, Miss. Code §§ 23-17-33, 23-17-9. In that proceeding, both Ms. Shipman's

3
arguments and the Mississippi Legislature's arguments were heard and considered. The

Legislature has now filed this second appeal, in an effort to reverse the circuit court's decision.

I. The Constitutional and Statutory Framework for Initiative Measures.

Section 273 of the Mississippi Constitution establishes a means by which the people of

Mississippi may amend the Constitution by initiative. Under Section 273 and its implementing

legislation, Miss. Code §§ 23-17-1 et seq. (1972), the proponent first files a proposed initiative

with the Mississippi Secretary of State. Miss. Code §§ 23-17-1(2), 23-17-3.

The Secretary of State sends the proposed initiative to the Attorney General, who reviews

it, recommends any revisions to the proponent, and certifies that review has occurred and that he

has communicated any recommendations to the proponent. The proponent files the initiative

measure and the Attorney General's certificate ofreview with the Secretary of State, who assigns

the measure a serial number and submits it to the Attorney General. Miss. Code §§ 23-17-5,

§ 23-17-7.

Within seven days after he receives the measure, the Attorney General formulates and

transmits to the Secretary of State a concise statement, not to exceed 20 words, posed as a

question. The statement, which is to "give a true and impartial statement of the purpose of the

measure," constitutes the ballot title. Miss. Code § 23-17-9. The Attorney General also

formulates a summary of the measure not to exceed 75 words. 1 Neither the statement nor the

summary is intentionally to be an argument; and neither should be written so as to create

prejudice for or against the measure. Within 10 days after the filing, the Secretary of State

1
The summary does not appear on the ballot. Rather, the summary appears on petitions circulated for
signature in support of a voter-sponsored initiative measure. Miss. Code § 23-1 7-15. Because this appeal
concerns a legislatively-drafted alternative measure, which requires no voter petitions, no summary is
required for Alternative Measure 42A.

4
notifies the proponent and publishes the ballot title and summary in a newspaper of general

circulation. Miss. Code § 23-17-11.

Any person dissatisfied with the ballot title or summary may, within five days from this

publication, appeal to the Circuit Court of the First Judicial District of Hinds County by petition,

setting forth his objections and requesting amendments. Miss. Code § 23-17-13. The circuit

court may hear arguments and must, within 10 days, render its decision and file with the

Secretary of State a certified copy of the ballot title or summary that the court has determined

will meet the requirements of Miss. Code § 23-17-9. The decision of the circuit court is final.

Miss. Code§ 23-17-13. Thereafter, the ballot title so established is the title of the measure in all

petitions, ballots and other proceedings. Miss. Code§ 23-17-15.

Once this process is completed, the measure's proponent may obtain signatures of

qualified electors on a petition supporting the measure. If the proponent secures the number of

signatures required by Section 273(3) of the Mississippi Constitution, and those signatures are

properly certified by the circuit clerks of the relevant counties, the petition may be submitted to

the Secretary of State. Miss. Code § 23-17-21. If the petition is proper in form and substance,

the Secretary of State accepts and files it, then files it with the Clerk of the House of

Representatives and Secretary of the Senate on the first day of the regular legislative session.

Miss. Code§§ 23-17-21, 23-17-29.

The Legislature may adopt, reject or amend the initiative measure. If the Legislature

amends a measure or adopts an alternative measure, both the alternative and the original

initiative are placed on the ballot at the next statewide general election. If the requisite number

of votes is received in favor of either measure, that version becomes part of the Constitution.

Miss. Const. art. 1.5, § 273; Miss. Code§§ 23-17-29, § 23-17-31.

5
 When the Legislature proposes an alternative to an initiative measure, the Attorney

General formulates a ballot title for the proposed alternative measure. Miss. Code § 23-17-33.

This ballot title has two functions. First, it must satisfy the requirements of Section 23-17-9 for

a voter-sponsored initiative. Second, to avoid voter confusion, the ballot title for the legislative

alternative must create a contrast with the ballot title of the initiative measure for which it is

offered as an alternative: "The ballot title therefor shall be different from the ballot title of the

measure in lieu of which it is proposed, and shall indicate, as clearly as possible, the essential

differences in the measure." Miss. Code§ 23-17-33.

As discussed below, the appeal procedures for the ballot title of the original initiative

measure also apply to a legislative alternative measure. Miss. Code§§ 23-17-33, 23-17-9.

II. Procedural History of Measure 42, Alternative Measure 42A, and The Attorney
General's Ballot Titles for Both Measures.

The appropriate statutory procedures were followed with respect to Measure 42. After

review by the Secretary of State and the Attorney General, the Attorney General formulated a

ballot title for the measure on March 26, 2014 and transmitted it to the Secretary of State. R.17

(Transmittal Letter of March 26, 2014 from Attorney General Jim Hood). The Secretary of State

published the ballot title in the Clarion-Ledger on April 1, 2014. After an unsuccessful challenge

to the ballot title and summary, the circuit court finally established the ballot title and summary

as prepared by the Attorney General. R.18-22 (Letter of April 25, 2014 from Delbert

Hosemann).

Thereafter, sufficient signatures were obtained on a petition in support of Measure 42.

On October 6, 2014, the petition was submitted to the Secretary of State who filed Measure 42

with the Secretary of the Senate and the Clerk of the House of Representatives on the first day of

the 2015 Legislative Session.

6
 On January 13, 2015, the Mississippi House of Representatives adopted House

Concurrent Resolution No. 9, which proposed Alternative Measure 42A. R.14-16. The Senate

adopted the resolution without amendment on January 14, 2015. On March 12, 2015, the

Attorney General issued his official ballot title for Alternative Measure 42A. This ballot title

was submitted to the Secretary of State, who published the alternative ballot title in the Clarion

Ledger on March 19, 2015. This formulation of the ballot title was:

Should the Legislature provide for the establishment and support of effective free
public schools without judicial enforcement?

R.33 (Notice by Publication in The Clarion Ledger, March 19, 2015).

On March 24, 2015, Ms. Shipman appealed the Attorney General's ballot title for

Alternative Measure 42A. R.4. Ms. Shipman contended that the Attorney General's ballot title

did not constitute a true and impartial statement that describes the purpose of the alternative

measure, and that it did not indicate, as clearly as possible, the essential differences in the

measure. R.4-7.

On March 27, 2015, the Attorney General responded to Ms. Shipman's petition, arguing

that "because the ballot title certified by the Attorney General satisfies all statutory requirements

imposed by Sections 23-17-9 and 23-17-33 of the Mississippi Code, it should be upheld." R.54-

62. The Attorney General did not contest Ms. Shipman's statutory right to appeal the Attorney

General's ballot formulation to the circuit court. See id.

Also on March 27, 2015, the Mississippi Legislature filed a motion to intervene in the

appeal, accompanied by a proposed answer to the petition and a proposed motion to dismiss the

appeal, R.63-73. Representative Bobby Moak and other members of the Mississippi House of

Representatives submitted a motion to intervene, accompanied by a brief amicus curiae in

7
support of Ms. Shipman's petition and in opposition to the Legislature's motion to intervene.

R.81-92. 2

On April 2, 2015, the circuit court heard arguments on the appeal petition and motions to

intervene. R.100-01. The circuit court granted the Legislature's motion to intervene, as well as

Representative Moak's motion to intervene, and heard arguments from all parties. Id The court

granted Ms. Shipman's petition, finding that the Attorney General's ballot title failed to meet the

requirements of Sections 23-17-9 and 23-17-33 that it be a true and impartial summary of the

purpose of the measure, and that it indicate the essential differences between the two proposals.

Id

The circuit court adopted a ballot title for Alternative Measure 42A that complied with

the statutory requirements:

Should the Legislature establish and support effective public schools, but not provide
a mechanism to enforce that right?

R.101. On April 16, 2015, the Mississippi Legislature filed a notice of appeal to this Court from

the decision of the circuit court.

