Why did the Arkansas AG reject Avalon Romane's cannabis hemp and recreational marijuana ballot title?

Plain-English summary

Avalon Romane submitted a proposed constitutional amendment called the "Arkansas Cannabis Hemp and Recreational Marijuana Amendment." Attorney General Leslie Rutledge rejected its popular name and ballot title because three ambiguities in the proposed text kept her from accurately explaining it to voters.

First, provisions for marijuana and paraphernalia applied to a "person who is eighteen (18) years of age or older," leaving unclear whether businesses and other non-natural persons could participate. Second, the amendment did not say whether any regulator or licensing scheme would oversee the newly lawful cannabis activities. Third, it would legalize "products produced" from hemp and marijuana without defining that phrase. Rutledge could not resolve those questions by substituting different title language; the sponsor had to clarify the proposal itself.

Currency note

This opinion was issued in 2017. Check current law before applying its ballot-title analysis to a new submission.

Common questions

Q: What was unclear about who could grow or sell marijuana? A: The proposal permitted certain activities by an adult "person," which suggested an individual human being. Rutledge said it did not explain whether a business entity could cultivate, distribute, or sell marijuana or paraphernalia. A different hemp provision contained no comparable reference to a person.

Q: Did the proposal set out a system for licensing or oversight? A: The opinion says it mentioned no regulatory body or legislative committee to implement the measure. Although the text called itself self-executing, it was unclear whether it contemplated no regulatory or licensing scheme at all. Rutledge considered that uncertainty significant for voters.

Q: Why did "products produced" matter?
A: The proposal would legalize products produced from hemp and marijuana but did not define the phrase. Without knowing what products it covered, the AG could not fairly describe what would become lawful.

Q: Could a revised title cure these problems?
A: The AG said no title could fairly summarize an ambiguous proposal. She invited Romane to redesign the measure and title and resubmit them, warning that review of a revision might uncover more ambiguities.

Background and statutory framework

Ark. Code Ann. § 7-9-107 gives the AG a pre-circulation role in reviewing popular names and ballot titles. Rutledge explained that this review concerns whether voters receive a fair and intelligible account of a measure, not whether the proposal is good policy. She found the three uncertainties substantial enough to reject the submitted title and decline to write a substitute.

Citations

• Ark. Code Ann. § 7-9-107
• Roberts v. Priest, 341 Ark. 813 (2000)
• Griffin v. Rhoton, 85 Ark. 89 (1907)

