Why did the Arkansas AG reject the Arkansas True Grass recreational marijuana ballot title for the second time?

Plain-English summary

This is the second of three Arkansas True Grass recreational-marijuana submissions the AG rejected in early 2018. Sponsor Mary L. Berry submitted a proposed constitutional amendment that would have decriminalized adult recreational marijuana, set up a state regulatory regime with $30 license fees and 36-plant cultivator caps, expunged prior marijuana convictions, and imposed taxes (state sales tax + 5% excise + 2% local).

The AG rejected the submission. The opinion is brief and turns on the sponsor's editing strategy: she had previously deleted large sections (Op. Att'y Gen. 2017-135), and now she had added them back in nearly identical form. The AG said this addition-deletion cycle did not address the underlying ambiguity and misleading-tendency defects "discussed over many dozens of responses from my office." A footnote in this opinion specifically refers back to Op. Att'y Gen. 2017-127, which had earlier rejected proposals containing "plant tags," staggered effective-date schemes, and time periods within which the State must begin regulating recreational marijuana.

This opinion is the predecessor to Op. Att'y Gen. 2018-016, which rejected the next True Grass submission on essentially the same grounds.

Currency note

This opinion was issued in 2018. 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.

Arkansas voters subsequently rejected a recreational-marijuana initiative in 2022. Verify current Arkansas marijuana law before relying on any aspect of this 2018 analysis.

What the AG said about the addition-deletion strategy

The opinion's central observation: "[W]hether text is deleted or added, the net effect is the same. The import and complexity of the decriminalization scheme you propose makes it insufficient under section 7-9-107(c) simply to bring back 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."

The AG also reiterated two procedural limits:

• The AG cannot "generate a ballot title when the ballot title submitted is wholly deficient." Under Ark. Code Ann. § 25-16-701, the AG cannot engage in private practice; drafting for the sponsor would cross that line.
• The AG cannot modify the proposed measure itself. Crafting and accurately summarizing the measure are sponsor responsibilities prior to submission.

What the proposal would have done

For policy researchers, the substantive features of this version of the True Grass amendment included:

• Adult-use legalization at age 18. Decriminalized adult recreational cannabis (cultivation, production, distribution, sale, transport, possession, use).
• State licensing scheme. $30 marijuana license fee per year. State residency required. 36-plant cap per cultivator with state-issued plant tags ($6 each).
• Sales restrictions. Sales required at least 1,500 feet from public/private schools, churches, or daycare centers. Out-of-state buyers limited to half-ounce smokable / 32 oz edible per day.
• Product safety. Edibles cannot appeal to children, cannot exceed 10mg THC per serving, must be scored if multi-serving solid form, must be homogenized.
• Penalties. First offense up to $200; second offense Class C misdemeanor with 1-year license suspension; third offense Class B misdemeanor with 5-year suspension.
• Expungement and release. All marijuana-related convictions expunged. Persons whose only convictions were marijuana-related released from incarceration, probation, parole.
• Taxation. State sales tax + 5% recreational marijuana excise + 2% local sales tax. Distribution determined by General Assembly.
• Carve-outs. Employer policies preserved. DUI prohibition preserved. Medical-marijuana framework (Amendment 98) preserved. Other Controlled Substances Act offenses unaffected.

Common questions

Why does the AG reject the same proposal repeatedly?
Because the sponsor keeps revising and resubmitting without addressing the substantive defects. The AG's certification decisions are about whether the popular name and ballot title fairly summarize the proposal in a non-misleading way, and the underlying proposal here had structural ambiguities (in the licensing scheme, the staggered effective-date timing, the plant-tag mechanism) that no ballot title could honestly summarize.

Is this the same proposal as Op. Att'y Gen. 2018-016?
Same sponsor (Mary L. Berry, Arkansas True Grass BQC), same general concept, but later submission with further edits (and a higher 18+ age threshold remained constant). The AG rejected both for the same fundamental reason.

What happens after a rejection?
The sponsor can revise and resubmit. Eventually, the sponsor either gives up, gets a successful certification, or seeks judicial review. Arkansas Supreme Court has original jurisdiction over ballot-title sufficiency challenges.

Why does the AG mention 18 years of age?
Most U.S. recreational-marijuana laws use 21 as the threshold (matching the federal alcohol drinking age). The True Grass proposals used 18, which is unusual.

Background and statutory framework

Ark. Code Ann. § 7-9-107 implements Amendment 7 / Article 5, Section 1 of the Arkansas Constitution. The AG's three options are certify, substitute and certify, or reject. Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), establishes that ambiguities in the proposal text independently doom the ballot title.

Section 25-16-701 (referenced in footnote 5) prohibits the AG from engaging in private practice, which the AG cited to explain why the substitute-and-certify power has limits: the AG cannot become a co-drafter for the sponsor.

Citations

• Ark. Code Ann. § 7-9-107 (Supp. 2017) (AG ballot-title certification authority)
• Ark. Code Ann. § 25-16-701 (Supp. 2015) (AG private-practice ban)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)
• Lange v. Martin, 2016 Ark. 337, 500 S.W.3d 154
• Op. Att'y Gen. 2017-127 (earlier True Grass rejection)
• Op. Att'y Gen. 2017-135 (immediately preceding True Grass rejection)
• Op. Att'y Gen. 2018-016 (subsequent True Grass rejection)

Source

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

Original opinion text

Opinion No. 2018-005
January 31, 2018
Ms. Mary L. Berry, Sponsor
Arkansas True Grass Ballot Question Comm.
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. 2017), of the popular name and ballot title for a proposed initiated measure.

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. 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. In this way, voters will have a fair understanding of the issues presented by reference to the ballot title alone.

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 proposal." 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. 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

[The submitted ballot title and the full proposed amendment text follow in the original opinion. See the linked source for the verbatim text.]

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal. Your current submission has a threshold shortcoming that requires me to reject the ballot title, popular name, and proposed measure as drafted.

In response to your previous submission, I noted that you had deleted large sections of text from one of your earlier submissions. But simply deleting text from your proposal, which contained a convoluted regulatory scheme, made it impossible to summarize its contents in an intelligent, impartial, and honest manner.

Now you have submitted the measure that I rejected in Opinion 2017-135 with large sections of text added. The added sections are identical, or virtually identical, to text already flagged as ambiguous and misleading. And whether text is deleted or added, the net effect is the same. The import and complexity of the decriminalization scheme you propose makes it insufficient under section 7-9-107(c) simply to bring back 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.

Especially given this history of submissions, responses, and re-submissions, 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 ballot title, popular name, and proposed measure.

LESLIE RUTLEDGE
Attorney General

Enclosure