Why did the Arkansas AG reject the March 2014 Arkansas Cannabis Amendment for using 'legal residents' and leaving the legislature's role unclear?

Plain-English summary

This was the sixth in a series of cannabis-amendment submissions from Robert L. Reed of Arkansans for Medical Cannabis (prior rejections: Op. Att'y Gen. Nos. 2014-022, 2014-014, 2013-021, 2011-059, 2011-031). The proposed Arkansas Cannabis Amendment would have given "legal residents of Arkansas" the right to cultivate, manufacture, distribute, sell, and use cannabis. AG Dustin McDaniel rejected it for two reasons. First, "legal residents" had no defined meaning and no commonly recognized definition, so the AG could not tell which people would gain the right. Second, the measure was silent on whether the General Assembly could regulate any of those activities, leaving voters unable to judge whether they were authorizing completely unregulated cannabis activity statewide.

A subsequent submission (Op. Att'y Gen. 2014-037, issued April 11, 2014) was the seventh in the series and was also rejected.

Currency note

This opinion was issued in 2014. 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.

What the AG concluded

Ambiguity 1: "Legal residents" is undefined.
The measure granted rights to "the legal residents of Arkansas" but never defined that phrase. There is no commonly recognized definition, so the AG could not draft a ballot title that fairly told voters who would gain the new rights.

Ambiguity 2: Unclear scope of legislative regulatory authority.
The measure granted a "right" to engage in cannabis activities without saying whether the legislature retained any regulatory authority. The AG quoted Wells v. Purcell for the principle that "the legislature may rightfully exercise the power of the people, subject only to the restrictions and limitations fixed by the constitutions." The Arkansas Constitution operates as a limitation on legislative power, so when an amendment creates a right without specifying the scope, the AG cannot tell whether the legislature still has authority over the subject. Voters need to know whether they are authorizing fully unregulated cannabis activity or are still leaving room for legislative rules.

The AG also flagged (in a footnote) that the proposed popular name "The Arkansas Cannabis Amendment" closely resembled the popular names of two measures already approved by the office: "The Arkansas Medical Cannabis Act" (Op. 2013-118) and "Arkansas Medical Marijuana Act" (Op. 2013-081). To avoid confusion at the ballot box, the sponsor was advised to consider distinguishing the popular name.

Common questions

Q: Why does "legal residents" matter so much?
A constitutional right granted to "legal residents" cannot be enforced unless we know who is in that class. Citizens? People with Arkansas voting addresses? Documented immigrants in Arkansas? Lawful temporary visitors? Without a definition, every enforcement question turns on guesswork.

Q: Why does the AG insist that a measure spell out the legislature's role?
Under Wells v. Purcell, the legislature has reserved authority unless a constitutional provision takes it away. When a measure grants a "right," that grant could be read as totally stripping legislative authority over the subject, or as creating a right that is still subject to ordinary regulation, or as something in between. The voter is entitled to know which.

Q: Are popular-name similarities really a problem?
Yes, especially when multiple cannabis measures might appear on the same ballot. The AG flagged the similarity as something the sponsor "may wish to consider" rather than a stand-alone basis for rejection, but the underlying concern is voter confusion.

Q: Did any cannabis measure get certified in Arkansas in this period?
Yes. "The Arkansas Medical Cannabis Act" (Op. 2013-118) and "Arkansas Medical Marijuana Act" (Op. 2013-081) had already been approved for circulation. Reed's broader recreational-and-medical proposals were the ones repeatedly rejected.

Citations

Statutes

• A.C.A. § 7-9-107 (popular name and ballot title certification)
• A.C.A. § 7-5-522 (voting booth time limit)

Cases (Arkansas Supreme Court)

• Wells v. Purcell, 267 Ark. 456, 592 S.W.2d 100 (1979)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000)

Prior AG opinions

• Rejected: Op. Att'y Gen. Nos. 2014-022, 2014-014, 2013-021, 2011-059, 2011-031
• Approved: Op. Att'y Gen. Nos. 2013-118, 2013-081

Source

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

Original opinion text

STATE OF ARKANSAS

THE ATTORNEY GENERAL
DUSTIN McDANIEL

Opinion No. 2014-034

March 21, 2014

Robert L. Reed, Chairman
Arkansans for Medical Cannabis
Ballot Question Committee
Post Office Box 111
Dennard, Arkansas 72629

Dear Mr. Reed:

This is in response to your request for certification, pursuant to A.C.A. § 7-9-107 (Repl. 2013), of the popular name and ballot title for a proposed initiated act. You previously submitted similar measures, which this office rejected. See Op. Att'y Gen. Nos. 2014-022, 2014-014, 2013-021, 2011-059 and 2011-031. You have made changes in the text of your proposal since your last submission and have now submitted the following proposed popular name and ballot title for my certification:

Popular Name

THE ARKANSAS CANNABIS AMENDMENT

Ballot Title

Amend the Constitution of Arkansas to allow the residents of Arkansas the right to cultivate, manufacture, distribute, sell and use the cannabis plant (genus cannabis) and all products derived from the cannabis plant (genus cannabis) within the legal boundaries of the state of Arkansas. Preemptive federal law will remain in effect unless altered by congress. This amendment shall take effect six months after passage.

