author: PIERCE, Justice, RANDOLPH, Justice, KITCHENS, Justice,

text:
    Deborah HUGHES and Cristen Hemmins v. Delbert HOSEMANN, P. Leslie Riley, Jr. and Personhood Mississippi.
    No. 2010-CA-01949-SCT.

      Supreme Court of Mississippi
    Sept. 8, 2011.
    Robert B. McDuff, J. Clifton Johnson, II, Alexa Kolbi-Molinas, Suzanne Novak, Diana O. Salgado Aguilar, attorneys for appellants.
    Office of the Attorney General by Harold Edward Pizzetta, III, Stephen M. Crampton, attorneys for appellees.
   PIERCE, Justice,

for the Court:

¶ 1. In November 2008, P. Leslie Riley and an organization known as Personhood Mississippi filed an initiative, now known as Measure 26, with the Office of the Secretary of State. The initiative was qualified by the Secretary of the State to be placed on the general-election ballot. Thereafter, Deborah Hughes and Cristen Hemmins (“Plaintiffs”) filed a complaint for declaratory and injunctive relief in Hinds County Circuit Court against Secretary of State Delbert Hosemann, challenging Measure 26 as a violation of Article 15, Section 273(5)(a) of the Mississippi Constitution.

¶ 2. On August 10, 2010, Plaintiffs filed a motion for judgment on the pleadings. The Secretary of State replied with a response to that motion. Then, on September 30, 2010, the trial court entered and approved an Agreed Order, allowing Riley and Personhood Mississippi (collectively, “Intervenors”) to intervene. In that same order, all parties agreed that this case was “based on questions of law” and “should be resolved by way of judgment on the pleadings.” Subsequently, after considering the motion and responses, having heard oral argument, and being otherwise fully advised in these matters, the trial court denied Plaintiffs’ motion for judgment on the pleadings, finding that they had not carried their heavy burden in attempting to restrict the citizenry’s right to amend the Constitution.

¶ 3. Thereafter, the trial court entered an additional order, titled “Final Judgment.” The trial court ruled that the denial of Plaintiffs’ motion for judgment on the pleadings disposed of the case. Additionally, the trial court ruled that “final judgment is hereby entered in favor of the” Secretary of State and the Intervenors. Plaintiffs now appeal the trial court’s decision.

ANALYSIS

¶ 4. On appeal, Plaintiffs request that this Court reverse the judgment of the trial court, find that Measure 26 is unconstitutional and invalid, and enjoin the Secretary of State from placing Measure 26 on the ballot in the November 2011 election. This opinion in no way speaks to the merits of Measure 26, but rather focuses on whether Measure 26 is ripe for review by the judiciary, which is a question of law. This Court conducts a de novo review of questions of law. Miss. Transp. Comm’n v. Fires, 693 So.2d 917, 920 (Miss.1997).

¶ 5. Throughout the record, Plaintiffs question the substance of Measure 26. However, Plaintiffs have not raised any objections to the form of Measure 26 as set forth in Mississippi Code Sections 23-17-1 to 23-17-61. To be clear, it is the province of this Court to interpret the meaning of the Mississippi Constitution, and no opinion issued by this Court has interpreted the meaning of the word person as it is used throughout the Constitution. The dissent worries that Measure 26 “seeks to modify the definition” of “person or persons” as they appear in the Mississippi Constitution. But those terms have never been defined. Therefore, Measure 26 cannot modify a definition that does not now exist.

¶ 6. Essentially, Plaintiffs ask this Court to render judgment upon the substance of Intervenors’ initiative — its constitutionality — in advance of the election. The dissent questions the majority’s understanding of what Plaintiffs are seeking, yet it is clear that Plaintiffs are requesting a ruling on the substance of the proposal— its text — which is the essence of substantive review. Even my learned colleague admits in dissent that Plaintiffs are attacking the “very text of Measure 26,” which, again, is the fundamental nature of a substantive inquiry. Issuing a ruling on whether the text comports with the Constitution would be the same as issuing a substantive ruling on the constitutionality of the proposal itself, which this Court is without authority to do. Power v. Ratliff, 112 Miss. 88, 72 So. 864, 867 (1916); Barnes v. Barnett, 241 Miss. 206, 129 So.2d 638, 642 (1961). As a matter of judicial policy, this Court does not issue advisory opinions.

¶ 7. Ultimately, the judiciary’s power is restricted in reviewing the constitutionality of a proposal, regardless of whether that proposal is proffered by a legislator or through a voter initiative. Our law provides that this Court cannot interfere with the legislative act of the people, just as this Court cannot interfere with the attempt of the Legislature to pass a law. See Ratliff, 72 So. at 867; see also Barnett, 129 So.2d at 642. Moreover, this Court has found that advance opinions will not be issued to remove alleged clouds or uncertainties from proposed statutes or constitutional amendments. See Ratliff, 72 So. at 867. It is not within the province of this Court to render advisory opinions. Sheldon v. Ladner, 205 Miss. 264, 38 So.2d 718, 719-20 (1949); see also Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 93 (Miss.2010) (“[T]his Court does not issue advisory opinions.”).

¶ 8. In 2000, this Court found that it did have authority to review the constitutionality of proposed initiatives. In re Proposed Initiative Measure No. 20, 774 So.2d 397, 401 (Miss.2000). But the authority which would grant the Measure 20 Court that power is glaringly absent from its analysis. Id. This Court cannot draw upon authority which it does not have. Common Cause of Mississippi v. Smith, 548 So.2d 412, 414 (Miss.1989) (citing Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901, 902 (1943)).

¶ 9. In Measure 20, the Court was presented with a pre-election challenge to “a proposed initiative measure to prohibit gambling within the state, except gambling sponsored by religious, educational or wildlife organizations.” Measure 20, 774 So.2d at 398. The trial court had held that the measure would not be placed on the ballot because, among other things, it “im-permissibly attempted to amend the Bill of Rights[,]” and “failed to include a government revenue impact statement” as required by Article 15, Section 273(4) of the Mississippi Constitution. Id. at 399. On appeal, the Measure 20 Court focused mainly on the sponsor’s compliance with the government revenue-impact-statement requirement of Article 15, Section 273(4). Id. at 401-02. The Court concluded that the measure “clearly violate[d] Section 273(4)” as it did “not include a government revenue impact statement!],]” a defect in form. Id. at 402.

¶ 10. Notwithstanding that dispositive conclusion, the Measure 20 Court expanded its remarks gratuitously to consider whether all measures are subject to “substantive review by the courts.” Id. at 401 (emphasis added). While the Measure 20 Court recognized Ratliff for the proposition that “proposed initiatives will not be reviewed by this or any other court for their wisdom and merit[,] ... [t]he voters make those decisions!],]” it then proceeded to disregard the result and principles announced in Ratliff. Id. (citing Ratliff, 72 So. at 864).

¶ 11. Specifically, without any supporting citation, the Measure 20 Court stated that “proposed initiatives are subject to review of form and, therefore, content inasmuch as content affects form and form affects content. Simply put, initiatives must meet minimum constitutional and statutory requirements, prior to being placed on the ballot to ensure full disclosure and notice to the electorate.” Measure 20, 774 So.2d at 401. The Measure 20 Court added further that there must be a “place” and “procedure” for reviewing the “facial constitutionality of a proposed initiative. ...” Id. But, given Measure 20’s holding that the absence of a government revenue-impact statement “clearly violates Section 273(4)[,]” all additional comments regarding the “substantive review” of proposed initiative measures were mere dicta — surplusage, which no court is bound to follow.

¶ 12. For those who argue that these statements were necessary for the disposition of the case, those conclusions are unfounded. Form and substance are separable, because content relates to what composed something (i.e., the different fibers that together form cloth), whereas form involves appearance or shape (i.e., the color or pattern of the cloth), apart from the materials. If Measure 20 suggests that form is inseparable from content, such a notion is unsupported both by existing law in this State and, more fundamentally, the basic laws of physics. Legally, any attorney who objects to a leading question can appreciate the distinction. See URCCC 1.11; see also Miss. R. Civ. P. 7 cmt. (distinguishing substance and form in motions). Physically, the fact that ice, snow, and steam are all different forms of the same substance (water) undoubtedly illustrates the natural distinction between form and content.

¶ 13. All can agree that “minimum constitutional and statutory requirements” must be met before a measure is “placed on the ballot....” Measure 20, 774 So.2d at 401. There are two stages for challenging an initiative-driven constitutional amendment: 1) pre-election, as to form, and 2) post-election, as to substance. The Measure 20 Court muddied the water, and to the extent that Measure 20 is read to provide pre-election substantive review of proposed constitutional amendments, it is overruled. We agree with the dissent that the wisdom and merit of proposed initiatives are best left to the purview of the voters. See Measure 20, 774 So.2d at 401 (citing Ratliff, 72 So. at 864). Thus, we must return to and follow the proper standard as articulated in both Ratliff and Barnett. This Court is without power to determine the constitutionality of a proposed statute, amendment, or initiative prior to its approval by the Legislature or electorate.

¶ 14. The dissent agrees that Ratliff prohibits substantive challenges, yet it equates the situation at hand to “facial validity,” hinging on the notion that the issue before us concerns “the very text of Measure 26.” Yet, the dissent ignores the fact that this Court cannot address the validity of a proposal prior to an election. The dissent relies upon Robertson to question the validity of the petition, but there is no authority which allows this Court to address the validity of the proposal prior to an election. The Robertson Court possessed the authority to address validity-this is the distinguishing mark of Robertson. Robertson, 93 So. at 772. There, the Court had the power to review validity, as the Constitution at that time allowed validity to be attacked. See id. Nothing in our Constitution as it exists today gives this Court the authority to review the validity of a proposal prior to its enactment, which is exactly what Plaintiffs request this Court to do. This Court is without power to interfere with pre-election proposals, because to do so may place the administration of government at the footstool of the judiciary. Ratliff, 72 So. at 866-67.

