Why did the Arkansas Attorney General reject Robert Reed’s proposed hemp and cannabis ballot title?

Plain-English summary

Robert Reed asked the Arkansas Attorney General to certify the popular name and ballot title for a proposed “Arkansas Hemp and Cannabis Amendment of 2018.” Attorney General Leslie Rutledge rejected the title because ambiguities in the proposed amendment prevented her from fairly summarizing its effect. She invited Reed to redesign and resubmit the proposal. The opinion expressly says the rejection is not a judgment about the measure's merits.

The AG identified seven areas of uncertainty. The proposal did not explain how its protection for products “derived from” cannabis would affect other regulated ingredients or products containing only a little cannabis. Its language on personal, industrial, and commercial use raised questions about other uses. It used “cannabis” and “Cannabis” for different concepts, and it was unclear how much authority the legislature would have to regulate products derived from hemp or Cannabis. The text also appeared to treat prohibitions on hemp and Cannabis differently without explaining the boundary. Finally, its relief for people with marijuana convictions left uncertainty about unrelated prior convictions and about convictions entered after the proposed effective date for earlier conduct.

The AG said these ambiguities were serious enough that she could not supply a corrected ballot title. She did not discuss federal preemption, compare this proposal with a medical marijuana measure, or evaluate the policy merits of legalization.

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.

What this means for you

Petition sponsors

The opinion shows that the AG may require changes to the proposed amendment itself when its meaning cannot be fairly summarized in a ballot title. Reed could redesign the measure and title and resubmit them. This rejection concerns the proposal as submitted.

Voters and researchers

The opinion is a ballot-title review of an unapproved proposal. It does not decide the legal status of cannabis or hemp, whether any competing proposal passed, or what federal law would permit.

Common questions

Q: Why was Reed's proposed title rejected?
A: The AG said unresolved ambiguities in the amendment's text prevented a fair and complete ballot summary.

Q: Did the AG say federal law would preempt the proposal?
A: No. This opinion does not discuss federal preemption.

Q: Could the AG write a corrected title for Reed?
A: She said no, because the underlying text first needed clarification. Reed could redesign and resubmit it.

Q: Did the AG oppose cannabis legalization?
A: The opinion says the office does not consider a proposed measure's merits, philosophy, or ideology when reviewing its title.

Background and statutory framework

The opinion describes the AG's duty to review proposed popular names and ballot titles before petitions circulate. She may substitute suitable wording when practicable, but said substitution was not appropriate here because she could not determine the proposal's effect without clarification. The seven issues she listed concerned product coverage, regulatory authority, terminology, and relief for prior marijuana convictions.

Citations and references

Statute: Ark. Code Ann. § 7-9-107, including subsection (b) on substitution and certification.

Source

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

Original opinion text

Opinion No. 2016-110
November 4, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

Robert L. Reed
295 Elan Trail
Dennard, AR 72629

Dear Mr. Reed:

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 titled "The Arkansas Hemp and Cannabis Amendment of 2018."

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 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.

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.

RESPONSE

It is my opinion, based on Arkansas Supreme Court precedent, 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. Section 2 of the proposal would make lawful the possession, etc., of "all products derived from the cannabis plant." It seems reasonable to expect that such products would in some instances contain 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, etc., of such an ingredient or component, or of an item, otherwise prohibited, that contains cannabis as an ingredient or component. Neither is it clear how little cannabis a product could contain and still be deemed to be "derived" from cannabis, and whose legal prohibition would therefore be precluded.

2. Section 2 of the proposal would make lawful the possession, etc., of the cannabis plant and products derived therefrom without regard to the use to be made thereof. Sections 5 and 6 would permit regulation of hemp and "Cannabis" "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, etc., if not for such use, would be free from regulation. It is not clear how the proposal would operate in this regard.

3. The proposal refers generally to the "cannabis" plant, but also defines in section 3 the word "Cannabis" to refer to something less than all "cannabis." This usage is unnecessarily confusing and difficult to describe in a ballot title.

4. Sections 5 and 6 would permit regulation of hemp and "Cannabis" but would not expressly authorize regulation of products derived therefrom. Additionally, section 5, regarding hemp, provides that "the products derived from manufacturing, shall not be limited or prohibited ...." It is not clear whether the proposal is intended to wholly preclude the General Assembly from regulating products derived from "Cannabis." Neither is the extent of the General Assembly's intended regulatory authority over products derived from hemp clear.

5. Section 6 provides that possession, etc., of "Cannabis" may be regulated but not prohibited. Section 5 provides that possession, etc., of hemp may be regulated but that "the number of plants cultivated or the products derived from manufacturing, shall not be limited or prohibited ...." The usage suggests that certain acts relating to hemp, but not to "Cannabis," may be prohibited, but the provision's meaning is not clear.

6. Section 7 refers to persons "whose only conviction(s) were due to violating state laws" pertaining to marijuana. It is not clear whether the proposal is intended to preclude relief to a person currently incarcerated for a marijuana offense but who, for example, was earlier convicted of a crime unrelated to marijuana and has long since completed serving his sentence for that crime.

7. Section 7 provides for release of persons whose "violation(s)" occurred before the proposal's effective date, and expungement of "convictions" that occurred before the proposal's effective date. It is not clear whether the proposal is intended to deny expungement to a person convicted after the proposal's effective date for conduct that occurred before the proposal's effective date.

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.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure: The full text of the proposed Arkansas Hemp and Cannabis Amendment of 2018 is on file with the Office of the Attorney General. It included sections on the short title; effective date (January 1, 2019); definitions of "Hemp" (≤1% Delta-9-THC) and "Cannabis" (>1% Delta-9-THC); regulation of hemp and Cannabis for personal, industrial, or commercial use; non-violent marijuana offender release and expungement; and a conflicting-laws clause.