Why did the Arkansas AG reject the 2018 recreational marijuana ballot title for the True Grass committee?

Plain-English summary

Mary L. Berry submitted a revised popular name, ballot title and proposed recreational marijuana amendment after the Arkansas Attorney General rejected an earlier submission in Opinion 2017-127. The AG said the new version arrived a few hours after that response and differed mainly by deleting large portions of the earlier measure.

The AG rejected the revised submission. She had found the prior version's regulatory scheme too convoluted to summarize intelligently, impartially and honestly. In this opinion she said deleting language previously identified as problematic did not address fundamental shortcomings discussed across many earlier responses. Given that history, she found it impossible to summarize the proposed amendment fairly in a ballot title.

The opinion does not identify a voting-booth time limit or give a choice between an overlong title and an abstract one. It does not decide a later version of the proposal.

Currency note

This January 2018 opinion reviews one proposed amendment and its ballot title. The proposal's terms did not become law through this decision. Check the status of any later measure and current Arkansas law separately.

Background and statutory framework

Ark. Code Ann. § 7-9-107 gave the AG three options on a submission: certify the popular name and ballot title, substitute more suitable language and certify, or reject. The AG explained that the sponsor must draft the measure and submit a title that fairly summarizes it. Her office could refine a suitable title but could not draft the measure for the sponsor or generate an independent title when the submitted one was wholly deficient.

Opinion 2017-127 had identified confusion in the earlier proposal's licensing and plant-tag dates. This opinion did not repeat that detailed analysis. It focused on Berry's decision to remove large parts of the earlier text, saying the result still failed to address fundamental drafting problems. The AG then rejected the popular name, ballot title and measure together without a detailed review of other possible defects.

Common questions

Why did the AG reject this revised marijuana ballot title?

She said the sponsor mainly deleted material from a recently rejected measure. Those deletions did not resolve the fundamental shortcomings, leaving a proposal she could not fairly summarize for voters.

Did the AG identify a new five-minute voting limit problem?

No. This opinion gives no voting-booth time analysis. Its stated reason is the inability to summarize the proposed amendment fairly after the unresolved drafting problems.

Could the AG rewrite the measure or title for the sponsor?

The AG said drafting and accurately summarizing the measure were the sponsor's responsibilities. She could substitute suitable title language in some cases, but would not draft the proposed measure or an independent ballot title here.

Does this opinion decide whether a sponsor can seek court review?

No. It does not address judicial review of an AG rejection. It decides only the submission Berry placed before the AG.

Source

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

Original opinion text

STATE OF ARKAN SAS
ATTORNEY GENERAL
LES LIE RUT LEDGE

Opinion - 2017-135

January 2, 2018

Ms. Mary L. Berry, Sponsor
Arkansas True Grass Ballot Question Committee
Post Office Box 511
Summit, AR 72677

Dear Ms. Berry:

At the outset, I wish to make clear 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 a measure when making a decision to certify or reject.

Arkansas Code Annotated 7-9-107 authorizes my office to 1) certify the popular name and ballot title of a proposed measure, 2) substitute and certify the popular name and ballot title, or 3) reject the entire submission if the "nature of the issue[] is presented in such manner that the ballot title would be misleading" to voters. 1 The purpose of my review under section 7-9-107 is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment. 2 In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone. 3

When they are submitted to my office under section 7-9-107, the popular name and ballot title for proposed constitutional amendments and acts "should be complete enough to convey an intelligible idea of the scope and import of the

1
Ark. Code Ann.§ 7-9-107(c) (Supp. 2017).
2
See Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 466, 677 S.W.2d 846, 848 (1984). 3 Becker v. Riviere, 270 Ark. 219, 226, 604 S.W.2d 555, 558 ( 1980) (internal citations omitted).

323 CENTER STREET. SUI TE 200 · LI TTL E ROCK. ARKAN SAS 72201 TELEPHONE (50 1) 682-200 7 · FAX (501) 682-8084 ARKANSASAG.GOV

Ms. Mary L. Berry, Sponsor
Ark. True Grass BQC
Opinion No. 2017-135
Page 2

proposal." 4 And it follows from my duty to reject misleading submissions that any ballot title submitted for review should represent the sponsor's attempt to summarize her proposed amendment or act in a non-misleading fashion. While I am authorized to substitute and certify a ballot title that is more suitable (in terms of affording voters a fair understanding of the issues presented), section 7-9-107 does not contemplate that I generate a ballot title when the ballot title submitted is wholly deficient. Nor does the statute require that I modify the proposed measure for the sponsor, in order to then summarize its text in a suitable ballot title. 5 Crafting and accurately summarizing the text are the sponsor's responsibilities prior to submission.

