Why did the Arkansas AG reject the 2016 Arkansas Medical Marijuana Amendment's popular name and ballot title?

Plain-English summary

Attorney David Couch submitted a proposed constitutional amendment, the "Arkansas Medical Marijuana Amendment of 2016," and asked the AG to certify the popular name and ballot title under Ark. Code Ann. § 7-9-107. The AG rejected it.

The rejection was not on the merits of the policy. The AG made clear that the office's review never reaches whether a proposal is good policy; the question is only whether voters can be fairly told what they are voting on. Here the ballot title could not honestly summarize the proposal because the proposal itself had internal inconsistencies the AG could not paper over by drafting a better summary.

The AG laid out a list of specific ambiguities. Section 2(7) of the proposed amendment referred to "the activities described in § 8 of this amendment," but section 8 described such a range of activities that the cross-reference was indeterminate. The defined term "usable marijuana" said the term included the entire plant, while sections 3(d) and 5(g)(3)(B) referenced "marijuana seeds, seedlings, plants, or usable marijuana," implying seeds and plants were not "usable marijuana." Section 2(19) defined "written certification" one way, while section 3(g)(1) used a different "written certification" that did not match. Sections 4(a)(1), 8(a)(3), and 9(a)(2) directed agencies to "regulate" the constitutional amendment itself, which the AG noted is not a coherent instruction. Other sections used phrases like "those hours," "marijuana material," "areas that are difficult to access," and "similar commercial businesses" without specifying their meaning. Section 17(b)'s introductory language was described as "exceedingly difficult to parse."

The AG concluded that fixing the ballot title was not possible without first fixing the proposed amendment. The AG also declined to substitute a revised ballot title because the underlying ambiguities made even that exercise unworkable. The sponsor was told he could redesign and resubmit.

The 2015 rejection is a notable data point: the same sponsor later submitted a revised proposal that became Arkansas Issue 6 on the November 2016 ballot and was approved by voters as the Arkansas Medical Marijuana Amendment of 2016.

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

Ark. Code Ann. § 7-9-107 requires the AG to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before petitions are circulated for signatures. The AG may substitute a more suitable popular name and ballot title if practicable, or reject the petition outright if the proposed text is sufficiently misleading.

The statute does not authorize the AG to make legal determinations about the merits of the act or amendment or the likelihood it will accomplish its stated objective. Unless a measure is "clearly contrary to law," the AG will not require that the ballot title acknowledge possible constitutional infirmities. So the review focuses on whether the popular name and ballot title accurately and impartially summarize the proposal.

Arkansas Supreme Court precedent supplies the framework. A ballot title must give voters a fair understanding of the issues, with no misleading tendency by amplification, omission, or fallacy, and must not be tinged with partisan coloring. It must be brief and concise so that it does not violate the five-minute limit on voting-booth time in Ark. Code Ann. § 7-5-309. It must convey an intelligible idea of the scope and significance of the change.

The Court has held that internal inconsistencies in the underlying proposal can themselves doom a ballot title. Roberts v. Priest established that where "[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," the AG cannot perform the statutory certification duty without revision of the proposed amendment.

The AG applied that rule. The ambiguities flagged in the opinion were not stylistic. Definitions conflicted with operative provisions. Cross-references pointed at categories too broad to be definite. Some operative directions did not parse. The AG concluded that no amount of redrafting at the ballot-title level could cure these problems.

Common questions

Did the AG say the medical marijuana proposal was a bad idea?

No. The AG specifically said the review is not about policy. The office could not opine on whether legalizing medical marijuana was good or bad. The rejection was about whether voters could be honestly told what they were voting on.

What kinds of problems triggered the rejection?

Three patterns: (1) defined terms that conflict with how the terms are used elsewhere, like "usable marijuana" and "written certification"; (2) cross-references that point at too many things to be meaningful, like the reference in section 2(7) to "the activities described in § 8"; (3) operative provisions whose meaning is unclear, like the instruction to "regulate" the amendment itself.

Why didn't the AG just rewrite the ballot title?

Because the AG cannot honestly summarize a proposal that is itself unclear. Rewriting the ballot title would have required the AG to pick interpretations of ambiguous provisions, which would amount to drafting policy.

What was the path forward for the sponsor?

The AG told the sponsor he could redesign the proposed measure and the ballot title and resubmit for certification. The opinion noted that the ambiguities listed were not necessarily all that existed in the proposal, and additional ambiguities might emerge on revision.

Did this proposal eventually pass?

A revised version of the medical marijuana amendment was certified, made the November 2016 ballot as Issue 6, and was approved by Arkansas voters. The 2015 rejection is part of the drafting history that led to that successful proposal.

