Did the AG certify the popular name and ballot title for the Arkansas Industrial Hemp and Medical Cannabis Amendment?

Plain-English summary

Robert L. Reed asked the Arkansas Attorney General to certify the popular name and ballot title for his proposed "Arkansas Industrial Hemp and Medical Cannabis Amendment." The proposal would have permitted cultivation, manufacturing, distribution, sale, possession and use of the cannabis plant throughout Arkansas. The AG rejected the proposed title because ambiguities in the amendment text prevented him from fairly describing its effect to voters. Official opinion index, search Opinion No. 2015-0041; see the original text below.

The proposal defined "industrial hemp" and "medical cannabis" by THC concentration, yet authorized "personal, industrial, or commercial use" without confining hemp to industry or cannabis to medicine. The AG said the labels could lead voters to think those uses were limited. He also could not tell whether the General Assembly's regulatory authority would extend beyond the uses suggested by the labels. The opinion separately notes syntax errors that obscure the proposal's meaning. Official opinion index, Opinion No. 2015-0041, pp. 4–5.

The AG said he could not substitute a clearer title while the underlying text remained ambiguous. He instructed Reed to redesign the measure and title and said Reed could resubmit them. The opinion states that rejecting the title did not express the AG's view of the measure's merits. Official opinion index, Opinion No. 2015-0041, pp. 2, 4–5.

What this means for you

If you are drafting a ballot measure: Make the proposed text clear about which uses are allowed and which the legislature may regulate. The AG found that use-specific labels conflicted with language allowing personal, industrial and commercial uses. His statutory review could not repair that conflict simply by rewriting the ballot title. Official opinion index, Opinion No. 2015-0041, pp. 4–5.

Common questions

Did the AG reject the policy of cannabis legalization? No. The opinion says certification or rejection does not reflect the AG's view of a proposal's merits. It addresses whether the popular name and title fairly convey this proposal to voters. Official opinion index, Opinion No. 2015-0041, pp. 2–3.

Why were "industrial" and "medical" a problem? The AG said those words suggested hemp would be used only for industry and cannabis only for medicine, while the text also allowed "personal, industrial, or commercial use." The same wording made the reach of the General Assembly's regulatory power unclear. Official opinion index, Opinion No. 2015-0041, pp. 4–5.

Could the AG fix the ballot title without changing the proposal? He said no: the unresolved ambiguity was in the amendment text itself, leaving him unable to substitute and certify a suitable title under A.C.A. § 7-9-107(b). Official opinion index, Opinion No. 2015-0041, p. 4.

What did the opinion say about earlier submissions? It lists ten similar submissions, most rejected, and says a version in Opinion No. 2014-056 received a substituted ballot title. It gives no result for any later revision of this proposal. Official opinion index, Opinion No. 2015-0041, p. 1.

Background and statutory framework

A.C.A. § 7-9-107 requires the AG to review a proposed popular name and ballot title before petitions circulate. The opinion describes the AG's choices to certify, substitute a more suitable title where possible, or reject a misleading submission. It cites Roberts v. Priest for the difficulty of certifying a title when the proposed amendment text itself creates confusion. Official opinion index, Opinion No. 2015-0041, pp. 2–4.

Source

• Official opinion index: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/ (search Opinion No. 2015-0041)