Source

• Arkansas Attorney General opinions search: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2017-011
February 10, 2017
A val on Romane, Sponsor
50 Crest A venue
West Fork, AR 72774
Dear Avalon:
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 323 CENTER STREET, SUITE 200 · LITTLE ROCK, ARKANSAS 72201 TELEPHONE (501) 682-2007 · FAX (501) 682-8084 ARKANSASAG.GOV A val on Romane, Sponsor Opinion No. 2017-011 Page 2 law,"1 this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities.2 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 honestl1', 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 Arkansas Cannabis Hemp and Recreational Marijuana Amendment Ballot Title An amendment to the Arkansas Constitution concemmg the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of recreational marijuana and cannabis hemp 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, 1 See Kurrus v. Priest, 342 Ark. 434, 445, 29 S.W.3d 669, 675 (2000); Donovan v. Priest, 326 Ark. 353, 359, 931 S.W.2d 119, 121 (1996); Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). 2 As part of my review, however, I may address constitutional concerns for consideration by the measure's proponents. 3 See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846 (1984). A val on Romane, Sponsor Opinion No. 2017-011 Page 3 distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis in to cannabis hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of cannabis hemp and products produced therefrom; providing that a business and anyone 21 years of age or older may obtain a cannabis hemp license permitting the business or person to cultivate cannabis hemp; authorizing recreational use of marijuana; providing that a business and anyone 21 years of age or older may obtain a marijuana license permitting the business or person to cultivate, produce, and sell marijuana and products produced therefrom for recreational purposes; providing that a licensed person or business may cultivate up to 36 marijuana 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% recreational marijuana excise tax and a local sales tax of 2%; permitting any business that is 1500 feet away or more from a public or private school, church, or daycare may sell recreational marijuana to any person 21 years of age or older; providing that the owner(s) of the business and any and all employees have a marijuana license, and that the recreational marijuana being sold in the form of edibles or drinkables (a)is [sic] not designed to appeal to children; (b) shall not exceed 10 milligrams of TCH per service, and ( c) labeling or packaging must provide product information; 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 recreational 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. 4 It need not contain detailed information or include exceptions that might be required of a ballot title, 4 Pafford v. Hall, 217 Ark. 734, 739, 233 S.W.2d 72, 75 (1950). Avalon Romane, Sponsor Opinion No. 2017-011 Page 4 but it must not be misleading or give partisan coloring to the merit of the proposal. 5 The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.6 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. 7 According to the Court, a ballot title will not be legally sufficient unless it "adequately inform[ s ]" the voters of the contents of a proposed amendment or act so that they can make a "reasoned decision in the voting booth."8 A ballot title's failure to "honestly and accurately reflect what is contained in the proposed [act or] Amendment" may lead the Court to conclude that the "omission is significant."9 The Court has also disapproved the use of terms that are "technical and not readily understood by voters."10 Without a definition of such terms in the ballot title, the title may be deemed insufficient. 11 Additionally, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed."12 At the same time, however, a ballot title must be brief and concise; 13 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. 14 The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal 5 See, e.g., Chaney v. Bryant, 259 Ark. 294, 297, 532 S.W.2d 741, 743 (1976); Moore v. Hall, 229 Ark. 411, 3 16 S. W .2d 207 ( 1958). For a better understanding of the term "partisan coloring," see note 16 infra. 6 May v. Daniels, 359 Ark. 100, 105, 194 S.W.3d 771, 776 (2004). 7 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 ( 1980) (internal citations omitted). 8 Lange v. Martin, 2016 Ark. 337, 9, at n. 2. 9 Id. at 9. 10 Wilson v. Martin, 2016 Ark. 334, *9. 11 Id. 12 Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994). 13 See Ark. Code Ann. § 7-9-107(b). 14 Bailey at 284, 884 S.W.2d at 944. A val on Romane, Sponsor Opinion No. 2017-011 Page 5 argument the proposed measure might evoke.15 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."16 The ballot title must be honest and impartial, 17 and it must conve~ an intelligible idea of the scope and significance of a proposed change in the law. 8 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. 19 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."20 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 (I) 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 15 Id. at 293, 844 S.W.2d at 946-47. 