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 of 2018

Ballot Title

An amendment to the Arkansas Constitution concerning the cannabis plant, and in connection therewith, providing that the cultivation, production, distribution, sale, transport, possession, and use of recreational marijuana and products produced therefrom by adults (18 years of age or older) shall not be offense [sic] under Arkansas law; recognizing that such activities remain prohibited 4
Bailey v. McCuen, 318 Ark. 277, 285, 884 S.W.2d 938, 942 (1994) (internal quotation omitted). The Arkansas Supreme Court has explained that ballot titles are legally insufficient unless they "adequately inform" voters and enable a "reasoned decision in the voting booth." Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154, at n. 2. Likewise, a ballot title cannot be approved ifthe text of the proposal creates a disconnect between the ballot title and the content of the proposed measure. Roberts v. Priest, 341 Ark. 813, 825, 20 S.W.3d 376, 382 (2000). This is because "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title, and to confusion in the ballot title itself." Id. 5 See Op. Att'y Gen. 2017-032 (citing Ark. Code Ann.§ 25-16-701 (Supp. 2015), which prohibits the Attorney General from engaging in the private practice of law).

Ms. Mary L. Berry, Sponsor
Ark. True Grass BQC
Opinion No. 2017-135
Page 3

under federal law; providing for the release from incarceration, probation, and parole of all persons whose current and only conviction(s) in which they are serving were for violating the Arkansas Uniform Controlled Substances Act in regards to marijuana; and providing for the expungement of marijuana related convictions that were imposed prior to the amendments [sic] effective date of November 7th, 2018; providing that any adult or business entity may cultivate, produce, and sell recreational marijuana and products produced therefrom; providing that any adult or business entity may cultivate marijuana plants in a location not subject to public view without optical aid; permitting the transport of recreational marijuana out of public view; permitting the consumption of recreational marijuana by adults wheresoever the consumption of alcohol is permitted; providing that sales of recreational marijuana will be subject to existing sales tax, and an additional 5% recreational marijuana excise tax, and a local sales tax of 2%; permitting any adult or business entity that is 1500 feet away or more from a public or private school, church, or daycare may sell [sic] recreational marijuana and products produced therefrom to any adult person 18 years of age or older with proof of age; limiting the quantity of recreational marijuana products that can be sold per day to buyers presenting an out of state proof of age; providing that the recreational marijuana being sold in the form of food or drink (a)shall [sic] 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) shall not be construed to affect the ability of employers to have policies restricting the use of recreational marijuana by employees, (b) shall not be construed to permit driving under the influence of marijuana, (c) shall not be construed to permit the transfer of recreational marijuana to anyone under 18 years of age, (d) nor permit anyone under 18 years of age to cultivate, produce, sell, distribute, transport, possess, or use recreational marijuana, and (e) shall not be construed 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; [sic]

Ms. Mary L. Berry, Sponsor
Ark. True Grass BQC
Opinion No. 2017-135
Page4

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. But your submission has a threshold shortcoming that precludes detailed review under section 7-9-107(c).

In response to your most recent submission, I stated that the proposed measure's text contained a regulatory scheme that is too convoluted to be summarized in an intelligent, impartial, and honest manner. This response was published on December 14, 2017, in Opinion 2017-127. A few hours later, you sent the current proposal for my review. The primary difference between the current submission and the submission rejected in Opinion 2017-127 is that large sections of the text of the earlier measure have been deleted.

Because of the import and complexity of the decriminalization scheme you propose, it is insufficient under section 7-9-107(c) simply to get rid of language previously identified as problematic. Doing so will result (and did result here) in a submission that fails to address the fundamental shortcomings that have been discussed over many dozens of responses from my office. Given the history of submissions, responses, and re-submissions between you and my office, it is impossible to fairly summarize in a ballot title the recreational-marijuana amendment that you have proposed.

