Why did the Arkansas AG reject the proposed Hemp and Marijuana Amendment's ballot title in 2014?

Plain-English summary

Mary L. Berry submitted the proposed "Arkansas Hemp and Marijuana Amendment" and its ballot title for certification. The AG rejected them because the proposed text defined hemp as cannabis containing less than one percent THC and marijuana as cannabis containing greater than one percent THC. It did not classify cannabis containing exactly one percent. The AG said he could not fairly summarize the measure's effect for voters without resolving that ambiguity.

He also identified drafting problems that made the proposal less than suitable for inclusion in the state Constitution: inconsistent capitalization, quotation marks around defined terms, wording that called the plant itself illegal under federal law, awkward phrasing about the "amount of license," and punctuation errors. The AG expressly distinguished those problems from the internal ambiguity that prevented certification. His examples were not exhaustive, and he invited a redesigned measure and title for review.

The opinion said the AG's task was to assess whether the proposed title accurately and impartially described the measure. Rejection did not state a view on whether cannabis policy should change. He could substitute a better title when possible, but said the unresolved ambiguity in the amendment text prevented him from doing so here.

What this means for you

Initiative sponsors

The gap at exactly one percent THC was in the proposed amendment, not just the title. The AG asked the sponsor to clarify the measure itself before resubmitting a popular name and ballot title. His opinion also advised fixing the separate drafting problems he listed.

Currency note

This opinion was issued in 2014. Check current ballot-title procedures and law before using its process as guidance.

Common questions

What was the decisive ambiguity?
The text's less-than and greater-than definitions left cannabis with exactly one percent THC outside both categories.

Were the capitalization and punctuation problems grounds for rejection? The AG mentioned them as reasons the proposal was less than suitable, while identifying the unclassified THC concentration as the ambiguity that prevented certification.

Could the AG rewrite the title to fix the issue?
He said he could not fairly summarize the amendment without a clarified text and therefore could not substitute and certify a title.

Did the AG decide the amendment's merits?
No. The opinion says certification and rejection do not reflect the AG's policy view of a proposal.

Did this opinion address a later version of the amendment?
No. It concerns the submission before the AG in October 2014 and invites a revised submission. It does not report the outcome of any later filing.

Background and statutory framework

The opinion describes the AG's review under A.C.A. § 7-9-107. A ballot title must fairly and intelligibly convey a proposed amendment's effect, and ambiguity in the amendment text can prevent the AG from certifying or substituting a title. The opinion applies that standard to the proposed hemp and marijuana definitions.

