Did the Arkansas Attorney General certify the September 2016 draft of the Arkansas Cannabis Amendment?

Plain-English summary

This is an earlier installment in Mary L. Berry's cycle of submissions for the proposed "Arkansas Cannabis Amendment." She had revised an earlier draft to narrow the definitions of "medical marijuana" and "recreational marijuana" to only "products produced from marijuana" (rather than the plant itself). But she did not update related cross-references. AG Leslie Rutledge rejected the popular name and ballot title because the resulting definitions did not line up internally.

Two specific ambiguities the AG flagged:

1. The definition of "marijuana license" in section 3(e) still referred to cultivating and selling "marijuana and products produced from marijuana for recreational and medical purposes," even though "medical marijuana" and "recreational marijuana" had been narrowed to exclude the plant itself. That made it impossible to tell whether the amendment was actually meant to permit use of the unprocessed plant for those purposes.

2. In the definition of "marijuana paraphernalia" in section 3(f), one occurrence of "medical or recreational marijuana" had been updated to "marijuana and products produced from marijuana," but the other was left unchanged, with no apparent reason for the difference.

As with the AG's later rejection of the October 2016 draft (Op. 2016-100), she declined to substitute her own corrected ballot title because the underlying inconsistencies were in the proposal text itself.

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 adopted medical marijuana in 2016 through a different ballot proposal (Amendment 98). The Berry proposal at issue here was never certified and never appeared on a ballot.

Background and statutory framework

Under Ark. Code Ann. § 7-9-107 the Arkansas AG must certify, substitute, or reject the popular name and ballot title of every proposed initiated amendment. The standard, set by the Arkansas Supreme Court, requires the title to fairly, impartially, and intelligibly summarize the measure. When the proposal text itself contains internal inconsistencies, the AG cannot draft around them because any title would necessarily be inaccurate or misleading.

The five-minute booth limit (Ark. Code Ann. § 7-5-309) also constrains ballot title length, and the popular name must be a "useful legislative device" rather than a restatement of the title.

Common questions

Q: Why did the AG reject Berry's earlier draft when she rejected the next draft (Op. 2016-100) for ten reasons?
A: This September 26 opinion focuses on two specific inconsistencies introduced by edits between drafts. The October 14 opinion (Op. 2016-100) catalogued ten broader textual problems. Each ballot-title certification stands on its own analysis of the version submitted.

Q: How is a "popular name" different from a "ballot title"?
A: The popular name is a short label (per Pafford v. Hall, 217 Ark. 734 (1950), and Gaines v. McCuen, 296 Ark. 513 (1988)) meant for easy pre-election discussion. The ballot title is the longer summary that actually appears on the ballot and must contain enough information for a voter to understand the measure.

Q: Does it cost a sponsor anything to keep resubmitting?
A: Filing fees are minimal, but the AG's office spends real time on each review. Several Arkansas AG opinions have flagged concerns about resubmission burden when the same defects recur.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (Supp. 2015), AG certification of popular names and ballot titles
• Ark. Code Ann. § 7-5-309, five-minute booth limit

Cases:

• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), essential-fact disclosure
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950), popular-name standard
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), internal inconsistencies in proposal text

Source

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

Original opinion text

Opinion No. 2016-097
September 26, 2016
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 (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 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 current and only conviction(s) in which they are serving 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 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, 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 retail 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 marijuana, nor 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.

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. The definition of "marijuana license" in section 3(e) refers to cultivating, etc., "marijuana and products produced from marijuana for recreational and medical purposes." (Emphases added.) In connection with this submission, you revised the definitions of "medical marijuana" and "recreational marijuana," contained in sections 3(h) and (k) respectively, to consist only of "products produced from marijuana," and not the cannabis plant itself. These provisions are inconsistent and make it impossible to determine whether the proposal is intended to permit use of the unprocessed cannabis plant for medical and recreational purposes. The new usage is inconsistent with a number of other provisions as well. See, for example, section 5(a), which provides for a license to cultivate, etc., "marijuana and products produced from marijuana for recreational and medical purposes . . . ."

2. The previous version of your proposal used the phrase "medical or recreational marijuana" in two places in section 3(f), defining "marijuana paraphernalia." In connection with this submission, you revised one of the occurrences of that phrase to read "marijuana and products produced from marijuana" but left the other occurrence unchanged. No reason appears for the difference in language between the two occurrences, which introduces uncertainty and ambiguity.

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

LESLIE RUTLEDGE
Attorney General

Enclosure