Citations

• Ark. Code Ann. § 7-9-107 (AG certification of popular name and ballot title)
• Ark. Code Ann. § 7-9-107(b) (substitution authority and concise-title requirement)
• Ark. Code Ann. § 7-9-107(c) (sponsor may redesign and resubmit)
• Ark. Code Ann. § 7-5-309 (five-minute time limit in voting booths)
• 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) (popular name is a useful legislative device)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976) (no partisan coloring)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004) (consider popular name and ballot title together)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (impartial summary)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (essential facts and partisan coloring tests)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (fatally misleading tendency)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (impression of proponents)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990) (honest and impartial)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies bar certification)

Source

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

Original opinion text

Opinion No. 2015-135
December 3, 2015
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
David A. Couch, Attorney at Law
David A. Couch, PLLC
1501 North University, Suite 228
Little Rock, AR 72207
Dear Mr. Couch:
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed constitutional amendment.

At the outset, I wish to make clear to you that the decision to certify or reject a popular name and ballot title is in no way a reflection of my view of the merits of a particular proposal. I am not authorized to, and do not, consider the merits of the measure when making my determination to certify or reject a popular name and ballot title.

The Attorney General is required, pursuant to Ark. Code Ann. § 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 this office 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," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, 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.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name: THE ARKANSAS MEDICAL MARIJUANA AMENDMENT OF 2016

Ballot Title: An amendment to the Constitution making the medical use of marijuana legal under Arkansas state law, but acknowledging that marijuana use, possession, and distribution for any purpose remain illegal under federal law; establishing a system for the cultivation, acquisition and distribution of marijuana for qualifying patients through licensed medical marijuana dispensaries and cultivation facilities and granting those dispensaries and facilities limited immunity; providing that qualifying patients, as well as dispensary and cultivation facility agents shall not be subject to criminal or civil penalties or other forms of discrimination for engaging in or assisting with the patients' medical use of marijuana; requiring that in order to become a qualifying patient, a person submit to the state a written certification from a physician licensed in the State of Arkansas that he or she is suffering from a qualifying medical condition; establishing an initial list of qualifying medical conditions; directing the Department of Health to establish rules related to the processing of applications for registry identification cards and the addition of qualifying medical conditions if such additions will enable patients to derive therapeutic benefit from the medical use of marijuana; directing the Alcoholic Beverage Control Division to establish rules related to the operations of dispensaries and cultivation facilities; establishing a Medical Marijuana Commission of 5 members, 2 appointed by the President Pro Tempore of the Senate, 2 appointed by the Speaker of the House of Representatives and 1 by the Governor; providing that the Medical Marijuana Commission shall administer and regulate the licensing of dispensaries and cultivation facilities; providing that there shall be at least 20 but not more than 40 dispensary licenses issued and that there shall be at least 4 but not more than 8 cultivation facility licenses issued; setting initial maximum application fees for dispensaries and cultivation facilities; establishing qualifications for registry identification cards; establishing standards to ensure that qualifying patient registration information is treated as confidential; directing the Department of Health to provide the legislature annual quantitative reports about the Medical Marijuana Program; setting certain limitations on the use of medical marijuana by qualifying patients; establishing an affirmative defense for the medical use of marijuana; establishing registration and operation requirements for dispensaries and cultivation facilities; setting limits on the amount of marijuana a dispensary may cultivate and the amount of marijuana a dispensary may dispense to a qualifying patient; providing that the Medical Marijuana Commission shall determine the amount of marijuana a cultivation facility may cultivate; prohibiting certain conduct by and imposing certain conditions and requirements on physicians, dispensaries, dispensary and cultivation facility agents, and qualifying patients; establishing a list of felony offenses which preclude certain types of participation in the Medical Marijuana Program; providing that the sale of usable marijuana is subject to all state and local sales taxes; and providing that the state sales tax revenue shall be distributed 5% to the Department of Health, 2% to the Alcoholic Beverage Control Administration Division, 2% to the Alcoholic Beverage Control Enforcement Division; 1% to the Medical Marijuana Commission; 5% to the Arkansas Historic Preservation Fund (established by the Act), 10% to the Skills Development Fund; and 75% to the Vocational and Technical Training Special Revenue Fund; permitting the General Assembly by two-thirds vote to amend sections of the Amendment except that the General Assembly may not amend the sections legalizing the medical use of marijuana, setting the number of dispensaries or cultivation facilities allowed, or the distribution of the state sales tax proceeds.

RESPONSE

The popular name is primarily a useful legislative device. 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. The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.

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. 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." At the same time, however, a ballot title must be brief and concise; otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. 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. The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

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." 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." 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 (1) clarification or removal of the ambiguities in the proposed amendment itself, and (2) conformance of the popular name and ballot title to the newly worded amendment.

