Was the Arkansas Cannabis Amendment's revised popular name and ballot title sufficient for ballot certification in 2016?

Plain-English summary

Mary L. Berry submitted a proposed constitutional amendment to legalize and regulate cannabis (medical and recreational marijuana plus industrial hemp) in Arkansas, asking the AG to certify the popular name and ballot title under Ark. Code Ann. § 7-9-107. The AG's job at this stage was narrow: not to evaluate the merits of legalization, but to check whether the popular name and ballot title fairly, honestly, and intelligibly summarized what the measure would do. If the underlying text was internally ambiguous, the AG could not draft a faithful summary and had to reject.

This was Berry's second submission. The AG had certified an earlier version of this proposal on April 25, 2016. The new submission added section 4 (industrial hemp regulation) and made related changes. AG Leslie Rutledge concluded that the additions created ambiguities serious enough that the AG could not certify. Seven specific ambiguities drove the rejection:

1. License requirement for hemp cultivation/sale vs. product-making. Subsections 4(a) and 4(b) appeared to require a license and field tags to cultivate hemp, but 4(d) said no license was needed for "producing . . . products containing industrial hemp." Cultivation is part of producing those products, so the proposal contradicts itself about when a license is needed.
2. State authority to require licenses despite 4(d). Subsection 4(d) said the state should not require a hemp license to produce industrial hemp products. Subsection 4(e) said nothing precluded "additional rules and regulation the state may adopt." It was unclear whether the state could nonetheless impose a license requirement.
3. "Any person" of age eligibility vs. exclusion of bad actors. Subsections 4(a) and 5(a) said "any person" of age can obtain a license. Subsections 4(e) and 5(g) suggested rules excluding violent felons and others. The proposal was ambiguous about whether those exclusions are allowed.
4. Scope of the medical marijuana tax exemption. Subsection 5(e) imposed a 5% excise tax on recreational marijuana. Subsection 5(f) said the state "shall not impose any tax" on medical marijuana. Unclear whether (f) reached just the (e) excise tax or also other taxes (sales tax, even income tax on dispensary revenue).
5. Single-parent consent. Subsection 6(b) said "[a]ny parent" could provide medical marijuana to a minor child, implying one parent acting alone could do so. But the subsection then used "their minor child" and "they," implying both parents. Ambiguous whether one parent could act without the other's consent.
6. Paraphernalia use on others. Subsection 7(b) appeared to let a licensee use marijuana paraphernalia to introduce marijuana "into the human body" of someone else, regardless of that person's consent. Subsections 7(c) and 7(d) repeated the same problem.
7. Scope of "only conviction(s)" for early release. Section 9 released and expunged convictions where "only conviction(s)" were marijuana-related. Unclear whether that referred only to convictions currently being served or to all of a person's convictions in life (so a person serving time for marijuana but also previously convicted of robbery might or might not be released).

Because these ambiguities sat in the underlying proposal (not just in the ballot title), the AG could not "substitute and certify a more suitable and correct" title under § 7-9-107(b). The AG instructed Berry to redesign the measure and resubmit.

Currency note

This opinion was issued in 2016. 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.

Arkansas voters approved a different measure in November 2016 (the Arkansas Medical Marijuana Amendment, Amendment 98), which Berry's proposal here was not. The legal regime around marijuana in Arkansas has changed substantially since.

Background and statutory framework

The AG's narrow role under § 7-9-107

The Attorney General is required by Ark. Code Ann. § 7-9-107 to certify the popular name and ballot title of proposed initiated measures before petitions are circulated. The AG may, if practicable, substitute a more suitable and correct version. If the popular name and ballot title are sufficiently misleading, the AG may reject the petition entirely.

The statute does not authorize the AG to evaluate merits, philosophy, or ideology of the measure. The AG also does not, except where a measure is "clearly contrary to law" under Kurrus v. Priest, Donovan v. Priest, and Plugge v. McCuen, require sponsors to acknowledge constitutional infirmities in the ballot title. The review is limited to whether the title fairly summarizes the measure.

