Why did the Arkansas AG reject Mary Berry's first cannabis legalization ballot title in 2015?

Plain-English summary

Mary L. Berry of Summit, Arkansas, submitted a proposed constitutional amendment called "The Arkansas Cannabis Amendment" and asked the AG to certify its popular name and ballot title. The proposal would have made the cultivation, production, distribution, sale, possession, and use of the entire cannabis plant lawful statewide effective January 2017, distinguished "hemp" (1% or less THC) from "marijuana" (greater than 1% THC), capped marijuana license fees at $250 a year and the excise tax at 5%, limited cultivation to 36 plants per qualified person, released prisoners serving sentences for nonviolent marijuana offenses, and provided for expungement of related criminal and civil records.

The AG rejected the popular name and ballot title because the underlying proposal had a series of ambiguities the AG could not paper over by drafting a better title. The opinion identified seven main problem areas. Section 5's ban on "special" zoning requirements and "excessive, discriminatory, prohibitive" licensing fees for hemp left it unclear what counted as "special," whether identical fees across different agricultural products were "discriminatory," and how the modifying language linked to the operative terms. Section 6 allowed marijuana for under-18 patients on a physician's "recommendation" without saying anything about how that recommendation should be made or documented. Section 7 referred to the "Arkansas Board of Correction and Community Punishment," which no longer existed (renamed the Board of Corrections), and used that defunct entity to define which incarcerated persons would be released, even though some Arkansans are incarcerated outside the Board's facilities. Read literally, the same release provision would also free a person serving concurrent sentences for a nonviolent marijuana offense and a violent crime. Section 7 also provided for expungement of civil records, but expungement of civil records is not a familiar Arkansas concept. And Section 7 directed the AG to produce a "legal document" sent to all circuit court clerks, without addressing district courts, law enforcement agencies, or other recordkeepers.

The AG could not substitute language to fix all of this at the ballot-title level, so the proposal was sent back for redrafting. This was the first of three rejections the AG issued to Berry's proposal in 2015 (followed by 2015-122 on October 26 and 2015-132 on November 17).

Currency note

This opinion was issued in 2015. 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 requires the AG to certify the popular name and ballot title of proposed initiatives before signatures are collected. The AG may substitute a better title or reject the submission outright if the popular name and ballot title are sufficiently misleading. The statute does not authorize the AG to opine on merits.

The substantive standards come from a line of Arkansas Supreme Court decisions: the popular name is primarily a useful legislative device, must not be misleading or partisan (Pafford v. Hall, Chaney v. Bryant, Moore v. Hall), and is read with the ballot title (May v. Daniels). The ballot title must give voters a fair understanding (Becker v. Riviere), disclose any essential fact that would give serious ground for reflection (Bailey v. McCuen), be brief and concise so as not to violate the five-minute voting-booth limit (Ark. Code Ann. § 7-5-309), and be free of misleading tendency (Crochet v. Priest, Christian Civic Action Committee). Roberts v. Priest holds that internal inconsistencies in the underlying proposal will themselves doom a ballot title; the AG cannot certify a summary of a proposal that does not say clearly what it would do.

The AG laid out seven categories of ambiguity. The Section 5 hemp-regulation language used unclear terms ("special zoning requirement," "excessive, discriminatory, prohibitive licensing fee," "contrary to that which is relative to any other agricultural product") that had no clear referent. Section 6's reference to a physician "recommendation" for under-18 use of marijuana said nothing about form or content. Section 7's reference to the "Arkansas Board of Correction and Community Punishment" cited a body that had been renamed the Board of Corrections and that does not house every incarcerated person in Arkansas. The Section 7 release provision, read literally, would free a person serving concurrent sentences for a nonviolent marijuana offense and an unrelated violent crime. The expungement-of-civil-records language used a concept (expungement of civil records) that is not part of Arkansas criminal-law vocabulary. And the directive to distribute an AG-prepared "legal document" to circuit court clerks did not address district courts, prosecutors, or law enforcement agencies. The AG was clear that this list was not necessarily exhaustive.

Because the ambiguities ran through the underlying proposal, not just the ballot-title summary, the AG declined to substitute a corrected title. Section 7-9-107(c) gives the sponsor the right to redesign and resubmit.

Common questions

Did the AG say cannabis legalization is a bad idea?

No. The opinion explicitly disclaims any view on the merits. The AG only certifies whether voters can be honestly told what they would be voting on. The rejection turned entirely on internal ambiguities in the proposal.