Having analyzed your proposed amendment, as well as your proposed popular name and ballot title under the above precepts, it is my conclusion that I must reject your proposed popular name and ballot title due to ambiguities in the text of your proposed measure. A number of additions or changes to your ballot title are, in my view, 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 resolution of the ambiguities. I am therefore unable to substitute and certify a more suitable and correct popular name and ballot title pursuant to A.C.A. § 7-9-107(b).

For your benefit in the event you choose to resubmit your measure in the future, I will note, however, that your proposed popular name closely resembles the popular names of two measures already approved by this office. See Ops. Att'y Gen. Nos. 2013-118 ("The Arkansas Medical Cannabis Act") and 2013-081 ("Arkansas Medical Marijuana Act"). In order to avoid confusing the voter with respect to various closely related matters on the ballot, you may wish to consider amending your popular name to distinguish it from these other measures.

The text of your measure in its entirety provides as follows:

Section 1
We, the citizens of Arkansas hereby amend the Constitution of Arkansas to allow the legal residents of Arkansas the right to cultivate, manufacture, distribute, sell and use the cannabis plant (genus cannabis) and all products derived from the cannabis plant (genus cannabis) within the legal boundaries of the State of Arkansas.

Section 2
This amendment shall take effect six months after passage.

This measure contains the following ambiguities:

1. The term "legal residents," as used in Section 1 of your measure, is ambiguous in that it does not comprise a clearly defined group of people. This term is neither defined in your measure nor subject to any commonly recognized definition. It is consequently unclear to whom the rights set forth in your measure would extend. Without clarification on this point, I cannot summarize your measure in a ballot title.

2. Your measure leaves unclear what regulatory authority, if any, the legislature might exercise over "the right to cultivate, manufacture, distribute, sell and use" cannabis and its derivatives. As a general proposition, "the legislature may rightfully exercise the power of the people, subject only to the restrictions and limitations fixed by the constitutions of the United States and the state." It is unclear in your proposal, however, whether your measure's grant of a "right" to engage in the recited activities amounts to a complete bar on the General Assembly's authority to enact regulatory legislation regarding these activities. We know from your measure that the General Assembly may not take away the "right" granted. The scope of that "right," however, remains unclear. I simply cannot determine whether the adoption of your proposal would erase, restrict or leave unfettered the legislature's authority to regulate and to condition the right of "legal residents" to "cultivate, manufacture, distribute, sell and use" cannabis and its derivatives. Without clarification on the point, I cannot summarize your proposal in a ballot title.

To elaborate on this point, certain constitutional provisions — such as, say, the guarantees of equal protection and due process under the laws — are necessarily vague in defining their scope but perfectly clear in acknowledging that future legislation may occur. Indeed, the very point of these provisions is to set a standard whereby courts might test the validity of future legislation. Your proposed measure, by contrast, is specific in demarking its subject matter — namely, activities relating to cannabis and its derivatives — but unclear regarding whether the legislature can take any action relating thereto. It would doubtless be a matter of serious concern to voters to know whether or not the adoption of your measure would authorize the completely unregulated cultivation, manufacture, distribution, sale and use of cannabis and its derivatives at any time, in any location and by any "legal resident" (whatever that term might mean). Your measure, however, does not permit me to address this concern in a ballot title. Again, without clarification on this point, I cannot summarize your measure in a ballot title.

I cannot begin to certify a ballot title for your proposed amendment in the face of the ambiguities noted above. You must remedy these confusing and ambiguous points before I can perform my statutory duty.

My office, in the certification of ballot titles and popular names, does not concern itself with 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 A.C.A. § 7-9-107 and my duty is to the electorate. I am not your counsel in this matter and cannot advise you as to the substance of your proposal.

My statutory duty, under these circumstances, is to reject your proposed ballot title (for the foregoing reasons) and instruct you to "redesign" the proposed measure and ballot title. You may, after addressing the matters discussed above, resubmit your proposed amendment, along with a proposed popular name and ballot title, at your convenience.

Sincerely,

DUSTIN MCDANIEL
Attorney General

DM/cyh