CONCLUSION

My office is not charged with any role in drafting initiated amendments or acts. Nor can I advise individual sponsors, who must vet their proposed measures, popular names, and ballot titles to ensure they meet the criteria established by section 7-9-107 and the Arkansas Supreme Court. Your submission falls short of these criteria. I must therefore reject your entire ballot title, popular name, and proposed measure.

Sincerely,

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L. //?1"fa
LESLIE RUTLEDGE
Attorney General

Enclosure

THE ARKANSAS RECREATIONAL MARIJUANA AMENDMENT OF 2018 (Popular Name)

(Ballot Title)

AN AMENDMENT TO THE ARKANSAS CONSTITUTION CONCERNING THE CANNABIS PLANT, AND IN CONNECTION THEREWITH, PROVIDING THAT THE CULTIVATION, PRODUCTION, DISTRIBUTION, SALE, TRANSPORT, POSSESSION, AND USE OF RECREATIONAL MARIJUANA AND PRODUCTS PRODUCED THEREFROM BY ADULTS (18 YEARS OF AGE OR OLDER) SHALL NOT BE OFFENSE UNDER ARKANSAS LAW; RECOGNIZING THAT SUCH ACTIVITIES REMAIN PROHIBITED UNDER FEDERAL LAW; PROVIDING FOR THE RELEASE FROM INCARCERATION, PROBATION, AND PAROLE OF ALL PERSONS WHOSE CURRENT AND ONLY CONVICTION($) IN WHICH THEY ARE SERVING WERE FOR VIOLATING THE ARKANSAS UNIFORMED CONTROLLED SUBSTANCES ACT IN REGARDS TO MARIJUANA; AND PROVIDING FOR THE EXPUNGEMENT OF MARIJUANA RELATED CONVICTIONS THAT WERE IMPOSED PRIOR TO THE AMENDMENTS EFFECTIVE DATE OF NOVEMBER 7TH, 2018; PROVIDING THAT ANY ADULT OR BUSINESS ENTITY MAY CULTIVATE, PRODUCE, AND SELL RECREATIONAL MARIJUANA AND PRODUCTS PRODUCED THEREFROM; PROVIDING THAT ANY ADULT OR BUSINESS ENTITY MAY CULTIVATE MARIJUANA PLANTS IN A LOCATION NOT SUBJECT TO PUBLIC VIEW WITHOUT OPTICAL AID; PERMITTING THE TRANSPORT OF RECREATIONAL MARIJUANA OUT OF PUBLIC VIEW; PERMITTING THE CONSUMPTION OF RECREATIONAL MARIJUANA BY ADULTS WHERESOEVER THE CONSUMPTION OF ALCOHOL IS PERMITTED; PROVIDING THAT SALES OF RECREATIONAL MARIJUANA WILL BE SUBJECT TO EXISTING SALES TAX, AND AN ADDITIONAL 5% RECREATIONAL MARIJUANA EXCISE TAX, AND A LOCAL SALES TAX OF 2%; PERMITTING ANY ADULT OR BUSINESS ENTITY THAT IS 1500 FEET AWAY OR MORE FROM A PUBLIC OR PRIVATE SCHOOL, CHURCH, OR DAYCARE MAY SELL RECREATIONAL MARIJUANA AND PRODUCTS PRODUCED THEREFROM TO ANY ADULT PERSON 18 YEARS OF AGE OR OLDER WITH PROOF OF AGE; LIMITING THE QUANTITY OF RECREATIONAL MARUUANAPRODUCTSTHATCANBESOLDPERDAYTOBUYERSPRESENTINGANOUTOFSTATE PROOF OF AGE; PROVIDING THAT THE RECREATIONAL MARIJUANA BEING SOLD IN THE FORM OF FOOD OR DRINK (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) SHALL NOT BE CONSTRUED TO AFFECT THE ABILITY OF EMPLOYERS TO HAVE POLICIES RESTRICTING THE USE OF RECREATIONAL MARIJUANA BY EMPLOYEES, (B) SHALL NOT BE CONSTRUED TO PERMIT DRIVING UNDER THE INFLUENCE OF MARIJUANA, (C) SHALL NOT BE CONSTRUED TO PERMIT THE TRANSFER OF RECREATIONAL MARIJUANA TO ANYONE UNDER 18 YEARS OF AGE, (D) NOR PERMIT ANYONE UNDER 18 YEARS OF AGE TO CULTIVATE, PRODUCE, SELL, DISTRIBUTE, TRANSPORT, POSSESS, OR USE RECREATIONAL MARIJUANA, AND (E) SHALL NOT BE CONSTRUED 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 I. The following is added as an amendment to the Arkansas Constitution

§1. Short Title
This is an amendment to the Arkansas Constitution that may be cited as "The Arkansas Recreational Marijuana Amendment of 2018".

