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

Plain-English summary

Mary L. Berry submitted "The Arkansas Cannabis Amendment" for the third time in 2015 after the AG's two prior rejections in Opinions 2015-117 and 2015-122. The third draft added a definition of "products produced" and tried to address some of the prior concerns, but ten new (or still-present) ambiguities prevented certification.

The AG laid out the problems:

1. Section 5 ambiguity on "items" and "substances." Section 5's reference to "products produced" was ambiguous on whether it applied to a substance (as distinct from an "item") manufactured from or with cannabis; whether it covered an item or substance that constituted (rather than contained) something "prohibited by this state"; and whether it covered something merely regulated but not prohibited.

2. Section 6 regulatory authority over hemp. The section said various hemp activities "may be regulated" but barred any limitation on plant size, number, or quantity of products. Without clarification of what regulation actually means in that context, the AG could not honestly tell voters what the proposal would do.

3. Section 7 "subject to the following conditions" ambiguity. Section 7 said the activities "are lawful in this state and may be regulated, but not prohibited, subject to the following conditions." It was unclear whether "subject to the following conditions" modified "lawful" or "regulated." If any of the conditions failed, would the activities lose their legality? Or just their freedom from regulation?

4. Excise tax scope. Section 7 did not make clear whether it prohibited additional taxes beyond the required excise tax.

5. Marijuana use by people under 18. The section affirmatively authorized cultivation and use by people 18 and older, but did not expressly prohibit such activities by younger people. It also barred the state from prohibiting marijuana use by people under 18 in certain circumstances. Read literally, the proposal might imply that people under 18 could cultivate or use marijuana in the absence of state legislative action.

6. Documentation for under-18 use. Section 7 described the document permitting under-18 use as a "written recommendation for the treatment of an illness or disease." The proposal did not say what kind of document, whether the state has any regulatory role over it, or whether "physician" includes out-of-state-licensed or non-MD physicians.

7. "Only conviction" ambiguity. Section 8 referred to a person whose "only conviction" was a marijuana offense. It was not clear how that applied to a person serving sentences for both a marijuana offense and an unrelated past offense.

8. Persons charged but not convicted as of the effective date. Section 8 was unclear about persons charged but not yet convicted on the proposal's effective date who were later convicted and sentenced based on pre-effective-date conduct. Would they be released?

9. Expungement of records of unincarcerated persons. Section 8's "all criminal records in this state shall be expunged of any such violations" was ambiguous about whether it reached only convictions of people incarcerated on the effective date or all convictions ever.

10. Expungement of "violations." Section 8 provided for expungement of "violations." In Arkansas, expungement is of convictions, not of violations. The proposal's use of "violations" was an unfamiliar concept.

The AG also cross-referenced AG Opinion 2014-091, which had rejected a similar Section-6-style regulatory-authority ambiguity in another cannabis proposal. The fact that the same drafting issue had recurred across separate proposals reinforced the AG's view that the underlying conceptual problem (open-ended "regulation" combined with structural limits on what may be regulated) had to be resolved in the text of the proposal.

The AG could not substitute a fix because the ambiguities went to the substance of the proposal, not just the ballot-title summary. The sponsor was again told she could redesign and resubmit.

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

The framework is the same as in Opinions 2015-117 and 2015-122 (and Opinion 2015-135 on the medical marijuana amendment): Ark. Code Ann. § 7-9-107 authorizes certification or rejection of a popular name and ballot title; substitution authority is in (b); resubmission right is in (c); and the Arkansas Supreme Court ballot-title cases (Pafford v. Hall, Chaney v. Bryant, May v. Daniels, Becker v. Riviere, Bailey v. McCuen, Crochet v. Priest, Christian Civic Action Committee, Becker v. McCuen, Roberts v. Priest) define what counts as an honest, impartial, and intelligible summary.

The recurring theme across all three Berry rejections, and across Opinion 2015-135 on the separate medical marijuana proposal, is Roberts v. Priest: internal inconsistencies in the underlying proposal will themselves doom a ballot title. The AG cannot summarize a proposal that does not say clearly what it would do, and the AG is not authorized to interpret ambiguous language in a way that substitutes the office's policy choices for the sponsor's.

The third Berry rejection is notable for its breadth: ten distinct categories of ambiguity, several of which (regulatory-authority scope, under-18 use, expungement-of-violations) had no obvious fix at the ballot-title level. The AG's cross-reference to Op. Att'y Gen. 2014-091 shows how recurrent the regulatory-authority drafting problem had become across Arkansas cannabis initiatives in this period.

Berry's three rejections were not the end of the story. A different sponsor (David Couch) was simultaneously pursuing what became the Arkansas Medical Marijuana Amendment of 2016 (rejected in Opinion 2015-135, eventually certified after redrafting, and approved by voters as Issue 6).

Common questions

Did Berry resubmit again after this third rejection?

The opinion does not say, and the AG file does not contain a fourth Berry opinion in late 2015. The 2016 election cycle eventually produced the certified Issue 6 medical marijuana amendment from a different sponsor (David Couch), not from Berry's recreational-and-medical proposal.

What was the recurring regulatory-authority problem?

The proposal said hemp activities "may be regulated" but then forbade any limitation on plant size, plant number, or quantity of products. The AG asked, in effect: if the legislature cannot limit any of these, what does "regulate" actually mean? The proposal did not say. AG Opinion 2014-091 had identified the same drafting issue in another cannabis proposal.

Could people under 18 have cultivated marijuana under the proposal?

