Why did the Arkansas AG reject Mary Berry's third 2017 cannabis legalization amendment, the one with effective dates of November 7, 2018 and April 19, 2019?

Plain-English summary

After two earlier rejections (Opinions 2017-0068 and 2017-0073), Mary L. Berry submitted a third recreational-cannabis constitutional amendment in July 2017. This version, "The Arkansas Recreational Marijuana Amendment," fixed the "Recreation of Marijuana" naming problem from her June 22 submission and dropped the prison-release provision from her June 7 submission. AG Leslie Rutledge still rejected it, this time for three different defects in the proposal's text.

Defect 1: Effective date contradicts license-issuance date. Section 2 of the proposal said the cultivation, production, distribution, sale, possession, and use of marijuana "shall be regulated pursuant to the provision of this amendment and made lawful" effective on and after November 7, 2018. Section 9, however, gave the state until April 19, 2019 to begin issuing marijuana licenses and plant tags, with a fallback that if the state failed to start issuing them by that date, "the relevant regulatory scheme shall not be enforced." A voter would have no way to know whether marijuana activities became lawful on November 7, 2018, or only when licenses started issuing in April 2019, or somewhere in between. The AG also flagged that the future-tense "shall be regulated" in Section 2 introduced its own ambiguity about whether activities became lawful on November 7, 2018 or merely on or after that date.

Defect 2: Age rules unclear for business associates. Section 4(a) said any "person ... 21 years of age or older shall qualify to obtain [a marijuana] license," and "any business ... shall qualify to obtain such a license." For natural persons, the age cutoff is clear. But the proposal did not say whether the people associated with a license-holding business (owners, officers, members, employees, agents) had to be 21 or older. Section 4(d) and (f) referred to the business's licensing rights without resolving the ambiguity. The AG said he could not summarize the age requirements for individuals affiliated with corporate applicants until that ambiguity was clarified.

Defect 3: Public-view cultivation clause is ambiguous. Section 4(d) said a licensee could cultivate marijuana "in a location where the plant(s) is (are) not subject to public view without the use of binoculars, aircraft, or other optical aids on property owned by the business or person, or with the consent of the business or person(s) who owns the property." The dependent clause "or with the consent of the business or person(s) who owns the property" had two natural readings:

• Reading 1: The license-holder may cultivate either on land they own or on someone else's land with the owner's consent. In both cases, the marijuana cannot be in public view.
• Reading 2: The license-holder may cultivate on their own land (not in public view), or on someone else's land with consent (and in that latter case, the public-view restriction does not apply).

The AG noted that voters could plausibly read the clause either way, and the visibility rules for cannabis cultivation were significant enough that voters needed to know which reading governed before they could vote on the proposal.

The AG declined to substitute language and rejected the petition. Berry's three submissions, all rejected, ended her 2017 sequence on recreational cannabis.

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: Why did the effective-date issue matter so much?
A: Because the proposal was self-executing under Section 10. That meant once voters approved it, the constitutional changes took effect on the dates the measure specified, with no implementing legislation needed. If Section 2 said one thing about the effective date and Section 9 said another, the result post-enactment would be a constitutional provision with two contradictory effective-date rules, and courts would have to sort it out. The AG's job under § 7-9-107 was to flag that contradiction before voters were asked to approve it.

Q: What were the proposed taxes and licensing fees?
A: A marijuana license cost not more than $30 per year, with no cap on the number issued. Plant tags cost not more than $6 each, with up to 36 per licensee per year. Sales would be subject to existing state sales tax plus a 5% excise tax plus a 2% local sales tax.

Q: How do these proposals compare to actual recreational cannabis laws elsewhere?
A: The proposal's $30 license fee was unusually low (Colorado's were thousands of dollars at the time) and its 36-plant cap on cultivation was unusually permissive. The lack of any mandatory background check or capital requirement for licensees would have made Arkansas's market the most accessible in the nation. Whether that is good policy is a separate question from whether the AG could certify the title.