SUMMARY OF THE ARGUMENT

In 1993, the Mississippi Legislature, following a constitutional amendment that permitted

voter-initiated changes to the Mississippi Constitution, enacted a comprehensive statutory

scheme for placing initiative measures and alternative measures on the election ballot ("Voter

Initiative Act" or the "Act"). For election purposes, the most important piece of the Act is the

"ballot title"-which is the only description of a measure that actually appears on the ballot and,

therefore, the only description seen by the voter when casting his or her vote. The Legislature

2
The 51 individual legislators that joined Representative Moak's motion to intervene explained that
Wallace did not represent them or their views as to the matters presented in Ms. Shipman's appeal. They
also explained that Wallace was not authorized to present the "institutional position" of the Legislature.

8
took care to provide a method for developing and reviewing these ballot titles, but balanced that

method against the ever-present need for speedy decisions in election matters.

The Legislature's prescribed two-part procedure for developing ballot titles involves an

administrative process, in which the Attorney General prepares ballot titles for both the original

measure and the alternative measure, and a judicial-review process, in which a person

dissatisfied with the Attorney General's ballot titles may appeal to the circuit court. No further

appeals are permitted, as the Legislature declared that "the decision of the court shall be final."

Miss. Code § 23-17-13. The appeal process was invoked by Adrian Shipman; the circuit court

resolved her appeal and established a statutorily-compliant ballot title. That decision should be

respected for the following specific reasons:

First, the Legislature's appeal should be dismissed because Section 23-17-13 allows only

a single appeal to the circuit court and declares that "the decision of the court shall be final."

This unique and unequivocal language is not a clumsy attempt to reference a "final judgment"-

a familiar term that the Legislature well knows how to use when it means to and that it has used

in over 100 statutes. Instead, the language provides that the circuit court's decision is final in the

plain and ordinary sense of the word-not subject to further review. Not only does the

Legislature have the power to limit appeal rights in this way, particularly in matters of election

law where time is of the essence, it had an obvious purpose for doing so in 1993-to avoid

throwing time-sensitive initiative disputes into this Court's extremely-backlogged docket prior to

the creation of the Mississippi Court of Appeals. Section 23-17-13 's single-appeal procedure

should be enforced as written, not ignored to suit particular legislators appealing to this Court.

Second, the circuit court's decision and ballot title should be left intact because Ms.

Shipman had a right to appeal the Attorney General's alternative ballot title to that court.

9
Section 23-17-33, which provides that the alternative ballot title should be established "in the

manner provided by Section 23-17-9,'' incorporates both Section 23-17-9 and the appeal

procedures referenced in that section-which are essential to finally establishing a ballot title.

The Legislature's contrary position-that the Attorney General's alternative ballot title may

never be appealed-treats original and alternative ballot titles inconsistently without any basis

for doing so and produces the absurd result that even the most obviously-deficient ballot titles

cannot be appealed and corrected by the circuit court.

Third, judicial review of the Attorney General's ballot title for Alternative Measure 42A

does not violate the political question doctrine, which ensures that policy choices committed to

other branches of government are not usurped by the judiciary and prevents courts from acting

on matters that lack judicially manageable standards for resolving them. No political question

appears here. The Attorney General's responsibility to create a ballot title is statutory, and not

part of the Attorney General's constitutional duty. It cannot be said that composition of a ballot

title is so committed to the Attorney General that the process is immune from judicial review,

since the same statutes that give the Attorney General responsibility for creating a ballot title also

allow judicial review of that decision. Review of the decision is judicially manageable.

Formulation of a ballot title requires only that the Attorney General compare two constitutional

proposals, then prepare a short statement describing the purpose of the legislative alternative and

indicating essential differences between the two measures. Review of that effort is within the

constitutional competence of the judiciary.

Fourth, the Attorney General's ballot title for Alternative Measure 42A fails to satisfy

Section 23-17-33 because it does not it indicate essential differences between the two measures.

Measure 42 differs significantly from Alternative Measure 42A, and creates a fundamental right

10
to educational opportunity for each child. The cases the Legislature cites to demonstrate that

Mississippi children have long had such rights do not support its claim, and were decided based

on prior versions of Section 201 of the Mississippi Constitution that are no longer in effect. The

Attorney General's inclusion of the phrase "without judicial enforcement" is ambiguous,

suggesting that no judicial enforcement of Alternative Measure 42A will occur. This statement

is not supported by longstanding Mississippi law or the text of Alternative Measure 42A.

Fifth, the circuit court's ballot title satisfies Sections 23-17-9 and 23-17-33. The circuit

court's omission of the phrase "free public" from its ballot title is appropriate because those

words do not indicate differences between the two measures, which is what Section 23-17-33

requires. Further, the circuit court's ballot title correctly notes that Alternative Measure 42A

does "not provide a mechanism to enforce that right." Contrary to the Legislature's argument,

such an "enforcement mechanism" may not be found in the oath of office taken by each member

of the Legislature. The Legislature's objection ignores state and federal constitutional holdings

that it is the judiciary-not the other branches-that possesses ultimate authority to interpret the

constitution. This Court has often been required to exercise that authority to declare legislative

actions unconstitutional. The circuit court's ballot title recognizes that the legislative refusal to

provide statutorily required funding for public education has led to these constitutional measures,

and that without an enforcement mechanism to ensure future legislative compliance, adoption of

either measure may well prove to be futile.

11
 ARGUMENT

I. This Court lacks appellate jurisdiction because the Mississippi Legislature

prohibited further appeals from the circuit court under Section 23-17-13.

Section 23-17-13 provides for review of the Attorney General's ballot titles for voter-

sponsored initiative measures and legislative alternatives in the circuit court, and declares that

the decision of the circuit court "shall be final." Miss. Code § 23-17-13. This unequivocal

statutory language must be applied as written-to limit review of the Attorney General's ballot

title to a single appeal at the circuit court level. See Lawson v. Honeywell Int'l, Inc., 75 So. 3d

1024, 1027 (Miss. 2011) (discussing rules of statutory construction). Such a limitation is within

the Legislature's power to impose, particularly in a comprehensive statutory scheme that

establishes ballot titles for a statewide election. See Riley v. Clayton, 441 So. 2d 1322, 1325

(Miss. 1983). And the Legislature that enacted the single-appeal provision in 1993 had a valid

reason for doing so: At that time, without the benefit of an intermediate appellate court, the

average time for issuing a decision in an appeal to this Court was three years.

The Legislature's arguments for avoiding the plain language of Section 23-17-13-its

own language-should be rejected by this Court.

A. The plain language of Section 23-17-13 prohibits further appeals from the circuit
court's decision in an appeal of the Attorney General's ballot title.

Section 23-17-13 provides for a single appeal of the Attorney General's ballot title to the

circuit court. It establishes the following procedure in the event of an appeal:

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.
***

12
 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 23-17-9. The decision of
the court shall be final.

Miss. Code§ 23-17-13.

This statutory appellate provision does three things. First, it grants a right of appeal to

the circuit court, at which all interested parties may be heard. In this case, all interested parties,

including the Legislature, were permitted to intervene and present arguments; all parties were

heard by the circuit court in Ms. Shipman's appeal. Second, the statute grants the circuit court

discretion-guided by Section 23-17-9 and Section 23-17-33-to resolve the appeal by adopting

a ballot title for the alternative measure. Third, the statute provides that, when an appeal is taken

to the circuit court, "[t]he decision of the court shall be final." The plain meaning of the term

"final" is "not to be altered or undone." MERRIAM WEBSTER ONLINE DICTIONARY, available at

www.merriam-webster.com/ dictionary/final. The Legislature's plain intent, therefore, is that the

circuit court's "decision"-its judgment-may not be reviewed, altered, or undone.

By using such unequivocal language as "shall be final," the Legislature limited ballot-

title challenges to a single appeal at the circuit court level and prohibited further review of the

circuit court's decision. See Dismukes v. Stokes, 41 Miss. 430, 432 (Miss. Err. & App. 1867)

(recognizing that statute which declared circuit court's decision to be final was valid and

enforceable and prohibited further appeals); accord Taylor v. Marion County, 51 Miss. 731, 734-

35 (Miss. 1875). This Court should give effect to that plain and limiting language, not stretch it

to suit the desires of a particular litigant. See Honeywell, 75 So. 3d at 1027.

