Why did the Arkansas AG reject the May 9, 2014 draft of Robert Reed's Arkansas Cannabis Amendment?

Plain-English summary

Robert Reed submitted his eighth proposed cannabis-related constitutional amendment for AG certification under A.C.A. § 7-9-107. The popular name was the "Arkansas Cannabis Amendment." The proposed text would give the people of Arkansas "the right to cultivate, manufacture, distribute, sell and use the cannabis plant" and all derivatives, with the General Assembly empowered to "enforce this amendment by appropriate legislation." Effective six months after passage.

AG Dustin McDaniel rejected the draft for four specific reasons:

1. Imperative-mood error in the opening sentence. The text starts "Add a[n] amendment to the Constitution of Arkansas." That is a command directed at the reader (imperative mood), not a statement of law (indicative mood). A constitutional amendment, when adopted, becomes part of the constitution; its text needs to state the law that will apply, not command voters to adopt it. The AG had pointed out the same mood error in Op. 2013-022. He explained it again at length here.

2. Future-tense ambiguity. Section 1 states the right "The People... shall have the right..." (emphasis on the future tense). This is confusing because the unrestricted authorization seems self-executing, suggesting it would take effect immediately on adoption. But the future tense implies delay. Why "shall have" instead of "have"?

3. Contradictory legislative-power provisions. Section 2(a) directs the legislature to enact "all legislation necessary and sufficient to make this amendment in all respects effective and workable." Section 2(b) bars any legislation that would "restrict, hamper or impair the exercise of the rights herein reserved to the people." These two provisions pull in opposite directions. Section 2(a) might be read as requiring restrictive legislation, while section 2(b) bars it. The AG noted: "Simply establishing a legislative power to 'enforce this article' ... cannot reasonably be read as a clear grant of ... regulatory authority." Without clarity on what the legislature can actually do, the AG can't summarize the proposal in a ballot title. This same point had been raised in the previous opinion (2014-037) and not fixed.

4. Garbled effective-date language. Section 3 reads: "After adoption by the people and as soon as, and not before, but no later than one hundred and eighty days (180 days), the legislature shall have fulfilled the requirements of section 2 hereof, this amendment or any legislation enacted in pursuant of section 2, shall be in full force and effect." The AG declined to parse this in detail but flagged the internal contradictions ("as soon as" implies any time up to; "not before" implies not until; "but no later than" implies a deadline), the unclear scope of the time limit (does it apply to legislative action or to the effective date?), and the disjunctive "or" connecting the amendment and the legislation.

The AG noted patience with this sponsor was wearing thin: "I cannot overstate the importance of the voters understanding the scope of the regulatory authority, if any, that the legislature would retain under your measure. Whatever your reasons for failing to address this issue directly, I cannot and will not continue to tax this office's resources by repeatedly making this point to you."

The AG declined to substitute and certify a corrected version under A.C.A. § 7-9-107(b) because the ambiguities are in the underlying text, not just the title. Reed must redesign the measure and resubmit. Reed did, and the next iteration (Op. 2014-056) was approved with substitution.

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.

Common questions

Why did the Arkansas AG keep rejecting Robert Reed's cannabis amendment?
Each draft had drafting ambiguities. The May 2014 rejection focused on grammatical mood (imperative vs. indicative), future tense, contradictory legislative-power language, and a garbled effective-date provision.

What's the difference between imperative mood and indicative mood in legal drafting?
Imperative mood gives commands ("Do X"). Indicative mood states facts ("X is the law"). A constitutional amendment text should be indicative: it states the law that will apply once adopted. Reed's recurring error was opening with "Add a[n] amendment to the Constitution," which is imperative.

Can the AG substitute a corrected ballot title under A.C.A. § 7-9-107(b)?
Yes, when the ambiguity is in the title only. But when the underlying measure is itself ambiguous, the AG cannot fix it by substituting a different title. The sponsor has to fix the measure.

Did Reed eventually get an amendment certified?
Yes. Op. 2014-056 (June 4, 2014) certified the next draft of Reed's amendment, with the AG substituting a clearer ballot title.

Citations

• A.C.A. § 7-9-107 (Repl. 2013) (AG certification authority)
• A.C.A. § 7-9-107(b) (substitution authority)
• A.C.A. § 7-5-522 (five-minute voting-booth limit)
• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies in measure)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Op. Att'y Gen. 2014-037, 2014-034, 2014-022, 2014-014, 2013-021, 2011-059, 2011-031 (prior Reed submissions)
• Op. Att'y Gen. 2013-022 (prior mood-error explanation)
• Op. Att'y Gen. 2014-056 (subsequent approved version)

Source

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

Original opinion text

Full opinion text unavailable from the official source. See the linked PDF or landing page above for the complete text. Key excerpts:

STATE OF ARKANSAS
THE ATTORNEY GENERAL
DUSTIN McDANIEL
Opinion No. 2014-043
May 9, 2014

Robert L. Reed
295 Elan Trail
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 constitutional
amendment. You previously submitted similar measures, which this office
rejected. See Op. Att'y Gen. Nos. 2014-037, 2014-034, 2014-022, 2014-014,
2013-021, 2011-059 and 2011-031.