Q: What about workplace and driving exceptions?
A: Section 7 said the amendment was "not intended to require an employer to permit or accommodate" marijuana activities in the workplace, "not intended to permit driving under the influence of marijuana," "not intended to permit the transfer of recreational marijuana, with or without remuneration, to a person under the age of twenty-one (21)," "not intended to permit a person under the age of twenty-one (21) to cultivate, produce, sell, possess, or use recreational marijuana," and "not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity in regards to medical marijuana pursuant to the Arkansas Medical Marijuana Amendment of 2016." Section 3(a) defined "driving under the influence of marijuana" as operating a motor vehicle with a Delta-9-THC blood content over 14 ng/mL.

Q: How does this opinion fit with the other two Berry submissions?
A: 2017-0068 (June 7) contained a release-and-expungement provision (Section 8) that internally contradicted itself. 2017-0073 (June 22) had the "Recreation of Marijuana" wording problem in Section 1's short title. 2017-0076 (July 7) fixed both prior issues but introduced new ones: the effective-date split, the unclear business-associate age rule, and the ambiguous public-view cultivation clause. Together the three opinions show how AG ballot-title certification iterates: each rejection identified specific defects to fix, and the sponsor either fixed them (sometimes introducing new ones) or gave up.

Q: Did Berry try again after the third rejection?
A: Not in 2017 under this sponsor. The 2018 election did include other recreational-cannabis ballot-question committees, but none survived the certification process either. Recreational cannabis in Arkansas continued to be advanced through later cycles.

Background and statutory framework

Arkansas's initiative process, governed by Ark. Const. art. 5, § 1 and Ark. Code Ann. § 7-9-101 et seq., requires AG pre-certification of the popular name and ballot title. The AG's role is narrow but binding: he checks whether the title accurately and intelligibly summarizes the measure. Substantive policy is for the voters.

The Arkansas Supreme Court has produced a long line of cases on what counts as a sufficient ballot title. The relevant rules for this opinion: a measure with internal inconsistencies cannot be cleanly summarized (Roberts v. Priest); ambiguous wording in operative provisions must be cured before a fair title can be drafted (Wilson v. Martin); and voters need enough information from the title to make a "reasoned decision" (Lange v. Martin).

The Berry submissions also illustrate why substitution is not always available. Section 7-9-107(b) lets the AG "substitute and certify a more suitable and correct popular name and ballot title" if practicable. But substitution only works when the defect is in the title's wording. When the defect is in the proposal's own text (as with all three Berry submissions), the AG cannot fix it without rewriting someone else's measure, which would exceed his role.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107, popular name and ballot title certification
• Ark. Code Ann. § 7-5-309, five-minute voting-booth time limit
• Ark. Code Ann. § 5-64-505, Uniform Controlled Substances Act asset forfeiture (referenced in the proposal's Section 6)

Cases: Standard ballot-title authorities (above), with Wilson v. Martin and Roberts v. Priest doing the heaviest lifting.

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. 2017-076
July 7, 2017

Mary L. Berry, Sponsor
[address redacted]
Summit, AR

Dear Ms. Berry:

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.

Please note that my office treats each proposed measure, and any successive proposal from the same sponsor, as a discrete submission that must be evaluated on its own terms according to the standards established for popular names and ballot titles by the Arkansas Supreme Court. Because the Court's scrutiny of voter-initiated acts and amendments is exacting, my office places great importance on the rigorous analysis of every submission. Each response to a request for certification will, if appropriate, identify ambiguities that militate against certifying the proposed ballot title. However, the ambiguities discussed in a given response will not necessarily be all of the ambiguities contained in the proposal. If additional ambiguities become apparent with successive submissions, I consider it my duty under Ark. Code Ann. § 7-9-107 to identify those ambiguities regardless of whether previous responses have included them.

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.

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 constitutional amendment:

Popular Name: The Arkansas Recreational Marijuana Amendment

Ballot Title: An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of marijuana and products produced therefrom for recreational purposes may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; authorizing the use of recreational 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 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 person or business with a marijuana license 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 recreational marijuana being sold in the form of edibles or drinkables (a) shall not be designed to appeal to children; (b) shall not exceed 10 milligrams of THC per serving, 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) does not permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana and; (e) is not intended to limit any privileges or rights of a qualifying patient, caregiver, physician, or, any license entity pursuant to the Arkansas Medical Marijuana Amendment of 2016; providing that if the State fails to begin issuing marijuana licenses, and plant tags by April 19th, 2019 such licenses and tags shall not be required to cultivate, produce, and sell recreational marijuana until such licenses and tags are issued by the State and 30 days is given for those engaged in such activity to obtain such licenses and tags for the activity in which they are engaged.