The Legislature seeks to avoid this plain reading of the statute by arguing that Section 23-

17-13 's unique phrase-"the decision of the court shall be final"-is simply a clumsy attempt to

say that the circuit court should issue a "final judgment" so that an appeal can be taken. See

13
Legislature Br. at 10-11. This is incorrect for at least two reasons. First, the Legislature knows

how to require a "final judgment" for appeal purposes when it intends to do so. It used that

familiar term expressly in the two statutes cited by the Legislature. Id. (citing Miss. Code§ 9-3-

9 & § 11-51-3, both of which provide for appeals from a "final judgment"). Indeed, a Westlaw

search of the Mississippi Code reflects that the Legislature has used the term "final judgment"

over 100 times in various code sections. By contrast, the phrase "the decision of the court shall

be final" appears only once. The Legislature obviously intended something other than "final

judgment" when it adopted this unique phrase: it intended to provide for a single appeal to the

circuit court and to make that court's decision final.

Second, the Legislature's reading of "shall be final" to mean "final judgment" is

redundant and nonsensical. Under Section 23-17-13, the circuit court must issue a "decision"

and, in keeping with standard judicial procedure, that decision will necessarily take the form of a

final judgment. See Black's Law Dictionary 333 (7th ed. 2000) (defining "decision" as "[a]

judicial determination after consideration of the facts and law; esp., a ruling, order, or judgment

by a court when considering or disposing of a case"). So the Legislature asks this Court to

construe the statute as follows: "the [final judgment] of the court shall be [a final judgment]."

This Court should not adopt such a nonsensical reading of the statute, particularly when a plain

reading produces the most reasonable result.

The unique phrase "the decision of the court shall be final" means something other than

"final judgment." The plain language of Section 23-17-13 provides for only one appeal-to the

circuit court-and expressly forbids further appeals by declaring that the circuit court's decision

"shall be final." While some members of the 2015 Legislature may believe that limiting a

party's appeal rights was an unwise policy decision, this Court does not pass on the wisdom of

14
the Legislature's policies in construing statutes. See Gulf & Ship Island R. Co. v. Harrison

County, 4 So. 2d 717, 718 (Miss. 1941) ("The wisdom of the statute is not for us to decide.").

This Court should apply the statute as written and dismiss the Legislature's appeal.

B. The Mississippi Legislature has the power to create and limit appeals processes,
and it has properly exercised that power under Section 23-17-13.

The Mississippi Legislature's express intent-to limit appeals of the Attorney General's

ballot title to a single appeal in circuit court-must be respected and enforced for three reasons.

First, the Legislature has the authority to create appeal rights and to impose limitations

on those rights. See Riley, 441 So. 2d at 1325 ("This Court has stated on numerous occasions

that the right to appeal is a statutory privilege granted and defined by the legislature."); accord

Gill v. Miss. Dep 't of Wildlife Conservation, 574 So. 2d 586, 590 (Miss. 1990) ("This Court has

repeatedly held that a party has no right of appeal, except insofar as it has been given by law.").

Among the limitations that the Legislature may impose is to provide a single appeal to the circuit

and to declare that the circuit court's judgment is final and unappealable. See Dismukes, 41

Miss. at 434-35.

Here, the Legislature could have adopted a purely-administrative procedure for

formulating ballot titles, one that did not involve the courts at all. See Bickham v. Department of

Mental Health, 592 So. 2d 96, 97-98 (Miss. 1991) (explaining that agency decisions are not

appealable unless provided for by statute). Instead, in 1993, the Legislature opted to provide a

limited appeal right-a single appeal to the circuit court. If the Legislature now believes this

statutorily-mandated appeal procedure is inadequate or unwise, it may amend the statute. (It

could have done this during the 2015 Legislative Session, but chose not to.) The Legislature

should not, however, petition this Court to ignore the single-appeal mandate in Section 23-17-13.

15
Riley, 441 So. 2d at 1326 (noting that perceived deficiencies in an appeal process are "a matter

for the legislature to address"). 3

Second, Section 23-17-13 's prohibition on further appeals must be understood in the

context in which it was imposed-an election statute in which time is of the essence in

determining final ballot titles for both the original measure and the alternative measure. See

Riley, 441 So. 2d at 1326 ("The necessity for expediency is inherent in the nature of an election

contest."). Such a prohibition on multiple appeals makes perfect sense in this statutory scheme

for establishing ballot titles as early as possible, so that the Secretary of State may prepare the

ballots and so that the proponents of the various measures may campaign accordingly. Finally,

establishing the ballot title is particularly critical to the conduct of such campaigns because it is

the only description of the measure and alternative that will appear on the ballot title. See Miss.

Const. art. 15, § 273(8); accord Miss. Code § 23-17-37. The titles must be set at the earliest

possible date, and the prospect of a lengthy civil appeal would defeat the need for expedition.

Third and finally, the Legislature had an obvious and valid purpose for providing a

single, expedited appeal to the circuit court in 1993, when it adopted Section 23-17-13. At that

time, this Court-without the benefit of an intermediate appellate court-was required to resolve

all appeals as of right and, as a result, was experiencing an extreme backlog of cases. See Leslie

H. Southwick, The Mississippi Court of Appeals: History, Procedures, and First Year's

Jurisprudence, 65 Miss. L.J. 593, 607-08 (1995-1996). 4 In 1992, the Supreme Court's backlog

reached record levels, driving the average time required for the resolution of an appeal up to 981
3
This admonition is particularly apt here, as the Mississippi Legislature-the proponent of the alternative
measure and purported "appellant" in this case-had the power to amend the limited appeal process
established by Section 23-17-13, but chose not to exercise that power during the 2015 Legislative Session
or any previous session. The Legislature should hardly be heard to ask this Court to ignore the limited
appeal process that it established.
4
The Mississippi Comi of Appeals was created in 1993 to reduce the backlog of cases and reduce the
time required to resolve an appeal. See Miss. Laws Ch. 518, § 1 (codified at Miss. Code § 9-4-1 et seq.).

16
days-almost three years. Id. at 608. As Chief Justice Armis Hawkins put it in his 1993 address

to the Mississippi Legislature on the need for an intermediate appellate court, this Court's

caseload created a situation that was "begging for catastrophe." Id. at 616. Under Section 23-

17-13, the Legislature deliberately routed ballot title appeals to the circuit court (rather than the

Supreme Court) and, to avert the catastrophe of a three-year appeal process in an urgent election

matter, declared that the circuit court's decision would be final.

Section 23-17-13 plainly permits only a single ballot-title appeal to the circuit court, and

that limitation is comfortably within the Legislature's power to impose.

C. The order denying mandamus relief in In re Stoner does not establish a right to
appeal from decisions issued pursuant to Section 23-17-13.

Finally, the Legislature cobbles together an argument that this Court's unpublished order

denying mandamus relief in In re Proposed Initiative Measure No. 20, No. 1998-M-00945 (Oct.

19, 1998) ("In re Stoner"), if understood in light of one side's briefing on the mandamus petition,

establishes a right to appeal from a decision under Section 23-1 7-13. This argument mistakes the

procedural posture of In re Stoner, which involved a consolidated suit for declaratory relief

under the circuit court's general jurisdiction, not an appeal exclusively under Section 23-17-13.

The In re Stoner order denying mandamus relief, to the extent it has any precedential value at

all, 5 simply resolves that Section 23-17-13 does not limit the circuit court's original jurisdiction

under Section 156 of the Mississippi Constitution in cases where the plaintiff invokes that

jurisdiction. (Here, Shipman did not invoke the circuit court's original jurisdiction.)

The Legislature mistakenly treats In re Stoner as involving only an appeal under Section

23-17-13, like the one that Ms. Shipman pursued, when in fact it involved an original civil action

5
Mississippi Rule of Appellate Procedure 35-A(b) prohibits citation to and reliance on unpublished
opinions and orders of this Court except in continuing litigation among the same parties. See Sumrall v.
Munguia, 757 So. 2d 279, 284 (Miss. 2000) (refusing to consider unpublished opinion).