¶ 15. In the trial court’s final order, it entered a judgment in favor of the Secretary of State and Intervenors against Plaintiffs. However, neither the Secretary of State nor Intervenors proffered a motion or counterclaim requesting any relief or judgment. Even though one might allege that Measure 26 violates Article 15, Section 273(5)(a), that determination is premature, because this Court would have to review the substantive constitutionality of the proposal prior to its enactment. Additionally, this Court would have to decide issues on appeal that were not clearly or properly addressed by the trial court. We simply cannot render a decision on the constitutionality of a proposal pre-election. See Ratliff, 72 So. at 867; see also Barnett, 129 So.2d at 642. This Court repeatedly has held that we cannot and will not rule upon issues not decided by the trial court below. “Logic is strained at the thought of an appellate court affirming or reversing a decision never made.” Tricon Metals & Servs., Inc. v. Topp, 516 So.2d 236, 239 (Miss.1987). Just as this Court cannot prohibit legislators from offering proposals in the House or Senate, this Court cannot impede voters from submitting proposals through the voter initiative process.

¶ 16. Pre-election challenges of voter-initiative proposals are subject only to the review of the sufficiency of the petition itself (i.e., its form) and not its constitutionality (i.e., its substance). Miss. Const, art. 15, § 273(9); see also Miss.Code Ann. §§ 23-17-13, -23, -25 (Rev.2007). This Court will exercise judicial restraint and follow the reasoning of the majority of courts throughout the United States, both federal and state, which:

have articulated a policy of deference toward direct legislation processes. For example, in an early case the United States Supreme Court declined to review a challenge asserting that the initiative is inconsistent with the federal constitutional guarantee of a republican form of government, declaring the issue a nonjusticiable political question.

James D. Gordon, III & David B. Magle-by, Pre-Election Judicial Review of Initiatives and Referendums, 64 Notre Dame L.Rev. 298, 300-01 (1989) (citing Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 150-51, 32 S.Ct. 224, 231, 56 L.Ed. 377 (1912)). We cannot invade the territory of the Legislature or the electorate to review the substantive validity of a proposed initiative, and thereby, we will honor the maxim embodied in the constitutional mandate of separation of powers. Miss Const, art. 1, §§ 1, 2.

CONCLUSION

¶ 17. Measure 26 is not ripe for review. Thus, we vacate the trial court’s final judgment in favor of Intervenors and Secretary Hosemann. We render judgment, finally dismissing plaintiffs’ complaint and this action without prejudice.

¶ 18. VACATED AND DISMISSED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR AND CHANDLER, JJ., CONCUR. RANDOLPH, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, CHANDLER AND PIERCE, JJ. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, J.

RANDOLPH, Justice,

Specially concurring:

¶ 19. Hughes and Hemmins (“Opponents”) challenge the substantive, facial validity of Proposed Initiative Measure No. 26 (“measure”) and are “anxious to have this [Cjourt pass upon the case upon [those] merits....” Power v. Ratliff, 112 Miss. 88, 72 So. 864, 865 (1916) (citation omitted). This, despite the fact that there remain underlying issues “so serious” that this Court should not “feel justified in waiving or ignoring” them. Id. Those subjects include the absence of justiciability and our judicial policy against issuing advisory opinions, both of which have been astutely addressed by Justice Pierce. I am in complete accord with his analysis, and write separately only to comment upon the subjects addressed by Justice Pierce and to offer additional reasoning why the dissent’s proposed disposition, reversing the judgment of the circuit court and rendering judgment in favor of the Opponents, would be clearly erroneous.

STATUS OF THE PROCEEDINGS

¶ 20. In November 2008, P. Leslie Riley and Personhood Mississippi (“Proponents”) submitted the language of what would become the measure to the Mississippi Secretary of State’s office. Thereafter, some 106,825 certified signatures were collected in support of the measure. In February 2010, the petitions were submitted for filing with Mississippi Secretary of State Delbert Hosemann (“Secretary”) who, following review, stated that “[p]ursu-ant to Mississippi Code Section 23-17-23,

... having found none of the grounds for refusal exists, [the measure] is accepted and filed.” After the Attorney General performed his duties related to the ballot title and summary, the measure was filed with the Legislature. The Legislature then had its opportunity to adopt, amend, or reject the measure. See Miss.Code Ann. § 23-17-29 (Rev.2007). But the Legislature chose none of the aforementioned alternatives during the four months it was in session. Thus, the Secretary followed his mandated duty and “plaee[d] the initiative on the ballot for the next statewide general election.” Id.

¶ 21. Only then did the Opponents file a “Complaint for Declaratory and Injunctive Relief’ to “challenge the constitutionality of’ the measure and enjoin the Secretary from placing it on the ballot. They alleged that the measure “seeks to propose a new provision to the Bill of Rights ... and to modify the terms ‘person’ and ‘persons’ as used throughout the Bill of Rights.... ” The Secretary, as well as the Proponents, denied these allegations in their respective Answers. The Opponents alleged standing “[a]s duly qualified electors and taxpayers of the State of Mississippi,]” which was likewise denied by the Secretary and the Proponents. The Opponents prayed for the circuit court to declare the measure “unconstitutional and invalid[;]” to enjoin the Secretary from even “delivering the measure to the Legislature so that it may appear on the November 2011 ballot[;]” and also to enjoin the Secretary “from placing [the measure] on the ballot.”

¶ 22. In the Opponents’ Rule 12(c) “Motion for Judgment on the Pleadings” and subsequent “Combined Reply to Defendant Secretary of State and Defendant Intervenors Responses in Opposition to Plaintiffs’ Motion for Judgment on the Pleadings” (with submitted supplemental exhibits), they averred that they “do not here challenge the sufficiency of ... Measure 26, but instead challenge its facial constitutionality....” (Emphasis added.)

¶ 23. In response, the Proponents averred that the measure “proposes no new right, ... modifies no existing right, and ... repeals no portion of the existing Bill of Rights.” They cited Article 3, Sections 5 and 6 of the Mississippi Constitution to “underscore] the sovereignty of the people[,]” and pleaded that the Opponents’ efforts “to force the issue off the ballot” would “den[y] the citizens of this great State the right to vote and express themselves on this weighty issue of public importance.” The Proponents also contested standing and subject-matter jurisdiction, which they asserted are “threshold” inquiries that “must be determined before the court has authority to decide whether plaintiff has stated a claim upon which relief may be granted.” Schmidt v. Catholic Diocese of Biloxi, 18 So.3d 814, 821 (Miss.2009); Luckett v. Miss. Wood Inc., 481 So.2d 288, 290 (Miss.1985).

¶ 24. The Opponents submitted no evidence or proof to the circuit court to support either a declaratory judgment or an injunction prior to the “Order” denying the Opponents’ “Motion for Judgment on the Pleadings.” The circuit court first noted that no sufficiency issues were present, as the measure had “the required number of signatures certified by the various clerk offices, was timely submitted to the [Secretary] and has received an official ballot title and summary as required by Miss. Code Ann. Section 23-17-9.” The circuit court further found that the Opponents “carry a heavy burden in attempting to restrict the citizenry’s right to amend the Constitution[,]” as “the Constitution recognizes the right of citizens to amend their Constitution.” The circuit court concluded that the Opponents “have not met their burden[,]” and denied the relief sought. Fourteen days later, the circuit court entered a “Final Judgment” (agreed as to form only), finding “that order disposes of the case.” (Emphasis added.)

ANALYSIS

(1) Ripeness

¶ 25. “It is not the policy of this state to have elections and other political matters of government reserved to legislative discretion to be interfered with by the judges and officers of the judicial department of the government.” Gibbs v. McIntosh, 78 Miss. 648, 29 So. 465, 465-66 (1901). Rather, “the inclination of judicial thought in this state is that elections of all sorts are not to be interfered with by the courts.” Id. at 466 (citing Ex parte Wimberly, 57 Miss. 437 (1879); Ferguson v. Board, 71 Miss. 524, 14 So. 81 (1893)). See also Power v. Robertson, 130 Miss. 188, 230-31, 93 So. 769, 774 (1922) (citing Ratliff, 72 So. at 864) (“declining] to take jurisdiction of [its] controversy, on the ground that equity had no jurisdiction to enjoin elections or enforce political rights.... ”).

¶26. As recognized by Justice Pierce, the Ratliff Court addressed proposed initiative measure-type cases, stating that when:

qualified electors ... are ... attempting the performance of a legislative act, ... courts have no more right to interfere with this legislative act of the people than they have to prevent an abortive attempt of the Legislature to pass a law. The making of ... laws belongs to a coordinate branch of the government, and ... comts have nothing to do with the making, but must deal altogether with the finished product. The complainants in the present proceedings are seeking an advance opinion as to the validity of a constitutional amendment before that amendment has been enforced in a way to affect the substantial property rights of anyone. There is no law authorizing a bill of complaint to remove an alleged cloud on or uncertainty about a statute or constitutional amendment before the same has been put into force and effect in a way to injure the parties complaining.

Ratliff, 72 So. at 867 (emphasis added). The Ratliff Court determined that to rule otherwise “would tend too much to government by injunction. It is time enough to elicit an expression of the court as to the validity of a law or constitutional amendment when the substantial rights of litigants have been invaded.” Id. (emphasis added). As such, only:

[w]hen laws have been passed no doubt in a proper case the inquiry can then be made as to whether or not the requirements of the fundamental law ... in their provisions have been observed, but in the first instance the body to which has been delegated the power to pass laws must be left untrammeled, to act in such matters as its wisdom may dictate.

Id. (quoting O’Reilly v. Mills, Sec’y of State, 30 Colo. 262, 265, 70 P. 322, 323 (1902)) (emphasis added). Thus, the Ratliff Court concluded that the “safer policy” was for it to “refrain from interfering with the free exercise of the legislative functions of government whether attempted to be exercised by the Legislature or by the people in their sovereign capacity.” Id. at 869 (emphasis added).

