Why did the Arkansas AG reject the September 2017 'Arkansas Recreational Marijuana Amendment' draft from True Grass BQC?

Plain-English summary

This was the second draft of Mary Berry's recreational marijuana proposal (the first having been rejected three weeks earlier as Opinion 2017-091). It included new wrinkles, particularly an alternate popular name "AROMA" and a different framing of legal "acts." The AG identified five separate defects.

1. The open-ended popular name list. Section 1 of the proposal said the amendment "may be cited as 'The Arkansas Recreational Marijuana Amendment,' 'The AROMA,' or [a]ny suitable popular name the Arkansas Attorney General may provide upon this Amendment's certification." The AG read § 7-9-107 to require the sponsor to submit a single proposed popular name. The AG could approve, reject, or substitute. The statute did not let the sponsor delegate the choice to the AG.

2. Noun-vs-verb construction. Sections 2 and 4 referred to "acts to cultivate, produce, distribute" and so on. The AG noted the grammatical mismatch: "acts" is a noun, but the items in the list were verbs in active infinitive form. The construction was confusing enough that it could not be reduced to a ballot title that gave voters "a fair understanding of what 'acts' will become legal."

3. Undefined "carry" and "recreational purposes." Both terms had multiple meanings in plain English. The proposal did not pin them down. Without definitions, the AG could not summarize the scope of legal activity the amendment would create.

4. Age requirements for business affiliates. Same problem the AG flagged in Opinion 2017-091. Businesses could obtain licenses; people associated with those businesses (owners, officers, employees, agents) had no clear age threshold.

5. Expungement provision (Section 8). The drafting was riddled with problems:

   • "Marijuana related offenses convicted under state law" was awkward grammar; offenses are not normally said to be "convicted."
   • "Of all living persons who have served, or are currently serving, a sentence" hung off the sentence in a way that left it unclear what the phrase modified. One reading required Arkansas to expunge references to "all living persons who have served" a sentence from "all criminal records in this state," which would be a sweeping outcome.
   • "All living persons" was ambiguous as to whether non-Arkansas residents qualified.
   • The section was titled "Non-violent marijuana offenses" but listed offenses (including possession with intent to deliver) that could involve violence in some circumstances. The "non-violent" qualifier was undefined.

The AG rejected the submission and again declined to substitute corrected language.

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 standards are the same as those described in Opinion 2017-091: under Ark. Code Ann. § 7-9-107, the AG reviews popular names and ballot titles for accuracy and impartiality, applying the framework articulated in Bailey v. McCuen, Lange v. Martin, Roberts v. Priest, and a long line of related Arkansas Supreme Court decisions. The AG cannot draft a ballot title for an internally inconsistent proposal; sponsors must redesign first.

This opinion expressly noted that the September 2017 submission was a successive draft and reminded Berry that each submission gets reviewed on its own terms: ambiguities not flagged in earlier rejections may surface in later ones.

The AG's reasoning

The popular name puzzle. Berry's "or [a]ny suitable popular name the Attorney General may provide" language asked the AG to draft the popular name. Section 7-9-107(a) says the sponsor must "submit ... a popular name." Section 7-9-107(b)–(c) gives the AG three options: approve, reject, or substitute. None of those options is "draft from scratch." The AG concluded that the open-ended list "in effect ... calls on me to draft a popular name. But a sponsor must submit a definite popular name for my office to consider."

"Acts" as both noun and verb. Berry's proposal listed "the acts to cultivate, produce, distribute, sell, purchase, transport, carry, and use marijuana for recreational purposes." The AG read this as ungrammatical. A list starting with "acts" should contain nouns. Verbs in infinitive form ("to cultivate, produce, distribute") created reader confusion that the AG said could not be paraphrased into a clear ballot title.

Undefined "carry." Citing Merriam-Webster's Collegiate Dictionary (10th ed. 2001), the AG noted "carry" can mean "to move while supporting"; "to convey by direct communication"; or "to influence by mental or emotional appeal." Without a definition, voters could not understand what would become legal. "Recreational purposes" had similar problems and recurred throughout the proposal in defined terms like "marijuana" and "use recreational marijuana."