17
as well. Critically, the In re Stoner plaintiffs filed two separate actions, a statutory appeal of the

ballot title under Section 23-17-13 and an original civil action under Section 156 of the

Mississippi Constitution seeking a declaration that the initiative measure was unconstitutional.

See 774 So. 2d at 398-99; see also Brief of Respondents in Support of Motion to Dismiss

Mandamus Petition in In re Stoner at 6 (available in this Court's docket as Exhibit 2 to the

Legislature's brief in support of jurisdiction). Neither proceeding sought the limited relief

available under Section 23-17-13-the simple preparation of a statutorily-compliant ballot title,

which Shipman sought in this case. See In re Stoner Respondents' Brief at 6. Instead, both the

appeal and the original civil action challenged the constitutionality of the measure and sought to

prohibit it from appearing on the ballot at the general election. Id.

These two actions were consolidated into a single proceeding in the circuit court. Id. Of

course, if a litigant invokes the circuit court's general civil jurisdiction under Section 156 of the

Mississippi Constitution to award declaratory relief, as did the In re Stoner plaintiffs, the circuit

court's decision would be appealable under Section 11-51-3, the statute permitting appeals to this

Court. Therefore, the consolidated proceeding in In re Stoner was appealable because Section

23-17-13 does not limit the circuit court's general jurisdiction to entertain constitutional

challenges, like the separate challenge filed by the In re Stoner plaintiffs. Id. at 14-16. 6

That rule does not apply here. This Court's unpublished mandamus order does not

address a case like Shipman's, in which a party appeals the ballot title only, invokes the circuit

court's appellate jurisdiction exclusively under Section 23-17-13, and seeks only the relief

available in such an appeal. The Legislature's reliance on In re Stoner is misplaced.

6
The Maryland Court of Special Appeals has addressed a similar consolidated proceeding and held that,
when an appeal proceeding from which no further review is permitted and an original proceeding from
which an appeal may be taken are consolidated, the party is entitled to appeal the circuit court's decision.
Levitz Furniture Corp. v. Prince George's County, 527 A.2d 813, 815-16 (Md. Ct. Spec. App. 1987).

18
II. The Attorney General's ballot title for alternative measures is reviewable by the
circuit court pursuant to Section 23-17-13.

The Legislature next argues that the circuit court's decision should be set aside for lack of

jurisdiction because Section 23-17-13 prohibits appeals of the Attorney General's ballot title for

a legislative alternative measure. The Legislature's argument is threefold: (1) the plain language

of Section 23-17-13 permits appeals only of ballot titles assigned to "measures," and the

legislative alternative is not a "measure;" (2) Section 23-17-13 is ambiguous and construing it to

permit appeals of the alternative measure's ballot title renders some other statutory provisions

"inoperative;" and (3) an appeal of the alternative measure's ballot title would not permit the

circuit court to consider whether the Attorney General's ballot title complies with Section 23-17-

33's requirement that it indicate the essential differences of the two measures.

At bottom, the Legislature's arguments attempt to manufacture ambiguity and

incongruity where none exists, in the hopes of defeating the Legislature's clear intent-which

was to provide a consistent method of establishing ballot titles for both the original and

alternative measure. Moreover, the Legislature's arguments produce an absurd result: The

Attorney General's ballot title for original measures is reviewable by the circuit court in every

case, but his ballot title for alternative measures is never reviewable-no matter how biased,

faulty, or noncompliant with the statutory commands. Surely, the 1993 Legislature did not

intend to provide the Attorney General carte blanche to pick titles for its alternative measures

without any means of review.

A. Section 23-17-13 provides for appeals of alternative titles.

Several statutory provisions govern the creation of a ballot title for legislative alternative

measures, and Section 23-17-13 must be read in the context of neighboring provisions in the

Voter Initiative Act and in keeping with the general statutory scheme for creating and finalizing

19
ballot titles. See Wilson v. Yazoo & MVR. Co., 6 So. 2d 313, 314 (1942) ("The intention and

purpose of the Legislature is to be deduced from the whole and every part of the statute taken

together-from the words and context-and such a construction adopted as will best effectuate the

intention of the law-giver."). As a leading treatise explains:

A statute is passed as a whole and not in parts or sections and is animated by one
general purpose and intent. Consequently, each part or section should be
construed in connection with every other part or section to produce a harmonious
whole. Thus, it is not proper to confine interpretation to the one section to be
construed.

2A Sutherland Statutory Construction § 46:5 (7th ed.) (citations omitted). The relevant and

related statutory provisions are discussed below.

First, Section 23-17-33 provides that, for a legislative alternative measure, "the Secretary

of State shall obtain from the Attorney General a ballot title in the manner provided by Section

23-17-9." Section 23-17-9 establishes the various procedures and standards for obtaining a

ballot title for the original measure, which include an appeal procedure. Section 23-17-33,

therefore, incorporates the procedures for establishing the original ballot title and makes those

procedures applicable to the alternative ballot title.

Second, in relevant part, Section 23-17-9 provides that ballot titles must be prepared in

the following manner:

The statement shall give a true and impartial statement of the purpose of the
measure. Neither the statement nor the summary may intentionally be an
argument, nor likely to create prejudice, either for or against the measure. Such
concise statement shall constitute the ballot title. The ballot title formulated by
the Attorney General shall be the ballot title of the measure unless changed on
appeal. (emphasis added.)

Thus, Section 23-17-9 contemplates an appeal as an essential aspect of the manner in which

ballot titles are finally established.

20
 Third, Section 23-17-9 cross-references the appeal process in 23-17-13, which allows an

appeal to the circuit court by "any person" dissatisfied with the ballot title and authorizes the

circuit court to determine a ballot title that meets the statutory requirements. When the

Legislature refers to procedures in a specific code provision (here, Section 23-17-9), it

incorporates any cross-referenced code provisions as well (here, Section 23-17-13). See

Scialabba v. Cuellar de Osorio, 134 S. Ct. 2191, 2219 (2014) (discussing rule of incorporation

by reference). Reading Sections 23-17-9, 23-17-13 and 23-17-33 together, it is obvious that the

Legislature intended to make the requirements and procedures for obtaining a ballot title

consistent for both the original measure and the alternative measure.

The 2015 Legislature's contrary reading of this comprehensive statutory scheme ascribes

to the 1993 Legislature the illogical intent to treat identical administrative procedures differently.

In the case of both the original and alternative measure, the Attorney General alone establishes

the ballot title. In both cases, the Attorney General's ballot title should be reviewable, not

insulated from challenge no matter how flawed. The 2015 Legislature has not offered any reason

to conclude that the 1993 Legislature intended to create such an inconsistent administrative

review procedure.

Moreover, the 2015 Legislature's reading of the statutory scheme produces an absurd

result: No party, including the Legislature itself, may seek review of the Attorney General's

ballot title for the alternative measure even if that title is plainly deficient under the law. Surely,

if the Attorney General had prepared an utterly deficient, inaccurate, and biased ballot title for

the alternative measure, the Legislature would not make this opportunistic argument. To the

contrary, the Legislature would argue that it (or its members) have a right to petition the circuit

court to review the Attorney General's deficient ballot title and adopt a compliant and impartial

21
one. There is no sensible reason that the 1993 Legislature would have insulated the alternative

title from review, thereby giving the Attorney General carte blanche to write the title for the

Legislature's alternative without any oversight whatsoever.

B. The Legislature's arguments for prohibiting review of the Attorney General's

ballot title should be rejected by this Court.

In an attempt to manufacture complication where none exists, the Legislature argues that

reading Section 23-17-13 to permit circuit court appeals of the alternative measure's ballot title

would ignore the definition of "measure" and do harm to other parts of the statute. As explained

below, this is not the case.

1. Section 23-17-13 permits appeals of ballot titles, not "measures," and the
legislative alternative measure is a measure in any event.