16 Id. at 284, 884 S.W.2d at 942. Language "tinged with partisan coloring" has been identified by the Arkansas Supreme Court as language that "creates a fatally misleading tendency" (Crochet v. Priest, 326 Ark. 338, 347, 931 S.W.2d 128, 133 (1996)) or that "gives the voter only the impression that the proponents of the proposed amendment wish to convey of the activity represented by the words." (Christian Civic Action Committee v. McCuen, 318 Ark. 241, 249, 884 S.W.2d 605, 610 (1994)). 17 Beckerv. McCuen, 303 Ark. 482, 489, 798 S.W.2d 71, 74 (1990). 18 Christian Civic Action Committee, 318 Ark. at 245, 884 S.W.2d at 607 (internal quotations omitted). 19 Cf Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). 20 Id. Avalon Romane, Sponsor Opinion No. 2017-01 l Page 6 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. Sections 5 and 6 of your proposed amendment concern the
   legalization of industrial hemp, marijuana, and marijuana
   paraphernalia, respectively. Section 5 makes it lawful for any "person who is eighteen ( 18) years of age or older" to participate in the "cultivation, production, distribution, sale, possession, and use of marijuana and products." Likewise, Section 6 makes it lawful for any "person who is eighteen ( 18) years of age or older" to "manufacture, possess, and purchase marijuana paraphernalia, or [to] sell marijuana paraphernalia to another person who is eighteen ( 18) years of age or older." Although "person" is not defined in these sections, it seems clear from the 18- years-of-age limit that it means a natural person, i.e., an individual human being. But there is no express statement as to whether a non-natural person such as a business entity can engage in the marijuana-related activities that would be legalized under Sections 5 and 6. It is likewise unclear whether, by referring only to a natural person, you intend to prohibit business entities and other non-natural persons from cultivating, producing, distributing, selling, possessing, or using marijuana, marijuana products, and marijuana paraphernalia. This ambiguity is highlighted upon review of Section 4 ("The Restoration of Industrial Hemp"), which makes the "cultivation, production, distribution, sale, possession, and use of industrial hemp and products produced from industrial hemp" lawful. However, Section 4 does not refer to a "person" by any definition, implying that both natural and non-natural persons can engage in the industrial hemp-related activities that would become legal. The proposal's position on these issues is undoubtedly a significant matter for voters' consideration. Without clarification regarding what, if any, requirements or opportunities apply to non-natural persons in connection with the "cultivation, distribution, sale, [etc.]" of industrial hemp and marijuana, this significant point cannot be accurately summarized for voters in a ballot title.
2. Section 2 of your proposed amendment simply states that "on
   and after November 7th, 2018 the cultivation, production,
   distribution, sale, possession, and use of the cannabis plant (genus cannabis) shall not be an offense under Arkansas Law, or be a basis Avalon Romane, Sponsor Opinion No. 2017-011 Page 7 for seizure or forfeiture of assets pursuant to the Arkansas Uniform[] Controlled Substance Act." Neither Section 2, nor the remainder of the amendment, refer to creation of a regulatory body or legislative committee that would implement the proposal. And while Section 9 states that the amendment is self-executing,21 it is unclear if the amendment contemplates no scheme whatsoever for regulation or licensure of those engaged in the "cultivation, production, distribution, sale, possession, and use of the cannabis plant." Because a voter would reasonably question the manner and extent of regulatory oversight for statewide recreational marijuana, these ambiguities must be resolved in order to accurately summarize the amendment in a ballot title.
3. In Section 3 ("Definitions"), the proposed amendment omits a
   definition of "products produced." However, Section 4 would
   legalize "products produced from industrial hemp," and Section 5 would legalize "products produced from marijuana." A ballot title would be misleading if it lacked a reasonable description of what "products produced" are to become legal. Similarly, a ballot title without a reasonable description of "products produced" would fail to alert voters of changes to existing law resulting from the proposed amendment. 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 1s embodied only in Ark. Code Ann. § 7-9-107, and my duty is to the electorate. 21 Griffin v. Rhoton, 85 Ark. 89, 107 S.W. 380, 382 (1907) (For provisions that "do not in and of themselves constitute a sufficient rule by means of which such right may be protected or such duty enforced, ... supplemental legislation must be had, and the provision may be in its nature mandatory to the Legislature to enact the needful legislation."). Avalon Romane, Sponsor Opinian No. 2017-011 Page 8 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. 22 You may resubmit your proposed act along with a proposed popular name and ballot title at your convenience. Sincerely,
   <~~
   LESLIE RUT~Er:~
   Attorney General
   Enclosure
