Why did the Arkansas AG reject the 'Willie Nelson Act' cannabis decriminalization initiated act submitted by Richard Morton in May 2014?

Plain-English summary

Richard Morton, spokesman for the Arkansas Teapot Party, submitted "The Willie Nelson Act," a proposed initiated act to retroactively decriminalize the possession, cultivation, and distribution of cannabis, hemp, and marijuana; regulate and tax commercial production; "revoke federal marijuana law in Arkansas"; and establish an Arkansas Cannabis Council.

AG Dustin McDaniel rejected it for fifteen separate ambiguities. Some of the more important ones:

1. Cannot "prohibit" future legislation through an initiated act. Subsection 1(1) says repealed laws are "repealed, revoked, prohibited and banned." But Amendment 7 of the Arkansas Constitution (incorporated in Ark. Const. art. 5, § 1) lets the legislature amend or repeal voter-initiated legislation by a 2/3 majority of each house. So an initiated act cannot "prohibit" future legislation on the same topic.

2. "Including but not limited to" makes the cannabis definition meaningless. It's unclear what beyond "living flora, seed, harvested material [and] derivative products" might fall in the category, but the open-ended language suggests something does.

3. Confused evidentiary standard. Subsection 1(2) keeps criminal liability for "criminal behaviors which are conclusively proven by due legal process to have resulted during the otherwise legal use" of cannabis. "Conclusively proven" is not a recognized evidentiary standard in Arkansas criminal law. The closest is "beyond a reasonable doubt." It's unclear whether the higher (impossible) standard means cannabis users get a pass on collateral crimes.

4. "Revoking" probation doesn't mean what the drafters think. Subsection 2(1) says probations are "revoked" upon repeal of the underlying offense. "Revoking" probation in legal parlance means authorizing incarceration for violating release terms. The drafters apparently meant to end the probation, but used the wrong word.

5. Confused "enhancement" treatment. Subsection 2(2) treats sentence enhancements as if they were separate offenses. They're not. A defendant is convicted of an offense; the conviction may produce an enhanced sentence. Retroactive decriminalization of the underlying offense would render any sentence inappropriate, enhanced or not.

6. Equal protection problem in retroactive provisions. Subsection 2(3) implies a startling distinction. Persons currently serving cannabis-related sentences who have also been accused/convicted of violent/coercive/invasive crimes would be held accountable for those crimes. But persons currently serving sentences for non-cannabis-related crimes that are not violent/coercive/invasive are not addressed. The reading suggests cannabis users get equal treatment, while non-cannabis defendants serving similar sentences don't. This is arbitrary enough to risk an equal protection challenge.

7. "Revoking federal law" through remonstrance violates the Supremacy Clause. Subsection 3(2) purports to "revoke and rescind in Arkansas all federal laws" criminalizing cannabis. Under the U.S. Constitution Supremacy Clause, no state act can revoke federal law. Cannabis remains a Schedule I drug under 21 U.S.C. §§ 801 et seq. The AG cited Ops. 2013-109 and 2013-094 on this point.

8. "Holistic and seamless approach" is meaningless boilerplate. Section 4(2) directs the Cannabis Council to take a "holistic and seamless approach" similar to Arkansas Act 1190 of 2013. But that phrase has meaning in Act 1190 because of specific procedural requirements that the Willie Nelson Act doesn't contain. As a guiding principle for the Council, it's a mantra.

9. Improper preamble/authority section. The opening "WHEREFORE" recitations have no legislative effect. An initiated act amends or repeals laws; it doesn't recite philosophical principles. The opinion calls these "archaisms" and "rhetorical flourish."

10-15. Various drafting problems. Loose "and/or" usage, "residents" not defined, six "professionals" with five fields of expertise listed (math problem), missing prepositions, vague compensation language.

The AG declined to certify and invited Morton to redesign and resubmit.

Currency note

This opinion was issued in 2014. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Can an Arkansas initiated act "prohibit" or "ban" future legislation on the same subject?
At the time of this opinion, no. Amendment 7 (incorporated at Ark. Const. art. 5, § 1) expressly allows the General Assembly to amend or repeal voter-initiated legislation by a 2/3 majority of each house. An initiated act that purports to "prohibit" future legislation runs into this constitutional structure.

Can an Arkansas initiative repeal federal drug law?
No. The Supremacy Clause (U.S. Const. art. VI) makes federal law supreme over conflicting state law. The Controlled Substances Act (21 U.S.C. §§ 801 et seq.) classifies cannabis as Schedule I. No Arkansas initiative can override that. The AG cited Ops. 2013-109 and 2013-094 explaining the preemptive effect of federal drug law.

