Did the Arkansas AG certify the proposed 'Arkansas Industrial Hemp and Medical Cannabis Amendment' for the 2016 ballot?

Plain-English summary

Robert Reed submitted yet another revision of his cannabis ballot proposal. This version was titled "The Arkansas Industrial Hemp and Medical Cannabis Amendment" and used different defined terms ("industrial hemp" for cannabis at 0.3% THC or less; "medical cannabis" for cannabis above 0.3% THC). The same sponsor had already had earlier versions rejected, most recently in Opinion No. 2015-041 (and a still-later version would be rejected the same month in Opinion No. 2015-080 under the title "End Cannabis Prohibition").

The AG rejected this version too. The opinion identified three problems:

1. The proposal called the substances "industrial" hemp and "medical" cannabis without actually limiting their uses to industrial or medical purposes. Section 2 made cannabis lawful "for personal, medical, industrial, or commercial use." That made the labels misleading: voters reading "industrial hemp" and "medical cannabis" would naturally assume the proposal limited each form to its labeled use, when the text allowed all uses.

2. The labels also created ambiguity about the General Assembly's regulatory authority. Sections 5 and 6 authorized the legislature to regulate "industrial hemp" and "medical cannabis," which the modifiers suggested might mean it could only regulate hemp for industrial uses and cannabis for medical uses. The legalization clause in Section 2, by including "personal, medical, industrial, or commercial use," cut against that reading. Voters and the legislature alike would have no clear picture of what the legislature could and could not do.

3. The proposal still had several errors of syntax that obscured its meaning. The AG urged the sponsor to review carefully and correct such errors before another resubmission.

The AG declined to substitute and certify a more suitable ballot title under Ark. Code Ann. § 7-9-107(b), because the ambiguities lived in the text of the proposed amendment itself. Only the sponsor could fix that. The sponsor was invited to resubmit. (He did, with the renamed "End Cannabis Prohibition" version, which was also rejected eighteen days later in Op. 2015-080.)

The opinion otherwise tracked the standard ballot-title framework: the popular name and ballot title must honestly, intelligibly, and fairly set forth the purpose; must not give partisan coloring; must include an impartial summary; must disclose essential facts; must be brief and concise within the booth-time limit; must be free of misleading tendency; must convey an intelligible idea of the scope and significance of the change; and must not be defeated by internal inconsistencies in the proposed measure.

Currency note

This opinion was issued in 2015. 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

Why were the words "industrial" and "medical" misleading?

Because using a noun-modifier suggests a use restriction. Calling the lower-THC form "industrial hemp" tells the reader the substance is for industry; calling the higher-THC form "medical cannabis" tells the reader it is for medicine. The text did not contain those use restrictions. Section 2 expressly permitted personal, medical, industrial, or commercial use of both forms. So the labels were a use-restriction signal that didn't match the actual proposal.

Why did the AG reject the proposal instead of rewriting the title?

Because the source of the ambiguity was inside the proposed amendment, not just the ballot title. Roberts v. Priest holds that internal inconsistencies in the proposed measure itself defeat certification, regardless of how the ballot title is worded. The AG's substitution power under Ark. Code Ann. § 7-9-107(b) reaches the title, not the text.

What was the difference between this proposal and the "End Cannabis Prohibition" version a few weeks later?

This version (2015-071) used the labels "industrial hemp" and "medical cannabis." The later version (2015-080) renamed the defined terms to "hemp" and "cannabis" and changed the popular name to "End Cannabis Prohibition." The Op. 2015-080 rejection focused on different defects (a broken hemp definition, an internal inconsistency between Section 2 and Section 6, the partisan tone of "Prohibition," and persistent syntax errors).

How many cannabis-amendment submissions did this sponsor make in 2015?

The opinion itself says this was a revision of "several similar measures, the most recent of which I rejected in Opinion No. 2015-041." So at least three iterations before this one, and at least one more after this one (2015-080).

Could the sponsor have resubmitted?

Yes. Ark. Code Ann. § 7-9-107(c) rejection is not preclusive. The opinion expressly invited resubmission once the ambiguities were resolved.

Background and statutory framework

The AG's ballot-title role is set by Ark. Code Ann. § 7-9-107. Subsection (b) authorizes substitution where practicable; subsection (c) authorizes rejection of a sufficiently misleading proposal. Ark. Code Ann. § 7-5-522's five-minute booth-time limit grounds the brief-and-concise requirement.

The opinion applied the standard line of Arkansas Supreme Court ballot-title cases: Arkansas Women's Political Caucus v. Riviere for the basic certification standard; Pafford v. Hall for the role of the popular name; Chaney v. Bryant and Moore v. Hall for impartiality; May v. Daniels for reading popular name and ballot title together; Becker v. Riviere and Bailey v. McCuen for the essential-fact rule and the brief-and-concise rule; Becker v. McCuen and Christian Civic Action Committee v. McCuen for honesty and intelligible-idea-of-scope; and Roberts v. Priest for the inability to certify when internal inconsistencies are in the underlying text. The Kurrus/Donovan/Plugge line gives the "clearly contrary to law" carveout.

The proposed amendment would have repealed all conflicting laws to the extent of the conflict, and acknowledged that preemptive federal law would remain in effect unless altered by Congress.

Citations

• Ark. Code Ann. § 7-9-107 (Repl. 2013)
• Ark. Code Ann. § 7-9-107(b)
• Ark. Code Ann. § 7-9-107(c)
• Ark. Code Ann. § 7-5-522
• Op. Att'y Gen. 2015-041
• 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)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

Source

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

Original opinion text

Opinion No. 2015-071
July 2, 2015

Robert L. Reed
P.O. Box 111
Dennard, AR 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 Ark. Code Ann. § 7-9-107 (Repl. 2013), of the following popular name and ballot title for a proposed constitutional amendment. You have previously submitted several similar measures, the most recent of which I rejected in Opinion No. 2015-041. Having altered your proposal's ballot title and text, you have now submitted the following proposed popular name and ballot title for my certification:

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, 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, Delta-9-Tetrahydrocannabinol(Delta-9-THC) [sic]; that the the [sic] cultivation, manufacturing, distribution, sale, possession and use of "industrial hemp" 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; that the the [sic] cultivation, manufacturing, distribution, sale, possession and use of "medical 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 opinion then sets out the standard ballot-title framework (purpose of review, role of the popular name, requirements for the ballot title, the essential-fact rule, the brief-and-concise rule, the misleading-tendency standard, and the rule from Roberts v. Priest that internal inconsistencies in the proposed measure itself defeat certification).]

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 Ark. Code Ann. § 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.

• The proposal authorizes the General Assembly to regulate the cultivation, etc., of "industrial" hemp and "medical" cannabis. 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, but the phrase "for personal, medical, 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 Ark. Code Ann. § 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. You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,

LESLIE RUTLEDGE
Attorney General
LR/cyh

[Enclosure: Popular name "The Arkansas Industrial Hemp and Medical Cannabis Amendment" and the full seven-section text of the proposed amendment, as set out in the official PDF.]