Why did the Arkansas AG reject Larry Morris's July 2017 'Arkansas Recreational Marijuana Amendment of 2018' draft from True Grass?

Plain-English summary

Larry Morris of the Arkansas True Grass Ballot Question Committee submitted a recreational marijuana amendment for 2018. This was the second True Grass submission in the same broader cluster (alongside Mary Berry's submissions analyzed in Opinions 2017-091, 2017-093, 2017-097, and the rejection of Berry's substantively identical resubmission in Opinion 2017-084).

The AG rejected this draft for four fundamental reasons:

1. The effective-date contradiction. Section 2 said cannabis activities would be "[e]ffective November 7th, 2018" but also "shall be made lawful in every geographical area." The juxtaposition of "effective" with the passive "shall be made lawful" suggested either immediate effect or future action by an unidentified third party. Compounding the confusion, Section 11 declared the amendment "self-executing." If self-executing, why does it need to be "made lawful"?

2. The "acts" construction in Section 4. Section 4 listed activities that would no longer be offenses, but framed them with confusing verb forms: "may have cultivating," "may transport," "may distribute." "Acts" is a noun, but the items in the list were verbs. The grammar made it impossible to write a clean ballot title summary.

3. Section 4 versus Section 2 inconsistency. Section 2 mentioned cultivation, production, distribution, sale, possession, and use. Section 4 mentioned cultivation, transportation, distribution, and sale, but omitted possession and use. The AG could not tell what the amendment actually legalized.

4. Section 7(f) regulatory body ambiguity. This subsection said "[n]othing in this amendment prohibits the state from appointing a regulatory body to regulate the cultivation, production, distribution, and sale of recreational marijuana." But it did not affirmatively authorize regulation, did not name an agency, and did not include possession and use among regulated activities. The phrase "pursuant to this amendment" was grammatically ambiguous: did it modify "appointing" (meaning the appointment power flowed from the amendment) or "cultivation, production, distribution, and sale" (meaning regulation tracked those activities)?

5. The self-executing claim. Section 11 declared the amendment "self-executing," but Sections 4 and 7 contemplated regulation and legislation. A document is self-executing only if it requires no further enactment to be binding. The AG could not reconcile the amendment's claim to be self-executing with its references to future regulatory rule-making.

The AG declined to substitute corrected language and instructed Morris to redesign the proposal.

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.

Background and statutory framework

The certification framework is the same as in Opinions 2017-091, 2017-093, 2017-097 (Berry's parallel submissions). Under Ark. Code Ann. § 7-9-107, the AG must certify or reject ballot titles based on whether they fairly summarize the proposal. Roberts v. Priest, 341 Ark. 813 (2000), holds that internally inconsistent proposals cannot be certified, because no ballot title can honestly summarize a proposal that contradicts itself.

This was the True Grass committee's parallel-track approach: Berry filing under her name, Morris filing similar drafts under his. Both got rejected. Opinion 2017-084 (Berry's resubmission shortly after Morris's rejection here) flagged that the parallel-track approach itself was problematic because two identical proposals on the same ballot would put voters in an impossible position.

The AG's reasoning

The effective-date trap. Section 2 of Morris's draft read: "Effective November 7th, 2018 the cultivation, production, distribution, sale, possession, and use of the cannabis plant ... shall be made lawful in every geographical area of every county of this state under Arkansas law."

The AG dissected this carefully. "Effective" implies the activities are in operation from a fixed date. "Shall be made lawful" implies a future actor will make them legal. The two readings cannot both be true. Combined with Section 11's "self-executing" declaration, the contradictions multiplied: a self-executing amendment should not need anyone to "make" anything lawful.

The grammar of Section 4. Section 4 was meant to enumerate the new legal activities. The structure read: "the following acts ... shall not be an offense under Arkansas law: (a) may have cultivating up to twenty-five (25) mature marijuana plants ... (b) may transport ... (c) may distribute and sell ...."

The AG noted that "may have cultivating" was not normally understood as an "act," and the participle "cultivating" was an odd usage. The verbs "may transport" and "may distribute" similarly do not function as nouns. Because Section 4 was making substantive changes to Arkansas criminal law, its grammar had to be clean enough to permit a ballot title summary.

The Section 4 / Section 2 mismatch. Section 2 mentioned six activities (cultivation, production, distribution, sale, possession, use). Section 4 mentioned only four (cultivation, transportation, distribution, sale). Production, possession, and use are missing from Section 4. The AG asked: are those activities legalized at all? If so, where? The text was silent.

