Why did the Arkansas AG reject Larry Froelich's 2017 ballot title for an initiated act that would have made Act 570 of 2011's reduced drug sentences retroactive?

Plain-English summary

Fayetteville attorney Larry Froelich proposed an initiated act that would have let Arkansas Circuit Courts cut drug-conviction sentences down to the maximums set by Acts 2011, No. 570 (the Public Safety Improvement Act, which had reduced punishments for many controlled-substances offenses). His proposed measure was short, just three sections, and would apply retroactively to anyone convicted before Act 570's effective date.

In June 2017, AG Leslie Rutledge rejected the popular name and ballot title for two reasons.

Defect 1: Bare statute reference. Both the popular name ("An Act to Make the Reduced Drug Punishments of Acts 2011, No. 570 Retroactive") and the ballot title referred to "Acts 2011, No. 570" without explaining what those reduced punishments actually were. The proposed measure itself did not describe Act 570 either; it just said the act sets a "maximum punishment for the type and amount of controlled substance involved in the conviction." A voter encountering this on the ballot would have no way to know whether Act 570 had cut sentences in half, by 10%, or for which categories of drug offenses. Arkansas Supreme Court precedent (e.g., Bailey v. McCuen and Lange v. Martin) requires ballot titles to give voters enough information to make a "reasoned decision in the voting booth," and this one fell short.

Defect 2: Wrong form. Froelich submitted the proposed measure as a one-page attachment to a cover letter, with the popular name and ballot title in the letter's body. Ark. Code Ann. § 7-9-104(a) requires petitions to follow a specific form, including "BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS" immediately above the proposal text. Froelich's submission did not.

The AG declined to substitute new ballot title language because the underlying problem (voters cannot evaluate the measure without knowing what Act 570 did) could not be cured by editing the title; it required redrafting the measure itself.

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.

Common questions

Q: What does Acts 2011, No. 570 actually do?
A: Act 570, the Public Safety Improvement Act, was a 2011 sentencing reform package that lowered penalties for many non-violent drug offenses, restructured Arkansas's criminal sentencing grid, expanded probation and parole eligibility, and made other changes intended to reduce prison populations. The opinion did not summarize Act 570 because the AG's role under § 7-9-107 was to evaluate Froelich's ballot title language as submitted, not to fix it by importing details the sponsor had left out.

Q: Why does the AG insist on more than a statute reference?
A: Because the average voter does not carry a copy of the Arkansas Code into the polling booth. The Supreme Court has repeatedly held that a ballot title must give voters a fair, intelligible idea of what the measure does. Lange v. Martin and Wilson v. Martin (both 2016) reinforced that titles using technical references without definition are insufficient. A bare "Act 570" reference is the same kind of technical shorthand.

Q: What are the formal requirements in Ark. Code Ann. § 7-9-104?
A: Section 104(a) prescribes a specific petition form for any initiative or referendum, including the placement of the popular name, the ballot title, the warning to forgery, the certification language, and the legend "BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS" immediately above the full text of the proposed measure. The AG flagged this not as a fatal defect on its own but as a formal problem to fix when re-submitting.

Q: What would have fixed this?
A: A ballot title that explained the punishment reductions in plain language ("reducing the maximum sentence for possession of [substance] from X to Y," etc.), and a properly formatted petition. The AG specifically said he could not fix the ballot title by substitution because the underlying measure also failed to describe Act 570.

Q: How does retroactive sentence reduction work in Arkansas as of the time of this opinion?
A: Arkansas had no general "Three Strikes"-style retroactive resentencing mechanism for drug offenses. Acts 2011, No. 570 applied prospectively to offenses committed after its effective date. Froelich's proposal would have created a petition-based mechanism for inmates and others convicted before Act 570 to ask Circuit Courts to reduce their sentences to the new maximums, with the petitioner bearing the burden of proving the type and amount of the controlled substance involved. The AG did not opine on whether such a mechanism would be lawful or wise; that is a "merits" question outside § 7-9-107's scope.

Q: What did the AG offer as next steps?
A: The standard two-step in these letters: redesign the proposed measure (specifically, describe Act 570's punishment changes within the measure) and the ballot title together, then resubmit. Use the form prescribed by § 7-9-104.

Background and statutory framework

Ark. Code Ann. § 7-9-107 makes the Arkansas Attorney General the gatekeeper for ballot titles and popular names of statewide initiatives and referenda. The AG must certify the popular name and ballot title before sponsors can circulate petitions. The Supreme Court has built up a body of doctrine on what a "sufficient" ballot title looks like: it must be honest, impartial, free of partisan coloring, and adequate to give voters a reasoned basis for their decision. The Court has also said it disapproves of technical terms used without definition (Wilson v. Martin) and that omissions of "essential facts" that would give voters "serious ground for reflection" are fatal (Bailey v. McCuen).