¶ 27. At present, the measure is mere legislation in process, a not-yet-finished product put forth for debate and consideration by the people, but which has not derived any “vital force” via “the action of the people at the ballot-box.... ” Green v. Weller, 3 George 650, 32 Miss. 650, at *21 (Miss.Err. & App.1856). As the measure is now only a “political matte[r] of government[,]” i.e., a political question, it ought not “be interfered with by the judges and officers of the judicial department of the government.” Gibbs, 29 So. at 465-66. See also Int’l Longshoremen’s & Warehousemen’s Union, Local 37 v. Boyd, 347 U.S. 222, 224, 74 S.Ct. 447, 448, 98 L.Ed. 650 (1954) (“Determination of the scope and constitutionality of legislation in advance of its immediate effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function.”). To do so plainly conflicts with separation-of-powers principles. See Miss. Const. art. 1, §§ 1, 2; Tilson v. Mofford, 153 Ariz. 468, 737 P.2d 1367, 1369 (1987) (“Cjjust as under the separation of powers doctrine the courts are powerless to predetermine the constitutionality of the substance of legislation, so also they are powerless to predetermine the validity of the substance of an initiated measure.”); Ratliff, 72 So. at 867 (quoting O’Reilly, 70 P. at 322) (“[t]he judicial department can no more interfere with ... the successive steps necessary to be taken to amend the Constitution than it can with the [Legislature] in the passage of other laws, because the judicial cannot directly interfere with the functions of the legislative department.”). In exercising the same judicial restraint exhibited by the Ratliff Court, we have validated the sovereign right of the people to vote on this measure, affirming the principle that government is “of,” “by,” and “for” the people, not their elected officials. See Abraham Lincoln, The Gettysburg Address (Nov. 19, 1863). Today’s decision respects the rights of 106,325 citizens who signed these petitions and an incalculable number of citizens who otherwise support a vote, pro or con, on the measure. See Green, 32 Miss. 650, at *21 (a proposition is “to be submitted to the action of the people[,]” and necessarily “derives all its vital force from the action of the people at the ballot-box....”).

¶28. In sum, the present challenge to the substantive, facial validity of the measure is not ripe for consideration. There is time enough in the future to consider whether the measure, if passed, is substantively, facially invalid, vel non. But since the voters of Mississippi may choose to reject this measure, we have properly refused “to anticipate conditions which may never arise.” Ratliff, 72 So. at 868.

(2) Advisory opinion

¶29. Without presenting any facts or evidence, the Opponents seek an impermissible “advance opinion as to the validity of’ the measure before the measure “has been enforced in a way to affect the substantial property rights of anyone.” Ratliff, 72 So. at 867. Today, we follow our long standing policy that we do not “settle questions in the abstract or ... issue advisory opinions.” Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 93 (Miss.2010) (quoting Scoggins v. Baptist Mem’l Hosp.-Desoto, 967 So.2d 646, 649 n. 1 (Miss.2007)). (Maj. Op. at ¶ 7).

¶ 30. According to learned jurist Felix Frankfurter, “[o]ur national experience makes it clear that it is extremely dangerous to encourage extension of the device of advisory opinions to constitutional controversies, in view of the nature of the crucial constitutional questions and the conditions for their wise adjudication.” Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L.Rev. 1002, 1002 (1924). Fundamentally, the reluctance to issue advisory opinions is rooted in separation-of-powers principles. The constitutionally-imposed duty of the courts is to “decid[e] litigated eases....” Id. at 1007 (citation omitted). But courts are not called upon to “sit in judgment upon the wisdom or fairness or utility of legislation. The Supreme Court is not a House of Lords with revisory power over legislation.... Such deference is not merely a gesture of courtesy. It is the formulation of a basic truth in the distribution of governmental powers.” Id. at 1003. Furthermore, in the absence of facts presented, the “tendency to deal with [such issues] abstractedly, to formulate them in terms of sterile legal questions, is bound to result in sterile conclusions unrelated to actualities.” Id. at 1003. The danger in “ill-considered advisory opinions” detached from real, factual contexts is that their well-intentioned propositions may well become “millstones around the necks of succeeding generations[,]” and create the risk that:

[o]ne step taken by the legislature or judiciary in enlarging the powers of government opens the door for another, which will be sure to follow; and so the process goes on, until all respect for the fundamental law is lost, and the powers of the government are just what those in authority please to call them.

Id. at 1008 n. 18; Bell v. City of West Point, 51 Miss. 262, 1875 WL 4692, at *15 (Miss.1875) (Peyton, C.J., dissenting) (citation omitted). Today, this Court wisely avoids these dangers by rejecting the plea to issue a premature and unnecessary advisory opinion.

(3) Failure to State a Cause of Action

¶ 31. Robertson held that the initiative- and-referendum amendment at issue in that 1922 decision permitted challenges to both “the sufficiency and validity of the petition.” Robertson, 93 So. at 772 (emphasis added). As such, the Robertson Court held that “any qualified elector has a right to question the sufficiency and validity of the petition.” Id. at 773 (emphasis added). By contrast, we find no present constitutional authority exists for pre-election appeals regarding the validity of petitions. (Maj. Op. at ¶ 15).

¶ 32. Additionally, in their pleadings, the Opponents have not claimed or offered any proof or evidence to suggest that submission of this measure to the people will result in an invasion of substantive rights resulting in injury. Because there is no “amendment [that] has been enforced in a way to affect the ... rights of anyone[,]” nothing “has been put into force and effect in a way to injure the parties complaining.” Ratliff, 72 So. at 867. As such, where is the “irreparable injury [that] will be done ... by submission of this question to a vote of the people[?]” Id. at 866. No civil rights will be trampled upon and no property will be damaged. Therefore, “[i]t cannot possibly hurt any one for the people to register their choice or will” on this measure. Id. Any adverse effect is only “fanciful or theoretical” at this point. Id. See also Conner v. Gray, 88 Miss. 489, 41 So. 186, 189 (1906) (“They cannot maintain [a] bill simply because they fear some invasion may be made upon their rights as officers”).

¶ 33. Given the absence of any claim of injury or loss of a civil right in the Opponents’ pleadings, where is the justiciable issue? “The proper remedy will be appropriate action to prevent the execution of any proposition voted for [,] ” if an adverse effect can be shown, and the law is unconstitutional. Ratliff, 72 So. at 866 (citing Thompson v. Mahoney, 136 Ill.App. 403 (1907)) (emphasis added). At that point, “if any person’s rights are affected thereby the courts are open for him to test the legality of the” constitutional amendment. Ratliff, 72 So. at 868.

(4) “Motion for Judgment on the Pleadings”

¶ 34. The circuit court was presented only with a “Motion for Judgment on the Pleadings” by the Opponents. The circuit court’s “Order” denying the Opponents’ “Motion for Judgment on the Pleadings” was nonappealable. Nonetheless, the circuit court’s subsequent “Final Judgment,” from which this appeal proceeds, was entirely predicated upon the “Order” denying the Opponents’ “Motion for Judgment on the Pleadings.” Specifically, the “Final Judgment” provided that the “Order” acted to “dispos[e] of the case.” But that “Order” was not case-dispositive, such that this matter is not even properly before this Court. (Maj. Op. at ¶ 15).

¶ 35. Notwithstanding, with this Court having been provided the pleadings and arguments of the parties only on the “Motion for Judgment on the Pleadings,” the dissent is ready to address a significant constitutional issue, regarding the substantive merits of the measure, and concludes that the measure “runs afoul of the minimum constitutional requirements of Article 15, Section 273(5)(a).... ” (Diss. Op. at ¶ 37). Any such conclusion is premature at this stage of the proceedings.

CONCLUSION

¶ 36. I am “not unmindful of the fact that ... on constitutional questions ... ‘an interpretation once deliberately put upon the provisions of such an instrument should not be departed from without grave reasons.’” State ex rel. Collins v. Jones, 106 Miss. 522, 64 So. 241, 253 (1914). However:

we must remember that the nature of our government is such that the Constitution is necessarily committed into the keeping of this [C]ourt; and, when this [C]ourt has erroneously interpreted that instrument, and no harm can follow the correction of such erroneous interpretation, its plain duty is to do so, and thereby enable the express will of the people to be carried into effect. Especially is this tme when the erroneous interpretation has restricted the people in the exercise of a right which they have expressly reserved to themselves.

Id. (emphasis added). Under the Mississippi Constitution:

There is nothing in the nature of the submission which should cause the free exercise of it to be obstructed, or that could render it dangerous to the stability of the government; because the measure derives all its vital force from the action of the people at the ballot-box, and there can never be danger in submitting, in an established form, to a free people, the proposition, whether they will change their fundamental law. The means provided for the exercise of then* sovereign right of changing their Constitution, should receive such a construction as not to trammel the exercise of this right. Difficulties and embarrassments in its exercise are in derogation of the right of free government, which is inherent in the people.

Id. at 248 (quoting Green, 32 Miss. 650, at *21). Finally, as the Robertson Court stated:

It is always a matter of regret that a court feels called upon to change a decision once reached; but official integrity requires a court, when it is fully convinced that its decision is wrong and will result injuriously, to overrule it and decide correctly the proposition put up to it. I am not a believer in overruling decisions, when they are not clearly wrong and hurtful. A Constitution, however, is much more important and sacred than a decision of any court. The people by the Constitution establish a policy for the good of the people themselves. Where a court misconstrues the Constitution or misjudges a case, and its attention is called to it in the proper way, it should make a correction at the earliest date possible.

Robertson, 93 So. at 777 (citation omitted). These well-reasoned principles dictate my departure from the dissent’s reliance upon Measure 20.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, CHANDLER AND PIERCE, JJ„ JOIN THIS OPINION.