Source

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

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DusnN McDANIEL
Opinion No. 2014-105
October 2, 2014
Mary L. Berry, Sponsor
117 North Washington Street
Summit, Arkansas 72677-0511
Dear Ms. Berry:
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, as follows: Popular Name THE ARKANSAS HEMP AND MARIJUANA AMENDMENT Ballot Title An amendment proposed by the people to the Arkansas Constitution to provide, effective April 20, 2014, that the cultivation, manufacturing, distribution, sale, purchase, possession, and use of the Cannabis plant (genus cannabis) and all products derived from the Cannabis plant (genus cannabis) are lawful in every geographic area of each and every county of this state, but acknowledging that the Cannabis plant (genus cannabis) for any purpose remains illegal under federal law unless altered by congress.; [sic] that, for purposes of this amendment "hemp" is defined as any part of the Cannabis plant (genus cannabis), living or not, containing less than one percent, by dry weight, Delta-9-tetrahydrocannabinol (Delta-9- THC); that, for purposes of this amendment "Marijuana" is defined as any part of the Cannabis plant (genus cannabis), living or not, 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/ Mary L. Berry, Sponsor Opinion No. 2014-1 OS Page 2 containing greater than one percent, by dry weight, Delta-9- Tetrahydrocannabinol (Delta-9-THC); That the listed activities relating to "hemp" devoted to personal, industrial, or commercial use may be regulated, but not prohibited, subject to the following condition; that the quantity and size of plants cultivated or the products derived from the manufacturing shall not be limited or prohibited by the General Assembly. That the listed activities relating to "Marijuana" devoted to personal, industrial, or commercial use by any person 21 years of age and older is lawful in this state and may be regulated, but not prohibited, subject to the following conditions; that the cost of any specific license that may be required by the state to authorize and regulate the cultivation, manufacturing, distribution, and or the sale of "Marijuana" and products containing "Marijuana", shall not exceed two-hundred and fifty dollars ($250.00) per license/per year, and any person 21 years of age and older shall qualify to obtain such license, and there shall be no limit to the amount of license issued in this state by the General Assembly; that the quantity of plants cultivated may be limited to 36 growing plants per qualified person, but the size of plants cultivated or the products derived from the manufacturing, shall not be limited or prohibited by the General Assembly.; [sic] that any state excise tax imposed upon the sale of "Marijuana" and products containing "Marijuana" shall not exceed 5%; that the use of "Marijuana" and products containing "Marijuana" shall not be prohibited to any person under 21 years of age whose physician has prescribed it. All laws which conflict with this amendment are hereby repealed to the extent that they conflict with this amendment. 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 Mary L. Berry, Sponsor Opinion No. 2014-105 Page 3 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,"1 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.2 The popular name is primarily a useful legislative device. 3 It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. 4 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.5 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. 6 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."7 At the 1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931S.W.2d119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841S.W.2d139 ( 1992). 2 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). 3 Pajfordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). 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). 5 Mayv. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). 6 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980). 7 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d. 938, 942 (1994). Mary L. Berry, Sponsor Opinion No. 2014-105 Page 4 same time, however, a ballot title must be brief and concise (see A.C.A. § 7-9- l 07(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. 8 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. 9 The title, however, must be free from any misleading tendency, whether bef amplification, omission, or fallacy; it must not be tinged with partisan coloring. 1 The ballot title must be honest and impartial, 11 and it must conve(i an intelligible idea of the scope and significance of a proposed change in the law. 2 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."13 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."14 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 an ambiguity in the text of your proposed measure. A number of additions or changes to your ballot title are, in my view, necessary in order to more fully and correctly summarize your proposal. I cannot, however, at this time, fairly or completely summarize the 8 Id. at 288, 884 S.W.2d at 944. 9 Id. 293, 884 S.W.2d at 946--47. 10 Id. at 284, 884 S.W.2d at 942. 11 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990). 12 Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted). 13 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000). 14 Id. Mary L. Berry, Sponsor Opinion No. 2014-105 Page 5 effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the ambiguity. 