The Legislature first argues that Section 23-17-13 permits appeals only of ballot titles

that are assigned to "measures,'' and, so says the Legislature, the legislative alternative is not a

"measure" as defined in Section § 23-17-1(1). True enough, the cited subsection defines

"measure" to mean "an amendment to the Mississippi Constitution proposed by a petition of

qualified electors under Section§ 273, Mississippi Constitution of 1890." But the definition of

"measure" is not exclusive, and nothing precludes the Legislature from treating its alternative as

a "measure"-which it undeniably does in other sections of the Act. Indeed, as discussed below,

the Legislature's unduly restrictive reading proves too much. If the legislative alternative is not a

"measure," then it may not be submitted to the voters. The Act permits voters to cast their ballot

only for a "measure" or "measures,'' and nothing else. Miss. Code. § 23-17-37.

Specifically, the Legislature's arguments are incorrect for two reasons. First, Section 23-

17-13 provides for appeals of the Attorney General's "ballot titles,'' not the "measures"

themselves. The statute's operative language provides that "[i]f any person is dissatisfied with

the ballot title or summary formulated by the Attorney General, he or she may, within five (5)

22
days from the publications of the ballot title and summary by the office of the Secretary of State,

appeal to the circuit court .... " Miss. Code. § 23-17-13 (emphasis added). Because the plain

language permits appeals of "ballot titles," whether those ballot titles are assigned to a "measure"

or something else, the Court need not determine whether the legislative alternative is or is not a

"measure" under a strict definition of the term.

Second, even if Section 23-17-13 could be construed to limit appeals to "measures" (as

opposed to "ballot titles"), the term logically includes "alternative measures." Indeed, contrary

to the Legislature's reading of "measure," which ignores its statutory surroundings, the Act

refers to the legislative alternative as a "measure" in numerous places. For example:

• Section 23-17-31 provides that, when the Legislature proposes an alternative, "the
Secretary of State shall give the measure adopted by the Legislature the same number
as that borne by the initiative measure followed by the letter 'A."';

• Section 23-17-31 also provides that the Secretary must designate the alternative as
"Alternative Measure No. A";

• Section 23-17-33 provides that for "a measure designated by him as 'Alternative
Measure No. A,' the Secretary of State shall obtain from the Attorney
General a ballot title in the manner provided by Section 23-17-9"; and

• Section 23-17-37 prescribes the ballot for elections involving an alternative and
provides that "[i]f an initiative measure proposed to the Legislature has been rejected
by the Legislature and an alternative measure is passed by the Legislature in lieu
thereof, the serial numbers and ballot titles of both such measures shall be printed on
the official ballots so that a voter can express separately two (2) preferences .... "

(Emphasis added). Indeed, the Mississippi Constitution itself repeatedly refers to the legislative

alternative as an "alternative measure." Miss. Const. art. 15, § 273(8) (emphasis added).

It is obvious that both the original initiative and the legislative alternative are viewed as

"measures" under the Act and the Mississippi Constitution. Indeed, the alternative measure must

be a "measure" or it may not appear on the ballot at the general election.

23
 2. Permitting appeals of the Attorney General's alternative ballot title to the
circuit court does not render other provisions of the Act superfluous.

Next, the Legislature argues that the Act is ambiguous and construing Section 23-17-13

to permit appeals of the alternative measure's ballot title would render two other provisions

inoperative-the "time for appeal" and "notification" provisions. This too is incorrect.

First, as to the "time of appeal" provision, the Legislature argues that Section 23-17-13 's

five-day appeal deadline cannot be triggered for an alternative measure because the alternative

measure's ballot title is not published pursuant to Section 23-17-11. This argument is simply a

refrain of its first argument, that Section 23-17-33 does not incorporate the appeal provisions. It

does, as already explained. Besides, the Secretary of State's Office-the expert agency charged

with administering election laws, including those applicable to constitutional amendments-

disagrees with the Legislature's interpretation. The Secretary followed the appeal-triggering

publication procedure prescribed by Section 23-17-11 for the alternative ballot title, just as he

did for the original ballot title. In other words, the Secretary recognizes that the Act's appeal

procedures apply to the alternative ballot title. The Court should defer to his reasonable

interpretation of the Act. See Mississippi Gaming Commission v. Imperial Palace of Mississippi,

Inc., 751 So. 2d 1025, 1029 (Miss.1999) (citing Chevron US.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984)).

Second, turning to the "notification" provision, the Legislature suggests that the

requirement that notice of the appeal be given to the "person proposing the measure" cannot be

satisfied in the case of an alternative measure because the Legislature is not a "person." Yet

again, the Legislature attempts to create ambiguity through an unnecessarily strict and hyper-

technical reading of the Act. This argument ignores the reality that Shipman provided notice to

the Speaker of the Mississippi House of Representatives and the Lieutenant Governor, and that

24
was sufficient notice to allow the Legislature to appear (indeed, intervene as a party) and be

heard in the circuit court proceeding. Surely, the Legislature fits the broad definition of "person"

in this context. And again, the Legislature's argument proves too much. If it is not a "person,"

then it has no right to be heard in this proceeding anyway, as Mississippi's courts are only open

to "persons." Miss. Const. art. 3, § 24. 7

For all of these reasons, the circuit court properly exercised its power to hear Shipman's

appeal and determine a statutorily-compliant ballot title. The circuit court's decision is final, and

the Legislature's appeal should be dismissed.

3. The Act permits the circuit court to adopt a ballot title that satisfies the
requirements of Section 23-17-9 and 23-17-33 on appeal.

Third, the Legislature suggests that an appeal of the alternative measure's ballot title

would not permit the circuit court to consider whether the Attorney General's ballot title

complies with Section 23-17-3 3 's requirement that it indicate the essential differences of the two

measures because Section 23-17-13 limits the circuit court's review to compliance with Section

23-17-9. Yet again, this is a reiteration of its argument that Section 23-17-33 does not

incorporate the full process for establishing a ballot title. And yet again, this argument strains

unnecessarily to create ambiguity and incongruity where none exists.

As already discussed, there is a perfectly natural and logical reading of these interrelated

statutes, which incorporates all steps necessary to establish an alternative ballot title under

Section 23-17-9 and permits that alternative ballot title to be appealed to the circuit court:

• Section 23-17-3 3 directs the Attorney General to draft a ballot title for the legislative

alternative "in the manner provided by Section 23-17-9," and also directs that the title

7
Just as corporations are treated as "persons" for some purposes because they are associations of natural
persons, see Citizens United v. Federal Election Comm 'n, 558 U.S. 310, 349 (2010), the Legislature may
be treated as a "person" because it is a body comprised of natural persons.

25
 be both different from the original measure's ballot title and that it indicate the

essential differences between the two measures.

• Therefore, when the Attorney General refers to Section 23-17-9, he is obligated under

Section 23-17-9 to draft an alternative ballot title that satisfies three commands: (1) is

neither argumentative nor likely to create prejudice for or against the alternative

measure; (2) is different from the original ballot title; and (3) indicates the essential

differences between the two measures as clearly as possible.

• And if that alternative ballot title is appealed to the circuit court under Section 23-17-

13, then the circuit court has authority to review the ballot title prepared under

Section 23-17-9, which in the case of an alternative measure will necessarily involve

a review of the three commands set forth above.

Sections 23-17-33, 23-17-9, and 23-17-13, when read together as they must be, not only permit

but require the circuit court to consider all requirements of an alternative ballot title on appeal.

III. The circuit court's review of the Attorney General's ballot title does not run afoul of
the political question doctrine.

The Legislature argues that judicial review of the Attorney General's ballot title for

Alternative Measure 42A would violate the political question doctrine. It does not, and the

circuit court was constitutionally authorized to bring the ballot title into compliance with Miss.

Code§ 23-17-33.

This Court adopted the political question doctrine in In re Hooker, 87 So. 3d 401 (Miss.

2012). The doctrine is an incident of the separation of powers, and exists to ensure that "policy

choices and value determinations constitutionally committed for resolution to" the legislative or

executive branches are not usurped by the judiciary. Japan Whaling Ass 'n v. American Cetacean

Soc., 478 U.S. 221, 230 (1986). The doctrine forbids the judiciary "to exercise jurisdiction over

26
a matter when there is a 'textually demonstrable constitutional commitment of the issue to a

coordinate political department; or a lack of judicially discoverable and manageable standards

for resolving it .... '" 87 So. 3d at 405 (quoting Nixon v. United States, 506 U.S. 224, 228

(1993). "A declination of jurisdiction under the doctrine presupposes that another branch of

government is both capable of and better suited for resolving the 'political' question." Lane v.

Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).

Of course, "not every matter touching on politics is a political question[.]" Japan

Whaling, 478 U.S. at 229. Where, as here, a case is primarily one of statutory interpretation,

courts recognize that "one of the Judiciary's characteristic roles is to interpret statutes, and

[courts do not] shirk this responsibility merely because [the] decision may have significant

political overtones." Id. at 230. In re Hooker demonstrates this Court's limited application of

the doctrine. There, the Attorney General challenged pardons signed by outgoing Governor

Barbour, arguing that the Governor had failed to satisfy the publication requirements for pardons

found in Section 124 of the Mississippi Constitution. 87 So. 3d at 402. This Court held that the

Constitution commits the pardon power exclusively to the governor, and that the judiciary had no

authority to supervise the governor in the discharge of duties given exclusively to his office,

unless his performance of those duties violated personal or individual rights. Id. at 402, 412-14.

More recently, this Court refused to apply the political question doctrine when a wrongful

death action was brought against a private contractor by the mother of a serviceman killed during

a live fire exercise when a bullet allegedly penetrated a bullet-proof wall, striking the

serviceman. Ghane v. Mid-South Institute of Self Defense Shooting, Inc., 137 So. 3d 212 (Miss.

2014). There, the Court found that the suit would not require reexamining decisions made by-

27
or committed to-the military, and that the case could be decided under established principles of

tort law. Therefore, suit was not barred by the political question doctrine. Id at 218.

Ghane and In re Hooker make plain that no political question is involved here. The

Attorney General's responsibility to create a ballot title for both an initiative measure and a

legislative alternative is purely a creation of statute, Miss. Code §§ 23-17-9, 23-17-33. It is not

part of the Attorney General's constitutional authority as the state's chieflegal officer. Nor can

it be said that the Attorney General's composition of a ballot title has been so committed to the

executive branch for decision that it is immune from judicial review. Indeed, the very statutes

that give the Attorney General responsibility for formulating a ballot title also allow judicial

review of that decision. Id

Nor is review of the Attorney General's ballot title formulation nonjusticiable because no

judicially manageable standards exist to govern it. Formulation of a ballot title for a legislative

alternative does not involve the making of policy choices or value determinations that have been

committed to either the legislative or executive branches. As relevant here, Section 23-17-33

directs the Attorney General to compare the texts of two constitutional proposals, then prepare a

true and impartial statement, not to exceed 20 words, that describes the purpose of the legislative

alternative and indicates the essential differences between the two measures. Preparation of the

ballot title does not require the Attorney General to make decisions about educational policy or

express a preference for either proposal. Judicial review of the Attorney General's ballot title

formulation to determine whether it satisfies a state statute is a task for which Mississippi courts

are particularly well-suited.

This is a justiciable issue well within the judiciary's constitutional competence. 8

8
This case also presents none of the six factors identified in Baker v. Carr, 369 U.S. 186, 217 (1962), as
indicating a nonjusticiable political question.

28
IV. The Attorney General's ballot title for the legislative alternative measure did not
meet the requirements of Section 23-17-33.

As noted, when the Legislature proposes a legislative alternative to a voter-sponsored

initiative measure, the Attorney General must formulate a ballot title for the legislative

alternative that satisfies two statutory tests. First, the ballot title must meet the requirements of

Miss. Code § 23-17-9 for a voter-sponsored initiative measure. Second, the ballot title must

distinguish the legislative alternative from the voter-sponsored initiative measure for which it is

offered as an alternative: "The ballot title shall be different from the ballot title of the measure in

lieu of which it is proposed, and shall indicate, as clearly as possible, the essential differences in

the [two] measure[s]." Miss. Code § 27-13-33. A failure to satisfy both statutory requirements

yields a ballot title that is defective.

The Attorney General's ballot title for Alternative Measure 42A does not indicate the

"essential differences" between the two measures. This failing made the alternative ballot title

statutorily deficient and required the circuit court to adopt a ballot title that "will meet the

requirements of Section 23-17-9." Miss. Code§ 23-17-13.

The Attorney General's ballot title for Alternative Measure 42A was as follows:

Shall the Legislature be required to provide for the establishment and support of
effective free public schools without judicial enforcement?

To assess whether this ballot title complies with the statutory directive, the Court should

compare the text of Measure 42 with that of Alternative Measure 42A.

A. Measure 42 creates an enforceable right to an adequate and efficient public

school system.

Measure 42 provides:

Section 201: Educational opportunity for public school children.

29
 To protect each child's 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.

Measure 42's purpose and effect are self-evident. The measure requires the State to

create and support "an adequate and efficient system" of free public education for Mississippi

children. It does this by recognizing that each child possesses a "fundamental right to

educational opportunity," and ensuring enforcement of that right should the State fail to meet its

constitutional obligation to provide it.

The essential features of Measure 42 are as follows:

i. It defines the education that it guarantees: an adequate and efficient system of free
public schools.

n. It defines 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, not on any one branch
of government or state agency.

1v. It creates a specific enforcement mechanism should the State fail to discharge its
constitutional obligation.

In its brief, the Legislature dismisses Ms. Shipman's claim that Measure 42 creates a

"fundamental right to educational opportunity for each child," contending instead that "children

have had an enforceable right to education in Mississippi since the adoption of§ 201 in 1890."

Brief of Legislature at 30. To support this assertion, the Legislature relies on Myers v. Board of

Supervisors, 125 So. 718 (Miss. 1930), and Jackson v. Franklin County School Board, 806 F.2d

623 (5th Cir. 1986).

This reliance is misplaced, for neither case establishes that Mississippi children possess

an enforceable constitutional right to a public education. Myers held only that a board of

30
supervisors could not lawfully arrange school districts so that some of the county's children were

not located in any school district. Even more, Myers was decided under a prior version of

Section 201 of the Mississippi Constitution that was completely replaced in 1960. 125 So. at

721. 9 Myers decides nothing about present law.

The relevance of Jackson is found in dicta in a single footnote in the opinion that refers

to a "right to an education." 806 F.2d at 630 n.11. Even this cursory comment is based on still

another version of Section 201 that has since been replaced. In fact, the version of Section 201

on which Jackson relied was adopted in 1960 to allow the Legislature to abolish public schools

entirely if necessary to avoid desegregation. 10

Thus, the Legislature's confident assertion that Mississippi children have long had an

enforceable constitutional right to public education is unsupported by even a single case based on

current law. Measure 42 recognizes the existence of such a right and defines the right to require

"adequate and efficient" public schools. Alternative Measure 42A contains no such provisions. 11

9
The version of Section 201 on which Meyers was based provided:

It shall be the duty of the legislature to encourage by all suitable means, the promotion of
intellectual, scientific, moral and agricultural improvement, by establishing a uniform system of
free public schools, by taxation, or otherwise for all children between the ages of five and
twenty-one years, and, as soon as practicable, to establish schools of higher grade.

Clearly, this language is far removed from the present iteration of Section 20 I, which provides for "the
establishment, maintenance and support of free public schools upon such conditions and limitations as the
Legislature may prescribe."
10
The version of Section 201 in effect at the time Jackson was decided provided that "[t]he Legislature
may, in its discretion, provide for the maintenance and establishment of free public schools for all
children between the ages of six (6) and twenty-one (21) years." (emphasis added). This language hardly
establishes vested rights to education for anyone.
11
In 1985, this Court stated in dicta that "the right to a minimally adequate public education created and
entailed by the laws of this state is one we can only label fundamental." Clinton Municipal Separate
School Dist. v. Byrd, 477 So.2d 237, 240 (Miss. 1985). This reference was not based on Section 201 and,
in any event, was written while the 1960 version of Section 201 was in effect.

31
 B. Alternative Measure 42A provides for an "effective" public school system, not an
adequate and efficient one, and provides no enforcement mechanism should the
Legislature fail to act.

The contrasts between Measure 42 and Alternative Measure 42A are marked. Alternative

Measure 42A provides:

Section 201.