KITCHENS, Justice,

dissenting:

¶ 37. The majority finds that this matter is not ripe for review because we are asked to review the constitutionality of Measure 26 without its having been placed on the ballot and enacted by the voters of this state. Because, as a matter of law, this controversy is ripe for review, I must respectfully dissent from the contrary view of my learned colleagues in the majority. Measure 26, facially (as a matter of form) runs afoul of the minimal constitutional requirements of Article 15, Section 273(5)(a), of the Mississippi Constitution; thus, I would reverse the judgment of the Hinds County Circuit Court, First Judicial District, and render judgment in favor of the plaintiffs.

We are faced with a challenge as to form, not of substance.

¶ 38. The majority concedes that “ ‘minimum constitutional and statutory requirements’ ” must be met before a measure is “‘placed on the ballot....’” Maj. Op. at ¶ 13 (quoting Measure 20, 774 So.2d at 401). The opinion goes on to say that “There are two stages for challenging an initiative-driven constitutional amendment: 1) pre-election, as to form, and 2) post-election as to substance.” Maj. Op. at ¶ 13. Indeed, prior to an election, this Court has jurisdiction to decide cases in which a challenge to a proposed initiative is directed at its form and to the question of whether, on its face, the measure meets minimum constitutional and statutory requirements. Where my esteemed colleagues and I disagree is whether at present this Court is faced with a substantive challenge and whether the Court, in In re Proposed Initiative Measure No. 20, 774 So.2d 397 (Miss.2000) (“Measure 20 ”), made provision for a substantive review of proposed constitutional amendments.

¶ 39. The majority erroneously finds that “Plaintiffs ask this Court to render judgment upon the substance of the Inter-venors’ initiative — its constitutionality — in advance of the election.” Maj. Op. at ¶ 6 (emphasis added). Rather, what Plaintiffs are asking this Court to decide is whether the text of the amendment comports with the minimal constitutional requirements of Section 273 of the state constitution. I would hold that Measure 26 is defective in that regard, because the text of the measure purports to add a new section to this state’s Bill of Rights and to modify the meaning of two words which appear some twenty times in our Bill of Rights. This is in direct contravention of Section 273(5)(a) of our state constitution, which reads: “The initiative process shall not be used [f]or the proposal, modification or repeal of any portion of the Bill of Rights to this Constitution.”

¶ 40. The majority is remiss in its reliance on Power v. Ratliff, 112 Miss. 88, 72 So. 864 (Miss.1916), for three reasons: (1) the rule announced in Ratliff does not apply to challenges of an initiative based on form, which is the question before us in today’s case; (2) the Court’s holding in Ratliff was limited to the facts of that case, involving principles of equity and the requirements for obtaining injunctive relief; and (3) the Ratliff court was interpreting the initiative and referendum process as it existed in our constitution in 1916. Thus, it provides no binding legal precedent for interpreting Section 273 as it now appears in the constitution, which did not exist in its current form until 1992. Likewise, the Court, in Barnes v. Barnett, 241 Miss. 206, 129 So.2d 638 (1961), did not announce a blanket prohibition on courts to decide whether initiatives have met minimum statutory and constitutional requirements. To the contrary, the Barnett Court found that the proposed initiative met minimum constitutional requirements under Section 273 as it existed in 1961. Barnett, 129 So.2d at 640-41 (“Constitution Sec[tion] 273 prescribes the necessary publication, and the method followed in the instant case was sufficient compliance with the constitutional requirement.”).

¶ 41. First, the rule announced in Ratliff touches on substantive challenges. As previously mentioned, the majority mistakenly concludes that Plaintiffs have made a substantive constitutional challenge and thus erroneously rely on Ratliff to announce that this Court has no jurisdiction in such matters. The majority cites Ratliff for the premise that “this Court has found that advance opinions will not be issued to remove alleged clouds or uncertainties from proposed statutes or constitutional amendments.” Maj. Op. at ¶ 7; see Ratliff, 72 So. at 867. This prohibits substantive challenges, not challenges to the facial validity of a proposed measure. The question before us is whether the form of Measure 26, on its face, meets minimum constitutional standards.

¶ 42. Additionally, in Ratliff, 72 So. at 865, the complainants had obtained an injunction in chancery court to prevent the secretary of state from referring two proposed initiatives, one providing for alcohol prohibition and one described as the game and fish law, for a vote in accordance with the initiative and referendum amendment. The Court, relying on traditional principles of equitable jurisdiction, reversed the chancellor and dissolved the injunction because the plaintiffs had failed to show that a submission of the initiatives to the electorate would result in irreparable injury. Id. at 865-66. The reasoning behind this holding was that the plaintiffs had failed to show that their petition for in-junctive relief triggered property rights or civil rights. Id. at 865. The Court went on to say that, generally, equity does not provide for enjoining an election. Id. However, the Court also observed:

It is not necessary to say that this rule obtains to the extent that equity will never restrain the holding of an election, for the door of the court is always open to those who seek protection in matters of property and the maintenance of civil rights or who reasonably apprehend the infliction of irreparable injury ... [I]f an election is attempted to be held without authority of law, equity might well interfere.

Id. Thus, Ratliff does not say that an election will never be enjoined if it is to be held without authority of law. If Measure 26 is placed on the ballot, not having met minimum constitutional standards under Section 273, this, indeed, will be an election conducted without authority of law.

¶43. It is noteworthy that the standards applied in Ratliff were those apropos to obtaining injunctive relief. Thus, the analysis in Ratliff is limited to its facts, namely, whether those plaintiffs were entitled to injunctive relief under traditional principles of equity. The Court first distinguished Ratliff in Power v. Robertson, 130 Miss. 188, 93 So. 769, 774 (Miss.1922): “[T]he only thing that the court decided [in Ratliff ] was that equity had no jurisdiction in such cases. Quite a different question is presented here, because it is a circuit court whose jurisdiction is invoked, and whose judgment is sought to be reviewed in this ease.” As the Robertson Court explained, Ratliff was decided “on the ground that equity had no jurisdiction to enjoin elections or enforce political rights,” a conclusion with which the Court concurred. Robertson, 93 So. at 774. However, the Robertson Court found that jurisdiction was proper in circuit court where the challenge involved the sufficiency of the petition in favor of the initiative, namely the qualifications of the electorate. Id. at 775 (“[Circuit court has jurisdiction of all questions cognizable in the courts that have not been exclusively vested in other courts.”) (citations omitted). In so doing, the Court reasoned:

In our opinion any qualified elector has a right to question the sufficiency and validity of the petition. The initiative proceeding, reserving the legislative power in the people, makes each elector, if the amendment is valid, a part of the legislative machinery, and with rights as such in the enactment and proposal of legislation. The people who oppose the measure in our opinion have equal rights with those who favor the measure.

Id. at 773. Although Robertson interpreted the initiative process as it existed in 1922, it is clear that the Court was deciding, in advance of the election, whether the petition was valid and thus, whether the proposed initiative met minimum constitutional requirements, the same question before us today.

¶ 44. Finally, this Court, in State ex rel. Moore v. Molpus, 578 So.2d 624, 639 (Miss.1991), explained that constitutional interpretation by this Court is tied to the text of our constitution as it existed at the time the decision was handed down.

[Power v. Robertson, 130 Miss. 188, 93 So. 769 (Miss.1922) ] is an interpretation of Section 273 as it existed prior to 1959. Courts do not normally overrule readings of statutes which have been amended. The obvious reason is that the amendment itself overrules the prior interpretation, which becomes for all practical purposes relegated to history. There is no reason why the same principle should not apply to a provision of the Constitution such as Section 273.

Thus, Ratliff has no binding precedential value on this Court’s interpretation of the requirements of Section 273 of the state constitution, since it did not exist in its current form until 1992. Just as Justice King astutely recognizes in his dissent in today’s companion case, Speed v. Hosemann, 2011-CA-01106, Measure 20 is the only binding legal precedent that interprets the current initiative process.

¶ 45. In Measure 20, 774 So.2d at 399, the Court was presented with the issue of whether the circuit court had exceeded its authority in setting aside a proposed initiative making gaming illegal in this state due to the proposed measure’s failure to include a government revenue-impact statement, as required by both statute and Section 273(4) of the Mississippi Constitution, and due to the measure’s attempted prohibition of rights granted to citizens of this state under the Bill of Rights of the state constitution. The Court in Measure 20, having decided that jurisdiction had been proper in the circuit court under Article 6, Section 156, of the state constitution, affirmed the circuit court’s finding that the proposed measure was unconstitutional for its failure to include the government revenue-impact statement, as required by Section 273(4) of the state constitution. Id. at 402. In reaching that holding, the Court reasoned:

[Proposed initiatives are subject to review of form and, therefore, content inasmuch as content affects form and form affects content. Simply put, initiatives must meet minimum constitutional and statutory requirements, prior to being placed on the ballot to ensure full disclosure and notice to the electorate.

Id. at 401. This language clearly is not dictum, as the majority suggests, because it is directly linked to the holding in the paragraph immediately following, in which this Court decided that Measure 20, on its face and in its form, did not comport with Section 273(4) of the state constitution, due to its omission of a government revenue-impact statement. See id. at 401-02. Thus, the measure did not meet the minimal constitutional standards of Section 273 and could not be placed on the ballot. It is inescapably obvious that this was a pre-election determination by Mississippi’s judiciary.

¶46. The issue that the Measure 20 Court did not reach was the substantive challenge to the measure, specifically, whether the circuit court had exceeded its authority in setting it aside because it was an attempted prohibition of rights guaranteed to citizens under our Bill of Rights. In fact, the Court explicitly declined to do so, citing Power v. Ratliff, 112 Miss. 88, 72 So. 864 (1916), for the premise that neither this Court nor “any other court” may review proposed initiatives “for their wisdom and merit,” because that is solely within the discretion of the voters. Measure 20, 774 So.2d at 401.