The Section 7(f) regulatory ambiguity. Section 7(f) said "[n]othing in this amendment prohibits the state from appointing a regulatory body to regulate the cultivation, production, distribution, and sale of recreational marijuana and products produced therefrom pursuant to this amendment." Three problems:

• It did not affirmatively authorize regulation; it merely said "[n]othing prohibits" it.
• It identified neither which entity could regulate nor which sub-class of activities.
• "Pursuant to this amendment" had two grammatical readings, neither well-supported by the text.

The self-executing claim. Op. Att'y Gen. 2016-099 defined a self-executing document as one that "does not require anything additional, such as subsequent legislation, to make it binding." Section 11 of Morris's draft declared self-execution, but Sections 4 and 7 invited future legislative or regulatory action. The contradiction had to be resolved before voters could understand what they were approving.

The AG closed with the standard recurring note from this rejection cluster: the listed ambiguities were not necessarily exhaustive. Other defects might surface on review of any future submission.

Common questions

How is this draft different from Berry's drafts?
Morris's draft did not include the licensing scheme that Berry's drafts had. It used "appointing a regulatory body" language instead of mandating a specific license-and-tag system. The drafting partners appear to have been trying different structural approaches.

What's the effect of the "self-executing" claim?
A self-executing constitutional provision takes effect on its own without legislative action. A non-self-executing provision needs implementing legislation. The distinction matters for timing and enforceability. Cox v. Daniels, 374 Ark. 437 (2008), and May v. Daniels, 359 Ark. 100 (2004), illustrate Arkansas Court treatment of these issues. A claim of self-execution combined with calls for further legislation is internally contradictory.

Why did the True Grass committee submit two parallel drafts?
The opinion does not say. As a practical matter, sponsors sometimes submit parallel drafts in different sponsors' names to get more shots at certification. After this rejection and Berry's resubmission of a substantively identical version (rejected in Opinion 2017-084), the AG specifically asked the committee to consolidate.

What happened next for the True Grass committee?
Berry's August 4 resubmission was rejected without comment as substantively identical (Opinion 2017-084). Subsequent rounds (2017-091, 2017-093, 2017-097) addressed different drafts. None of the True Grass drafts ultimately reached the ballot. Recreational cannabis came to Arkansas voters via different sponsors in later cycles (the 2022 Issue 4 / Responsible Growth Arkansas amendment, which voters defeated 56-44).

Source

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

Original opinion text

Opinion No. 2017-081
July 21, 2017

Larry B. Morris, Sponsor
AR True Grass Ballot Question Committee
50 Crest Street
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.

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 "The Arkansas Recreational Marijuana Amendment of 2018" and a ballot title that would amend the Arkansas Constitution to provide that the cultivation, production, distribution, sale, possession, and use of marijuana and products produced therefrom for recreational purposes by adults 18 years of age or older may not be prohibited under State law. (Full text reproduced in the certification packet enclosed.)

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 the text of your proposal.

1. Section 2 of your proposed amendment states that "[e]ffective November 7th, 2018, the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus Cannabis) as it pertains to marijuana for recreational purposes shall be made lawful in every geographical area of every county of this state under Arkansas law, and shall not be an offense, or be a basis for seizure or forfeiture of assets pursuant to the Arkansas Uniform[] Controlled Substance Act."

This section contains an ambiguity caused by the juxtaposition of the date the measure purports to be "effective" (November 7, 2018) and the passive-voice phrasing "shall be made lawful." A common-sense understanding of the term "effective" would lead one to conclude that the activities listed in Section 2 will be "in operation at a given time," namely, on November 7, 2018. A reasonable conclusion would thus be that the proposed measure's substantive provisions will take immediate effect on November 7, 2018. But the phrase "shall be made lawful" suggests that the measure will not take effect until a third party acts (on or after November 7, 2018) to make the activities listed in Section 2 legal. This third party is not identified in Section 2, which is especially problematic given that the measure purports in Section 11 to be self-executing.

In sum, it is unclear if the proposed measure will be "effective November 7, 2018," or if the activities listed in Section 2 "shall be made lawful" on or after November 7, 2018 by a third party. This is a fundamental ambiguity that must be resolved before a ballot title can accurately reflect when your proposal will take effect.