What's "remonstrance" in legal terms?
A formal protest or statement of grievance. It's a form of speech, not a remedial act. An "act of remonstrance" can express opposition or request action, but it cannot accomplish substantive change to the law that's being protested.

What's the difference between revoking and ending probation?
Revoking probation in standard criminal-law usage means re-imposing the original sentence (often, incarceration) because the probationer violated release terms. Ending or terminating probation means the conditions are lifted because the probationer completed the term successfully. The Willie Nelson Act drafters used "revoke" when they meant "terminate."

What's "fair use" or what's "compelling public interest"?
The AG uses standard Arkansas Supreme Court doctrine on ballot-title drafting: title must be honest, intelligible, impartial, free from misleading tendency, and must convey the scope and significance of the change. Internal inconsistencies in the proposed measure (Roberts v. Priest) can warrant rejection.

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (AG certification authority)
• A.C.A. § 7-9-107(b) (substitution authority)
• A.C.A. § 7-5-522 (five-minute voting-booth limit)
• Ark. Const. amend. 7 (initiative and referendum)
• Ark. Const. art. 5, § 1 (legislative amendment of initiated acts)
• U.S. Const. art. VI (Supremacy Clause)
• 21 U.S.C. §§ 801 et seq. (Controlled Substances Act)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Op. Att'y Gen. 2013-109, 2013-094 (federal preemption of state cannabis laws)
• Acts 2013, No. 1190 (Restorative Justice systems)
• Black's Law Dictionary (9th ed. 2004) ("remonstrance")

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 and structure summary:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2014-048
May 19, 2014

Mr. Richard Morton, Spokesman
Arkansas Teapot Party
12186 Highway 5 South
Norfork, Arkansas 72658

Dear Mr. Morton:

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
initiated act:

Popular Name: THE WILLIE NELSON ACT

Ballot Title: An act to retroactively de-criminalize the possession, cultivation and
distribution of cannabis/hemp/marijuana; regulate the commercial
manufacture and sale of products related to cannabis/hemp/
marijuana and permit the taxation of sales; revoke federal marijuana
law in Arkansas and establish the Arkansas Cannabis Council.

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.

The measure contains fifteen identified ambiguities, including:

1. Subsection 1(1)'s purported ability to "prohibit" future legislation conflicts
   with Amendment 7's express grant of legislative power to amend or repeal
   voter-initiated legislation by 2/3 majority.

2. Recurring "including but not limited to" language in the cannabis definition
   suggests additional categories exist but doesn't specify them.

3. Subsection 1(2)'s "conclusively proven by due legal process" is not a
   recognized evidentiary standard in Arkansas criminal law.

4. "Resulted during" is ambiguous as to causation requirements.

5. "Otherwise legal use" counterintuitively implies that committing an unrelated
   crime while using cannabis would render the cannabis use illegal.

6. Subsection 1(3)'s reference to "standards and practices applied to any other
   agricultural produce, retail product or commercial commodity" assumes
   uniformity that does not exist.

7. Subsection 2(1)'s reference to "crimes ... resulting from the possession,
   cultivation and/or distribution" of cannabis uses "resulting from" instead of
   "consisting of," creating ambiguity.

8. "Revoking" probation in the wake of decriminalization is the wrong word;
   "revoking" probation normally means re-imposing imprisonment.

9. Subsection 2(2) treats sentence "enhancements" as if they were separate
   offenses. They are not; enhancements are sentencing factors applied to convictions
   of offenses.

10. Subsection 2(3)'s structure creates an implicit distinction between cannabis
    defendants and non-cannabis defendants that risks an equal protection challenge.

11. "Persons ... interdicted ... of a ... criminal act" has no clear legal
    significance.

12. Subsection 3(1)'s "petition for the redress of grievance" does not identify the
    recipient or the substance of the grievance, making it impossible to give it legal
    effect.

13. Subsection 3(2)'s attempt to "revoke and rescind in Arkansas all federal laws"
    criminalizing cannabis cannot succeed under the Supremacy Clause (U.S. Const.
    art. VI). See Ops. 2013-109 and 2013-094.

14. Section 4(2)'s "holistic and seamless approach" directive to the Cannabis
    Council is meaningless without the substantive procedural requirements that give
    that phrase meaning in Act 1190 of 2013.

15. Various drafting errors (six "professionals" listed across five fields, "in
    conformity those criteria" missing a preposition, vague compensation language,
    unnecessary preamble with "WHEREFORE" archaisms).

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