What was unclear about the hemp-regulation language?

Three things. The phrase "special zoning requirement" did not define what made a zoning rule "special." The phrase "excessive, discriminatory, prohibitive" licensing fee did not say whether a fee uniform across agricultural products would qualify as discriminatory if a different fee applied elsewhere. And the modifiers grouped at the end did not clearly attach to either the zoning rule or the licensing fee.

What's the issue with the Arkansas Board of Correction and Community Punishment?

That body no longer existed under that name in 2015 (it was renamed the Board of Corrections). Section 7 of the proposal used it to define who would be released, but many Arkansans serving sentences are housed in facilities not supervised by that board, so the literal text either did not reach them or did so ambiguously.

Would the proposal really have released people serving sentences for violent crimes?

Read literally, yes. A person serving concurrent sentences (one for a nonviolent marijuana offense and one for a violent crime) appears to fall within the release language because that person is "incarcerated for a nonviolent marijuana offense." The proposal said nothing about how to handle concurrent sentences, and the AG could not summarize that intent for voters.

What does "expungement of civil records" mean?

Unclear. Expungement is a familiar concept in Arkansas criminal law (sealing or destruction of criminal records), but "civil records" is not part of that vocabulary. The proposal extended expungement to civil records without explaining what that meant.

What happened next?

Berry resubmitted, and the AG issued two more rejections in 2015 (Opinions 2015-122 and 2015-132). All three involved different draft language but reached the same conclusion: internal ambiguities the AG could not cure at the ballot-title level.

Citations

• Ark. Code Ann. § 7-9-107 (Repl. 2013) (AG certification of popular name and ballot title)
• Ark. Code Ann. § 7-9-107(b) (substitution authority)
• Ark. Code Ann. § 7-9-107(c) (sponsor may redesign and resubmit)
• Ark. Code Ann. § 7-5-309 (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)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 846 (1984)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (internal inconsistencies bar certification)

Source

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

Original opinion text

Opinion No. 2015-117
October 9, 2015
Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677
Dear Ms. Berry:
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE
I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Repl. 2013), of the popular name and ballot title for a proposed constitutional amendment.

At the outset, I wish to make clear to you 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 the measure when making my determination to certify or reject a popular name and ballot title.

The Attorney General is required, pursuant to Ark. Code Ann. § 7-9-107, to certify the popular name and ballot title of all proposed initiative and referendum acts or amendments before the petitions are circulated for signature. The law provides that the Attorney General may, if practicable, substitute and certify a more suitable and correct popular name and ballot title. Or, if the proposed popular name and ballot title are sufficiently misleading, the Attorney General may reject the entire petition.

Section 7-9-107 neither requires nor authorizes this office to make legal determinations concerning the merits of the act or amendment, or concerning the likelihood that it will accomplish its stated objective. In addition, consistent with Arkansas Supreme Court precedent, unless the measure is "clearly contrary to law," this office will not require that a measure's proponents acknowledge in the ballot title any possible constitutional infirmities. Consequently, this review has been limited primarily to a determination, pursuant to the guidelines that have been set forth by the Arkansas Supreme Court, discussed below, of whether the popular name and ballot title you have submitted accurately and impartially summarize the provisions of your proposed amendment.

REQUEST

You have requested certification of the following popular name and ballot title:

Popular Name: THE ARKANSAS CANNABIS AMENDMENT

Ballot Title: An amendment proposed by the people to the Arkansas Constitution to provide, effective January, 20 2017, that the cultivation, production, distribution, sale, possession, and use of the cannabis plant (genus cannabis) and all products derived from the cannabis plant are lawful within the entire geographic area of every county of this state; that for purposes of the amendment "hemp" means any part of the cannabis plant, living or not, containing one percent or less, by dry weight, delta-9-tetrahydrocannabinol (delta-9-thc), and "marijuana" means any part of the cannabis plant, living or not, containing more than one percent, by dry weight, delta-9-thc; that the listed activities with respect to hemp for personal, industrial, or commercial use may be regulated but not prohibited, provided that the quantity and size of plants cultivated and the products produced shall not be limited or prohibited nor subject to any special zoning requirement, licensing fee that is excessive, discriminatory, prohibitive, or in any way contrary to that which is relative to any other agricultural product produced in this state; that the listed activities with respect to marijuana for personal, industrial, or commercial use by any person 18 years of age or older are lawful in this state and may be regulated but not prohibited, provided that (1)(a) the cost of a license that shall be required by the state to authorize and regulate the cultivation, production, distribution, and sale of marijuana and products containing marijuana shall not exceed $250.00 per year; (b) any person 18 years of age or older shall qualify to obtain such license; and (c) there shall be no limit to the number of licenses issued in this state; (2) the quantity of plants cultivated shall be limited to 36 growing plants per qualified person, but the size of plants cultivated and the products produced shall not be limited or prohibited; (3) the state excise tax imposed on the sale of marijuana and products containing marijuana shall not exceed five percent; and (4) the use of marijuana and products containing marijuana shall not be prohibited to any person under 18 years of age whose physician has recommended it; upon the effective date of this amendment, all persons incarcerated or under supervision of the Arkansas Board of Correction and Community Punishment for nonviolent marijuana offenses shall be released and all civil and criminal records of nonviolent marijuana offenses in this state shall be expunged; and that all laws that conflict with the amendment are repealed to the extent that they conflict with the amendment.