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). I refer to the following ambiguity: The proposal defines "hemp" and "Marijuana" by reference to the THC content of each but fails to classify cannabis containing exactly one percent THC. Additionally, in my view, several aspects of your proposal - while not constituting the sort of internal inconsistencies the Court described in Roberts - make it less than suitable in its current form for inclusion in the Arkansas Constitution. These include unconventional and inconsistent capitalization (e.g., of the two words defined, one is consistently capitalized, the other is not); use of quotation marks around terms already defined, which usage is unconventional; inexact usage (e.g., "Cannabis ... remains illegal under federal law" when in fact it is not the plant itself that is "illegal," but rather certain acts by people in connection with the plant); awkward syntax (e.g., "no limit to the amount of license" when "amount" denotes the measure of a thing not subject to being counted); and incorrect punctuation (e.g., "manufacturing, shall not be limited"). The examples given are not intended to be and are not exhaustive of the proposal's shortcomings, which you should remedy if the proposal is to be resubmitted. I cannot certify a ballot title for your proposed amendment in the face of the ambiguity noted above, which you must remedy 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 (for the foregoing reasons) and instruct you to "redesign" the proposed measure and ballot title. You may, after addressing the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at Mary L. Berry, Sponsor Opinion No. 2014-105 Page 6 your convenience. I anticipate, as noted above, that some changes or additions to your submitted popular name and ballot title may be necessary. I will be pleased to perform my statutory duties in this regard in a timely manner after resubmission. Sincerely, DM/cyh Enclosures Popular Name The Arkansas Hemp and Marijuana Amendment Ballot Title An amendment proposed by the people to the Arkansas Constitution to provide, effective April 20, 2017, that the cultivation, manufacturing, distribution, sale, purchase, possession, and use of the Cannabis plant (genus cannabis) and all products derived from the Cannabis plant (genus cannabis) are lawful in every geographic area of each and every county of this state, but acknowledging that the Cannabis plant (genus cannabis) for any purpose remains illegal under federal law unless altered by congress.; that, for purposes of this amendment "hemp" is defined as any part of the Cannabis plant (genus cannabis), I iving or not, containing less than one percent, by dry weight, Delta-9-tetrahydrocannabinol (Delta-9- THC); that, for purposes of this amendment "Marijuana" is defined as any part of the Cannabis plant (genus cannabis}, living or not, containing greater than one percent, by dry weight, Delta-9-Tetrahydrocannabinol (Delta-9-THC); That the listed activities relating to "hemp" devoted to personal, industrial, or commercial use may be regulated, but not prohibited, subject to the following condition; that the quantity and size of plants cultivated or the products derived from the manufacturing shall not be limited or prohibited by the General Assembly. That the listed activities relating to "Marijuana" devoted to personal, industrial, or commercial use by any person 21 years of age and older is lawful in this state and may be regulated, but not prohibited, subject to the following conditions; that the cost of any specific license that may be required by the state to authorize and regulate the cultivation, manufacturing, distribution, and or the sale of "Marijuana" and products containing "Marijuana", shall not exceed two-hundred and fifty dollars ($250.00) per license/per year, and any person 21 years of age and older shall qualify to obtain such license, and there shall be no limit to the amount of license issued in this state by the General Assembly; that the quantity of plants cultivated may be limited to 36 growing plants per qualified person, but the size of plants cultivated or the products derived from the manufacturing, shall not be limited or prohibited by the General Assembly.; that any state excise tax imposed upon the sale of"Marijuana" and products containing "Marijuana" shall not exceed 5%; that the use of"Marijuana" and products containing "Marijuana" shall not be prohibited to any person under 21 years of age whose physician has prescribed it. All laws which conflict with this amendment are hereby repealed to the extent that they conflict with this amendment. Section 1. This is an Amendment to the Arkansas Constitution that shall be called "The Arkansas Hemp and Marijuana Amendment" Section 2 Effective April 20, 2017, the cultivation, manufacturing, distribution, sale, purchase, possession, and use of the Cannabis plant (genus cannabis) and all products derived from the Cannabis plant (genus cannabis) is lawful within the entire geographic area of each and every county of this State, but acknowledging that the Cannabis plant (genus cannabis) for any purpose remains illegal under federal law unless altered by congress. Section 3 For the purpose of this Amendment "hemp" is defined as any part of the Cannabis plant (genus cannabis}, living or not, containing less than one percent, by dry weight, Delta-9-tetrahydrocannabinol (Delta-9-THC) Section 4 For the purpose of this Amendment "Marijuana" is defined as any part of the Cannabis plant (genus cannabis), Jiving or not, containing greater than one percent, by dry weight, Delta-9-tetrahydrocannabinol (Delta-9-THC). Section 5. The cultivation, manufacturing, distribution, sale, purchase, possession and use of "hemp" for personal, industrial, or commercial use may be regulated, but not prohibited, subject to the following condition: 5-1 that the quantity and size of plants cultivated or the products derived from the manufacturing, shall not be limited or prohibited by the General Assembly. Section 6 The cultivation, manufacturing, distribution, sale, purchase, possession and use of "Marijuana" for personal, industrial, or commercial use by any person 21 years of age and older is lawful in this state, and may be regulated, but not prohibited, subject to the following conditions: 6-1 that the cost of any specific license that may be required by the state to authorize and regulate the cultivation, manufacturing, distribution, and or the sale of "Marijuana" and products containing "Marijuana", shall not exceed two-hundred and fifty dollars ($250.00) per license/per year, and any person 21 years of age and older shall qualify to obtain such license, and there shall be no limit to the amount of license issued in this state by the General Assembly. 6-2 that the quantity of plants cultivated may be limited to 36 growing plants per qualified person, but the size of plants cultivated or the products derived from the manufacturing, shall not be limited or prohibited by the General Assembly. 6-3 that any state excise tax imposed upon the sale of"MariJuana" and products containing "Marijuana" shall not exceed 5%. 6-4 that the use of"Marijuana" and products containing "Marijuana" shall not be prohibited to any person under the age of 21 whose physician has prescribed it. Section 7 All laws which conflict with this amendment are hereby repealed to the extent that they conflict with this amendment.