The corporate-affiliate age question, again. The proposal applied an 18-or-older limit to natural persons but left business affiliates' age status undetermined. The AG flagged this as a recurring drafting problem.

Expungement section grammar. The AG dissected the language phrase by phrase. "Marijuana related offenses convicted under state law shall be expunged from all criminal records in this state of all living persons who have served, or are currently serving, a sentence" had no clear grammatical subject. Was "of all living persons" meant to modify "criminal records" (so Arkansas would expunge references to all living persons from its records)? Was it meant to qualify "shall be expunged"? The AG could not tell.

The "non-violent" title-vs-list mismatch added another layer: the section caption used "non-violent" as a limiter, but the listed offenses (including manufacturing and distribution) could in some cases involve violent circumstances. With "non-violent" undefined, the relationship between the title and the operative list was unclear.

Common questions

What is "AROMA"?
The acronym Berry proposed for the popular name: "Arkansas Recreational Marijuana Amendment." The AG did not directly evaluate AROMA's adequacy because the larger problem was the open-ended list of alternatives.

How is this proposal different from the August 2017 version?
The September draft replaced "any business or person 18 years of age or older shall qualify" with "any business entity or person ... eighteen (18) years of age or older" obtaining licensure. It changed the cultivation cap from 36 plants to 25 mature plus 25 non-mature. It added county sheriff registration for cultivation locations with more than 12 plants. It added a possession transport provision and a new defined term "personal effects." It moved the "marijuana related offenses" definition into Section 3(h) instead of Section 8. None of those changes addressed the core ambiguities the AG had previously identified, and the new draft introduced new ones.

Why did Berry keep refiling instead of fixing the problems all at once?
The opinion does not say. As a practical matter, sponsors often refile partial fixes hoping to clear specific objections without losing momentum. The AG's note that "additional ambiguities may come to light on review of any revisions" was effectively a warning that surface-level edits would not be enough.

Could Berry have appealed to the Supreme Court?
Roberts v. Priest and the line of certification cases suggest sponsors generally cannot force certification through litigation if the AG identifies legitimate ambiguities. The path forward is redesign and resubmission.

Does this opinion affect later marijuana proposals?
The drafting points (especially the popular-name rule and the noun-vs-verb construction) are precedential guidance for any future AR initiative sponsor. Subsequent recreational marijuana measures (notably the 2022 Issue 4 / Responsible Growth Arkansas amendment, which voters rejected) had to navigate the same statutory framework.

Source

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

Original opinion text

Opinion No. 2017-093
September 6, 2017

Mary L. Berry, Sponsor
Arkansas True Grass BQC
Post Office Box 511
Summit, AR 72677

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.

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 constitutional 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 proposed 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" and a ballot title beginning "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 by adults 18 years of age or older may not be prohibited under State law" (full text reproduced in the certification packet, as 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 1 of your proposal states that the amendment "may be cited as the 'Arkansas Recreational Marijuana Amendment,' 'The AROMA,' or [a]ny suitable popular name the Arkansas Attorney General may provide upon this Amendment's certification...."

This list of alternative popular names is problematic in terms of your duties under Ark. Code Ann. § 7-9-107 as a sponsor, and my authority under the same statute to review proposals. Section 7-9-107(a) states that a sponsor must "submit the original draft [of the proposed amendment] to the Attorney General, with a proposed legislative or ballot title and popular name." My office will then either "reject the ... popular name" or "approve and certify or ... substitute and certify a more suitable and correct ... popular name."

As the proposal's sponsor, you are obligated to "submit ... a ... popular name" for my review. The disjunctive list of potential popular names in Section 1 of your proposal, one of which is completely open-ended ("any suitable popular name the Attorney General may provide"), does not satisfy this threshold under section 7-9-107(a). Likewise, I am not authorized by section 7-9-107(b) to select a popular name on behalf of a sponsor. I can only "substitute and certify a more suitable and correct ... popular name" in response to the sponsor's choice of a popular name. In effect, the list of alternative popular names in Section 1 of your proposed measure calls on me to draft a popular name. But a sponsor must submit a definite popular name for my office to consider. And Ark. Code Ann. § 7-9-107 limits my authority to approving the name submitted, rejecting the name submitted, or substituting a more suitable name for the name submitted. Thus, I must reject your proposal as written.

