Why did the Arkansas Attorney General reject the 2018 'Arkansas Cannabis Hemp and Recreational Marijuana Amendment' ballot title?

Plain-English summary

In September 2018, sponsor Kenneth Woodmansee submitted a proposed constitutional amendment titled the "Arkansas Cannabis Hemp and Recreational Marijuana Amendment" and asked Attorney General Leslie Rutledge to certify its popular name and ballot title under Ark. Code Ann. § 7-9-107. The amendment would have legalized cultivation, production, distribution, sale, possession, and use of recreational marijuana and cannabis hemp products under state law (recognizing those activities remain unlawful under federal law); released and exonerated all persons whose current and only convictions arose from state marijuana laws; expunged related criminal records; divided cannabis into "cannabis hemp" (containing 0.3% or less THC) and "marijuana" (containing more than 0.3% THC); regulated cultivation and sale of cannabis hemp; permitted anyone 18 or older to obtain a cannabis hemp license; and authorized recreational marijuana use by adults 21 or older.

The AG rejected the submission at the threshold without reaching a substantive analysis. The reason: this was the same measure the AG had already rejected in Opinion 2017-006, where the AG had flagged the text as ambiguous and misleading, and where the AG had explained why the decriminalization scheme as drafted could not be fairly summarized. Subsequent opinions had addressed similar or identical language in other resubmissions and reached the same conclusion.

The opinion told Woodmansee that "it is insufficient under section 7-9-107(c) to recycle language previously identified as problematic." The AG had set out the deficiencies in 2017-006 (and follow-up opinions). Resubmitting the same defective text without addressing those deficiencies produced another rejection. Especially given the history of submission, response, and resubmission of this and very similar measures, the AG concluded that no ballot title could fairly summarize the proposal as drafted.

The opinion enclosed a copy of Opinion 2017-006 as the full substantive analysis. The AG did not redraft the measure or write a substitute ballot title; Section 7-9-107 does not authorize that, and Ark. Code Ann. § 25-16-701 forbids the AG from engaging in private-practice lawyering for the sponsor.

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.

Background and statutory framework

Ark. Code Ann. § 7-9-107 directs the AG to review every popular name and ballot title submitted for an initiated measure before circulation. Subsection (c) is the rejection authority. Resubmissions of previously rejected measures get no procedural break: if the same defects remain, the same outcome follows.

The AG's reasoning here turns on the text-level ambiguity rule from Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000). Where the underlying measure's text is ambiguous about its actual legal effect, no ballot title can honestly summarize it. The 2017-006 opinion the AG cited (and re-attached) contains the full Roberts analysis applied to this measure.

Ark. Code Ann. § 25-16-701 forbids the AG from engaging in the private practice of law. That is what bars the AG from redrafting an ambiguous measure to make it summarizable.

Common questions

Why is recycling text fatal?
Because Section 7-9-107 requires the sponsor, not the AG, to fix the proposal. Once the AG has identified the specific drafting defects, the sponsor's job is to address them. Submitting the same text without changes invites the same rejection. The AG cannot do the redrafting itself without violating the private-practice prohibition.

What does "convoluted decriminalization scheme" mean?
The AG's term in this and several earlier opinions for proposals that combine sweeping criminal-law changes (legalizing conduct that was previously criminal, releasing prisoners, expunging records) with a regulatory and licensing framework, plus tax and revenue-distribution provisions. The combination makes any honest ballot title impossible because the proposal's many moving parts cannot all be summarized inside the brevity ballot titles must maintain.

Did the AG reach the merits of cannabis or hemp legalization?
No. The opinion did not address the merits. It rested on the procedural rule that a previously rejected measure resubmitted without changes gets rejected again.

Could the sponsor fix it?
Only by going back to Opinion 2017-006, addressing each defect identified there, and producing a redrafted measure with a popular name and ballot title that actually capture the redrafted measure's substance. Recycling will not work.

What happens to similar resubmissions from other sponsors?
The AG addressed several similar measures from different sponsors in this same period (Opinions 2018-100, 2018-110, 2018-113, 2018-119), each of them dealing with marijuana legalization variants. Each rejection turns on the specific drafting of that submission, but the pattern is consistent: comprehensive decriminalization-plus-regulation proposals tend to fail the brevity-and-clarity tests § 7-9-107 enforces.

Citations

• Ark. Code Ann. § 7-9-107 (statutory authority and standards for AG ballot-title certification)
• Ark. Code Ann. § 7-9-106 (companion procedural section)
• Ark. Code Ann. § 25-16-701 (AG cannot engage in private practice of law)
• Op. Att'y Gen. 2017-006 (the AG's prior rejection of the same measure, cited and attached)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (text-level ambiguity defeats ballot-title sufficiency)
• Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Op. Att'y Gen. 2017-032 (private-practice prohibition cited)

Source

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

Original opinion text

Opinion No. 2018-110
September 24, 2018
Kenneth Woodmansee, Sponsor

Dear Mr. Woodmansee:

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.

The decision to certify or reject is in no way a reflection of my view of the merits of the proposal.

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: Arkansas Cannabis Hemp and Recreational Marijuana Amendment

Ballot Title: An Amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of recreational marijuana and cannabis hemp and products produced therefrom may not be prohibited under State law, but shall be regulated under State law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, or parole of all persons whose current and only conviction(s) in which they are serving were of State laws pertaining to the cultivation, production, distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis into cannabis hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of cannabis hemp and products produced therefrom; providing that anyone 18 years of age or older may obtain a cannabis hemp license permitting the person to cultivate cannabis hemp; authorizing recreational use of marijuana; providing that anyone 21 years of age or older may purchase, possess, and consume marijuana under state law and providing for additional state regulation.

GUIDELINES

[Standard ballot-title-sufficiency guidelines applicable under § 7-9-107 and Arkansas Supreme Court precedent.]

RESPONSE

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

DISCUSSION

You have submitted the same measure I rejected in Attorney General Opinion 2017-006, which I have attached for your convenience. The text of this proposed measure was flagged as ambiguous and misleading in this previous opinion, as well as in subsequent opinions addressing some of the same (or very similar) language.

Because of the import and complexity of the decriminalization scheme you propose, it is insufficient under section 7-9-107(c) to recycle language previously identified as problematic under the guidelines set out above. Doing so will result (and did result here) in a submission that fails to address the fundamental shortcomings that have been discussed over many previous responses from my office. Especially given this history of submission, response, and re-submission of this and very similar measures, it is impossible to fairly summarize in a ballot title a proposed measure that the Arkansas Supreme Court would consider too ambiguous and misleading for voters to make a reasoned decision.

CONCLUSION

For these reasons, I must reject your popular name, ballot title, and proposed measure in their entirety.

Sincerely,
Leslie Rutledge
Attorney General

Enclosure: Opinion No. 2017-006 (the prior rejection of essentially the same measure; the full enclosure text is preserved on the official record. See the linked landing page for the source filing.)