Popular Name: ARKANSAS CANNABIS AMENDMENT

Ballot Title: Amend the Constitution of Arkansas to allow the People 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. The General
Assembly shall have power to enforce this amendment by appropriate
legislation. Preemptive federal law will remain in effect unless altered by
congress. This amendment shall take effect six months after passage.

The measure contains the following ambiguities:

1. The opening sentence of your amendment again misleadingly appears to order
   or encourage the voter to adopt the amendment, rather than simply identifying
   the measure as being a constitutional amendment. I have previously advised you
   that a constitutional amendment properly sets forth a provision of law that has
   been adopted by the voters, not a command that voters adopt a measure, as does
   the opening sentence of your proposal. Without clarification that you are not
   ordering the voter to amend the constitution, I cannot summarize this provision
   in a ballot title.

In possibly revising your submission, please bear in mind that the substance of
your measure, if adopted, will be incorporated as drafted into the Arkansas
Constitution. The directive to "[a]dd a [sic] amendment to the Constitution of
Arkansas" is not a statement of law adopted by the voters; rather, literally read, it
is advice, if not an outright command, to the voters to adopt the measure. As
such, this declaration does not belong in the amendment itself, which should set
forth only the substance of the law adopted. In short, the text of your measure
must do no more than (1) identify the measure as being a constitutional
amendment; and (2) state verbatim the substantive provisions of law that will
apply as a result of the amendment's adoption.

2. Unaccountably, you define the right set forth in Section 1 of your measure in
   the future tense, i.e., "The People... shall have the right..." (emphasis added).
   This provision is confusing inasmuch as the unrestricted authorization set forth in
   Section 1 seems in all respects to be self-executing, suggesting that it would
   normally take effect immediately upon the measure's adoption. Although your
   proposal refers generally to legislative action as a condition precedent to the
   amendment's application, it is unclear what legislative action would be either
   permissible or necessary to trigger the amendment's application. Without
   resolution of this ambiguity, I cannot summarize your proposal in a ballot title.

3. As noted immediately above, Section 1 of your measure grants the people of
   Arkansas an apparently unrestricted, and hence, it would seem, self-executing,
   right to engage in the recited activities relating to cannabis. In accordance with
   this impression, Subsection 2(b) bars any legislation that might "restrict, hamper
   or impair the exercise of the rights herein reserved to the people." Subsection
   2(a), however, directs the legislature promptly to enact "all legislation necessary
   and sufficient to make this amendment in all respects effective and workable."

Subsection 2(b) could be read as denying the legislature what might otherwise be
interpreted as its reserved "police power" to regulate the activities authorized in
Section 1. Subsection 2(a), by contrast, might be read as requiring restrictive
legislation to the extent deemed "necessary and sufficient" to make the
amendment "effective and workable." Your measure, in short, simultaneously
authorizes restrictions by directing the legislature to pass laws needed to render
the amendment "effective and workable" and bars any restrictive legislation that
would in any way qualify the people's open-ended "right" to engage in the
activities described in Section 1.

The tension between these two provisions leaves it unclear what legislative action
the General Assembly would be empowered to take, a confusion only
compounded by the fact that Section 1 on its face appears to be self-executing
and resistant to legislative curbs of any sort. Without clarification regarding what
regulations, if any, the legislature is authorized to impose upon Section 1
conduct, I am unable to summarize your measure in a ballot title.

I feel compelled to point out that the objection just raised is materially
indistinguishable from one I raised less than a month ago in response to your
immediately previous submission. As I pointed out in my previous opinion:
"Simply establishing a legislative power to 'enforce this article' ... cannot
reasonably be read as a clear grant of ... regulatory authority." Notwithstanding
my having pointed this out, you have again failed to specify in your submission
whether you intend the legislature to retain regulatory authority over the
activities at issue and, if so, to what extent. Your current submission is patently
ambiguous on this score, meaning that I cannot summarize its substance in a
ballot title.

I cannot overstate the importance of the voters understanding the scope of the
regulatory authority, if any, that the legislature would retain under your measure.
Whatever your reasons for failing to address this issue directly, I cannot and will
not continue to tax this office's resources by repeatedly making this point to you.
Accordingly, please resolve this ambiguity before submitting for my approval any
revised version of your proposal.

4. Section 3 of your measure, which purports to define the effective date of your
   amendment, is syntactically garbled to an extent that obscures its meaning. I will
   not here parse this sentence to demonstrate its grammatical inadequacies. I will
   merely note that, as written, it is not a lucid, grammatical sentence that I can
   summarize 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.

Sincerely,

DUSTIN McDANIEL
Attorney General

DM/cyh