   22 Ark. Code Ann.§ 7-9-107(c). THE ARKANSAS CANNABIS AMENDMENT AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT, PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION, AND USE OF MARIJUANA AND INDUSTRIAL HEMP AND PRODUCTS PRODUCED THEREFROM MAY NOT BE PROHIBITED 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 IN TO INDUSTRIAL HEMP (CONTAINING 0.3% OR LESS THC) AND MARIJUANA (CONTAINING MORE THAN 0.3% THC); PERMITTING THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, POSSESSION AND USE OF MARIJUANA BY ANY PERSON 18 YEARS OF AGE OR OLDER; 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 MARIJUANA TO ANYONE UNDER 18 YEARS OF AGE, (D) NOR PERMIT ANYONE UNDER 18 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL, POSSESS, OR USE MARIJUANA. Section 1. Short Title. This is an amendment to the Arkansas Constitution that shall be called "The Arkansas Cannabis Amendment". Section 2 Effective Date. Effective on and after November 7th, 2018 the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus Cannabis) shall not be an offense under Arkansas Law, or be a basis for seizure or forfeiture of assets pursuant to the Arkansas Uniformed Controlled Substance Act. Section 3. Definitions. The following terms are defined for the purposes of this amendment: (a) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (b.9THC) content of the operator's blood exceeds thirteen micrograms per liter (13µg/L). (b) "Industrial hemp" means any part of the cannabis plant (genus Cannabis), living or not, and when harvested in its mature plant stage contains three tenths of one percent (0.3%) or less, by dry weight, Delta-9- tetrahydrocannabinol (b.9THC). (c) "Marijuana" means any part of the cannabis plant (genus Cannabis), living or not, and when harvested in its mature plant stage contains greater than three tenths of one percent (0.3%), by dry weight, Delta-9- tetrahydrocannabinol (ti9THC). (d) "Marijuana paraphernalia" means any equipment, utensils, products, and materials which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, containing, or concealing marijuana, or for ingesting, inhaling or otherwise introducing marijuana into the human body. (e) "Remuneration" means an act in which money is being paid to purchase marijuana for recreational purposes. Section 4 The Restoration of Industrial Hemp. The cultivation, production, distribution, sale, possession, and use of industrial hemp and products produced from industrial hemp shall be lawful in every geographic area of every county of this state under Arkansas law, and shall not be a basis for seizure or forfeiture of assets pursuant to the Arkansas Uniformed Controlled Substance Act. Section 5 The Restoration of Marijuana. The cultivation, production, distribution, sale, possession, and use of marijuana and products produced from marijuana by any person who is eighteen (18) years of age or older shall be lawful in every geographic area of every county of this state under Arkansas law, and shall not be a basis for seizure or forfe_iture of assets pursuant to the Arkansas Uniformed Controlled Substance Act. Section 6. Marijuana Paraphernalia Any person eighteen (18) years of age or older may manufacture, possess, and purchase marijuana paraphernalia, or may sell marijuana paraphernalia to another person who is eighteen (18) years of age or older. Section 7. Employers, driving, and minors. (a) Nothing in this amendment is intended to require an employer to permit or accommodate the cultivation, production, distribution, sale, possession, or use of marijuana in the workplace or to affect the ability of employers to have policies restricting the use of marijuana by employees. (b) Nothing in this amendment is intended to permit driving under the influence of marijuana. (c) Nothing in this amendment is intended to permit the transfer of marijuana, with or without remuneration, to a person under the age of eighteen (18). (d) Nothing in this amendment is intended to permit a person under the age of eighteen (18) to cultivate, produce, sell, possess, or use marijuana. (e) Nothing in this amendment is intended to permit the cultivation, production, distribution, or sale, of any other substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled Substances Act. Section 8. Non-violent marijuana offenders and criminal record expungement. All persons currently serving incarceration, probation, or parole in this state, whose current and only conviction(s) to which they are now serving were due to violating state laws as they pertain to the cultivation, production, distribution, sale, and possession of marijuana, and or possession of marijuana paraphernalia, and whose violation(s) occurred prior to the effective date of this amendment shall be released, and all criminal records in this state shall be expunged of such convictions that occurred prior to the effective date of this amendment. Section 9. Conflicting laws. The provisions of this Amendment are hereby declared to be severable and self-executing, and except where otherwise indicated in this Amendment, shall supersede all conflicting state and local laws, charters, regulations, and any and all other provisions in conflict with this Amendment. If any provision of this Amendment, or the application of such provision to any person or circumstance, is declared invalid by any court for any reason, such declaration shall not affect the validity of the remaining portions of this Amendment.