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.

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 2 of your proposal states that the effective date for "cultivation, production, distribution, sale, possession, and use of the cannabis plant" is November 7, 2018. The proposal states that on this date, these activities "shall be regulated pursuant to the provision of this amendment and made lawful." Section 9 of your proposal requires the state to "begin issuing marijuana licenses and plant tags by April 19th, 2019." According to Section 9, if there are no licenses or plant tags available by April 19, 2019, then the relevant regulatory scheme "shall not be enforced ... until such licenses and tags are issued."

There is a fundamental inconsistency between the measure's effective date, stated in Section 1, and the date described in Section 9 by which licensure should be complete. Section 1 states that on November 7, 2018, "cultivation, production, distribution, sale, possession, and use of the cannabis plant ... shall be regulated ... and made lawful." Thus, a reasonable voter would believe that the marijuana-related activities listed in Section 1 could lawfully begin on November 7, 2018. But Section 9 states that regulation (at least as to licenses and plant tags) need not start until April 19, 2019 or later. Based on Section 9, a reasonable voter would believe that the activities permitted by issuance of a license or plant tag might not be lawful until at least April 19, 2019. And if licenses and plant tags are not issued until April 19, 2019 (or afterward), it is unclear what would be the legal status of "cultivation, production, distribution, sale, possession, and use of the cannabis plant" upon the measure's effective date of November 7, 2018.

These issues are especially problematic given that the proposal is self-executing, pursuant to Section 10. The inconsistencies in Sections 2 and 9 must be resolved before I can accurately summarize the import of the measure's effective date in a ballot title. (Note: use of the future tense "shall" in the context of the measure's effective date creates an additional ambiguity. It is unclear if the marijuana-related activities are to be legalized on or after November 7, 2018 (but not before), or if the activities would automatically become legal on November 7, 2018.)

2. Section 4(a) of your proposal states that "any person who is a resident of [Arkansas] and is 21 years of age or older shall qualify to obtain [a marijuana] license." Section 4(a) also states that "any business ... shall qualify to obtain such a license." Section 4(d) states that a "business ... issued a marijuana license and plant tags may cultivate marijuana." Section 4(f) states that a "business ... with a marijuana license ... may sell recreational marijuana."

With respect to natural persons, it is apparent that the proposal limits marijuana licensure to those 21 years of age or older. But it is unclear if the persons associated with a business applying for a marijuana license (e.g., owners, officers, members, employees, agents) must also be 21 years of age or older. I cannot summarize the age requirements for individuals affiliated with corporate applicants until this ambiguity is clarified.

3. Section 4(d) of your proposal states that a person or business issued a marijuana license and plant tag(s) may "cultivate marijuana in a location where the plant(s) is (are) not subject to public view without the use of binoculars, aircraft, or other optical aids on property owned by the business or person, or with the consent of the business or person(s) who owns the property."

The dependent clause "or with the consent of the business or person(s) who owns the property" is ambiguous. A reasonable voter might interpret the clause to mean that a licensee may cultivate marijuana on land the licensee owns, or, if the licensee is not the landowner, on land the licensee has been given permission to use by the landowner. Under this interpretation, marijuana could not be cultivated "subject to public view," regardless of whether the licensee owned the land in question.

But a reasonable voter might also interpret the clause to mean that if the licensee is not the landowner (such that the marijuana is cultivated "with the consent of the business or person(s) who owns the property"), then the marijuana could be grown in public view. Under this interpretation, whether marijuana could be cultivated such that it is visible "without the use of binoculars, aircraft, or other optical aids" would depend on the licensee's ownership of the land in question.

Until the ambiguity created by the clause "or with the consent of the business or person(s) who owns the property" is clarified, I cannot fairly summarize in a ballot title the visibility requirements applicable to cultivation of marijuana.

Conclusion

Again, 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