¶ 47. The majority finds it necessary to overrule Measure 20 “to the extent that [it] is read to provide pre-election substantive review of proposed constitutional amendments” and complains of its glaring lack of authority in holding that the circuit court may decide a substantive challenge pre-election. Measure 20 explicitly holds that initiatives are “subject to review of form,” not substance. Id. at 402. Contrary to the majority’s reading of Measure 20, the Court in that case did not equate content with substance, but rather referred to content merely to mean the plain language, i.e., text, of the initiative and whether that text comported with the applicable statutory requirements and the requirements of Section 273 of the state constitution. Given that the Court in Measure 20 was in no way deciding the case on the underlying merits of whether prohibiting gambling was unconstitutional under the Bill of Rights, the Court’s holding did not hinge on the substantive issue.

¶ 48. The same task is before us today: to decide whether the text of Measure 26 meets the minimal constitutional requirements of Section 273. None of the parties has argued that Measure 26 runs afoul of the rights guaranteed the citizens by our Bill of Rights. Whether Measure 26 limits or expands the rights enumerated within Mississippi’s Bill of Rights is of no moment, for this Court is asked only whether the plain language of Measure 26 makes the initiative a “proposal, modification or repeal” of any portion of the Bill of Rights as prohibited by Section 27S(5)(a).

This Court has subject matter jurisdiction over today’s case.

¶ 49. In the present case, just as in Measure 20, jurisdiction was proper in the circuit court. Article 6, Section 156, of the state constitution is the source from which the circuit court derives its authority to hear certain civil matters. Where proper jurisdiction is present in the court below, this Court has “such jurisdiction as properly belongs to a court of appeals.” Miss. Const, art. 6, § 146. Accordingly, proper jurisdiction of the direct appeal of this case lies with this Court. Hence, this matter was ripe for review upon final judgment of the trial court.

Measure 26 does not meet the minimum constitutional requirements.

¶ 50. In order to initiate a proposed amendment to the constitution of this state, any qualified elector may do so by filing with the Secretary of State a typewritten copy of the proposed initiative, as well as an affidavit stating that the sponsor of the initiative is a qualified elector. Miss.Code Ann. § 23-17-1(2) (Rev.2007). The text of the proposed initiative must identify “the amount and source of revenue required to implement the initiative,” any programs requiring a reduction or reallocation of funding in order to implement the initiative, and “all information required under Section 273, Mississippi Constitution of 1890.” Miss.Code Ann. § 23-17-1(3),(4) (Rev.2007). One such requirement under Section 273(5)(a) is that the initiative must not include language that holds the amendment out to be a “proposal, modification or repeal” of our Bill of Rights. Miss. Const, art. 15, § 273(5)(a). Measure 26, is in fact, both a proposal to and a modification of the Bill of Rights.

¶ 51. Measure 26 reads as follows:

SECTION 1. Article III of the constitution of the state of Mississippi is hereby amended BY THE ADDITION OF A NEW SECTION to read:
Section 33. Person defined. As used in this Article III of the state constitution, “The term ‘person’ or ‘persons’ shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof.”

(Capitalization original.) Thus, the text of Measure 26 purports, on its face, to be a new section of the Bill of Rights, in other words, a proposal concerning the Bill of Rights, explicitly prohibited by Section 273(5)(a).

¶ 52. The words person and persons appear some twenty times throughout the Bill of Rights. Measure 26 seeks to modify the definition of these words. The several articles of our state constitution are numbered in Arabic numerals, not Roman numerals, as appears in SECTION 1 of Measure 26. It is clear, however, that the plain language of Measure 26 seeks to amend Article 3 of our state constitution, which contains our state Bill of Rights, and nothing else. To amend is to modify; these familiar English words are interchangeable. To attempt to make an addition to the portion of a constitution that is the Bill of Rights, and nothing but the Bill of Rights, is without question, a proposal to make a modification to a fundamental, bedrock portion of our law that the people clearly have the right to modify, but not in this manner. The judiciary of this state has not only the authority, but the duty, to enjoin such an obvious violation of the state constitution that every member of this state’s judicial branch of government has taken a solemn oath to uphold.

¶53. Measure 20, 774 So.2d at 402, stands for the premise that a pre-election challenge to a proposed amendment may properly be had in circuit court to determine whether the amendment meets minimum statutory and constitutional requirements. Today’s case should be decided under this established premise, and Measure 20’s interpretation of Section 273 should be upheld for the sake of constitutional stare decisis, not further confused with an erroneous interpretation. In deciding this issue, I am reminded of the wise analysis of Justice Robertson, writing for the Court in Moore, 578 So.2d at 638:

Constitutional stare decisis bears a separate dimension. It addresses the legitimacy of process more than immediate results or specific interpretations, about which judges inevitably will differ. At stake is public confidence in our disinterestedness. Expositions of the Constitution should be grounded in law and not the proclivities of individuals, nor the politics of the moment. Legal interpretation does and should change with the times and the frequent agent of that change is a change in judicial personnel, but it is accepted that public confidence in the law requires substantial stability in the face of such changes. We must be careful lest bur interpretations reflect the idiosyncratic views of judges rather than the shared and enduring values of the people embodied in the Constitution we are sworn to serve.

The people of Mississippi have reserved for themselves in Section 273(5)(a) the constitutional guarantee that their Bill of Rights shall not be added to, modified, or repealed by the initiative process. This Court is sworn to uphold the will of the people as voiced in their constitution, not sacrifice it for the will of the proponents or opponents of any particular measure.

¶ 54. For these reasons, I find that Measure 26 is invalid on its face, because it is both a proposed addition to and a modification of the Bill of Rights. Therefore, I would reverse the circuit court’s denial of Plaintiffs’ motion for judgment on the pleadings, and enjoin the placement of Measure 26 on the ballot.

KING, J., JOINS THIS OPINION.

      .Plaintiffs did not dispute the form of the petition, as they did not challenge the sufficiency of the petition and/or the ballot title or summary of the proposed initiative measure. See Miss.Code Ann. §§ 23-17-13, -23, -25 (Rev.2007).

      . In the trial court’s October 26, 2010, order, it stated that it had heard oral argument. No transcript of an oral argument is in the record on appeal.

      . They question the meaning of the words used within the text of Measure 26.

      . The initiative and referendum amendment, which had been inserted into the Mississippi Constitution following a general election in November 1914, was deemed unconstitutional and void in 1922. See State ex rel. Moore v. Molpus, 578 So.2d 624, 628 (Miss.1991); Power v. Robertson, 130 Miss. 188, 93 So. 769, 775-77 (1922). Thereafter, a specified initiative process was nonexistent in Mississippi until 1992, when Article 15, Section 273 of the Mississippi Constitution was amended to provide that “[ajmendments to this Constitution may be proposed by the Legislature or by initiative of the people." Miss. Const, art. 15, § 273(1) (emphasis added). In 2000, Measure 20 provided the first appellate challenge to a proposed initiative measure following the 1992 amendment.

      . The dissent erroneously finds that the Measure 20 Court did not equate content with substance. Yet, that is exactly what that Court did in finding that content affects form and form affects content. See Measure 20, 774 So.2d at 401.

      . This is an objection to its form, although the content of the question may pertain to the most critical element of the case.

      .We agree with the dissent's proposition that the Measure 20 Court in no way decided the case on the underlying merits of whether prohibiting gambling is unconstitutional under the Bill of Rights, but to the extent Measure 20 is read otherwise, it is overruled.

      . “The making of the laws belongs to a coordinate branch of the government, and the courts have nothing to do with the making, but must deal altogether with the finished product." Ratliff, 72 So. at 867 (emphasis added).

      . When read in accordance with Mississippi Code Sections 23-17-1 to 23-17-61, “sufficiency of petitions” found in Article 15, Section 273(9) refers to Mississippi Code Sections 23-17-13, -23, -25.

      . Mississippi Code Section 23-17-13 allows a challenge of the ballot title or summary formulated by the Attorney General. Miss. Code Ann. § 23-17-13 (Rev.2007).

      . Mississippi Code Section 23-17-23 allows the Secretary of State to refuse to file an initiative because: the petition is not in the proper form; the petition bears insufficient signatures; one or more of the signatures on the petition is invalid; the time within which the petition can be filed has expired; and the petition is not accompanied with appropriate filing fee. Miss.Code Ann. § 23-17-23 (Rev. 2007).

      . Mississippi Code Section 23-17-25 provides that if the Secretary of State refuses to file an initiative, the sponsor of the initiative can seek an order from this Court requiring the Secretary of State to bring the petition before the Court and for a writ of mandamus compelling him to file it. Then, this Court can review only the "legal form,” the signatures, the time within which the initiative was filed, and whether the petition was accompanied with the appropriate filing fee. Miss. Code Ann. § 23-17-25 (Rev.2007).

      . I add the following to supplement Justice Pierce’s introduction and highlight the procedural posture of this case when it arrived at our doorstep.

      . The Proponents contend that approximately 130,000 "signatures from qualified electors” were collected. In either case, the figure far exceeded the requirement of 89,285 certified signatures, at least 17,857 of which were from each of Mississippi's former five congressional districts. See Miss. Const, art. 15,§ 273(3). I also note that In re Proposed Initiative Measure No. 20, 774 So.2d 397 (Miss.2000), involved a suit filed before any signatures were obtained by the sponsor.

      . See Miss.Code Ann. § 23-17-9 (Rev.2007).

      . Article 3, Sections 5 and 6 of the Mississippi Constitution provide, in pertinent part, that:
      Sec. 5. All political power is vested in, and derived from, the people; all government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.
      Sec. 6. The people of this state have the inherent, sole, and exclusive right to regulate the internal government and police thereof, and to alter and abolish their constitution and form of government whenever they deem it necessary to their safety and happiness....
      Miss. Const, art. 3, §§ 5, 6 (1890).

      . If the measure is not passed, there will be no issue requiring judicial determination.