2. Section 2 of your proposal ("Effective date") states that "[o]n and after November 7, 2018, the acts to cultivate, produce, distribute, sell, purchase, transport, carry, and use marijuana for recreational purposes shall be lawful...."

There are a number of ambiguities in Section 2 that require clarification before I can certify a ballot title or substitute a more suitable title. On a grammatical level, I am unsure of "acts to cultivate, produce, distribute," etc., as a usage. Because "acts" is a noun, it is reasonable to expect the elements of a list starting with "acts" to be nouns as well. But what follow are verbs, in active infinitive form: "to cultivate, [to] produce, [to] distribute...." This noun/verb construction is confusing. I cannot convert it into a ballot title that gives voters a fair understanding of what "acts" will become legal on your proposal's effective date.

There are also terms in the list of "acts" that are inherently ambiguous because they are undefined. First, "carry" is not defined. This word has a number of meanings in plain English. Without a definition of "carry" for purposes of your proposal, I am unable to summarize it in a ballot title. Second, "recreational purposes" is also not defined. The lack of a definition for this term is crucial for the reasons just stated — "recreational" means a number of things in plain English. Moreover, "recreational purposes" appears to modify the entire list of acts that would become lawful should voters approve your proposal. And "recreational" or "recreational purposes" appear a number of times throughout the proposal, including in the definitions of terms like "Marijuana" and "Use recreational marijuana." See Section 3(d), (i). The acts and activities that your proposal would (and would not) legalize are of the utmost importance to voters, so they must be described adequately in the ballot title. Therefore, I must reject the proposal until these ambiguities are clarified.

3. 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...." Section 4 then lists "The Act to Cultivate and Produce"; "The Act to Distribute, Sell and Purchase"; "The Act to Transport and Carry"; and "The Act to Use."

Please see my comments on Section 2 of your proposal, above, regarding the awkward noun/verb construction in the list of "acts," and the undefined terms "carry" and "recreational purposes." The need for clarification of these ambiguities applies with equal force to Section 4.

4. Section 4 of your proposal states that certain "acts by any business entity or person, eighteen (18) years of age or older, ... shall not be an offense under Arkansas law...."

With respect to natural persons, it is apparent that your proposal would affect certain "acts" undertaken by those 18 years of age or older. But if a business wished to undertake the same acts, it is unclear if representatives of the business (e.g., owners, officers, members, employees, agents) must also be 18 years of age or older. I cannot summarize the age requirements for individuals affiliated with corporate applicants until this ambiguity is clarified.

5. Section 8 of your proposal ("Non-violent marijuana offenses and criminal record expungement") provides in subsection (a) that "marijuana related offenses convicted under state law shall be expunged from all criminal records in this state of all living persons who have served, or are currently serving, a sentence for being convicted of one or more of such offenses." Subsection (a) then lists six marijuana-related crimes.

First, the phrase "offenses convicted under state law" is awkward grammatically because an "offense" is not commonly thought of as "convicted"; the object of "to convict" is usually a person or a defendant.

Second, the phrase "of all living persons who have served, or are currently serving, a sentence" is ambiguous because it is not apparent what this clause modifies. For example, "of all living persons" can be read as the object of "shall be expunged." If it is, then references to "all living persons who have served" a sentence for a marijuana-related offense must be expunged from all criminal records in Arkansas. This is a far-reaching outcome that must be stated with more clarity (or eliminated as a possibility) before I can summarize Section 8(a) in a ballot title.

Third, the phrase "all living persons who have served, or are currently serving, a sentence for ... one or more of such offenses" is ambiguous because it is overbroad. Primarily, it is unclear if "all living persons" refers to persons residing outside of Arkansas who are serving, or who have served, a sentence resulting from a marijuana-related conviction.

Fourth, an ambiguity is created between the section's title ("Non-violent marijuana offenses and criminal record expungement") and the six offenses listed. The title implies that only "non-violent" offenses will be affected. But the offenses set out at Section 8(a)(1) - (6) could conceivably involve "violent" circumstances. This is problematic, especially since "non-violent" is not defined.

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