The Legislature shall, by general law, provide for the establishment, maintenance
and support of an effective system of free public schools.

Alternative Measure 42A requires the Legislature to provide for "effective" free public

schools and contains the following features that differ from Measure 24.

I. It provides for an effective system of free public schools, rather than the adequate and
efficient system Measure 42 requires.

11. It creates no personal right to educational opportunity for Mississippi's children.

iii. The Legislature alone is responsible for providing effective public schools.

iv. It contains no enforcement mechanism.

C. The ballot title for Alternate Measure 42A must indicate the essential differences
of the two measures as clearly as possible.

Under Section 23-17-33, the ballot title for Alternative Measure 42A "shall indicate, as

clearly as possible, the essential differences" between the two measures; the Attorney General

cannot ignore a statutory mandate to do so. See Pitalo v. GPCH-GP, Inc., 933 So. 2d 927, 929

(Miss. 2006) (explaining that use of the word "shall" in statutes mandates the prescribed action).

Moreover, use of a deficient ballot title may have collateral consequences; it may subject both

the ballot and the results of any general election held under that ballot to legal challenge, creating

uncertainty for the general election. See Hughes v. Hosemann, 68 So. 3d 1260 (Miss. 2011);

Speed v. Hosemann, 68 So. 3d 1278 (Miss. 2011). As the Speed case explains, a ballot title must

be sufficient in form before it may be placed on the ballot for the general election. Id. at 1281.

32
If the general election is conducted pursuant to a deficient ballot title, it may lead to the

invalidation of votes cast at that election and necessitate a new election. See id.; see also

Harpole v. Kemper County Democratic Executive Comm., 908 So. 2d 129, 137-38 (Miss. 2005).

Ms. Shipman is sensitive to the difficulty of including all differences in the two measures

in a 20-word statement. To the extent that complete inclusion of those differences is not

possible, the statutory command that essential differences be indicated "as clearly as possible"

permits the ballot title to indicate the most significant differences.

D. The Attorney General's ballot title does not fairly and accurately indicate
essential differences in the two measures.

Perhaps the most critical differences in the two measures are found in Measure 42's

recognition of a fundamental constitutional right to educational opportunity for Mississippi

children, and its specific enforcement mechanism to secure that right. Alternative Measure 42A

recognizes no right to education and contains no enforcement mechanism should the Legislature

default on its constitutional obligation to establish and support effective public schools. The

Attorney General's ballot title for Alternative Measure 42A does not indicate these differences

fairly and accurately. In particular, it does not indicate that Alternative Measure 42A contains no

enforcement mechanism.

The phrase attached to the end of the Attorney General's ballot title-"without judicial

enforcement"-is ambiguous at best, suggesting that no judicial enforcement of Alternative

Measure 42A is possible should the Legislature fail to establish and support effective free public

schools. There is no basis for any such dogmatic conclusion. It is possible-and perhaps

probable-that this Court would fashion a judicial remedy to address a legislative violation of

Alternative Measure 42A. After all, a first principle of our tripartite system of government is

that the judicial branch has the responsibility to "say what the law is"-to resolve disputes over

33
the Legislature's adherence to (or violation of) the Mississippi Constitution and its amendments.

Orick v. State, 105 So. 2d 465, 467 (Miss. 1925) (quoting Marbury v. Madison, 1 Cranch 137,

177 (1803)); see also Lake View Sch. Dist No. 25 of Phillips County v. Huckabee, 91 S.W.3d

472, 482-85 (Ark. 2002). To that extent, the Attorney General's ballot title is positively

misleading and must be rejected for that reason alone.

Another criticism of the "without judicial enforcement" appendage to the Attorney

General's ballot title is that a reasonable voter would not be able to tell what it means. As

written, the phrase simply defies understanding. For this independent reason, the Attorney

General's ballot title must be rejected. A ballot title faithful to Section 23-17-33 would provide

that Measure 42 contains a specific mechanism for its enforcement, while Alternative Measure

42A does not.

Measure 42 specifically defines a mechanism that will be employed to enforce the

fundamental right of Mississippi children to educational opportunity, while Alternative Measure

42A does not. Measure 42 prescribes and authorizes injunctive relief for a violation of its

guarantees, thereby rejecting actions for money damages as a vehicle to cure constitutional

violations. For its part, Alternative Measure 42A leaves open the question whether its provisions

are enforceable, should the Legislature refuse to meet its constitutional obligations. By failing to

prescribe a remedy, Alternative Measure 42A also leaves open the possibility of damage suits

brought to recover funds that the Legislature may have unconstitutionally refused to allocate to

public education. These differences in the two measures are obviously significant.

Perhaps predictably, the Legislature's response to the failure of Alternative Measure 42A

to include any provision for its own enforcement is that no enforcement is necessary: adequate

assurance may be found in the legislative "oath prescribed by Miss. Const. § 40 (1890) that each

34
legislator will learn 'the Constitution of this state, and will endeavor to note, and as a legislator

to execute, all the requirements hereof imposed on the Legislature.'" Brief of Legislature 33.

Thus, we are told, the public may confidently rely for the protection of its rights solely on a

legislative promise to obey the Constitution.

But long experience demonstrates that the separation-of-powers principles woven into

our state and federal constitutions are there for good reason. At both the state and federal levels,

the executive and legislative branches have sometimes acted-and may continue to act-in ways

that are inconsistent with constitutional requirements.

When these episodes occur, it falls to the judiciary to fulfill its constitutional duty to say

what the law is and to vindicate the constitutional rights of our citizens. History teaches that it is

not sufficient simply to rely on expressed intentions of government officials to safeguard our

rights. For that, the judiciary plays the critical role.

Viewed in that light, the specific language of Measure 42 that creates a judicial remedy of

injunctive relief, should such relief become necessary, is perhaps the most essential of the

differences between the two measures, and the one most in need of inclusion in the ballot title for

Alternative Measure 42A.

E. The circuit court's review of the Attorney General's ballot title was de novo.

The Legislature seeks to excuse the Attorney General's failure to meet statutory

requirements by eviscerating the standard of judicial review. The Legislature characterizes the

Attorney General's formulation of a ballot title as an action by an administrative agency,

judicially reviewable under an "arbitrary or capricious" standard. Brief of Legislature at 26-29.

The Legislature has it wrong. Courts defer to factual and policy determinations of

administrative agencies because those agencies act in areas of agency expertise. Accordingly,

the scope of review of fact-based agency decisions is limited; courts apply the substantial
35
evidence rule and arbitrary-and-capricious standard. Hill Bros. Constr. & Engineering Co., Inc.

v. Mississippi Transp. Comm 'n, 909 So. 2d 58, 64 (Miss. 2005); Public Employees' Retirement

System v. Howard, 905 So. 2d 1279, 1284-85 (Miss. 2005).

But judicial deference to agency determinations does not exist if the agency decision

relates to matters of law or statutory interpretations. Those determinations are reviewed de nova.

Ryals v. Board of Supervisors of Pike County, 48 So. 3d 444, 448 (Miss. 2010); Dialysis

Solution, LLC v. Miss. State Dept. of Health, 31 So. 3d 1204, 1211 (Miss. 2010); Div. of

Medicaid v. Miss. Independent Pharmacies Ass 'n, 20 So. 3d 1236, 1238 (Miss. 2009) (no

deference to agency determination that is contrary to statutory language); Miss. Ethics Comm 'n

v. Grisham, 957 So. 2d 997, 1001 (Miss. 2007) (no deference to agency determination that is

contrary to statutory language). In cases in which "an administrative agency errs as a matter of

law, courts of competent jurisdictions should not hesitate to intervene." Miss. State Dept. of

Health v. Baptist Mem. Hospital-DeSoto, Inc., 984 So. 2d 967, 975 (Miss. 2008) (quoting Grant

Ctr. Hosp., Inc. v. Health Group ofJackson, Inc., 528 So. 2d 804, 808 (Miss. 1988)).

The Attorney General's formulation of a ballot title pursuant to an explicit statutory

instruction is a far distance from the agency action considered in the cases cited by the

Legislature. The Attorney General is a constitutional officer, not an administrative agency; his

ballot title formulation makes no factual findings or policy determinations to which deference

need be shown. It partakes far more of a question of law, to which courts need not defer.