      . For instance, "[cjoncepts like 'liberty' and 'due process’ are too vague in themselves to solve issues. They derive meaning only if referred to adequate human facts. Facts and facts again are decisive.” Frankfurter, A Note on Advisory Opinions, 37 Harv. L.Rev. at 1004-05.

      . Notably, the former initiative-and-referendum amendment also provided that ”[i]n the event of legal proceedings in any court to prevent giving effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition." Robertson, 93 So. at 772 (quoting Chapter 159, Laws of 1916) (emphasis added).

      . Typically, when a plaintiff’s "Motion for Judgment on the Pleadings” is denied, the parties will meet and prepare a scheduling order and otherwise prepare for a trial.

      . I note that Secretary of State Hosemann, in his brief and in reliance on In re Proposed Initiative Measure No. 20, 774 So.2d 397 (Miss.2000) (“Measure 20 "), states: "Initiative Measure No. 26's compliance with Section 273 of the Constitution is subject to judicial review prior to inclusion on the ballot.” He goes on to concede: "[Tjhis matter is ripe for resolution.” Moreover, neither the trial court nor any of the parties has raised the issue of the Mississippi courts' authority to hear this case.
      I acknowledge that subject matter jurisdiction may be raised sua sponte by the Court and is never waived. Esco v. Scott, 735 So.2d 1002, 1006 (Miss.1999) ("[Sjubject matter jurisdiction may not be waived and may be asserted at any stage of the proceeding or even collaterally.”) (citation omitted). However, I believe the Secretary’s reliance on Measure 20 is a testament to the importance of stare decisis and the need to preserve the holding of Measure 20. See State ex rel. Moore v. Molpus, 578 So.2d 624, 634 (Miss.1991) ("[SJtare decisis proceeds from that first principle of justice, that, absent powerful countervailing considerations, like cases ought to be decided alike.”).

      . Since the challenge before this Court in this case is not whether the substance of Measure 26 is in direct contravention of the Bill of Rights, I reserve for another day a discussion of whether I believe this Court can be divested of its jurisdiction by the Legislature in cases involving substantive, pre-election challenges. See Miss. Const, art. 6, § 146 ("The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals....”); Miss. Const, art. 1, § 1 ("The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.”).

      . Article 6, Section 156, of the Mississippi Constitution states: "The circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this Constitution in some other court.”

      . Article 3 of the Mississippi Constitution is entitled BILL OF RIGHTS.


source: Caselaw Access Project

author: LAMAR, Justice, CHANDLER, Justice, KING, Justice,

license: Public Domain

text:
    Leland SPEED v. Delbert HOSEMANN, Secretary of State of Mississippi and David Waide.
    No. 2011-CA-01106-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.

      Luther T. Munford, Robert Gregg Mayer, Fred L. Banks, Jr., Jackson, Ronald D. Farris, attorneys for appellant.
    Office of the Attorney General by Harold Edward Pizzetta, III, Sam E. Scott, attorneys for appellees.
   LAMAR, Justice,

for the Court:

¶ 1. David Waide filed an Initiative with Mississippi Secretary of State Delbert Hosemann, and Hosemann has approved it for placement on the November 2011 general election ballot.

¶ 2. Leland Speed filed a complaint against Hosemann in the Hinds County Circuit Court, along with a Motion for Expedited Declaratory and Injunctive Relief, asking the court to declare Initiative 31 unconstitutional and to enjoin Hosem-ann from placing it on the ballot. Speed argued that Initiative 31 “violates Section 273(5)(a) because that section prohibits use of the initiative process for the ‘proposal, modification or repeal’ of ‘any portion’ of the Constitution’s Bill of Rights.” Speed argued that Initiative 31 was a “ ‘proposal, modification or repeal’ of the Bill of Rights ... and more specifically of its Section 17, which governs taking of private property for a public use.”

¶ 3. After Hosemann and Waide responded to Speed’s pleadings, Speed filed a Motion for Judgment on the Pleadings, in which he argued that the case “involve[d] a pure issue of law with no material facts in dispute” and asked the court to enter judgment in his favor under Mississippi Rule of Civil Procedure 12(c). The trial judge both denied Speed’s motion for judgment on the pleadings and ruled on the merits, finding that Speed’s complaint should be dismissed with prejudice and ordering that Hosemann be allowed to proceed in placing Initiative 31 on the ballot.

¶ 4. On appeal, Speed asks this Court to reverse the trial judge, declare that Initiative 31 violates Section 273(5) of the Mississippi Constitution, and “keep Initiative 31 off the November ballot.”

¶ 5. We find that the issue presented in this appeal, i.e., the constitutionality of proposed Initiative 81, is not ripe for adjudication by this Court, such that any opinion thereon would be improperly advisory. Speed filed his complaint only two months ago, and the case already has arrived on our docket. This case has been rushed through the trial court and efficiently punted to this Court for “expedited review.” We find no good reason for the frenetic, fast-paced atmosphere surrounding this case, and we think there is “time enough to pass upon such important questions when they are reached in due course, with proper parties, in a proper proceeding.” Power v. Ratliff, 112 Miss. 88, 72 So. 864, 865 (1916).

¶ 6. In Ratliff contestants obtained an injunction against Secretary of State Joseph Power to prevent him from “taking the steps necessary to refer ... several acts of the Legislature to an election by the people,” and Power appealed. Id. at 865. This Court dissolved the injunction and dismissed the action, noting the general rule that “an injunction will not lie to restrain the holding of an election.” Id. And regarding pre-election review of initiatives specifically, the Ratliff Court observed that when:

qualified electors are ... attempting the performance of a legislative act, ... courts have no more right to interfere with this legislative act of the people than they have to prevent an abortive attempt of the Legislature to pass a law. The making of the laws belongs to a coordinate branch of the government, and the courts have nothing to do with the making, but must deal altogether with the finished product. The complainants ... are seeking an advance opinion as to the validity of a constitutional amendment before that amendment has been enforced in a way to affect the substantial ... rights of anyone. There is no law authorizing a bill of complaint to remove an alleged cloud on or uncertainty about a statute or constitutional amendment before the same has been put into force and effect in a way to injure the parties complaining.

Id. at 867 (emphasis added). As such, only:

“[wjhen laws have been passed no doubt in a proper case the inquiry can then be made as to whether or not the requirements of the fundamental law in then-passage or in their provisions have been observed, but in the first instance the body to which has been delegated the power to pass laws must be left untrammeled, to act in such matters as its wisdom may dictate.”

Id. (citation omitted) (emphasis added). So, as the Ratliff Court concluded, the “safer policy” is to “refrain from interfering with the free exercise of the legislative functions of government whether attempted to be exercised by the Legislature or by the people in their sovereign capacity.” Id. at 869 (emphasis added).

¶ 7. We find this reasoning compelling and see no reason to retreat from it today. As it presently stands, Initiative 31 is proposed legislation put forth for public debate and discourse. It has not been “put into force and effect in a way to injure the parties complaining.” Id. at 867. We find that general challenges to an initiative’s substantive constitutionality, such as the one before us today, are not justiciable before the initiative has been enacted by the electorate.

¶ 8. Speed relies on this Court’s decision in In Re Proposed Initiative Measure No. 20, 774 So.2d 397 (Miss.2000), to bring this pre-election action. There, the proponent of a proposed initiative appealed after the circuit court had held that her initiative would not be placed on the ballot. Id. at 399-400. The Measure 20 Court agreed that the initiative could not be placed on the ballot, because it did not include an economic impact statement (a defect in form). Id. at 402.

¶ 9. But the Measure 20 Court went on to hold implicitly that substantive challenges to proposed initiatives also are proper for pre-election review. Id. at 401-02. Citing no constitutional, statutory, or caselaw authority, the Measure 20 Court stated that “proposed initiatives are subject to review of form and, therefore, content inasmuch as content affects form and form affects content.” Id. at 401 (emphasis added). The lack of authority is no surprise, as such authority is nonexistent. In fact, our existing caselaw has held exactly the opposite. According to Ratliff, “the courts ... must deal altogether with the finished product.” Ratliff, 72 So. at 867. While we agree that “minimum constitutional and statutory requirements” must be met before a measure is placed on the ballot, a pre-election review of an initiative is limited to matters of form, i.e., the sufficiency of signatures and/or the ballot title or summary. See Miss. Const, art. 15, § 273(9); Miss.Code Ann. §§ 23-17-13, -23, -25 (Rev.2007). For these reasons, and the reasons stated in Hughes v. Hosemann, a decision also issued by this Court this date, Measure 20 is overruled to the extent that it allows pre-election substantive review of proposed initiatives.

¶ 10. In sum, the present challenge to the substantive validity of Initiative 31 is not ripe for consideration. There is time enough to consider whether the measure, if passed, is substantively invalid. But since the voters of Mississippi may choose to reject this measure, this Court “ ‘ought not ... be called upon to anticipate conditions which may never arise.’ ” Ratliff 72 So. at 868 (citation omitted). Thus, we decline today to consider the issues raised in Speed’s appeal. But we note, as did the Ratliff Court, that “[i]n declining to assume jurisdiction it necessarily follows that we intimate no opinion whatever upon the merits of the important questions attempted herein to be submitted for our decision.” Ratliff 72 So. at 869. We therefore vacate the circuit court’s judgment, and we dismiss Speed’s complaint and this action without prejudice.

¶ 11. VACATED AND DISMISSED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, CHANDLER AND PIERCE, JJ., CONCUR. CHANDLER, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., DICKINSON, P.J., RANDOLPH AND PIERCE, JJ. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, J.

CHANDLER, Justice,

specially concurring:

¶ 12. I write separately to clarify that Speed makes a constitutional challenge to the use of the initiative process as the mechanism for enacting proposed Initiative 31. Certainly, our constitution prohibits the use of the initiative process for the proposal, modification, or repeal of a portion of the Bill of Rights. Miss. Const, art. 15, § 273(5). But the Court would have to review the substance of proposed Initiative 31 to determine whether proposed Initiative 31 is a proposal, modification, or repeal of a portion of the Bill of Rights. Principles of justiciability prevent us from undertaking substantive review prior to passage of the proposed initiative. For this reason, I concur with the majority that this case is not ripe for our consideration.