2. Section 4 of your proposal states that "the following acts ... regarding recreational marijuana and products produced therefrom shall not be an offense under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to The Uniform Controlled Substances Act." The "acts" are depicted in Sections 4(a) through 4(c) by the phrases "may have cultivating"; "may transport"; and "may distribute."

First, subsections 4(a) through 4(c) are grammatically confusing as descriptors of "acts" that may become legal under your measure. For example, "may have cultivating" is not normally understood as an "act," and the participle "cultivating" is an odd usage in this context. "[M]ay transport" and "may distribute," likewise, are not normally understood as "acts." Because Section 4 ("The regulation of recreational marijuana") involves substantive changes to Arkansas criminal law, its language must be clear on a grammatical level to ensure an accurate ballot title.

Just as important, it is unclear how Sections 4(a) through 4(c) interact with Section 2. Section 4 appears to identify acts that will no longer be illegal under Arkansas law — cultivation, transportation, distribution, and sale of recreational marijuana and products produced from marijuana. Section 4 also appears to acknowledge that these acts will be subject to regulation. But Section 2 states that the "cultivation, production, distribution, sale, possession, and use" (emphases added) of recreational marijuana will be legalized at some future time.

There is a fundamental inconsistency between the acts listed in Section 4 and those listed in Section 2. Given that production, possession, and use of recreational marijuana are not mentioned among the "acts by any business or person eighteen (18) years of age or older," the extent to which your proposal legalizes these activities is very unclear. This inconsistency must be clarified before I can certify a ballot title that fairly apprises voters of changes to existing criminal law.

3. Subsection 7(f) states that "[n]othing in this amendment prohibits the state from appointing a regulatory body to regulate the cultivation, production, distribution, and sale of recreational marijuana and products produced therefrom pursuant to this amendment."

Subsection 7(f) contains multiple ambiguities. Compared to Section 2 (which includes possession and use of marijuana) it is unclear if subsection 7(f) intends, by omitting these activities, to eliminate possession and use from any potential regulatory scheme. If this is the intent, it is unclear to what degree possession and use of marijuana are legalized or subject to regulation under your proposal.

Subsection 7(f) is also ambiguous as to whether any marijuana-related activities will, in fact, be regulated. It does not affirmatively authorize regulation — it merely states that "[n]othing prohibits" regulation. Likewise, subsection 7(f) does not indicate which governmental entity might be charged with regulating recreational marijuana. It is therefore unclear if a vote for your proposal is a vote for regulation of marijuana-related activities.

It is also unclear what the phrase "pursuant to this amendment" in subsection 7(f) modifies. On the one hand, the phrase might modify "appointing," as in "appointing a regulatory body ... pursuant to this amendment." In such a case, one would expect the amendment itself to contain guidelines as to how marijuana-related activities are to be regulated and administered. But as noted above, there is considerable confusion on this point. On the other hand, the phrase might modify "cultivation, production, distribution, and sale," as in "to regulate the cultivation, production, distribution, and sale ... pursuant to this amendment." While Section 4 describes what could be viewed as a regulatory structure for the "cultivation, transportation, distribution, and sale" of recreational marijuana, there is (at the least) an inconsistency with respect to regulation of "transportation," which appears in Section 4 but not in subsection 7(f).

The ambiguities found in and between Sections 7, 2, and 4 must be clarified before I can certify a ballot title that accurately summarizes your proposal for regulating marijuana-related activities.

4. Section 11 of your proposal states that "this Amendment [is] hereby declared to be ... self-executing...."

A document is self-executing if it does not require anything additional, such as subsequent legislation, to make it binding. But Sections 4 and 7 of your proposal create the possibility of regulation or legislation in furtherance of your measure. Your proposal's claim to be self-executing, while at the same time amenable to regulation and legislation, results in an ambiguity that must be resolved in order to accurately summarize the amendment in a ballot title.

I will mention in closing that my office attempts to identify all ambiguities in a proposal for which a ballot title is rejected. In this case, however, I have rejected your submission because of fundamental deficiencies in the ballot title (and in the corresponding areas of the submission's text). These fundamental, threshold shortcomings preclude crafting a suitable ballot title for your proposal.

Thus, while the ambiguities noted above are not necessarily all the ambiguities contained in your proposal, they are sufficiently serious to require rejection of your popular name and ballot title. Additional ambiguities may come to light on review of any subsequent proposals. But at this time, listing additional ambiguities would go beyond the appropriate examination and certification process under Ark. Code Ann. § 7-9-107, and would be tantamount to acting as the proposal's drafter.

CONCLUSION

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