Did the Arkansas AG approve the 2017 'Decriminalization of Recreational Marijuana' constitutional amendment ballot title submitted by Larry Morris?

Plain-English summary

Larry B. Morris submitted a proposed Arkansas constitutional amendment (the "Arkansas Decriminalization of Recreational Marijuana Amendment") that would have legalized recreational cannabis for adults 21 and older, with a 25-mature/25-non-mature plant cultivation cap, a 5% state excise tax, a 2% local sales tax, and automatic expungement for prior marijuana convictions. AG Leslie Rutledge rejected the popular name and ballot title without substituting a corrected version.

The reasoning closely tracks the AG's same-day rejection of Mary L. Berry's parallel proposal (Op. Att'y Gen. 2017-060). Two ambiguities prevented certification. First, Section 3(g) defined "Schedule VI substance" by referring to Ark. Code Ann. § 5-64-215, but that statute itself lists multiple marijuana-related substances and never defines "marijuana" in subsection (a)(1). The relationship between Section 3(g)'s "Schedule VI substance" and Section 3(b)'s "marijuana" was unclear. Second, Section 8's expungement clause referred to "all persons ever convicted of such offenses in his or her lifetime," with no clear antecedent, opening the possibility that every marijuana-related conviction in the state would be wiped out.

The AG also flagged the Berry/Morris duplication problem. Both proposals had 11 sections, the same titles, and overlapping content; the only meaningful textual difference was the cultivation cap. Two textually identical amendments would, by definition, get textually identical ballot titles, leaving voters unable to distinguish the two on a single ballot.

Currency note

This opinion was issued in 2017. 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.

Historical context: Berry and Morris in parallel

Morris filed his proposal on May 5, 2017, four days before Berry filed hers. The AG addressed the two on the same day (May 19, 2017) and treated them as functionally identical for ballot-title purposes. The opinion to Morris is the senior in the pair (number 2017-056); the opinion to Berry, also rejected, follows in number (2017-060). Both opinions share the same ambiguity findings and the same instruction to consolidate.

The two sponsors were "coordinating their efforts," according to the opinion. The AG noted that if she found a later submission to be substantively identical to one she had already reviewed, she "may be constrained to respond to the later submission solely by reference to the earlier proposal." That posture matters because the later proposal carries a redundancy disability the AG cannot fix on her own.

Common questions

Why did the AG describe Berry's and Morris's proposals as "indistinguishable"?

Both had eleven sections with virtually the same titles and content overlapping almost entirely. The only material textual difference was the plant cap: Morris allowed up to 25 mature and 25 non-mature plants per licensee, while Berry capped cultivation at 36 plants. The AG considered that difference too small to matter for voter-initiative purposes; the proposals would still draw the same ballot title.

What about the 25-plant transparency provision unique to Morris?

Morris's Section 4(a)(2) required cultivators with 25 or more plants to register the location with the county sheriff's office. Berry's proposal had no such provision. The opinion does not treat this as a substantive textual difference because it does not affect the ballot title's substance or change the measure's scope of legalization.

What was the "Schedule VI" ambiguity?

Both proposals defined "Schedule VI substance" by reference to Ark. Code Ann. § 5-64-215, but that statute lists a series of marijuana-related substances at subsections (a)(2) through (a)(6) in addition to "marijuana" at (a)(1), and (a)(1) itself does not define "marijuana." Voters could not tell whether the proposed amendment's "Schedule VI substance" included only the bare marijuana category, or all of the related substances, or something in between. Without a fixed referent, the AG could not certify a ballot title that would honestly describe what the amendment would change.

How did the expungement clause go wrong?

Both Morris and Berry wrote that the listed marijuana offenses "shall be expunged from each and every criminal record in the state of all persons ever convicted of such offenses in his or her lifetime." The AG flagged "of all persons ever convicted of such offenses" as a possessive phrase with no obvious antecedent. A voter could read it to mean every conviction record in the state, going back forever. The AG noted that if that was actually intended, the measure had to say so plainly; if not, it had to be rewritten.

Citations

• Ark. Code Ann. § 7-9-107 (AG ballot-title certification)
• Ark. Code Ann. § 7-5-309 (five-minute booth limit)
• Ark. Code Ann. § 5-64-215 (Schedule VI substances)
• Ark. Const. art. 5, § 1 (Amendment 7, citizen initiative process)
• Lange v. Martin, 2016 Ark. 337
• Wilson v. Martin, 2016 Ark. 334
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

Source

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

Original opinion text

Opinion No. 2017-056
May 19, 2017

Larry B. Morris, Sponsor
[address redacted]
West Fork, AR 72774

Dear Mr. Morris:

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.

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.

At the outset, I must mention my grave concerns about the potential for certifying two (or more) substantively identical recreational-marijuana proposals. As you know, my office has been reviewing the measures submitted by Mary Berry along with your proposals. The submissions currently pending from you and Ms. Berry (yours, dated May 5, 2017 and addressed in this response, and Ms. Berry's, dated May 9, 2017) are effectively indistinguishable. The text of both proposals has 11 sections; the 11 sections have virtually the same titles; and the sections' content overlaps almost entirely. Based on my reading of Ms. Berry's recreational-marijuana proposal and yours, the only discernible difference is that Ms. Berry caps at 36 the number of marijuana plants a licensed person or business can cultivate, whereas your proposal limits licensed cultivators to 50 marijuana plants (25 mature and 25 non-mature plants). I do not believe this difference is meaningful in terms of my office's voter-initiative obligations, described below.