WALLER, C.J., DICKINSON, P.J., RANDOLPH AND PIERCE, JJ, JOIN THIS OPINION.

KING, Justice,

Dissenting:

¶ 18. With appropriate respect for the majority, I dissent.

¶ 14. At the outset, let me say that I, too, share the majority’s concern about the seemingly frenetic speed with which this matter has moved through the trial court and landed on the docket of this Court. However, I would be remiss if I did not also question the frenetic speed with which this matter is being handled on this Court’s docket. This is particularly true when one views the majority’s disposition of this case. While this is doubtlessly a matter of some importance, so too are the many other cases which are placed before the trial court and this Court.

¶ 15. The majority, relying on Power v. Ratliff, 112 Miss. 88, 72 So. 864 (Miss.1916), holds that “the present challenge to the substantive validity of the measure is not ripe for consideration.” If as the majority finds, this case is not yet ripe for resolution, then it must also follow that the frenetic pace at which this case has been addressed, both by the trial court and this Court, is not warranted. However, I believe that the majority’s reliance on Ratliff is misplaced.

¶ 16. Initiative 31 and Ratliff are clearly distinguishable. Initiative 31 concerns a voter-driven initiative. This method of amending the Constitution did not even exist until 1992, well after the Ratliff decision. See 1992 Miss. Laws 1318-1322. Ratliff, on the other hand, addressed whether laws passed by the Legislature specifically laws concerning liquor, hunting, and fishing — could be subject to popular vote. Ratliff, 72 So. at 865-66. Also, the proposed measures in Ratliff did not seek to propose, modify, or repeal any section of the Bill of Rights. Furthermore, Mississippi Constitution Article 15, Section 273(5) did not exist at that time. See 1912 Miss. Laws. 450-51. In other words, “the gravamen of the bill after all is an injunction against the exercise by the people of a veto power upon the legislature in question.” Ratliff, 72 So. at 866. Ratliff did not address the issue before us today.

¶ 17. However, In Re Proposed Initiative Measure No. 20, 774 So.2d 397 (Miss.2000), is an analogous case. Measure 20 addressed a voter-driven initiative to prohibit gambling within the state, with exceptions. Id. at 398. Yes, it is true that the Measure 20 Court ultimately resolved that case on whether the sponsor of the initiative had failed to provide a government revenue-impact statement. Id. at 401-402 (¶¶ 18-20). But equally true, the Measure 20 Court also addressed the issue before us today — whether the content of a voter-driven initiative is subject to review. Id. at 400-401 (¶¶ 13-17).

¶ 18. The majority dismisses that holding of Measure 20 as merely dicta. I disagree. Black’s Law Dictionary defines “dictum” as “[a] statement, remark, or observation. Gratis dictum; a gratuitous or voluntary representation; one which a party is not bound to make. Simplex dictum; a mere assertion; an assertion without proof.” Black’s Law Dictionary-454 (6th ed. 1990). The holding of the Measure 20 Court fails to come within either definition of dictum. The Measure 20 Court specifically held that courts have jurisdiction to review the constitutionality of a proposed measure before it is placed on the ballot, stating that:

Stoner argues that the proper and only time that the courts may review the constitutionality of a proposed initiative is after the electoral die is cast in a general election. In effect, she argues for unbridled ballot box chaos. This argument runs counter to all notions of ballot box efficiency and notice to the electorate.
We hold today that §§ 2B-17-1 et seq. do not divest the Circuit Court of the First Judicial District of Hinds County of its jurisdiction as set forth in section 156 of the Constitution. As such, this circuit court is the proper venue and has jurisdiction to review the facial constitutionality of proposed initiatives.

Measure 20, 774 So.2d at 401 (¶¶ 15-16). Beyond question, the issue of the authority of the Court to conduct a pre-ballot review of the facial constitutionality of proposed initiatives was before the Measure 20 Court. The Measure 20 Court acknowledged that proposed initiatives should not be reviewed for merit or lack thereof. Id. at 401 (¶ 17) (citing Ratliff, 72 So. 864). But the Court held that proposed initiatives should be reviewed for form, and content is reviewed “inasmuch as content affects form and form affects content.” Id.

¶ 19. The majority claims that the Measure 20 Court did not cite authority for its position and, thus, its holding is only dicta. Once again, I disagree. The authority for that holding is implicit in the Mississippi Constitution.

¶ 20. Circuit courts have jurisdiction to determine whether proposed initiatives violate the constitution. Section 156 of the Constitution provides, in part, that “[t]he circuit court shall have original jurisdiction in all matters civil and criminal in this state not vested by this constitution in some other court....” Miss. Const, art 6, § 156. Section 146 of the Constitution provides this Court with appellate jurisdiction of such matters, providing, in part: “The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals and shall exercise no jurisdiction on matters other than those specifically provided by this Constitution or by general law.” Miss. Const, art 6, § 146.

¶21. Mississippi Constitution Article 15, Section 273(5), provides, in pertinent part, that: “The initiative process shall not be used ... [f]or the proposal, modification or repeal of any portion of the Bill of Rights of this Constitution[.]” Any proposed initiative which runs contrary to Section 273(5) does not meet the procedural requirements for submission as a voter-driven initiative. The Constitution strictly prohibits any such act. It follows that circuit courts must review the content of a proposed initiative to determine whether it procedurally violates Section 273(5). Such an inquiry does not (and should not) address the merits or lack thereof of the proposed initiative. Logically, it follows that this Court has jurisdiction to review the circuit court’s ruling.

¶ 22. The majority further seeks to dismiss this Court’s holding in Measure 20 by saying, “But the Measure 20 Court went on to implicitly hold that substantive challenges to proposed initiatives are also proper for pre-election review. Citing no constitutional, statutory, or caselaw authority, the Measure 20 Court stated that ‘proposed initiatives are subject to review of form and, therefore, content inasmuch as content affects form and form affects content.’ The lack of authority is no surprise, as such authority is nonexistent. In fact, our existing caselaw has held exactly the opposite.” (Citations omitted).

¶ 23. First, it must be noted that, to the extent the ruling in Measure 20 conflicts with prior rulings of this Court, such as Ratliff, it is the last-adopted ruling and should take priority. The Supreme Court has stated that “when we embark upon [a] new interpretation [of the Constitution] we must divine that interpretation which best fits the constitutional text and which flows from the best justification that may be given for the continued inclusion of that text in the Constitution.” State ex rel. Moore v. Molpus, 578 So.2d 624, 637 (Miss.1991) (citations omitted). One year after the Supreme Court’s ruling in Molpus, Section 273 was amended to include,, among others, subsections 3 and 5. See 1992 Miss. Laws 1318-1322.

¶24. The Molpus court also stated that:

[Power v. Ratliff ] is an interpretation of Section 273 as it existed prior to 1959. Courts do not normally overrule readings of statutes which have been amended. The obvious reason is that the amendment itself overrules the prior interpretation, which becomes for all practical purposes relegated to history.

Molpus, 578 So.2d at 639. That reasoning applies here as well. Section 273 was substantially amended in 1992. See 1992 Miss. Laws 1318-1322. Ratliff is an interpretation of Section 273 as it existed prior to 1992. See 1912 Miss. Laws. 450-51. The 1992 amendment, for all practical purposes, negated the prior interpretation. Thus, the Supreme Court’s interpretation of Section 273 in Measure 20 should control today’s decision.

¶ 25. Second, while this Court expresses a commitment to the principle of stare decisis, by a simple majority vote, it has not hesitated to ignore or overrule prior decisions when deemed appropriate. This observation is not intended to suggest that I take lightly the principle of stare decisis. However, a slavish devotion to prior decisions can produce irrational results. Perhaps the best example is the doctrine of “separate but equal.” In 1896 the United States Supreme Court upheld segregation laws. Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896). If the United States Supreme Court had blindly followed the principle of stare decisis, it would have continued to uphold those laws. Thankfully, the Court had the wisdom and fortitude to ignore its prior precedent and overrule the separate-but-equal doctrine. Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

¶26. Section 273(5) clearly states that the initiative process shall not be used to propose, modify, or repeal any portion of the Bill of Rights. Miss. Const, art. 15, § 273(5). To determine whether an initiative seeks to propose, modify, or repeal a portion of the Bill of Rights, reviewing courts must consider the content of the proposed initiative for that limited purpose. Thus, we shall not allow initiatives that seek to propose, modify, or repeal any portion of the Bill of Rights on the ballot. Ratliff is inapplicable. Measure 20 is not an unreasonable reading or application of the 1992 amendments to Article 15, Section 273. Nor has this Court’s holding in Measure 20 been overruled. I would therefore proceed actually to address the matter which this Court accepted on an expedited basis, but now declines to address.

¶ 27. Since the majority does not address whether Initiative 31 violates Section 273(5), I reserve my views of that matter until it once again returns to this Court.

KITCHENS, J., JOINS THIS OPINION.

      . The Initiative — now known as Initiative 31 — attempts to restrict the state’s power to transfer certain property to certain parties after taking it by eminent domain.

        . The trial court granted Waide’s motion to intervene as a defendant.

      . These matters are not contested in this case.


author: DICKINSON, Presiding Justice, KITCHENS, Justice,

text:
    CITY OF JACKSON, Mississippi, Mayor Harvey Johnson and Ramie Ford v. Jane DOE, a Minor, by and Through her Natural Mother and Adult Next Friend, J.J., and Lisa Doe, a Minor, by and Through her Natural Mother and Adult Next Friend, L.L. City of Jackson, Mississippi, Mayor Harvey Johnson and Ramie Ford v. Jane Doe, a Minor, by and Through her Natural Mother and Adult Next Friend, J.J., and Lisa Doe, a Minor, by and Through her Natural Mother and Adult Next Friend, L.L.
    Nos. 2010-IA-00341-SCT, 2010-IA-00342-SCT.
    Supreme Court of Mississippi.
    Sept. 8, 2011.

