Why did the Arkansas AG reject Mary Berry's second cannabis legalization ballot title in 2015?

Plain-English summary

Mary L. Berry resubmitted "The Arkansas Cannabis Amendment" after the AG's first rejection in Opinion 2015-117. The revised proposal kept the same basic structure: lawful cultivation, production, distribution, sale, possession, and use of the cannabis plant statewide effective January 2017, distinguishing "hemp" from "marijuana" by THC content, with various caps on license fees and excise tax, and release/expungement provisions for marijuana offenders.

The AG rejected again. The new proposal had cleaned up some prior issues but still contained ambiguities the AG could not summarize honestly:

1. Section 2 made products "produced from the cannabis plant" lawful, but did not address whether that overrode statute law regulating other ingredients or components contained in such products.
2. The hemp-versus-marijuana distinction turned on THC content, but the proposal did not address how to classify an item or quantity whose THC content varied.
3. Section 2 made the listed activities lawful "without regard to the use," while Sections 5 and 6 permitted regulation for "personal, industrial, or commercial use." That mismatch implied that other (non-listed) uses would be free from regulation, which the AG could not interpret.
4. Sections 5 and 6 referred to "the products produced" but did not clearly include marijuana products in the "regulated but not prohibited" framework.
5. Section 6 referred to "the State excise tax imposed upon the sale of marijuana" but did not clearly say whether the tax was required or merely capped if imposed.
6. The license language was unclear about whether a single license covered all activities (cultivation, production, distribution, sale) or whether multiple licenses were required, and about which authority issues the license.
7. Section 7 ordered release of prisoners "for violating state laws as it pertains to marijuana." Read literally, this would reach a person convicted of DWI where marijuana was the impairing substance, even though marijuana did not necessarily play a meaningful role in any individual incident. Records of DWI convictions may not reflect which substance was involved, deepening the ambiguity.
8. The drafting itself was uneven. The AG noted phrases like "any person eighteen (18) years of age and [sic] older," "state laws as it [sic] pertains to marijuana," and "number of license [sic]" as examples (not an exhaustive list) of grammatical and punctuation problems that should be cleaned up.

The opinion ended with the same instruction as the first round: the sponsor could redesign and resubmit. Berry did, and the AG rejected the third submission in Opinion 2015-132.

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.

Background and statutory framework

The AG works from the same statutory and case-law framework as in Opinion 2015-117 (and 2015-135 on a separate medical marijuana proposal). Ark. Code Ann. § 7-9-107 requires certification of the popular name and ballot title before signature collection, with substitution authority under (b) and a resubmission right under (c). The Arkansas Supreme Court's ballot-title cases (Pafford v. Hall, Chaney v. Bryant, May v. Daniels, Becker v. Riviere, Bailey v. McCuen, Crochet v. Priest, Christian Civic Action Committee, Becker v. McCuen) require an honest, impartial, brief, and intelligible summary, free of partisan coloring or misleading tendency. The five-minute voting-booth limit in § 7-5-309 supplies the brevity constraint. Roberts v. Priest treats internal inconsistencies in the underlying proposal as themselves fatal to certification.

The new wrinkle in this opinion is the DWI ambiguity. Arkansas Code § 5-65-103 criminalizes operating a motor vehicle while intoxicated, and § 5-65-102(4) defines "intoxicated" to include impairment by alcohol or a controlled substance. Marijuana is a controlled substance. The proposal's release provision applied to "violating state laws as it pertains to marijuana," which on a literal reading could be read to cover DWI convictions where marijuana was the intoxicant, even when DWI does not turn on marijuana as a regulated substance per se. Records of DWI convictions may not even document which substance was involved. The AG read that as a separate ambiguity in addition to the earlier ambiguities about who counts as "incarcerated."

