What ambiguities kept Arkansas's 'Ban Prohibition of Cannabis' amendment title from certification in Opinion 2014-004?

Plain-English summary

Marjorie LeClair submitted the popular name "BAN PROHIBITION OF CANNABIS" and a ballot title for a proposed Arkansas constitutional amendment. The AG noted eight earlier rejections of similar submissions. He rejected this version because several ambiguities in the measure's own text prevented him from fairly summarizing its effect for voters.

Section 3 said the General Assembly "shall provide for taxation and administration of this amendment." The AG said taxation "of this amendment" was syntactically confusing: it did not identify what would be taxed or whether taxation would be limited. He also could not tell what "administration" referred to, because the measure separately mentioned taxation and otherwise proposed repeal of cannabis laws and a bar on future restrictions.

The AG identified a possible conflict between the authorization of taxation in Section 3 and Section 2's prohibition on legislation restricting cannabis activities. If a tax counted as a restriction, the proposed text did not explain how the two provisions fit together. Section 1 created another uncertainty: it proposed to repeal "all laws" on cannabis, while only the ballot title suggested that the repeal meant Arkansas laws. The AG said Section 1 might be read as attempting to reach federal law, although that apparently was not the sponsor's intent.

The AG could neither certify the submitted title nor substitute one while these questions remained. He instructed the sponsor to clarify the measure and resubmit it. He emphasized that rejection expressed no view on the amendment's merits.

What this means for you

Initiative sponsors

The opinion shows how ambiguity in the proposed amendment itself can prevent certification even if a proposed ballot title states an intended result. The sponsor was asked to clarify what Section 3 would tax and administer, how it interacted with Section 2, and which laws Section 1 would repeal before another review.

Currency note

This opinion was issued in 2014. Check current initiative procedures and law before relying on its procedural discussion.

Common questions

Why was this title rejected?
The AG said he could not fairly summarize the amendment for voters because its tax, administration and repeal language was unclear. The opinion discusses those ambiguities in detail.

Did the AG decide whether cannabis should be legal? No. He said the office had no authority to judge the proposal's merits in the ballot-title review.

Would the amendment have repealed federal law?
The AG did not say that it would. He said the text's reference to "all laws" might be read that way because the text itself did not specify Arkansas laws, even though the ballot title suggested that narrower meaning.

Could the sponsor try again?
Yes. The AG invited resubmission of a clarified amendment with a proposed popular name and ballot title.

Background and statutory framework

Under A.C.A. § 7-9-107, the AG reviews proposed popular names and ballot titles before petitions circulate. The opinion explains that a title must accurately and impartially summarize the measure; uncertainty in the text can make that impossible. The AG applied that review to the proposed amendment's three sections and identified specific drafting issues rather than deciding its policy merits.

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DusTIn McDANIEL

Opinion No. 2014-004

January 30, 2014

Lieutenant Colonel Marjorie LeClair, USA (Retired)
President, NCA-LWV

3362 Burnt Ridge Road

Shirley, Arkansas 72153-8329

Dear Lieutenant Colonel LeClair:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the following popular name and ballot title for a proposed constitutional amendment. You have previously submitted similar measures, which this office rejected due to ambiguities in the texts of the proposed measures. See Op. Att’y Gen. Nos. 2013-157, 2013-153, 2013-140, 2013-131, 2013-117, 2013-109, 2013-094 and 2013-061. You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

BAN PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws prohibiting the production, distribution, sale and use of the cannabis plant and products thereof. The Arkansas Legislature shall make no laws prohibiting or limiting the production, distribution, sale and use of cannabis. Preemptive federal law will remain in effect unless altered by congress.

323 CENTER STREET, SUITE 200 * LitTLE Rock, ARKANSAS 72201 TELEPHONE (501) 682-2007 * Fax (501) 682-8084 INTERNET WEBSITE ° http://www.ag.state.ar.us/

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 2

The Attorney General is required, pursuant to A.C.A. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may substitute and certify a more suitable and correct popular name and ballot title, if he can do so, or if the proposed popular name and ballot title are sufficiently misleading, may reject the entire petition. Neither certification nor rejection of a popular name and ballot title reflects my view of the merits of the proposal. This Office has been given no authority to consider the merits of any measure.

In this regard, A.C.A. § 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is “clearly contrary to law,”' this office will not require that a measure’s proponents acknowledge in the ballot title any possible constitutional infirmities. As part of my review, however, I may address constitutional concerns for consideration by the measure’s proponents.

Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.’

The popular name is primarily a useful legislative device.’ It need not contain detailed information or include exceptions that might be required of a ballot title,

' See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v, Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992),

• See Arkansas Women’s Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984).

• Pafford v. Hall, 2\7 Ark. 734, 739, 233 S.W.2d 72, 75 (1950),

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 3

but it must not be misleading or give partisan coloring to the merit of the proposal.’ The popular name is to be considered together with the ballot title in determining the ballot title’s sufficiency.”

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented.° According to the court, if information omitted from the ballot title is an “essential fact which would give the voter serious ground for reflection, it must be disclosed.”’ At the same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9- 107(b)); otherwise voters could run afoul of A.C.A. § 7-5-522’s five minute limit in voting booths when other voters are waiting in line.® The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke.” The title, however, must be free from any misleading tendency, whether by amplification, omission, or fallacy; it must not be tinged with partisan coloring.'” The ballot title must be honest and impartial,'! and it must convey an intelligible idea of the scope and significance of a proposed change in the law.’