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. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. 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 may, if you wish, redesign the proposed measure, popular name, 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.

Section 2(7) refers to "the activities described in § 8 of this amendment," but section 8 refers to such a range of activities that it is impossible to determine the meaning of the quoted phrase. Section 8(n)(2) refers to issuing a renewal license "to any individual or entity who complies with the requirements contained in this amendment" and section 9(g)(2) refers to issuing a renewal card "to any person or entity who complies with the requirements contained in this amendment." The proposal contains so many requirements that it is impossible to determine the meaning of these phrases. Additionally, dispensaries and cultivation facilities are limited by definition to entities. The requirement to issue a license to an individual is inconsistent with these definitions and creates ambiguity. It is not clear elsewhere in the proposal that an entity may register as a dispensary agent or designated caregiver.

Section 2(17) defines "usable marijuana" to include the entire plant. Section 3(d) states that a dispensary may accept "marijuana seeds, seedlings, plants, or usable marijuana." Section 5(g)(3)(B) uses the same formulation, which implies that seeds, seedlings, and plants are not "usable marijuana" and creates uncertainty about the proposal's meaning.

Section 2(19) defines "written certification." Section 3(g)(1) describes something referred to as "written certification" that is not the "written certification" defined in section 2(19). I cannot determine the proposal's meaning in this regard.

Sections 4(a)(1), 8(a)(3), and 9(a)(2) direct the department and the division to "administer, regulate, and enforce the provisions of this amendment." I am uncertain what it means to say "regulate" a constitutional amendment.

Section 5(c)(2)(C) refers to information that has been "falsified," a word that suggests active deception rather than mistake. It is unclear whether the department may deny an application or renewal if the provided information is merely false.

Section 8(e)(10) states that "local regulation shall not restrict a dispensary from operating less than eight (8) hours per day if the dispensary chooses to operate during those hours." Both the nature and extent of localities' regulatory power and the meaning of "those hours" are unclear.

Subsections 8(h) and 8(j) require issuance of a minimum number of dispensary and cultivation facility licenses. The consequences of a failure to issue the required minimums are unclear.

Section 8(m)(4)(A)(i) refers to an amount of usable marijuana "reasonably necessary to meet the demand for ... qualifying patients," a reference of no clear meaning.

Section 9(e) requires the division to issue a card after receiving a person's name, address, and date of birth "under this amendment" and a fee. This provision directly conflicts with another provision that prohibits issuance of a card if the applicant has been convicted of an excluded felony offense.

Section 9(g)(3) refers to certain "notification by a dispensary or cultivation facility" but does not specify to whom or when such a notification must be given.

The proposal does not appear to prohibit a qualifying patient with a designated caregiver from obtaining marijuana directly from a dispensary rather than indirectly through his or her designated caregiver. Section 10(b)(8)(A) appears to permit any qualifying patient and any designated caregiver to obtain 2.5 ounces of marijuana from a dispensary every 14 days. Consequently, it appears that the proposal would have the effect of enabling a qualifying patient with a designated caregiver to obtain 5.0 ounces of marijuana every 14 days: 2.5 ounces directly from a dispensary and 2.5 ounces indirectly through his or her designated caregiver. But because the proposal otherwise contains no indication that its intent is that qualifying patients with designated caregivers be permitted to obtain twice the amount of marijuana allowed to qualifying patients without caregivers, I am unable to determine the proposal's intent in this regard.

Section 11(b)(3) refers to "marijuana material," section 15(1) refers to "medical marijuana," and section 15(3) refers to "usable marijuana for medical use." These terms are not defined or, as far as I can tell, otherwise used. The references' meanings are not clear. Additionally, use of the phrase "for medical use" implies that sales of "usable marijuana" for non-medical use are possible.

Section 13 refers to "marijuana plants, seeds, and usable marijuana," a phrase that implies that plants and seeds are not "usable marijuana," an implication that appears unwarranted in light of the definition of "usable marijuana."

Section 14(a) refers to "similar commercial businesses" and section 14(b) refers to "areas that are difficult ... to access." Both phrases are of uncertain meaning.

Section 15(1) refers to "a dispensary, cultivation facility, or other provider of medical marijuana," implying that persons or entities other than dispensaries and cultivation facilities may provide marijuana. The provision's meaning is uncertain.

Section 17(b) contains seven subsections, the introductory language to which is exceedingly difficult to parse. As a consequence, its meaning is uncertain.

Section 21, containing no prohibition, is inaccurately captioned.

Section 23(b) implies, but does not provide, that the General Assembly may not amend section 23. Accordingly, the provision is of uncertain meaning.

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 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 proposal along with a proposed popular name and ballot title at your convenience.

Sincerely,
LESLIE RUTLEDGE
Attorney General