The statutory task of the Attorney General is to formulate a 20-word statement that

indicates essential differences in two proposed constitutional amendments. This role has nothing

to do with the agency expertise and discretion that limit judicial review of agency action. The

Attorney General has no special expertise in making the comparisons that Section 23-17-33

36
requires; indeed, a comparison of two initiative measures for purposes of indicating their

essential differences is precisely the sort of task that is common grist for the judicial mill. The

circuit court owed no deference to the Attorney General in formulating such a ballot title.

The ballot title formulated by the Attorney General was defective as a matter of law

because it failed to follow the statutory mandate. Under these circumstances, the circuit court

was entirely correct in rejecting it. Even if the arbitrary-and-capricious standard applied, a ballot

title that ignored the essential differences between the two measures would fail under even that

standard of review.

V. The circuit court's ballot title satisfies Sections 23-17-9 and 23-17-33.

Unlike the Attorney General's ballot title, the circuit court's ballot title accurately

distinguishes Alternative Measure 42A from Measure 42 by indicating that the alternative does

not provide a specific mechanism for enforcing the Legislature's obligation to provide an

effective system of public schools. The circuit court's ballot title complies with the statutory

mandate to fairly distinguish the two measures because, unlike the Attorney General's ballot

title, it does not erroneously assume that judicial enforcement of Alternative Measure 42A will

never be available. 12

The Legislature does not claim that the circuit court's ballot title fails to indicate essential

differences between the two measures. Instead, the Legislature complains of the omission of the

words "free public" from the circuit court's ballot title, and that the ballot title ignores "the

12
Nothing in Alternative Measure 42A indicates that it will not be enforced by courts. This Court often
enforces constitutional provisions that contain no specific enforcement clause. It has enforced
requirements that freedom of the press "be held sacred," Section 13, that liberty not be denied "without
due process," Section 14, that property not be taken without ']ust compensation,'' Section 17, and, with
respect to schools, that ad valorem taxes by a district be used for "its schools," Section 206, and that l 61h
Section lands "shall not be sold" Section 211. Courts around the country have enforced constitutional
provisions to require that their schools meet constitutional standards even though the constitutional
language in question did not include a specific enforcement clause. See, e.g., Arkansas Lake View Sch.
Dist v. Huckabee, 91 S.W. 3d 472 (Ark. 2002).

37
principal enforcement measure of our Constitution"-the Legislature's oath of office. Brief of

Legislature at 8. Neither objection has merit.

The circuit court's decision not to include the words "free public" in the ballot title is

neither significant nor required because both Measure 42 and Alternative Measure 42A include

that phrase. Section 23-17-33 requires the ballot title for a legislative alternative to indicate

differences in competing measures, not to restate provisions that are common to both. However,

if this Court determines to review the circuit court's ballot title on the merits, addition of the

words "free public" would satisfy Section 23-17-33 and remain within the 20-word limitation, so

that the amended ballot title would read:

"Should the Legislature establish and support effective free public schools, but not
provide a mechanism to enforce that right?"

The Legislature's final objection is disingenuous. The Legislature objects that the

enforcement-mechanism statement in the circuit court's ballot title is erroneous because "[t]he

principal reliance for the enforcement of any provision of our Constitution is the oath prescribed

by Miss. Const. § 40 (1890) that each legislator will learn 'the Constitution of this State, and will

endeavor to note, and as a legislator to execute, all the requirements thereof imposed on the

Legislature.'" Brief of Legislature at 33. Since Marbury v. Madison, it has been settled that

under our separation-of-powers system of government, the judiciary possesses the ultimate

authority to interpret the constitution, even when that interpretation may differ from the

construction given it by another branch of government. This Court respects that constitutional

principle. Alexander v. State ex rel. Allain, 441 So. 2d 1329, 1333 (Miss. 1983) (highest court of

a state is the paramount authority for the interpretation of the state's constitution); City of

Belmont v. Miss. State Tax Comm 'n, 860 So. 2d 289, 297 (Miss. 2003); Runnels v. State, 1 Miss.

146 (1823) (judiciary may declare acts of legislature unconstitutional). Similarly, it is the

38
judiciary that sits to protect the citizenry from unconstitutional encroachments by the other two

branches. See United States v. Nixon, 418 U.S. 683, 703-05 (1974). This is not merely an

academic proposition. This Court is often called upon to correct legislative failures to follow the

Constitution. E.g., Presley v. Miss. State Highway Comm 'n, 608 So. 2d 1288 (Miss. 1992);

Alexander v. State ex rel. Allain, supra; Newell v. State, 308 So. 2d 71 (Miss. 1975); Loflin v.

George County Bd. Of Educ., 183 So. 2d 621 (Miss. 1966). Almost 200 years ago, this Court

recognized the outcome if the judiciary did not sit in review of legislative enactments:

If the Legislature in the exercise of an unlimited discretionary power, can overleap the
barriers of the constitution, and put at defiance the fundamental principles of the
government: then, our boasted freedom and independence is all a mere delusion .... "

Runnels, 1 Miss. at 148.

In asserting that no mechanism of review or enforcement is needed to protect

constitutional rights from abuse by the legislative or executive branches, the Legislature ignores

two centuries of the American experience and gives further evidence why an enforcement

mechanism of the kind specifically set out in Measure 42-but pointedly omitted from

Alternative Measure 42A-is an essential difference between the two measures.

A reliance on the Legislature voluntarily to comply with its constitutional obligation not

only ignores long constitutional experience, it flies in the face of current legislative nonsupport

for education that has violated specific funding provisions of the Mississippi Accountability and

Adequate Education Program Act of 1997, Miss. Code §§ 37-151-1, in 15 of the past 17 years,

including the Session just ended. In its ballot title formulation, the circuit court recognized what

is obvious to all-that it is the consistent refusal of the Legislature to provide adequate and

statutorily required funding for public education that has led to both competing measures, and

39
that without some enforcement mechanism to ensure that future legislative actions are more

substantial than those of the past, adoption of either measure may well be a futile act.

CONCLUSION

The Legislature's appeal to this Court should be dismissed for lack of jurisdiction and the

Circuit Court's decision in Ms. Shipman's original appeal should be left undisturbed.

Alternatively, should this Court reach the merits of the Legislature's appeal, it should affirm the

decision of the Circuit Court.

RESPECTFULLY SUBMITTED, this the 1st day of June 2015.

ADRIAN SHIPMAN, Appellee

By: s/ James A. Keith

James A. Keith
One of the Attorneys for Adrian Shipman

James A. Keith (MSB No. 3546)

ADAMS AND REESE LLP
1018 Highland Colony Parkway, Suite 800
Ridgeland, Mississippi 39157
Telephone: 601-353-3234
Facsimile: 601-355-9708
jim.keith@arlaw.com

Carroll Rhodes (MSB No. 5314)

Law Offices of Carroll Rhodes
Post Office Box 588
119 Downing Street
Hazlehurst, MS 39083
Telephone: 601-894-4323
Facsimile: 601-894-1464
crb 9de@bellsouth.net

40
 CERTIFICATE OF SERVICE

I, the undersigned, one of the attorneys for Appellees, do hereby certify that I have filed

this brief electronically via the Court's MEC system, which will deliver copies of the same to all

counsel of record, including:

Paul Eldridge Barnes, Esq.

MS Attorney General's Office
P.O.Box220
Jackson, MS 39205
pbarn@ago.state.ms.us

Michael B. Wallace, Esq.

Charles Edward Cowan, Esq.
Wise Carter Child & Caraway, P.A.
Post Office 651
Jackson, MS 39205-0651
mbw@wisecarter.com
cec@wisecaiier.com

Danny E. Cupit, Esq.

304 North Congress Street
Jackson, MS 39201
decupit@aol.com

Latrice Westbrooks, Esq.

Post Office Box 14203
Jackson, MS 39236
westbrookslegal@gmail.com

This, the 1st day of June 2015.

s/ James A. Keith
One of the Attorneys for
Adrian Shipman