§ 2. Effective Date
This Amendment is effective on and after November 07, 2018.

§ 3. Definitions
The following terms are defined for the purposes of this amendment: (a) "Adult" means a person who is eighteen years of age or older. (b) "Business entity" means a person or group of persons, who are eighteen (18) years of age or older, performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit. (c) "Cultivator(s)" means an adult or business entity that is growing recreational marijuana plants. (d) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (Li9THC) content of the operator's blood exceeds fourteen nanograms per milliliter (14ng/ml). (e) "Marijuana" or "Recreational Marijuana" means any part of the cannabis plant (genus Cannabis), living or not, and when harvested in its mature plant stage contains greater than three tenths of one percent (0.3%), by dry weight, delta-9-tetrahydrocannabinol (Li9THC), and is cultivated to be used as an intoxicant. (f) "Marijuana paraphernalia" means any equipment, utensils, products, and materials which are used, intended for use, or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, containing, or concealing recreational marijuana, or for ingesting, inhaling or otherwise introducing recreational marijuana into the human body. (g) "Marijuana related offense(s)" means a violation of the Uniformed Controlled Substances Act that occurred prior to the effective date of this amendment for one or more of the following:
1. Possession of marijuana;
2. Possession with the intent to manufacture and deliver marijuana;
3. Manufacturing, distributing, and delivering marijuana;
4. Distributing or delivering marijuana in proximity of certain facilities;
5. The unlawful use of a communication device as it pertains to the distribution of marijuana;
6. Possession of marijuana paraphernalia.
(h) "Minor" means a person who is under the age of eighteen (18) years of age. (i) "Products produced from recreational marijuana", "products produced therefrom", "products therefrom" or "recreational marijuana products" means items and substances manufactured from recreational marijuana, containing more than three tenths of one percent (0.3%) delta-9-tetrahydrocannabinol (Li9THC) and is used as an intoxicant for recreational purposes, and is consumed into the human body in the form of food, drink, vapor, or smoke. (j) "Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational marijuana. (k) "Recreational purposes" means to be used as an intoxicant for the reason of enjoyment or pleasure. (I) "Remuneration" means an act in which money is being paid to purchase recreational marijuana and or products produced therefrom for recreational purposes. (m) "Use recreational marijuana and products produced there from", "use recreational marijuana", or "consume recreational marijuana" means to ingest, inhale, or otherwise introduce recreational marijuana into the human body.

§4. Recreational Marijuana Activities
Notwithstanding any other provision of law, the following activities regarding recreational marijuana 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: (a) On and after the effective date of this amendment any adult or business entity may cultivate recreational marijuana, and produce products therefrom provided that:
1. Recreational marijuana is cultivated in a location where the plant(s) is (are) not subject to public view without the use of binoculars, aircraft, or other optical aids.
2. The act of using flammable solvents to extract delta-9-tetrahydrocannabinol (Ll9THC) from the marijuana plant shall be prohibited in residential areas.
(b) On and after the effective date of this Amendment any adult or business entity may distribute, purchase, and sell recreational marijuana and products produced therefrom provided that:
1. The location where recreational marijuana and products produced therefrom is being sold is not located within one-thousand five-hundred feet (1,500') of a public or private school, church, or daycare center, and
2. All products produced from recreational marijuana being sold is designed and packaged pursuant to §5 of this amendment.
3. All buyers of recreational marijuana provides proof of age with any valid state or out of state identification card or driver's license prior to purchase, provided that;
A. Any adult that provides an out-of-state identification to purchase recreational marijuana shall be limited to the following purchases per day:
(i) up to one-half ounce (1/2 oz) of smokable or vaporizable recreational marijuana, and (ii) up to thirty-two ounces (32 oz) of edible or drinkable recreational marijuana.
(c) On and after the effective date of this Amendment any adult or business entity may transport recreational marijuana and products produced therefrom provided that;
1. Recreational marijuana and products produced therefrom must not be subject to public view during transport.
(d) On and after the effective date of this Amendment any adult or business entity may use recreational marijuana and products produced therefrom wheresoever the consumption of alcohol is permitted, provided that;
1. The owner(s) of the property does not prohibit such use.