I have a statutory duty to certify non-misleading ballot titles and popular names for measures proposed under Article 5, Section 1 of the Arkansas Constitution. But if proposals are no different textually, by definition their ballot titles and popular names will be identical, and I could not substitute a title for one measure that might distinguish it from the other. This would be extremely problematic for voters, who in a statewide election would see (on the same ballot) two proposed constitutional amendments or acts with identical ballot titles and popular names. Arkansas statute also requires that I ensure each ballot title and popular name fairly apprises voters of potential changes to existing law. Again, since Ms. Berry's submission and yours are effectively the same, this task would be impossible with respect to both proposals.

For these reasons, and because Ms. Berry has indicated to my office that you are coordinating your efforts, I urge you to consolidate future submissions. Of course, I will review any proposed measure sent to my office for certification. But if I determine that a measure is substantively identical to one I have already reviewed, I may be constrained to respond to the later submission solely by reference to the earlier proposal.

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 Decriminalization of Recreational Marijuana Amendment

Ballot Title: [Approximately 690 words describing a constitutional amendment to legalize recreational marijuana for adults 21 and older, with a 25-mature/25-non-mature plant cultivation cap, county-sheriff registration for cultivation operations of 25+ plants, transport on public roads, sales subject to existing sales taxes plus a 5% recreational marijuana excise tax and a 2% local sales tax, sales prohibited within 1,500 feet of schools, churches, or daycares, edible products with a 10mg THC per serving cap and child-resistant packaging requirements, paraphernalia legalization, employer protections, no-driving-under-the-influence carve-out, no transfer or use by anyone under 21, preservation of Arkansas Medical Marijuana Amendment of 2016 rights, and authorization for the State to appoint a regulatory body.]

RESPONSE

[Standard ballot-title framework discussion.]

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 3(g) states that a "Schedule VI substance" for purposes of your proposed amendment means "marijuana pursuant to The Arkansas Uniform Controlled Substances Act § 5-64-215."

Section 3(g) raises questions that cannot be resolved in a manner conducive to certifying a non-misleading ballot title. First, Ark. Code Ann. § 5-64-215 ("Additional substances to be placed in Schedule VI") contains a number of marijuana-related substances, "marijuana" at § 5-64-215(a)(1) being but one. And "marijuana" itself is not defined in subsection (a)(1) of the statute. It is thus unclear how the "Schedule VI substance" referenced in your proposed amendment equates to "marijuana" as that term appears in Ark. Code Ann. § 5-64-215(a)(1). Likewise, it is unclear if a "Schedule VI substance" in the proposed amendment would include some, or all, of the illegal substances listed at §§ 5-64-215(a)(2-6).

Second, it is unclear in what way a "Schedule VI substance" as defined in section 3(g) of your proposal relates to the "marijuana" defined in section 3(b) of the proposal. Both subsections involve or employ definitions of "marijuana," but I cannot ascertain whether "marijuana" in section 3(b) is the same as "marijuana" in section 3(g). Because consistent definitions of "marijuana" are crucial to a fair translation of your proposed amendment to a ballot title, these ambiguities must be clarified.

2. Section 8 provides that certain "marijuana offenses under state law shall be expunged from each and every criminal record in the state of all persons ever convicted of such offenses in his or her lifetime ...." Section 8(a)(1) through (a)(5) then lists a series of offenses, all of which refer to a "schedule VI substance."

The phrase "of all persons ever convicted of such offenses in his or her lifetime" is ambiguous. It is not apparent what the possessive phrase "of all persons ever convicted" modifies; there is no obvious antecedent for it in section 8(a). A reasonable voter could, therefore, conclude that references to "all persons ever convicted of such offenses" must be expunged from every criminal record in the state. If this far-reaching outcome is the intended result of section 8(a), it must be stated with more clarity. The significance of the phrase "in his or her lifetime" is likewise unclear, given that only living persons can be convicted of a criminal offense. Finally, the offenses listed in section 8(a)(1-5) contain references to "schedule VI substances." For the reasons discussed in Part 1, above, a "schedule VI substance" is ambiguous in the context of your proposal. Because the effect of the proposed measure 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

[Enclosure: full text of the proposed Arkansas Decriminalization of Recreational Marijuana Amendment, with Sections 1 through 11 covering short title, effective date November 7, 2018, definitions including "Driving under the influence of marijuana" at 14ng/ml THC, regulation of cultivation and sale (25 mature plus 25 non-mature plant cap, county sheriff registration for 25+ plant operations, sales not within 1,500 feet of schools, churches, or daycares), product design with 10mg THC per serving cap, paraphernalia legalization, employer rights, minor protections, regulatory body authorization, expungement of non-violent marijuana offenses, taxation (existing sales tax plus 5% excise plus 2% local sales tax), penalty schedule for transfer to or use by under-21s, and severability/self-executing clauses.]