      James Richard Davis, Jr., Pieter Teeu-wissen, attorneys for appellants.
    John G. Holaday, Flowood, attorney for appellees.
   DICKINSON, Presiding Justice,

for the Court:

¶ 1. Two girls sued the City of Jackson, Mississippi, after they were molested in a public park operated by the City. The City moved for summary judgment, arguing that it was immune from suit. The trial court denied the motion. Because the City’s operation of the park was a discretionary function, we granted the City’s petition for interlocutory appeal and now reverse the trial court and render judgment for the City.

FACTS AND PROCEDURAL HISTORY

¶ 2. In July 2001, eight-year-old Jane Doe and thirteen-year-old Lisa Roe were playing unsupervised at the Presidential Hills Park, a public park built, operated, and maintained by the City of Jackson, Mississippi. While playing in the park, the two children were approached by Andrew Lawson, a convicted sex offender, who fondled Lisa Roe and sexually battered Jane Doe. Lawson was convicted for his criminal acts against the girls.

¶ 3. After giving notice of their claims as required by the Mississippi Tort Claims Act (MTCA), J.J., as mother and next friend of Jane Doe, and L.L., as mother and next friend of Lisa Roe, filed their complaint against the City of Jackson, its mayor, and the director of the Department of Parks and Recreation, alleging that the girls were injured because the defendants had failed to maintain the park in a reasonably safe condition. The defendants asserted immunity under the MTCA, Mississippi Code Sections 11^46-1 to 11^46-23.

¶ 4. Discovery began, but after a period of more than three years, during which the plaintiffs took no action, the defendants moved to dismiss the action for failure to prosecute and for summary judgment. In their motion for summary judgment, the defendants argued that Section 11-46-9 granted them immunity. Without saying why, the trial court denied both motions. We granted the defendants’ consolidated petition for interlocutory appeal.

¶ 5. The City of Jackson asks this Court to consider: (1) Whether the trial court erred by denying the City’s motion for summary judgment on the basis of immunity under Mississippi Code Section 11-46 — 9(l)(c), (d) and (g); and (2) whether the trial court erred by denying the City’s motion to dismiss for lack of prosecution under Mississippi Rule of Civil Procedure 41(b). Because immunity under Section ll-46-9(l)(d) is dispositive, we decline to address the other issues.

ANALYSIS

¶ 6. We review a trial court’s grant or denial of summary judgment de novo. A motion for summary judgment is to be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The burden is on the moving party to show that no genuine issue of material fact exists. Thereafter, “[t]he non-moving party must produce specific facts showing that there is a genuine material issue for trial.”

¶7. The Mississippi Tort Claims Act waives the State’s common-law tort immunity, but excepts from that waiver twenty-five categories of acts for which governmental entities continue to enjoy immunity from suit. One of those categories is the “discretionary function” exception set forth in Section 11 — 46—9(l)(d):

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [b]ased upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused.

¶ 8. The defendants argue that, because the operation of a city park is a discretionary function, the City is immune from suit.

1. The City’s operation of the park is a discretionary function.

¶ 9. A governmental duty is discretionary when the government or municipal official is required to use his or her own judgment in performing the duty. But where “the duty is one which has been positively imposed by law and in a manner or upon conditions which are specifically designated, the duty to perform under the condition specified, not being dependent upon the officer’s judgment or discretion, the act and discharge thereof is ministerial.” As we have put it, “discretionary acts which enjoy immunity are those acts which promote some social, economic, or political policy.”

¶ 10. To identify a discretionary function, this Court uses a two-part test in which we first determine “whether the activity involved an element of choice or judgment;” if so, we then consider “whether the choice or judgment in supervision involves social, economic or political policy alternatives.”

¶ 11. As to the first prong, the defendants argue that the operation of the park involved an element of choice because “[t]here is no obligation imposed by statute or regulation stating the manner by which the City of Jackson should provide recreational facilities for its citizens or whether it should provide them at all,” and because “there is no obligation imposed by law stating the monetary amount the City of Jackson must spend/budget to develop, operate or maintain the city’s parks and recreational facilities.... ” We agree.

¶ 12. As to the second prong, Section 55 — 9-29—the statute that gives a county or municipality the authority to create public parks — provides that “any recreational district under the provisions of 55-9-21 through 55-9-37 may authorize any project constituted thereunder to ... operate properties to the end that such project may be able to promote the public interest and welfare ... to acquire, develop, provide and improve public parks ... in this state....” The plain language of the statute indicates that the creation and operation of a city park is within the discretion of the municipality. The statute also says that the acquisition, development, provisions, and improvements of city parks are made to promote “the public interests and welfare” of the municipality. So we hold that the operation of a city park is a discretionary function of the city.

2. The City’s discretionary-function immunity cannot be overcome by Section ll-4,6-9(l)(v).

¶ 13. The plaintiffs argue that, even if the operation of a city park is a discretionary function that provided immunity to the defendants, that immunity can be overcome under Section ll-46-9(l)(v), which provides:

A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim ... [a]rising out of an injury caused by a dangerous condition on property of the governmental entity that was not caused by the negligent or other wrongful conduct of an employee of the governmental entity or of which the governmental entity did not have notice, either actual or constructive, and adequate opportunity to protect or warn against; provided, however, that a governmental entity shall not be liable for the failure to warn of a dangerous condition which is obvious to one exercising due care....

¶ 14. But Section 11 — 46—9(l)(v) provides an independent basis for immunity, separate and apart from Section 11 — 46—9(l)(d). Because the City qualifies for immunity under subsection (d), the conditions for immunity under subsection (v) are irrelevant. The plaintiffs’ argument is without merit.

CONCLUSION

¶ 15. The City of Jackson’s operation of Presidential Hills Park is a discretionary function that entitles it to immunity from suit under the Mississippi Tort Claims Act. The plaintiffs have failed to demonstrate a genuine issue of material fact to be decided by a jury. Because the City is entitled to judgment as a matter of law, summary judgment should have been granted in favor of the defendants. This case is reversed and rendered.

¶ 16. REVERSED AND RENDERED.

WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR, PIERCE AND KING, JJ„ CONCUR. KITCHENS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

KITCHENS, Justice,

concurring in result only:

¶ 17. I agree that the City is entitled to summary judgment, but I cannot agree that its failure to protect or warn against a known dangerous condition falls into the category of a discretionary duty. Compare Miss.Code Ann. § 11 — 46—9(d) (Rev. 2002) (governmental immunity for discretionary functions) with Miss.Code Ann. § ll-46-9(v) (Rev.2002) (no governmental immunity for failing to protect or warn against a known dangerous condition). The mere fact that the alleged dangerous condition was located in a public park did not render the City’s duties discretionary. For example, in Jones v. Mississippi Department of Transportation, 744 So.2d 256, 258 (Miss.1999), this Court held that “although the failure to place the traffic control devices was a discretionary act, the [Mississippi Department of Transportation] and the county had a duty to warn motorists of a dangerous condition of which it had knowledge.” Thus, while the creation of a public park is a discretionary governmental function involving public policy considerations, the City still has a duty to maintain the premises in a reasonably safe condition, and to protect and warn against known hazards. Id. at 263 (citing Coplin v. Francis, 631 So.2d 752, 755 (Miss.1994); Miss.Code Ann. § 11-46-9(v)).

¶ 18. Nevertheless, the plaintiffs did not submit affidavits or other proof to support the allegations in their response to defendants’ motion for judgment. Because our law provides that a “plaintiff may not rely solely upon the unsworn allegations in the pleadings, or arguments and assertions in briefs or legal memoranda,” the plaintiffs in this case have not demonstrated a genuine issue of material fact to be decided by a jury. Palmer v. Biloxi Reg’l Med. Ctr., Inc., 564 So.2d 1346, 1356 (Miss.1990). Therefore, I respectfully concur in result only.

CHANDLER, J., JOINS THIS OPINION.

      . We use pseudonyms to protect the identities of the child victims.

      . Crawford Logging, Inc. v. Estate of Irving, 41 So.3d 687, 689 (Miss.2010).

      . M.R.C.P. 56(c).

      . Bennett v. Hill-Boren, P.C., 52 So.3d 364, 368 (Miss.2011).

      . Van v. Grand Casinos of Miss., Inc., 767 So.2d 1014, 1018 (Miss.2000).

      . Miss. Dep't. of Mental Health & Ellisville State Sch. v. Shaw, 45 So.3d 656, 658 (Miss.2010).

      . Miss.Code Ann. § ll-46-9(l)(d) (Rev.2002).

      . Harris v. McCray, 867 So.2d 188, 191 (Miss.2003).

      . Barrett v. Miller, 599 So.2d 559, 567 (Miss.1992).

      . Shaw, 45 So.3d at 659.

      . City of Jackson v. Powell, 917 So.2d 59, 73 (Miss.2005) (quoting Bridges v. Pearl River Valley Water Supply Dist., 793 So.2d 584, 588 (Miss.2001)).

      . Miss.Code Ann. § 55-9-29 (Rev.2008).

      . See Barrett, 599 So.2d at 567.

      . Miss.Code Ann. § 55-9-29.

      . The separate opinion — immediately after conceding that the City’s creation of the public park was discretionary, and that it involved public policy considerations — states that "the City still has a duty to maintain the premises in a reasonably safe condition, and to protect and warn against known hazards.” This view — if correct — would render the City's immunity a nullity. What good would it do the City to have immunity if, despite its immunity, it is held to the exact same standard for liability as non-immune tortfeasors?

      . Miss.Code Ann. § 11 — 46—9(l)(v) (Rev. 2002).