Why did the Arkansas AG reject the May 9, 2014 draft of Robert Reed's Arkansas Cannabis Amendment?

Plain-English summary

Robert Reed asked the AG to certify the popular name and ballot title for another proposed Arkansas cannabis amendment. The AG refused because ambiguities in the measure's text prevented him from fairly summarizing it for voters. The stored opinion excerpt identifies four problems:

1. The opening sentence reads as a command to voters. The proposal said to “add” an amendment rather than stating the law that would become part of the Constitution if adopted.
2. The right was stated in the future tense. The AG said the right appeared otherwise self-executing, but the proposal did not make clear what legislative action, if any, must occur before it took effect.
3. The legislative instructions conflicted. One provision directed lawmakers to enact legislation needed to make the amendment workable, while another barred laws restricting the stated cannabis rights. The AG could not tell what regulation would be permitted.
4. The effective-date provision was unclear. The AG described Section 3 as syntactically garbled and said he could not summarize it in a ballot title.

The AG directed Reed to resolve these issues before resubmission. This opinion states no result for any later submission and does not decide the proposal's merits.

Currency note

This opinion was issued in 2014 and addresses the wording submitted then. Check the actual measure and later certification decisions before relying on it.

Common questions

Did the AG reject cannabis legalization on policy grounds? The excerpt gives drafting ambiguities as the reason for rejection. It does not evaluate the policy merits of legalization.

Why did the command in the opening sentence matter? The AG said adopted amendment text should identify itself as a constitutional amendment and state the law it would enact. A direction to voters to adopt it would instead become part of the constitutional text.

What regulatory authority would the legislature have had? The AG could not tell. The proposal both directed the legislature to enact necessary laws and barred laws that restricted the proposed right.

Could the AG fix the ballot title while leaving the text alone? He said the measure's own ambiguities prevented certification. Reed needed to clarify the proposal before the AG could summarize it fairly.

Source

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

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text. Key excerpts:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2014-043
May 9, 2014

Robert L. Reed
295 Elan Trail
Dennard, Arkansas 72629

Dear Mr. Reed:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the popular name and ballot title for a proposed constitutional amendment. You previously submitted similar measures, which this office rejected. See Op. Att'y Gen. Nos. 2014-037, 2014-034, 2014-022, 2014-014, 2013-021, 2011-059 and 2011-031.

Popular Name: ARKANSAS CANNABIS AMENDMENT

Ballot Title: Amend the Constitution of Arkansas to allow the People of Arkansas the right to cultivate, manufacture, distribute, sell and use the cannabis plant (genus cannabis) and all products derived from the cannabis plant (genus cannabis) within the legal boundaries of the state of Arkansas. The General Assembly shall have power to enforce this amendment by appropriate legislation. Preemptive federal law will remain in effect unless altered by congress. This amendment shall take effect six months after passage.

The measure contains the following ambiguities:

1. The opening sentence of your amendment again misleadingly appears to order
   or encourage the voter to adopt the amendment, rather than simply identifying the measure as being a constitutional amendment. I have previously advised you that a constitutional amendment properly sets forth a provision of law that has been adopted by the voters, not a command that voters adopt a measure, as does the opening sentence of your proposal. Without clarification that you are not ordering the voter to amend the constitution, I cannot summarize this provision in a ballot title.

In possibly revising your submission, please bear in mind that the substance of your measure, if adopted, will be incorporated as drafted into the Arkansas Constitution. The directive to "[a]dd a [sic] amendment to the Constitution of Arkansas" is not a statement of law adopted by the voters; rather, literally read, it is advice, if not an outright command, to the voters to adopt the measure. As such, this declaration does not belong in the amendment itself, which should set forth only the substance of the law adopted. In short, the text of your measure must do no more than (1) identify the measure as being a constitutional amendment; and (2) state verbatim the substantive provisions of law that will apply as a result of the amendment's adoption.

2. Unaccountably, you define the right set forth in Section 1 of your measure in
   the future tense, i.e., "The People... shall have the right..." (emphasis added). This provision is confusing inasmuch as the unrestricted authorization set forth in Section 1 seems in all respects to be self-executing, suggesting that it would normally take effect immediately upon the measure's adoption. Although your proposal refers generally to legislative action as a condition precedent to the amendment's application, it is unclear what legislative action would be either permissible or necessary to trigger the amendment's application. Without resolution of this ambiguity, I cannot summarize your proposal in a ballot title.

3. As noted immediately above, Section 1 of your measure grants the people of
   Arkansas an apparently unrestricted, and hence, it would seem, self-executing, right to engage in the recited activities relating to cannabis. In accordance with this impression, Subsection 2(b) bars any legislation that might "restrict, hamper or impair the exercise of the rights herein reserved to the people." Subsection 2(a), however, directs the legislature promptly to enact "all legislation necessary and sufficient to make this amendment in all respects effective and workable."

Subsection 2(b) could be read as denying the legislature what might otherwise be interpreted as its reserved "police power" to regulate the activities authorized in Section 1. Subsection 2(a), by contrast, might be read as requiring restrictive legislation to the extent deemed "necessary and sufficient" to make the amendment "effective and workable." Your measure, in short, simultaneously authorizes restrictions by directing the legislature to pass laws needed to render the amendment "effective and workable" and bars any restrictive legislation that would in any way qualify the people's open-ended "right" to engage in the activities described in Section 1.

The tension between these two provisions leaves it unclear what legislative action the General Assembly would be empowered to take, a confusion only compounded by the fact that Section 1 on its face appears to be self-executing and resistant to legislative curbs of any sort. Without clarification regarding what regulations, if any, the legislature is authorized to impose upon Section 1 conduct, I am unable to summarize your measure in a ballot title.

I feel compelled to point out that the objection just raised is materially indistinguishable from one I raised less than a month ago in response to your immediately previous submission. As I pointed out in my previous opinion: "Simply establishing a legislative power to 'enforce this article' ... cannot reasonably be read as a clear grant of ... regulatory authority." Notwithstanding my having pointed this out, you have again failed to specify in your submission whether you intend the legislature to retain regulatory authority over the activities at issue and, if so, to what extent. Your current submission is patently ambiguous on this score, meaning that I cannot summarize its substance in a ballot title.

I cannot overstate the importance of the voters understanding the scope of the regulatory authority, if any, that the legislature would retain under your measure. Whatever your reasons for failing to address this issue directly, I cannot and will not continue to tax this office's resources by repeatedly making this point to you. Accordingly, please resolve this ambiguity before submitting for my approval any revised version of your proposal.

4. Section 3 of your measure, which purports to define the effective date of your
   amendment, is syntactically garbled to an extent that obscures its meaning. I will not here parse this sentence to demonstrate its grammatical inadequacies. I will merely note that, as written, it is not a lucid, grammatical sentence that I can summarize in a ballot title.

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

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/cyh