The drafting-quality concern flagged at the close of the opinion is unusual. The AG specifically pointed out three grammatical and number-agreement errors as examples and stressed that "portions of the proposal do not reflect the care in drafting that should accompany efforts to amend the State's fundamental law." That was a hint to the sponsor to do a careful editorial pass before any further resubmission.

Common questions

Did Berry fix everything from the first rejection?

She fixed some things, including the prior references to the defunct Arkansas Board of Correction and Community Punishment. But the second proposal introduced or kept other ambiguities (DWI law, product-ingredient handling, license scope, excise tax meaning) that the AG identified as still fatal.

Could a person convicted of marijuana-impaired DWI really have been released under the proposal?

Under a literal reading, possibly. That was the AG's point: the proposal's release language ("violating state laws as it pertains to marijuana") could be read to reach DWI convictions where marijuana was the intoxicant, even though the underlying offense (DWI) is not a marijuana-specific law in the usual sense. The proposal did not resolve that ambiguity.

What about products that mix cannabis with other regulated ingredients?

Section 2 made products "produced from the cannabis plant" lawful but said nothing about whether it overrode statute law that regulates the non-cannabis ingredients or components. So if a product mixed cannabis with a separately regulated substance, the proposal's effect on the regulation of that substance was not clear.

Was the excise tax mandatory?

The AG asked the same question. Section 6 referred to "the State excise tax imposed upon the sale of marijuana and products containing marijuana shall not exceed five percent (5%)." That language could be read as either requiring the tax (and capping it at 5%) or merely capping it if imposed. The proposal did not say.

Did the AG criticize the drafting?

Yes, unusually directly. The opinion called out three specific grammatical errors as examples and emphasized that careful drafting is expected when amending the state constitution.

Citations

• Ark. Code Ann. § 7-9-107 (Repl. 2013) (AG certification authority)
• Ark. Code Ann. § 7-9-107(b) (substitution authority)
• Ark. Code Ann. § 7-9-107(c) (sponsor may redesign and resubmit)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth limit)
• Ark. Code Ann. § 5-65-102(4) (definition of "intoxicated" includes controlled substances)
• Ark. Code Ann. § 5-65-103 (DWI offense)
• 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)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies bar certification)
• Op. Att'y Gen. 2015-117 (first rejection of the same proposal)

Source

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

Original opinion text

Opinion No. 2015-122
October 26, 2015
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Repl. 2013), of the popular name and ballot title for a proposed constitutional amendment.

You have requested certification of the following popular name and ballot title:

Popular Name: THE ARKANSAS CANNABIS AMENDMENT

Ballot Title: An amendment proposed by the people to the Arkansas Constitution to provide, effective January, 20 2017 [sic], that the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus cannabis) and all products derived from the cannabis plant are lawful within the entire geographic area of every county of this state; that for purposes of the amendment "hemp" means any part of the cannabis plant, living or not, containing one percent or less, by dry weight, delta-9-tetrahydrocannabinol (delta-9-thc), and "marijuana" means any part of the cannabis plant, living or not, containing more than one percent, by dry weight, delta-9-thc; that the listed activities with respect to hemp for personal, industrial, or commercial use may be regulated but not prohibited, provided that the quantity and size of plants cultivated and the products produced shall not be limited or prohibited.; [sic] that the listed activities with respect to marijuana for personal, industrial, or commercial use by any person 18 years of age or older are lawful in this state and may be regulated but not prohibited, provided that (1)(a) the cost of a license that shall be required by the state to authorize and regulate the cultivation, production, distribution, and sale of marijuana and products containing marijuana shall not exceed $250.00 per year; (b) any person 18 years of age or older shall qualify to obtain such license; and (c) there shall be no limit to the number of licenses issued in this state; (2) the quantity of plants cultivated shall be limited to 36 growing plants per qualified person, but the size of plants cultivated and the products produced shall not be limited or prohibited; (3) the state excise tax imposed on the sale of marijuana and products containing marijuana shall not exceed five percent; and (4) the use of marijuana and products containing marijuana shall not be prohibited to any person under 18 years of age whose physician has authorized it by written recommendation for the treatment of an illness or disease; upon the effective date of this amendment, all persons who are incarcerated in this state whose only conviction/convictions were for violating state laws as it pertains to marijuana shall be released; and all criminal records in this state shall be expunged of such violations.