The Arkansas Supreme Court's framework

The ballot title must:

• honestly, intelligibly, and fairly set forth the purpose of the measure (Arkansas Women's Political Caucus v. Riviere);
• be an impartial summary giving voters a fair understanding (Becker v. Riviere);
• disclose any "essential fact which would give the voter serious ground for reflection" (Bailey v. McCuen);
• be brief and concise so voters do not exceed § 7-5-309's five-minute limit in the booth;
• be free of misleading tendency by amplification, omission, or fallacy (Bailey);
• not be "tinged with partisan coloring" (Crochet v. Priest; Christian Civic Action Committee);
• be honest and impartial (Becker v. McCuen); and
• convey an intelligible idea of the proposed change.

The popular name is read together with the ballot title (May v. Daniels). It can be brief and informal but must not be misleading or "give partisan coloring." See Pafford v. Hall and Chaney v. Bryant.

When ambiguity in the proposal itself triggers rejection

The leading authority on this kind of rejection is Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). The court has held that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and ballot title and the language in the measure. "Internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." So when the AG flags ambiguities in the underlying proposal, the AG is applying Roberts v. Priest's rule that the AG cannot fix the ballot title around an ambiguous measure.

Why the AG could not just rewrite the title

Section 7-9-107(b) lets the AG substitute and certify a more suitable title when practicable. The AG declined to use that authority here because the underlying ambiguities meant the AG could not determine what the proposal actually did. Without a clear understanding of the measure's effect, there was no faithful summary the AG could craft. The seven ambiguities also did not exhaust the problems; the AG warned that more might surface on review of any revision.

Common questions

Q: Why didn't the AG just legalize cannabis in 2016?
A: The AG was not voting on legalization. The AG was certifying (or rejecting) a ballot title for sponsors who wanted to circulate petitions to put the question to voters. The AG's narrow statutory job is summary accuracy, not policy.

Q: What does it mean that the AG rejected the title because of ambiguities in the measure itself?
A: The measure's text had internal contradictions and unclear provisions. The AG cannot summarize a moving target. Roberts v. Priest says the AG should reject in that situation.

Q: Could the sponsor refile?
A: Yes. The AG specifically invited Berry to redesign the proposal and resubmit. Berry did, and the AG issued a related rejection in Opinion 2016-089.

Q: Did this opinion say anything about whether cannabis should be legal in Arkansas?
A: No. The AG repeatedly stressed that certification decisions do not reflect any view on the merits.

Q: What about voters who saw cannabis on their 2016 ballot?
A: The cannabis measure that actually made the November 2016 ballot was a different proposal (the Medical Marijuana Amendment, which voters approved as Amendment 98). The Berry proposal here was a separate effort that did not reach the ballot.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (Supp. 2015), AG certification of ballot titles
• Ark. Code Ann. § 7-9-107(b), authority to substitute a corrected title
• Ark. Code Ann. § 7-9-107(c), rejection authority
• Ark. Code Ann. § 7-5-309, five-minute voting-booth limit

Cases:

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (Ark. Sup. Ct.)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996) (Ark. Sup. Ct.)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992) (Ark. Sup. Ct.)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 848 (1984) (Ark. Sup. Ct.)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (Ark. Sup. Ct.)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976) (Ark. Sup. Ct.)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958) (Ark. Sup. Ct.)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004) (Ark. Sup. Ct.)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (Ark. Sup. Ct.)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (Ark. Sup. Ct.)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (Ark. Sup. Ct.)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (Ark. Sup. Ct.)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990) (Ark. Sup. Ct.)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (Ark. Sup. Ct.)

Source

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

Original opinion text

Opinion No. 2016-078
August 1, 2016

Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677

Dear Ms. Berry:

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 initiated measure.

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 proposal.

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 Cannabis Amendment

Ballot Title
An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of the cannabis plant and cannabis-related products produced therefrom may not be prohibited under state law, but shall be regulated under state law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, or parole of all persons whose only conviction(s) were of state laws pertaining to the cultivation, production, distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis into industrial hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of industrial hemp and products produced therefrom; providing that anyone 18 years of age or older may obtain an industrial hemp license permitting the person to cultivate and sell industrial hemp; authorizing both medical and recreational use of marijuana; providing that anyone 21 years of age or older may obtain a marijuana license permitting the person to cultivate, produce, distribute and sell marijuana and products produced therefrom; providing that a licensed person may cultivate up to 36 cannabis plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% excise tax; providing that the state shall not impose any tax on the sale of medical marijuana to patients; permitting medical use of marijuana by a person of any age whose physician has recommended such use in writing; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under state law; and providing that the amendment (a) is not intended to require employers to permit activities relating to marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana, (c) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, (d) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana.

