Why did the Arkansas AG reject Berry's revised 2018 recreational marijuana ballot title?

Plain-English summary

Mary L. Berry submitted another version of the Arkansas Recreational Marijuana Amendment of 2018. The Attorney General rejected the popular name, ballot title and proposed measure. She said the new text was a condensed, slightly reorganized version of language she had already rejected, and that the sponsor's pattern of adding and deleting language had not resolved fundamental shortcomings.

The AG did not list every prior defect again. A footnote gave one concrete example: the proposal defined an adult as a person at least 18 years old but did not say whether a business entity or another non-natural person could participate in recreational-marijuana activities. The AG had identified that uncertainty in an earlier opinion.

The opinion also explained the limits of the AG's role. Under Ark. Code Ann. § 7-9-107, she could substitute a suitable ballot title in some circumstances, but the statute did not require her to generate a title for a wholly deficient submission or modify the measure itself. A footnote cited an earlier AG opinion and § 25-16-701, the statute prohibiting private law practice by the Attorney General, in support of the no-drafting point.

Currency note

This March 2018 opinion reviews a proposed amendment and its ballot materials. It does not establish current marijuana law or the status of later initiatives. Check those separately.

Background and statutory framework

The sponsor's proposed title described state-law permission for adult recreational marijuana activities, continued federal prohibition, expungement and release provisions, and specified state and local taxes. The AG's review addressed whether the title fairly summarized the proposed constitutional change; it did not judge the policy merits.

The AG described successive submissions in which large portions of text had been deleted and later added back. She found the current condensation and reorganization insufficient because the underlying decriminalization scheme still could not be summarized intelligently, impartially and honestly. She relied on the history of her responses and gave the unresolved business-entity question as an example of a specific remaining ambiguity.

Common questions

Why was the latest title rejected?

The AG said it recycled previously rejected language without addressing fundamental shortcomings. Condensing and reorganizing the proposal did not make it possible to summarize fairly for voters.

What was the business-entity ambiguity?

The measure defined “adult” by age but did not clarify whether non-natural persons, such as business entities, could be licensed or participate in the listed recreational-marijuana activities.

Did the AG cite the statute barring private practice of law?

Yes, in footnote 5. It refers to Op. Att'y Gen. 2017-032, which cites Ark. Code Ann. § 25-16-701. The main text grounds the limits on substitution and measure drafting in § 7-9-107.

Did the AG offer a new ballot title?

No. She rejected this submission and said crafting the measure and an accurate summary was the sponsor's responsibility.

Source

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

Original opinion text

STATE OF AR.KA NSAS
ATTO R.N EY GE N ER.AL
LES LI E RU TLEDGE

Opinion No. 2018-016

March 5, 2018

Ms. Mary L. Berry, Sponsor
Arkansas True Grass Ballot Question Committee
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. 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

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 CE NTER STR EET. SU ITE 200 · L ITTL E RO C K. AR KA N SAS 72201 TEL EPH O NE (501) 682-200 7 · FAX (5 01) 682-8084 ARKA N SAS AG .GO V

Ms. Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2018-016
Page 2

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." 4 And 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 one submitted is wholly deficient. Nor does the statute require that I modify the proposed measure itself, in order to then summarize its text in a suitable ballot title. 5 Instead, crafting and accurately summarizing the measure 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, purchase, transport, and use of recreational marijuana and products produced therefrom by

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 if the 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
Arkansas True Grass BQC
Opinion No. 2018-016
Page 3

adults (18 years of age or older) shall not be offenses 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(s) 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 effective date of this amendment, November 7th, 2018; 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% 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.

RESPONSE

My statutory duty is to certify, substitute and certify, or reject the entire proposal submitted. 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 large sections of text from an earlier recreational-marijuana submission had been added back to the ballot title and proposal. 6 This was different (at least on the surface) from the submission before that, in which you deleted large sections of previously proposed recreational-marijuana language. 7 This addition/deletion strategy is problematic, given that your proposal involves a decriminalization scheme that cannot be summarized in an intelligent, impartial, and honest manner.

6
See Op. Att'y Gen. 2018-005.
7
See Op. Att'y Gen. 2017-135.

Ms. Mary L. Berry, Sponsor
Arkansas True Grass BQC
Opinion No. 2018-016
Page 4

Your current submission suffers from the same defect. The text of the proposed measure appears to be a condensed and slightly re-organized version of language I have rejected. 8 And as the history of submissions, responses, and re-submissions between you and this office plainly shows, the import and complexity of your proposal make it insufficient under section 7-9-107( c) to recycle 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.

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.

Attorney General

Enclosure

8
For example, the current proposal defines "adult" in section 3(a) as a "person who is eighteen years of age or older." The current proposal does not reference any non-natural person, like a business entity. But my office has rejected previous proposals when it was "unclear whether a non-natural person could be licensed pursuant to the amendment, or whether, by referring only to a natural person, the proposed amendment prohibits business entities and other non-natural persons" from pa1ticipating in recreational-marijuana activities. See Op. Att'y Gen. 2017-006.

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, PURCHASE, TRANSPORT, AND USE OF RECREATIONAL MARIJUANA AND PRODUCTS PRODUCED THEREFROM BY ADULTS (18 YEARS OF AGE OR OLDER) SHALL NOT BE OFFENSES 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(S) 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 EFFECTIVE DATE OF THIS AMENDMENT, NOVEMBER 7TH, 2018; 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% 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) "Driving under the influence of marijuana" means operating a motorized vehicle on any public road, highway, or street when the Delta-9-tetrahydrocannabinol (b9THC) content of the operator's blood exceeds fourteen nanograms per milliliter (14ng/ml). (c) "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 (b9THC), and is cultivated to be used as an intoxicant. (d) "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.

(e) "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.
      (f) "Minor" means a person who is under the age of eighteen (18) years of age. (g) "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 (b.9THC) 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. (h) "Recreational marijuana excise tax" means a tax that is imposed upon the purchase of recreational marijuana. (i) "Recreational purposes" means to be used as an intoxicant for the reason of enjoyment or pleasure. (j) "Remuneration" means an act in which money is being paid to purchase recreational marijuana and or products produced therefrom for recreational purposes. (k) "Use of 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.
The cultivation, production, distribution, sale, transport, possession and use of recreational marijuana and products produced therefrom by any person eighteen (18) years of age or older shall not be offenses under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to Arkansas law.

§5 Marijuana paraphernalia.
The production, distribution, sale, transport, possession, and use of Marijuana paraphernalia by any person eighteen (18) years of age or older shall not be offenses under Arkansas law, or be a basis for seizure or forfeiture of assets pursuant to Arkansas law.

§6. 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, distribute, sell, transport, 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.

§7. Expungement of Prior Convictions for Marijuana Related Offenses (a) All convictions for a marijuana related offense, as defined in §3(e) 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(e) of this amendment.

§8. 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.

§9. 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.