Original opinion text

Opinion No. 2015-041
May 1, 2015
Robert L. Reed
Post Office Box 111
Dennard, Arkansas 72629
Dear Mr. Reed:
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
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. 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 previously submitted similar measures, most of which this office rejected pursuant to section 7-9-107(c). 1 In Op. Att'y Gen. No. 2014-056, this office certified your proposed popular name and a substituted ballot title. You have made changes to the text of the measure and resubmitted your proposed popular name and ballot title, as follows: Popular Name THE ARKANSAS INDUSTRIAL HEMP AND MEDICAL CANNABIS 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, possession and use of the cannabis 1 See Op. Att'y Gen. Nos. 2015-032, 2014-043, 2014-037, 2014-034, 2014-022, 2014-014, 2013-093, 2013-021, 2011-059 and 2011-031. 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/ Robert L. Reed Op in ion No. 2015-041 Page 2 plant (genus cannabis) and all products derived from the cannabis plant (genus cannabis) is permitted in every geographic area of each and every county of this state; that for purposes of this amendment, "industrial hemp" is defined as any part of the cannabis plant (genus cannabis), living or not, containing three tenths of one percent (.3%) or less, by dry weight or three tenths of one percent (.3%) by volume for liquids, Delta-9-Tetrahydrocannabinol (Delta-9-THC); "medical cannabis" is defined as any part of the cannabis plant (genus cannabis), living or not, containing greater than three tenths of one percent (.3%), by dry weight or volume for liquids, Delta-9- Tetrahydrocannabinol(Delta-9-THC). that [sic] the cannabis plant (genus cannabis) may be regulated but not prohibited by the General Assembly; and, that all laws in conflict with this amendment are repealed to the extent that they conflict with his [sic] amendment. Preemptive federal law may remain in effect unless altered by congress 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, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition. Section 7-9-107 neither requires nor authorizes the Attorney General 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, "2 the Attorney General 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, 2 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). Robert L. Reed Opinion No. 2015-041 Page 3 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. 3 The popular name is primarily a useful legislative device.4 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. 5 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.6 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.7 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. "8 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. 9 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.10 The title, however, must be free from any misleading tendency, whether b?' amplification, omission, or fallacy; it must not be tinged with partisan coloring. 1 The ballot title 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). 4 Pajfordv. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). 5 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). 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). 7 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 (1980). 8 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 9 Id. at 288, 884 S.W.2d at 944. 10 Id. 293, 884 S.W.2d at 946-47. 11 Id. at 284, 884 S. W .2d at 942. Robert L. Reed Opinion No. 2015-041 Page 4 must be honest and impartial, 12 and it must convey an intelligible idea of the scope and significance of a proposed change in the law.13 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."14 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."15 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. 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 effect of your proposed measure to the electorate in a popular name or ballot title without the resolution of the 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). I refer to the following ambiguities:
-The proposal continues to refer to "industrial" hemp and "medical" cannabis without limiting those substances' uses to industry and medicine. Those modifiers introduce ambiguity about how hemp and cannabis could be used under the proposal. They are also misleading in that they would cause voters to erroneously conclude that the proposal would limit the use of hemp to industry and the use of cannabis to medicine. 12 Becker v. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990). 13 Christian Civic Action Committee v. McCuen, 318 Ark. 241, 245, 884 S.W.2d 605, 607 (1994) (internal quotations omitted). 14 Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 383 (2000). 1s Id Robert L. Reed Opinion No. 2015-041 Page 5
-The proposal authorizes the General Assembly to regulate the cultivation, etc., of "industrial" hemp and "medical" cannabis "for personal, industrial, or commercial use .... "The proposal's use of the modifiers "industrial" and "medical" suggests, but leaves unclear, that the General Assembly's power would or could be limited to regulation of hemp for industrial uses and of cannabis for medical uses, while the phrase "for personal, industrial, or commercial use" suggests otherwise. It is impossible to clearly discern the proposal's intent or effect in this regard.
-Amending the Arkansas Constitution is a serious matter that merits greater attention to detail than evidenced by the proposal, which still contains several errors of syntax that tend to obscure its meaning. I again urge you to review the proposal carefully to locate and correct such errors in the event you redesign and resubmit the proposal. My office in the certification of ballot titles and popular names does not address 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. Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title.16 You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience. Sincerely, LESLIE R U1 LED - LR/cyh Enclosure 16 A.C.A. § 7-9-107(c) Cheryl Hall From: Sent: To: Subject: Ms Hall; R.L.Reed rreed@email.com Friday, April 17, 2015 12:48 PM Cheryl Hall Resubmission of Amendment proposal Please find attached a revision based on opinion #2015-032. Sincerely; R.L.Reed P.O.Box 111 Dennard Ar. 72629 Popular Name The Arkansas Industrial Hemp and Medical Cannabis 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, POSSESSION AND USE OF THE CANNABIS PLANT (GENUS CANNABIS) AND ALL PRODUCTS DERIVED FROM THE CANNABIS PLANT (GENUS CANNABIS) IS PERMITTED IN EVERY GEOGRAPHIC AREA OF EACH AND EVERY COUNTY OF THIS STATE; THAT FOR PURPOSES OF THIS AMENDMENT, "INDUSTRIAL HEMP" IS DEFINED AS ANY PART OF THE CANNABIS PLANT (GENUS CANNABIS), LIVING OR NOT, CONTAINING THREE TENTHS OF ONE PERCENT (.3%) OR LESS, BY DRY WEIGHT OR THREE TENTHS OF ONE PERCENT (.3%) BY VOLUME FOR LIQUIDS, DELTA-9-TETRAHYDROCANNABINOL (Delta-9-THC); "MEDICAL CANNABIS" IS DEFINED AS ANY PART OF THE CANNABIS PLANT (GENUS CANNABIS), LIVING OR NOT, CONTAINING GREATER THAN THREE TENTHS OF ONE PERCENT (.3%), BY DRY WEIGHT OR VOLUME FOR LIQUIDS, DELTA-9- TETRAHYDROCANNABINOL(Delta-9-THC). THAT THE CANNABIS PLANT (GENUS CANNABIS) MAY BE REGULATED BUT NOT PROHIBITED BY THE GENERAL ASSEMBLY; AND, THAT ALL LAWS IN CONFLICT WITH THIS AMENDMENT ARE REPEALED TO THE EXTENT THAT THEY CONFLICT WITH HIS AMENDMENT. PREEMPTIVE FEDERAL LAW MAY REMAIN IN EFFECT UNLESS ALTERED BY CONGRESS Section 1. This Amendment to the Arkansas Constitution that shall be called "The Arkansas Industrial Hemp and Medical Cannabis Amendment." Section 2. Effective April 20, 2017, the cultivation, manufacturing, distribution, selling, possessing 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. 1 Section 3. "Industrial Hemp" is defined for purposes of this amendment as any part of the cannabis plant (genus cannabis), living or not, containing three tenths of one percent (.3%) or less, by dry weight, Delta-9- tetra hydrocannabinol ( Delta-9-THC). Section 4. "Medical Cannabis" is defined for purposes of this amendment as any part of the cannabis plant (genus cannabis), living or not, containing greater than three tenths of one percent (.3%), by dry weight, Delta-9- tetrahydrocannabinol(Delta-9-THC). Section 5. The the cultivation, manufacturing, distribution, sale, possession and use of "Industrial Hemp" for personal, industrial, or commercial use may be regulated, but the number of plants cultivated or the products derived from manufacturing, shall not be limited or prohibited, by the General Assembly. Section 6. The the cultivation, manufacturing, distribution, sale, possession and use of "Medical Cannabis" for personal, industrial, or commercial use may be regulated, but not prohibited, by the General Assembly. Section 7. All laws which conflict with this amendment are hereby repealed to the extent that they conflict with this amendment. 2