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 measure cannot be approved if the text of the proposal itself contributes to 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 proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

On April 25, 2016, I certified a popular name and ballot title submitted by you on this topic. However, your current proposal has substantive differences (specifically, the addition of section 4) from the proposal that resulted in certification. As explained below, these additions have caused ambiguities that require rejection of the popular name and ballot title. Moreover, since I am required to reject the popular name and ballot title due to ambiguities in the underlying proposal's new section, I also think it worthwhile to point out several other ambiguities that my additional review has identified in the underlying proposal.

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 the measure 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 and ballot title, and then resubmit for certification. In order to aid your redesign, I highlight below the more concerning ambiguities in the text of your proposal.

1. Subsections 4(a) and 4(b) refer to an industrial hemp license and industrial hemp field tags, and appear to require a person to obtain tags to cultivate industrial hemp and a license to cultivate or sell industrial hemp. Subsection 4(d), however, in stating that no industrial hemp license is required for "producing . . . products containing industrial hemp," implies that a license is not required for cultivating industrial hemp (which is inarguably part of the process of "producing . . . products containing industrial hemp"). The proposal accordingly is ambiguous with respect to the circumstances under which a license or tags are needed.

2. Subsection 4(d) provides that "[n]othing in this section requires entities producing or selling products containing industrial hemp in Arkansas to obtain an industrial hemp license." Subsection 4(e) provides that "[n]othing in this section precludes the imposition of additional rules and regulation the state may adopt and impose." The proposal is ambiguous with respect to whether the state, acting in accordance with subsection 4(e), could impose a requirement that entities producing or selling products containing industrial hemp must obtain an industrial hemp license.

3. Subsections 4(a) and 5(a) provide that "any person" of age may obtain an industrial hemp license or marijuana license, respectively. However, subsection 4(e), quoted above, and subsection 5(g), which is a substantially similar provision applying to marijuana, provide that sections 4 and 5 do not preclude the imposition of rules prohibiting certain persons (e.g., persons convicted of violent felonies or found to have engaged in deceptive trade practices) from obtaining licenses. It is ambiguous whether the proposal would allow any such restrictions as to who may be prohibited from obtaining a license.

4. Subsection 5(e) provides for a state excise tax on the sale of recreational marijuana. Subsection 5(f) provides that the state "shall not impose any tax upon the sale of medical marijuana." The proposal is unclear and ambiguous with respect to whether subsection 5(f) is referring to the excise tax mentioned in subsection 5(e) or to other taxes as well. It is also unclear whether subsection 5(f) would shield from income taxation income realized from sales of medical marijuana.

5. Subsection 6(b) provides that "[a]ny parent" may provide medical marijuana to a minor child, suggesting that one parent may, acting alone, do so over the objection of the other parent. The subsection also, however, refers to "their minor child" and refers to the person(s) authorized to provide medical marijuana to a minor child as "they." The subsection is accordingly ambiguous with respect to the authority of one parent acting without the consent of the other.

6. Subsection 7(b) can be read to permit a person with a marijuana license to use marijuana paraphernalia to introduce marijuana "into the human body" of another person, regardless of the other person's consent. It seems unlikely that that was the intent but without clarification, the ballot title must describe this unusual result. The same issue is present in subsections 7(c) and 7(d).

7. Section 9 is ambiguous with respect to whether the phrase "only conviction(s)" refers only to the conviction(s) for which the person is currently serving incarceration, probation, or parole, or to all of a person's convictions during his lifetime. Thus it is unclear whether the proposal would require the release of a person serving a prison sentence solely for a marijuana offense but who had earlier been convicted of, say, robbery.

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, as did some of the ambiguities noted above.

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.

LESLIE RUTLEDGE
Attorney General

Enclosures

[The full proposed measure text accompanied the rejection. It is preserved in the source PDF on the Arkansas AG website.]