§ 5. Recreational Marijuana Product Design, Packaging, and Labeling Requirements (a) All edible and drinkable products produced from recreational marijuana that is sold by any business entity or adult shall;
1. Shall not be designed to be appealing to children or easily confused with commercially sold candy or foods that do not contain marijuana.
2. Shall be produced and sold with a standardized dosage not to exceed ten (10) milligrams of delta-9-tetrahydrocannabinol (A9 THC) per serving.
3. Shall be delineated or scored into standardized serving sizes if the product contains more than one serving and is in solid form.
4. Shall be homogenized to ensure uniform disbursement of delta-9-tetrahydrocannabinol (A9THC) throughout the product.
5. Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the potential effects of the product, and directions as to how to consume the product.
(b) All smokable and vaporizable products produced from recreational marijuana that is sold by any business entity or adult;

1. Shall provide information on the packaging or labeling to enable the informed consumption of such product, including the delta-9-tetrahydrocannabinol (~9 THC) content, potential effects of the product, and directions as to how to consume the product.
(c) All products produced from recreational marijuana that is distributed by any adult or business entity without remuneration to any adult or business entity shall be exempt from the design, packaging, and labeling requirements of this section .

§6. Marijuana Paraphernalia Authorized
Notwithstanding any other provision of law, the following acts regarding marijuana paraphernalia 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 §5-64-505: (a) Any business entity or adult may manufacture, possess, and purchase marijuana paraphernalia, or may sell marijuana paraphernalia to another business entity or adult, providing that;
1. the marijuana paraphernalia being sold that contains recreational marijuana is designed, packaged, and labeled pursuant to §5 of this amendment.

§7. Employers, Driving, Minors, Other Controlled Substances, and Medical Marijuana Privileges (a) Nothing in this Amendment shall be construed to affect the ability of employers to have policies restricting the use of recreational marijuana by employees. (b) Nothing in this Amendment shall be construed to permit driving under the influence of marijuana. (c) Nothing in this Amendment shall be construed to permit the transfer of recreational marijuana, with or without remuneration, to a minor. (d) Nothing in this Amendment shall be construed to permit a person under the age of eighteen (18) to cultivate, produce, sell, possess, or use recreational marijuana. (e) Nothing in this Amendment shall be construed to permit the cultivation, production, distribution, or sale, of any other substance that is controlled or prohibited by the state pursuant to the Arkansas Uniform Controlled Substances Act. (f) Nothing in this Amendment shall be construed to limit any privileges or rights of a qualifying patient, caregiver, physician, or licensed entity pursuant to the Arkansas Medical Marijuana Amendment of 2016.

§8. Expungement of Prior Convictions for Marijuana Related Offenses (a) All convictions for a marijuana related offense, as defined in §3(g) of this amendment, shall be expunged from all criminal records in this state. (b) The State shall release from incarceration, probation, and parole all persons whose current and only conviction(s) in which they are serving was for a marijuana related offense as defined in §3(g) of this amendment.

§9. The Taxation and Distribution of Proceeds from the Sale of Recreational Marijuana (a) The following taxes shall be imposed upon the purchase of recreational marijuana sold in Arkansas:
1. The Arkansas State Sales and Use Tax, 2. a five percent (5%) recreational marijuana excise tax, and 3. a two percent (2%) local sales tax.
(b) The distribution of tax revenues received by the Department of Finance and Administration from the sale of recreational marijuana under this amendment may be determined by the general assembly.

§10. Conflicting Laws
The provisions of this Amendment are hereby declared to be severable, and except where otherwise indicated in this Amendment, shall supersede all conflicting state and local laws, charters, regulations, and any and all

other provisions in conflict with this Amendment. If any provision of this Amendment, or the application of such provision to any person or circumstance is declared invalid by any court for any reason, such declaration shall not affect the validity of the remaining portions of this Amendment.