Why did the Arkansas AG reject Mary Berry's recreational-marijuana ballot title in 2017?

Plain-English summary

Mary L. Berry submitted a proposed "Arkansas Recreational Marijuana Amendment of 2018" to Attorney General Leslie Rutledge for ballot-title certification. The proposal addressed adult recreational use, licensing, taxes, and the release and expungement of certain marijuana-related offenders. Rutledge rejected the submitted title because the measure's Section 8 left the effect on criminal convictions unclear.

Section 8 could mean that only convictions for which a sentence was being served when the amendment took effect would be expunged. Or it could mean that anyone then serving a qualifying marijuana sentence would have every marijuana-related conviction on their record expunged, including those with completed sentences. The AG also could not tell which "other conviction not pertaining to" the listed offenses would prevent a person's release. She said these ambiguities had to be clarified before she could fairly summarize the expungement provision for voters.

The AG raised a separate concern about the proposal's silence on the medical-marijuana amendment approved in 2016. She encouraged Berry to address the interaction in future submissions and said she "may be constrained" from certifying a title that did not address the change in law. She did not identify that concern as a ground for this rejection. Her conclusion referred to the Section 8 ambiguities.

The AG said she could not write a substitute title while the underlying measure remained ambiguous. She invited Berry to redesign and resubmit it.

What this means for you

If you draft a ballot measure involving expungement, the title cannot resolve uncertainty left in the measure itself. This opinion shows why the scope of convictions to be erased and any limits on release need to be clear in the proposal before the AG can summarize them.

If your proposal overlaps an existing constitutional amendment, note the AG's warning about the medical-marijuana provision. In this opinion she raised it as a concern for future submissions, without deciding that silence required rejection here.

Currency note

This is a 2017 certification decision on one proposed measure. Check current election and marijuana law before applying its analysis to a new proposal.

Common questions

Q: What actually prevented certification in this opinion?
A: The AG identified ambiguities in Section 8: which marijuana-related convictions would be expunged, and what "other conviction not pertaining to" the listed offenses meant for release. She could not accurately summarize those provisions in a ballot title.

Q: Did the AG reject the proposal because it omitted medical marijuana?
A: No. She expressed concern about how the proposal might affect the 2016 medical-marijuana amendment and encouraged Berry to address it in a future submission. She said she "may be constrained" from certifying a later title that did not address the interaction.

Q: Would every old marijuana conviction be expunged?
A: The AG could not tell. She described two plausible readings, one tied to a sentence being served when the measure took effect and the other covering every marijuana-related conviction on the record of someone then serving a qualifying sentence.

Q: Could the AG simply rewrite the ballot title?
A: She said no: without resolving the measure's own ambiguities, she could not determine what a fair substitute title should say. She invited a revised submission.

Background and legal framework

Ark. Code Ann. § 7-9-107 required the AG to review the proposed popular name and ballot title before circulation. The AG explained that a ballot title must fairly and impartially describe a measure to voters. When uncertainty in the measure itself prevents an accurate summary, the sponsor must clarify the proposal. The opinion applied that principle to Section 8's expungement and release provisions.

Source

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

Original opinion text

Opinion No. 2017-048
May 8, 2017

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 popular name and ballot title for "The Arkansas Recreational Marijuana Amendment of 2018," authorizing recreational use of marijuana by persons 21 years of age or older, providing that a business and any resident 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 have cultivating up to 36 marijuana plants in a location not subject to public view without optical aid; providing for a 5% recreational marijuana excise tax and a 2% local sales tax; permitting any licensed seller located 1,500 feet or more from a public or private school, church, or daycare to sell to any person 21 years of age or older; setting product-design and labeling rules for edibles, drinkables, smokables, and vaporizables; legalizing marijuana paraphernalia under State law; providing standard exclusions for employer policies, driving under the influence, and transfers to minors; providing for the release from incarceration, probation, and parole of all persons whose current and only conviction(s) in which they are serving were of State laws pertaining to specified marijuana-related offenses; and providing that if the State fails to begin issuing marijuana licenses and plant tags by April 19, 2019, such licenses and tags shall not be required until the State issues them and a 30-day grace period has elapsed.

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, 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." 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." The Court has also disapproved the use of terms that are "technical and not readily understood by voters." Without a definition of such terms in the ballot title, the title may be deemed insufficient.

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. As you know, Arkansas voters approved a medical-marijuana amendment in the 2016 general election. But I note that your proposal does not mention "medical marijuana" or otherwise refer to the 2016 amendment or to subsequent, related legislation. Given that voters are entitled to "first ascertain what changes in the law would be brought about by the adoption of the proposed amendment," I have concerns regarding your proposal's relationship to, and potential conflict with, the medical-marijuana amendment. While my statutory review is limited to the materials provided by the sponsor, I would strongly encourage you to consider addressing in future submissions the interaction between recreational marijuana (as you envision the proposed amendment) and medical marijuana (as adopted and enacted). I may be constrained from certifying a ballot title that does not address, in some way, the legalization of medicinal marijuana and what "changes in the law the [recreational-marijuana] proposal would make."

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." 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."

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. Section 8 provides that "marijuana related convictions under state law shall be expunged from all criminal records" in Arkansas, and that offenders "currently serving" a sentence for those convictions "shall be released, provided that he or she is not currently serving for other conviction not pertaining to" the marijuana related offenses listed in Section 8(a) through 8(e).

It is unclear which convictions qualify under Section 8 as "marijuana related convictions" that must be expunged. On the one hand, a reasonable voter might believe the intent is to expunge those marijuana-related convictions for which a person is currently serving a sentence. Under this interpretation, a marijuana-related conviction listed in 8(a) through 8(e) would be expunged if the sentence associated with the conviction were being served when the amendment took effect. On the other hand, a reasonable voter might conclude that if a person were currently serving a sentence for a marijuana-related conviction, then every marijuana-related conviction on that person's record must be expunged, regardless of whether the person had already served the sentence for that conviction.

It is also unclear what is intended by "other conviction not pertaining to" the convictions listed in 8(a) through 8(e). Any number of criminal convictions might reasonably "pertain," or not, to the offenses listed in Section 8. Therefore, I cannot certify a ballot title free of misleading tendencies with respect to this part of the expungement provision. Because the effect of the proposed amendment on criminal convictions is a matter of great importance to Arkansas voters, these ambiguities must be clarified before I can accurately summarize the expungement requirements in a ballot title.

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