RESPONSE

It is my opinion based on the above precepts that a number of additions or changes to your ballot title are 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 the resolution of the ambiguities in the text of your proposed amendment itself. It is therefore not appropriate, in my opinion, for me to try to substitute and certify a more suitable and correct popular name and ballot title pursuant to Ark. Code Ann. § 7-9-107(b). Instead, you will need to redesign the proposed measure and ballot title, and then resubmit for certification.

In order to aid your redesign of the ballot title, I highlight below the more concerning ambiguities in the text of your proposed amendment.

1. Section 5 of the proposal provides that "the cultivation, production, and distribution of hemp shall not be subject to any special zoning requirement, licensing fee that is excessive, discriminatory, prohibitive, or in any way contrary to that which is relative to any other agricultural product produced in this state." This provision is ambiguous in several ways: (a) it is unclear what distinguishes a "special" zoning requirement from any other; (b) it is unclear whether a "licensing fee" that is substantially identical to that imposed with respect to one agricultural product, but different from that imposed with respect to another, is to be deemed "discriminatory" or "contrary to" the second and therefore unconstitutional; and (c) it is unclear whether the "excessive, discriminatory, [etc.]" language is intended to modify "special zoning requirement."

2. The proposal provides in section 6 that a person under 18 years old may use marijuana if his or her physician has "recommended" it. The absence of any indication of the procedure for, or formality or content of, the recommendation makes this provision ambiguous.

3. Section 7 refers to the "Arkansas Board of Correction and Community Punishment," which no longer exists. The body formerly of that name is now known as the Board of Corrections.

4. Section 7 provides that all persons "incarcerated or under supervision of the Arkansas Board of Correction and Community Punishment for nonviolent marijuana offenses shall be released." It is unclear whether the word "incarcerated" is intended to be modified and limited by reference to the Board. There are persons incarcerated in Arkansas in facilities not supervised or operated by the Board of Corrections. The proposal is ambiguous with respect to whether such persons would also be released.

5. The language of Section 7 quoted immediately above, applied literally, would require the release of a person serving two sentences at the same time (concurrent sentences) for a nonviolent marijuana offense and for a crime of violence. I cannot determine from the face of the proposal your intent with respect to such a person.

6. Section 7 provides for expungement and destruction of civil as well as criminal records. While expungement is a familiar concept in Arkansas criminal law, the proposal's meaning with respect to expungement of civil records is unclear and ambiguous.

7. Section 7 provides for the Attorney General to produce a "legal document" ordering document destruction, and for distribution of the document to "all Circuit Court Clerks within the state." It is unclear and ambiguous whether and how other courts, including in particular district courts, and other agencies and persons, including in particular law enforcement agencies, would be ordered to destroy the relevant records.

CONCLUSION

The ambiguities noted above are not necessarily all the ambiguities contained in your proposal, but they are sufficiently serious to require me to reject your popular name and ballot title. I am unable to substitute language in a ballot title for your measure due to these ambiguities. Further, additional ambiguities may come to light on further review of any revisions of your proposal.

My office in the certification of ballot titles and popular names does not address 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 Ark. Code Ann. § 7-9-107, and my duty is to the electorate.

Based on what has been submitted, my statutory duty is to reject your proposed ballot title for the foregoing reasons and instruct you to redesign the proposed measure and ballot title. You may resubmit your proposal along with a proposed popular name and ballot title at your convenience.

Sincerely,
LESLIE RUTLEDGE
Attorney General