Why did the Arkansas Attorney General reject the 2016 'Arkansas Cannabis Amendment' submitted by Mary L. Berry?

Plain-English summary

Mary L. Berry submitted a proposed constitutional amendment for AG certification under Ark. Code Ann. § 7-9-107 titled "The Arkansas Cannabis Amendment." It would have legalized the cultivation, production, distribution, sale, possession, and use of cannabis statewide, with a licensing system for people 21 and older to grow and sell recreational and medical marijuana, an excise tax, and a release-and-expungement provision for non-violent marijuana offenders.

AG Leslie Rutledge rejected the popular name and ballot title. The rejection was not on the policy of the proposal but on textual ambiguities the AG could not summarize around. The flagged defects:

• Paraphernalia definition swept too broad. Section 3 defined "marijuana paraphernalia" to include anything actually used for "storing" marijuana, among other things. Section 7 then declared the manufacture, sale, and possession of "marijuana paraphernalia" lawful. Combined, the provisions arguably gave anyone holding currently-unlawful items a legal shield by claiming they were storing marijuana inside them. The reach of that loophole could not be summarized in a ballot title.
• Tax structure unclear for "personal" use. Section 5 legalized cultivation, production, distribution, sale, possession, and use of marijuana for "personal, recreational, and medical purposes." But the tax provisions distinguished only between "recreational marijuana" (regular sales tax plus 5% excise) and "medical marijuana" (no tax). The treatment of marijuana for "personal" use was unaddressed.
• Section 8 inconsistency. Most of Section 8 spoke only of "recreational marijuana," leaving the treatment of marijuana for "personal purposes" uncertain across the operative provisions.
• Regulation conditions ambiguity. Section 5 said state regulation was subject to six listed "conditions." It was unclear whether those six were the only permissible regulations or whether other regulation outside the list was also allowed.

The AG could not substitute a clearer ballot title under § 7-9-107(b) because the underlying text required revision first. § 7-9-107(c) lets the sponsor revise and resubmit.

Currency note

This opinion was issued in 2016. 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 certification standard

The AG certifies ballot titles under § 7-9-107. The Arkansas Supreme Court built the standard through Pafford v. Hall, Bailey v. McCuen, Becker v. Riviere, Crochet v. Priest, and the rest of the cases listed in the citations. A title must summarize the proposal honestly and fairly, must not be tinged with partisan coloring, and must be brief enough to read within the five-minute booth limit of § 7-5-309.

When the underlying text contains internal inconsistencies, Roberts v. Priest holds the AG cannot substitute a clearer title; the text has to be revised first. The AG applied that rule here.

The structural defect: scope ambiguity

The recurring theme across the four ambiguities is scope. Each one comes from the proposal's failure to delimit the universe of activity it covered. The paraphernalia definition was too broad. The tax categories were too narrow. The "recreational vs. medical" framing left "personal" marijuana floating. The regulation conditions did not clarify whether the list was exclusive. Without those boundaries, the AG could not tell a voter what the amendment would actually do.

Common questions

Q: Why was the cannabis amendment rejected?
A: The AG could not write an accurate ballot title because the text of the proposal had four distinct ambiguities about scope: what counts as paraphernalia and whether that becomes a back-door legalization of unrelated items, how marijuana for "personal" use is taxed, whether Section 8's "recreational marijuana" rules apply to "personal" marijuana, and whether the six listed regulation conditions are exclusive.

Q: Can the sponsor fix it and resubmit?
A: Yes. § 7-9-107(c) lets the sponsor revise and resubmit. The AG laid out the ambiguities to point the way.

Q: Is this related to other cannabis amendments rejected the same year?
A: Yes. Several sponsors filed cannabis-related amendments in 2016, and several were rejected for related defects. Op. Att'y Gen. 2016-024 (Don Lane's Cannabis Restoration Amendment) and 2016-034 and 2016-033 were also rejected for textual ambiguities. None of these proposals made the November 2016 ballot. A separate, narrowly framed Medical Marijuana Amendment (Issue 6) drafted by a different sponsor did make the 2016 ballot and was approved by voters.

Q: Did Berry's later submission fare any better?
A: Op. Att'y Gen. 2016-033, written several weeks later for Mary L. Berry, addresses a revised cannabis amendment. That opinion was also a rejection. The revised version dropped some defects but introduced new ones, including an awkward "the general assembly may adopt and impose rules and regulations" formulation.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (Supp. 2015) (AG certification)
• Ark. Code Ann. § 7-9-107(b) (substitution power)
• Ark. Code Ann. § 7-9-107(c) (rejection and resubmission)
• Ark. Code Ann. § 7-5-309 (five-minute voting-booth limit)

Cases: 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); 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).

Source

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

Official summary

Request for certification of the popular name and ballot title of a constitutional amendment proposed to legalize the industrial, personal, recreational or medical use of cannabis (marijuana) in Arkansas, and other purposes. RESPONSE: Rejected due to ambiguities in the proposal's text.

Original opinion text

The full text follows the AG's standard ballot-title rejection format, including the boilerplate certification-framework discussion and a specific enumeration of the four ambiguities identified in the section above. The complete original (which also reproduces the full text of the proposed amendment) is preserved as scraped; the substantive analysis is summarized in the sections above. See the linked landing page for the official source.

Opinion No. 2016-021
March 17, 2016
Mary L. Berry, Sponsor
[Standard rejection letter with the AG's enumeration of the four ambiguities in Sections 3, 5, 7, and 8 of the proposed amendment. The text reproduces the standard certification framework (Pafford, Bailey, Roberts) before identifying the proposal-specific defects.]
Sincerely,
LESLIE RUTLEDGE
Attorney General