4 E.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v,. Hall, 229 Ark, 411, 316 S.W.2d 207 (1958).

> May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004).

° Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980).
” Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 8 Id. at 288, 884 S.W.2d at 944.

” Id, 293, 884 S,W.2d at 946-47.

'° Id. at 284, 884 S.W.2d at 942.

"' Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990).

” Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted).

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 4

Furthermore, the Court has confirmed that a proposed amendment cannot be approved if “[t]he text of the proposed amendment itself contribute[s] to the confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure.”'? The Court concluded that “internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself.”'* Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without clarification of the ambiguities.

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to ambiguities in the text of your proposed measure. I cannot at this time fairly or completely summarize the effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of these ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

The text of your measure provides in its entirety:
Section |

All laws pertaining to the production, distribution, sale and use of cannabis and products derived from the cannabis plant are hereby repealed.

Section 2

The Arkansas legislature shall pass no law prohibiting or limiting the production, distribution, sale, and use of the cannabis plant and its derivatives.

'? Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000).

14 Id

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 5

Section 3

The Arkansas General Assembly shall provide for taxation and administration of this amendment.

I must reject this submission because Section 3 is ambiguous in declaring that the General Assembly “shall provide for taxation and administration of this amendment.”

The general declaration that the legislature “shall provide for taxation . . . of this amendment” is syntactically confusing because it obscures the fact that you apparently intend to authorize taxation not of “this amendment,” but rather of cannabis, cannabis products and various activities “pertaining to” cannabis. The same confusion arises from your usage of the phrase “administration of this amendment.” Without clarification of these ambiguities, I am unable to summarize your measure in a ballot title.

Even if one reads the term “taxation” as standing in isolation — i.e., as unmodified by the phrase “of this amendment” — your use of this term is unclear because it fails to indicate what may be taxed and what, if any, restrictions on taxation will apply. As written, you measure fails even to specify that the referenced power of “taxation” refers to taxation of cannabis, its products and activities pertaining thereto. Without clarification on this score, I am unable to summarize your measure in a ballot title.

The scope of this provision is further obscured by Section 2, which categorically forecloses the General Assembly from enacting laws restricting the described activities. To the extent that taxation constitutes a form of restriction, the authorization of taxation in Section 3 might be read as an unacknowledged exception to the restriction on legislation set forth in Section 2. Without clarification regarding the interrelationship between these two sections, I am unable to summarize your measure in a ballot title.

Your measure is further ambiguous in that it is unclear what the term “administration of this amendment” betokens. Presumably, this phrase does not

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 6

refer to the taxation of cannabis, since you distinguish between “administration” and “taxation.” Aside from its ambiguous reference to “taxation,” your measure contains no provision that would require the administration of anything. It would in itself merely (1) repeal “all laws” pertaining to cannabis and (2) foreclose the legislature from enacting future laws pertaining to cannabis. It is consequently unclear what you mean by the term “administration.” Without clarification on this score, I am unable to summarize your measure in a ballot title.

Finally, with respect to your use of the term “all laws” in Section | of your measure, I must note that your current submission contains no indication other than in your ballot title that the “laws” referenced are only “Arkansas laws.” Although apparently not so intended, Section 1 of your measure might be read as an impermissible and ineffectual effort to repeal not only Arkansas laws but also federal laws relating to cannabis. Without resolution of this ambiguity, I am unable to summarize your measure in a ballot title.

I cannot begin to certify a ballot title for your proposed amendment in the face of the ambiguity noted above. You must remedy this confusing and ambiguous point before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern itself with the merits, philosophy, or ideology of proposed measures, I have no constitutional role in the shaping or drafting of such measures. My statutory mandate is embodied only in A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal.

My statutory duty, under these circumstances, is to reject your proposed ballot title, stating my reasons therefor, and to instruct you to “redesign” the proposed measure and ballot title.'" You may, after clarification of the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience, I anticipate, as noted above, that some changes or additions to your submitted popular name and ballot title may be

'S See A.C.A. § 7-9-107(c).

Marjorie LeClair, President
NCA-LWV

Opinion No. 2014-004
Page 7

necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission.

Sincerely,

DUSTIN MCDANtt
Attorney General

DM/cyh

Enclosure

Cheryl Hall

From: [email protected]

Sent: Thursday, January 16, 2014 4:21 PM

To: Cheryl Hall

Subject: Resubmittal of Re: Marjorie LeClair, request for approval of proposed Ballot Title for

petition initiative.

Importance: High
Ms Hall:

Please find below a revised submittal for review based on the recent AG,s opinion # 2013- 157.

Thank you for your time in this matter.
Sincerely;

Marjorie LeClair, President NCA-LWV
3362 Burnt Ridge Rd., Shirley, AR 72153-8329; 501-745-8727

Ao(4-004

JAN 16 2014

ATTORN EY GENERAL
ARKANSAS

Popular Name

BAN PROHIBITION OF CANNABIS

Ballot Title

Amend the Constitution of Arkansas to repeal all laws prohibiting the production, distribution, sale and use of the cannabis plant and products thereof. The Arkansas Legislature shall make no laws prohibiting or limiting the production, distribution, sale and use of cannabis. Preemptive federal law will remain in effect unless altered by congress.

Text

Section 1

All laws prohibiting the production, distribution, sale and use of cannabis and products derived from the cannabis plant are hereby repealed,

Section 2

The Arkansas Legislature shall pass no law prohibiting or limiting the production, distribution, sale and use of the cannabis plant and its derivatives.

Section 3

The Arkansas General Assembly shall provide for taxation and administration of this amendment.