The text was unclear. It affirmatively authorized people 18 and older but did not expressly prohibit younger people. Reading the under-18 provisions together with the under-18 silence, the proposal might imply that people under 18 could cultivate marijuana absent state legislative action.

What's the difference between expunging "violations" and expunging "convictions"?

Arkansas's expungement law operates on convictions: sealing or destroying the record of a court adjudication. "Violations" is broader and not part of the standard expungement vocabulary. The AG could not honestly tell voters what "expungement of violations" would mean.

What did the AG mean by "constitute" versus "contain" prohibited substances?

A product can "contain" cannabis without being entirely cannabis. The proposal's "products produced from the cannabis plant" was unclear on whether something that "constitutes" cannabis was different from something that "contains" cannabis, and whether items that were merely regulated (rather than prohibited outright) under state law fell within the constitutional protection.

Citations

• Ark. Code Ann. § 7-9-107 (Repl. 2013) (AG certification authority)
• 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)
• Op. Att'y Gen. 2014-091 (prior rejection of similar regulatory-authority language in another cannabis proposal)
• Op. Att'y Gen. 2015-117 (first rejection of this same proposal)
• Op. Att'y Gen. 2015-122 (second rejection of this same proposal)

Source

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

Original opinion text

Opinion No. 2015-132
November 17, 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.

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 produced 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), "marijuana" means any part of the cannabis plant, living or not, containing more than one percent, by dry weight, Delta-9-THC, and "products produced" means any items manufactured from the cannabis plant (genus cannabis) that may contain Delta-9-THC but does not contain a substance or item prohibited by this state; whereas marijuana products contain greater than one percent Delta-9-THC and hemp products contain one percent or less ...

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 may, if you wish, redesign the proposed measure, popular name, and ballot title, and then resubmit for certification.

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

1. Section 5 is ambiguous with respect to whether it applies to (a) a substance, as opposed to an "item," manufactured from or with cannabis; (b) an item or substance that constitutes, rather than contains, something "prohibited by this state"; or (c) an item or substance that is merely regulated, but not prohibited outright, under state law.

2. Section 6 is ambiguous regarding the scope of the General Assembly's regulatory authority. The section states that the various recited activities with respect to hemp "may be regulated" but forecloses any limitation on the size or number of plants cultivated and the quantity of products produced. It is unclear precisely what is meant by "regulated" if persons can grow as much hemp as they want. The proposal's position on this issue is undoubtedly a significant matter for a voter's consideration. But without clarification regarding what regulations the legislature is authorized to impose, this significant point cannot be accurately summarized for the voters in a ballot title. (This is the same ambiguity that was identified as a basis for rejection in Attorney General Opinion No. 2014-091, which addressed another proposal with very similar language as to the state's regulatory authority. This ambiguity also arises in Section 7 and is not cured by Section 7(b)'s reference to "thirty-six (36) growing plants.")

3. Section 7 provides that "cultivation, [etc.] are lawful in this state and may be regulated, but not prohibited, subject to the following conditions ...." It is unclear whether the phrase "subject to the following conditions" modifies the word "lawful" or the word "regulated." As a result, it is unclear and ambiguous whether the failure of one or more of the conditions would compromise the activities' legality under the proposal.

4. Section 7 is ambiguous in failing to make clear whether it is intended to constitute a prohibition on the state's imposition of taxes in addition to the required excise tax.

5. Section 7 affirmatively authorizes marijuana cultivation, etc., by people 18 and older, but does not expressly prohibit such activities by younger people. The section also forecloses the state from prohibiting in certain circumstances the use of marijuana by people under 18. The section is ambiguous with respect to the rights of people under 18 in the event the state takes no legislative action. The proposal may be read to imply that those under 18 may cultivate, etc., marijuana, provided the state takes no action to prohibit such use.

6. Section 7 is ambiguous with respect to the document that will permit a person under 18 to use marijuana. The proposal describes the document as a "written recommendation for the treatment of an illness or disease." It is unclear what type of document is envisioned and whether the state will have any regulatory role with respect to this document. The section is also ambiguous with respect to whether "physician" includes persons licensed as such under the laws of other jurisdictions or persons licensed other than as medical doctors.

7. Section 8 is ambiguous with respect to a person incarcerated on the proposal's effective date only for one or more convictions for violation of "state laws as they pertain to the cultivation, [etc.] of marijuana" but who has previously been convicted of one or more other offenses. It is not clear whether under the proposal such a person would be deemed to be one whose "only conviction" is for a marijuana offense.

8. Section 8 is ambiguous with respect to a person who, on the proposal's effective date, has been charged with but not convicted of a marijuana offense. Such a person clearly may be convicted and sentenced to incarceration on the basis of conduct that occurred before the proposal's effective date. It is not clear whether the proposal would require his release once he is incarcerated after the effective date, as he was not incarcerated "[u]pon the effective date of this amendment."

9. Section 8 is ambiguous with respect to expungement of criminal records of persons who are not incarcerated on the proposal's effective date. The second part of the section forms a complete sentence reading, "[A]ll criminal records in this state shall be expunged of any such violations." As the proposal is drafted, it is not clear whether "any such violations" refers only to convictions of persons incarcerated on the proposal's effective date, or all convictions of anyone at any time for "violating state laws as they pertain to the cultivation, [etc.] of marijuana."

10. Section 8 is ambiguous in providing for expungement of "violations." A person's actions and intent may constitute violation of a criminal statute, and the person may or may not be charged with and convicted of that crime. Expungement, as we know it in Arkansas, is of convictions, not of violations.

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.

Sincerely,
LESLIE RUTLEDGE
Attorney General