Mississippi Advisory Opinions March 23, 2001: AGO 2000-0738 (March 23, 2001)

Advisory Opinion Text

Senator Alan Nunnelee

Mississippi State Senate

P. O. Box 4080

Tupelo, Mississippi 38803

Re: Constitutional Initiatives

Dear Senator Nunnelee:

Attorney General Mike Moore has received your recent letter in your capacity as a member of the Mississippi State Senate and has asked me to respond. Your letter states:

This letter will serve as a formal request for the opinion of the Attorney General concerning the process by which proposed constitutional initiatives are to be placed on the ballot, specifically regarding the revenue impact statement required under Miss. Const. Section 273(4) and Miss. Code Section 23-17-1(1972)(Supp. 2000) . As I understand the Supreme Court's decision in the recent case of In re Proposed Initiative Measure No. 20, the sponsor "must establish a rational basis to support her assertion that no adverse impact will occur." But the opinion is silent as to exactly what is required in order to satisfy the Constitution if the sponsor asserts that the initiative would have a negative impact on current funding of state programs.

How detailed must the sponsor be in detailing the nature of the impact? Can the statement be set forth in a single sentence or paragraph, or must it be comprehensive? Must she perform an exhausting analysis? Reasonable people may disagree over the economic impact of any issue. When this disagreement occurs, whose figures should be used? Is a proposed initiative rendered unconstitutional merely because the court disagrees with the proffered statistics?

Also, Miss. Const. Art. 17, Section 273(6) and Miss. Code Ann. Section 23-17-31(2) state that "the chief legislative budget officer shall prepare a fiscal analysis of each initiative and each legislative alternative. A summary of each fiscal analysis shall appear on the ballot." What exactly is the role of the chief legislative budget officer here? How does the legislative budget officer's fiscal analysis compare with the revenue impact statement required by Miss. Const. Section 273(4) and Miss. Code Ann. Section 23-17-1(1972) ? Are they the same? If not, how do they differ as to content, substance, and length? And what if the analysis of the legislative budget officer differs from the revenue impact statement of the sponsor? Please advise.

Section 273(3) and Section 273(4) of the Mississippi Constitution of 1890 give qualified electors the power to propose and enact constitutional amendments by initiative and set forth a procedure for placing a proposed initiative on an election ballot to be voted on by the qualified electors of the state. The Constitution thus allows the people to amend the Constitution apart from the legislative process but also creates safeguards for the Constitution by setting forth specific requirements for placing an initiative on an election ballot. As you note in your letter, Section 273(4) of the Constitution requires the sponsor of an initiative to include within the text of the initiative a government revenue impact statement, stating:

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

Miss. Const. Art. 15, Section 273(4), codified in Miss. Code Ann. Section 23-17-1(3)-(4) . The Mississippi Supreme Court in In re Proposed Initiative Measure No. 20, Elizabeth Stoner v. Mahoney, et. al, 2000 WL 1268232 (Miss. 2000) held that a ballot initiative seeking to make for-profit gambling illegal was unconstitutional on the grounds that it failed to include a government revenue impact statement. The Court held that a ballot initiative must include a government revenue impact statement, unless government revenues will not be reduced and government programs will not be reduced or eliminated, stating:

The government revenue impact statement is a requirement designed to protect the integrity of the constitutional initiative process and to prevent the electors of this state from being presented with false and misleading initiative petitions. The people are entitled to the best, most accurate information available when voting on matters of state. When a sponsor of an initiative asserts that the initiative will have no negative impact on current funding of state programs and chooses to exclude a government revenue impact statement from the text of the initiative, that sponsor must establish a rational basis to support her assertion that no such adverse impact will occur.

The Court concluded that Section 273 seeks to balance the rights of individuals, minorities and separate regions of the state with the will of the majority by establishing procedural guidelines and by ensuring that initiatives reflect sound fiscal policy, stating:

Section 273 of the Mississippi Constitution seeks to temper the initiative induced tension between the unchecked will of the majority versus the inherent rights of individuals. The section protects the Bill of Rights and other matters of state interest; seeks to protect the state coffers by requiring rationally based government revenue statements; and seeks to discourage regionalism by requiring broad-based support for any proposed initiative.

The sponsor of an initiative must identify in the text of an initiative the amount and source of revenue required to implement an initiative. If an initiative would reduce government revenues or would require a reduction of funds to programs or a reallocation of funds between programs, then the sponsor must set forth in the text of the initiative exactly which program or programs will be cut back or eliminated. A sponsor must provide sufficient facts so that the voters are informed as to the effect of the initiative on sources of government revenues and current programs. If a sponsor asserts that no adverse impact will occur in sources of government revenues, the sponsor pursuant to the Supreme Court opinion, In Re Proposed Initiative Measure No. 20, "must establish a rational basis to support her assertion." The sponsor must provide sufficient facts, i.e., information from the State Tax Commission on ad valorem tax revenues or sales tax revenues, or other available information on the economic impact on the state treasury, so that a reasonable voter would be able to make an informed decision as to whether the initiative constitutes sound fiscal policy and wise public policy. Exactly how much detail is required to comply with Section 273(4) of the Constitution and Section 23-17-1(3)(Supp. 2000) must be determined on a case by case basis.

The role of the chief legislative budget officer in Art. 17, Section 273(6) of the Constitution and Section 23-17-31(2)(Supp. 2000) in preparing a fiscal analysis of each initiative and each legislative alternative is not specifically described in the Constitution or the statute. The Constitutional section and statute provide for another source of information for the voters on the fiscal impact on the state and its programs from the state officer who has access to the information. Exactly how much detail is required would depend on the facts and circumstances of each case.

The budget officer's analysis and the sponsor's government revenue impact statement required by Section 273 of the Constitution might differ, as you note in your letter. If that occurs, then the voters are nevertheless provided with two sources of information on the ballot as to the impact on the state treasury and government programs. As you know, we do not opine as to whether a particular initiative would comply with the requirements set forth in the Mississippi Constitution pursuant to Miss. Code Ann. Section 7-5-25(Supp. 2000) . If we may be of any further assistance, please let us know.

Very truly yours,

Mike Moore, Attorney General

Alice Wise Special Assistant Attorney General