In 2017 the AG's office handled an unusually large volume of these requests, particularly on cannabis policy, casino gambling, and ballot-process reforms. Rejection letters in this era typically run a standard structure: legal background, recitation of the submitted popular name and ballot title, then numbered defects ending in a redesign instruction. This opinion follows that pattern.

The reduced-punishments proposal was a one-shot attempt and does not appear to have been resubmitted in a corrected form. Sentencing reform in Arkansas continued through the legislative process rather than the initiated-act process.

Citations and references

Statutes and acts:

• Ark. Code Ann. § 7-9-107, popular name and ballot title certification
• Ark. Code Ann. § 7-9-104, form of initiative petition
• Ark. Code Ann. § 7-5-309, five-minute voting-booth time limit
• Acts 2011, No. 570 (Public Safety Improvement Act)
• Uniform Controlled Substances Act, Ark. Code Ann. tit. 5, ch. 64

Cases:

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950), popular name as a legislative device
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994), essential-facts standard
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980), ballot title must give voter fair understanding
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, voter-decision standard
• Wilson v. Martin, 2016 Ark. 334, 500 S.W.3d 160, technical terms must be defined
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), internal inconsistencies fatal

Source

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

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked landing page is authoritative.

Opinion No. 2017-065
June 5, 2017

Mr. Larry R. Froelich
Attorney at Law
[address redacted]
Fayetteville, AR

Dear Mr. Froelich:

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 initiated measure:

Popular Name
An Act to Make the Reduced Drug Punishments of Acts 2011, No. 570 Retroactive

Ballot Title
An act to authorize a Circuit Court to reduce the sentence of any person convicted in that Court under any provision of the Uniform Controlled Substances Act if the sentence imposed exceeded the maximum punishment permitted under the provisions of Act 2011, No. 570, for the type and amount of controlled substance involved in the conviction.

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.

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." 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 your proposal.

1. Your submission refers to "Act 2011, No. 570" in both its Popular Name and Ballot Title. Specifically, the Popular Name proposed is "An Act to make the reduced drug punishments of Acts 2011, No. 570 retroactive." And the Ballot Title states that the initiated act would "authorize a Circuit Court to reduce the sentence of any person ... if the sentence imposed exceeded the maximum punishment permitted under the provisions of Act 2011, No. 570."

Arkansas statute requires that I ensure each popular name and ballot title fairly apprises voters of potential changes to existing law. I cannot certify the popular name and ballot title as submitted because "Act 2011, No. 570" is not described beyond a cursory reference to it as a statute involving "reduced drug punishments" and "maximum punishment[s]." Based on this cursory language in the ballot title and popular name, a reasonable voter could not fairly assess what effect your proposal would have were the proposal to be enacted. Likewise, the text of the proposed act itself states only that "Acts 2011, No. 570" permits a "maximum punishment ... for the type and amount of controlled substance involved in the [defendant's] conviction." There is no further explanation of Act 570 in the proposal. Therefore, I cannot certify a ballot title that concisely states the purpose of your proposed measure, and must decline to certify your submission at this time.

2. Your submission was forwarded in the form of a letter with "a one page initiated proposal attached." The proposed popular title and ballot name appear in the body of the letter; the text of the measure itself appears on a separate page under the title "PROPOSED INITIATED MEASURE."

Please note that this presentation of the popular name, ballot title, and proposed measure does not conform with the guidelines at Ark. Code Ann. § 7-9-104 ("Form of initiative petition - Sufficiency of signatures") (Supp. 2015). According to § 104(a), any "petition for an ... act ... proposed by initiative shall be on substantially the following form." The statute then sets out certain language to be included in the petition, including a notice reading "BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS" immediately above the full text of the proposed measure. I point out these formal requirements in order to assist with any re-submission to my office.

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

Submitted popular name and ballot title

Popular Name: An Act to make the reduced drug punishments of Acts 2011, No. 570 retroactive.

Ballot Title: An Act to authorize a Circuit Court to reduce the sentence of any person convicted in that Court under any provision of the Uniform Controlled Substances Act if the sentence imposed exceeded the maximum punishment permitted under the provisions of Act 2011, No. 570, for the type and amount of controlled substance involved in the conviction.

Proposed initiated measure

Section (1) Upon petition to the sentencing Court by any person convicted under the Uniform Controlled Substances Act before the effective date of Acts 2011, No. 570, all punishments imposed upon petitioner by that Court which exceed the maximum punishments permitted under the provisions of Acts 2011, No. 570, shall be reduced by the sentencing Court to the maximum punishment permitted under Acts 2011, No. 570, for the type and amount of controlled substance involved in the petitioner's conviction.

Section (2) A petitioner who files a petition under this act bears the burden of establishing by a preponderance of the evidence the type and amount of controlled substance involved in his or her conviction.

Section (3) Notwithstanding the provisions of any statute, established rule or judicial convention to the contrary, the Courts of this State shall have the authority and jurisdiction to act upon and implement this act.