RESPONSE

It is my opinion based on the above precepts that a number of additions or changes to your ballot title are 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 in the text of your proposed amendment itself. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you will need to redesign the proposed measure and ballot title, and then resubmit for certification.

In order to aid your redesign of the ballot title, I highlight below the more concerning ambiguities in the text of your proposed amendment.

1. Section 2 of the proposal would make lawful the possession and sale, etc., of "all products produced from the cannabis plant." It seems reasonable to expect that such products may in some instances have ingredients or components other than cannabis. It is not clear whether the proposal, being a constitutional amendment, would make unenforceable statute law that regulates or prohibits possession or sale, etc., of such an ingredient or component, or of an item, otherwise prohibited, that contains cannabis as an ingredient or component.

2. The proposal distinguishes between, and treats differently, "hemp" and "marijuana," on the basis of THC content. It is not clear how an item or quantity of some substance would be classified under the proposal if the item or substance had variations in THC content.

3. Section 2 of the proposal would make lawful the possession and sale, etc., of the cannabis plant and products produced therefrom without regard to the use to be made thereof. Sections 5 and 6 permit regulation of hemp and marijuana "for personal, industrial, or commercial use." While it may be difficult to imagine a use that is not "personal, industrial, or commercial," the language used carries an implication that possession and sale, etc., if not for such use, will be free from regulation. It is not clear how the proposal will operate in this regard.

4. Sections 5 and 6 permit regulation of hemp and marijuana but do not, in the principal operative provisions, refer to products produced from or containing hemp or marijuana, though they do refer to "the products produced" (without further describing such products). It is not clear whether products produced from or containing hemp or marijuana would be subject to the "regulated but not prohibited" provisions of sections 5 and 6.

5. Section 6 refers to "the State excise tax imposed upon the sale of marijuana and products containing marijuana." It is not clear whether this provision is intended to require such an excise tax or is merely a limitation on any such tax that may, or may not, be imposed.

6. Section 6 refers to "a license that shall be required by the state to authorize and regulate the cultivation, production, distribution, and the sale of marijuana and products containing marijuana." It is not clear if a single license will be sufficient to permit a person to do all the listed things or if one would be required to obtain a license for each activity. The phrase "required by the state" is also not clear with respect to whether the license is to be issued by the state or is to be required by the state to be issued by some other authority.

7. Section 7 provides for the release of prisoners convicted of "violating state laws as it [sic] pertains to marijuana." It is not clear to which state laws the provision refers. It is unlawful, for instance, to operate a motor vehicle while "intoxicated." To be "intoxicated" includes being influenced or affected by the ingestion of, among other things, alcohol or a controlled substance. Marijuana being a controlled substance, it can certainly be maintained that the DWI law "pertains" to marijuana. Marijuana understandably plays no part in the acts constituting driving while intoxicated in many instances, but the proposal's language can be interpreted to require the release of a person involved in such an instance. The language is also problematic in that records of the DWI conviction of a person who consumed only marijuana will not necessarily reflect that fact.

8. Portions of the proposal do not reflect the care in drafting that should accompany efforts to amend the State's fundamental law. They include errors of grammar, punctuation, and spelling. If you determine to revise and resubmit the proposal, you should review it carefully to eliminate problematic phrases currently contained in the proposal such as "any person eighteen (18) years of age and [sic] older," "state laws as it [sic] pertains to marijuana," and "number of license [sic]." The foregoing are merely examples and are not intended to be an exhaustive list of problematic phrases and punctuation contained in the proposal.

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on further review of any revisions of your 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