Was the revised Berry cannabis amendment ballot title sufficient for certification in 2016?

Plain-English summary

This was Mary L. Berry's third pass at certifying a popular name and ballot title for the "Arkansas Cannabis Amendment." The AG had certified an earlier draft on April 25, 2016, then rejected a revised version in Opinion 2016-078 (August 1, 2016) over seven ambiguities. Berry rewrote and tried again. The AG rejected this one too, identifying nine ambiguities in the underlying proposal that prevented a fair summary.

The nine ambiguities the AG flagged in the August 22, 2016 draft:

1. Who can revoke a license? Sections 4(a) and 5(a) referenced revocation of industrial hemp and marijuana licenses. Section 10(a) charged the Arkansas Game and Fish Commission (AGFC) with "adopt[ing] penalties and procedures for revocation and suspension." Section 10 also gave other state agencies regulatory roles. Unclear whether those other agencies, or the General Assembly by legislation, could also adopt rules under which licenses could be revoked.
2. How does "the State" appoint agencies? Section 10 said "the State shall appoint" various agencies to handle parts of the regulatory scheme. The proposal did not say how, or by whom, those appointments would be effected.
3. "Close proximity" in section 3(b) was undefined and unclear.
4. License scope: distribute or not? Section 3(e) defined "marijuana license" as authorizing the licensee to "cultivate, produce, and sell" marijuana. But section 5(a) referred to a marijuana license authorizing the licensee to "cultivate, produce, distribute, and sell" marijuana. The discrepancy created ambiguity about whether a license was required for distribution.
5. Drafting error: missing subsection 4(e). Section 4 contained subsections (d) and (f), but no (e). That made it unclear how the lettered scheme worked, which had downstream effects (since other cannabis-amendment versions had relied on a 4(e)).
6. "Products that contain industrial hemp" in section 4(d) used a formulation different from the defined term "products produced." Unclear whether the two phrases meant the same thing.
7. "Certificate number" in section 3(l) was used without any other reference in the proposal to a "certificate." Meaning indeterminate.
8. "Marijuana products" and "industrial hemp products" were used in section 3(j) alongside the defined term "products produced." Unclear whether the bare phrases meant the same as "marijuana products produced" and "industrial hemp products produced."
9. "Global Positioning System location" was used in sections 4(f), 5(g), and 10(a). The AG observed that GPS appeared to be a reference to latitude and longitude (which exist independently of GPS as a technology), but could not be certain of that interpretation. The references' meaning therefore could not be determined.

Because these ambiguities sat in the underlying proposal and not just the ballot title, the AG once again declined to "substitute and certify" a corrected title under § 7-9-107(b). The AG instructed Berry to redesign 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.

The Arkansas Medical Marijuana Amendment (Amendment 98), a separate proposal not authored by Berry, was approved by Arkansas voters in November 2016 and established Arkansas's medical-marijuana regime. Recreational legalization remained a separate question, and the legal landscape around cannabis in Arkansas has changed several times since.

Background and statutory framework

Three submissions, three different results

This was the third AG opinion in the same long-running effort:

• April 25, 2016: AG certified an initial version of the Arkansas Cannabis Amendment.
• Opinion 2016-078 (August 1, 2016): AG rejected a revised version because the addition of section 4 (and other changes) introduced seven ambiguities. (See enrichment of Op. 2016-078.)
• Opinion 2016-089 (August 22, 2016, this opinion): AG again rejected the further-revised version because nine ambiguities remained, including the missing 4(e) drafting bug and unresolved regulatory-authority questions.

That sequence illustrates how the certification process functions when sponsors iterate. The AG identifies problems; sponsors revise; the AG reviews the new draft on its own terms. Old fixes do not insulate new drafting errors. Each draft starts the analysis fresh.

The AG's narrow role and the Roberts v. Priest rule

The framework is the same one set out in detail in Op. 2016-078 (and the cases listed in that enrichment): § 7-9-107 gives the AG a narrow review for honesty, intelligibility, and fair summarization; Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000), requires rejection when the underlying measure is internally ambiguous; and § 7-9-107(b) only authorizes substitution where the AG can determine what the measure actually does.

Why the GPS-location problem mattered

The "GPS location" references were not just imprecise drafting. The amendment was setting up a digital registry of license holders and required AGFC to maintain GPS data on industrial hemp fields and on marijuana co-op grow sites. Several substantive provisions of the measure turned on those GPS data points. If the term was indeterminate, the registry's contents were indeterminate, and the AG could not summarize a registry whose contents could not be determined.

Why agency-appointment vagueness mattered

The proposal made the Arkansas Game and Fish Commission, the Alcoholic Beverage Control Division, the Department of Health, and the Department of Agriculture into regulators of various aspects of the cannabis scheme. But it said only that "the State shall appoint" them, without specifying who in state government would do the appointing or by what process. The AGFC, ABC, and ADA already exist; "the State shall appoint" them does not match the standard way state authority is allocated by the constitution. The AG could not summarize a delegation he could not understand.

Why a missing subsection was a real problem

The drafting error in section 4 (subsection 4(d), then (f), with no (e)) was not just a typo. The April 25, 2016 certified version, the August 1 rejected version, and prior amendments all had a 4(e). The lettering pattern carried substantive meaning, and the AG had to write the ballot title in a way that voters could follow against the printed text of the measure. A missing subsection created a structural reading problem.

Common questions

Q: Could the sponsor try again?
A: Yes. The AG closed by instructing the sponsor to redesign and resubmit. There is no statutory cap on the number of attempts.

Q: Did the AG say cannabis amendments are bad policy?
A: No. Throughout all three opinions in the Berry cannabis sequence, the AG emphasized that the AG was not addressing merits, philosophy, or ideology. The AG's job is summary accuracy, not policy assessment.

Q: What's the practical lesson for a ballot-initiative sponsor?
A: Internal consistency in the measure text matters as much as ballot-title drafting. Sponsors should run the measure text against the AG's analysis of prior drafts, fix every flagged ambiguity, and check carefully for new drafting errors introduced in the rewrite. The Berry sequence shows how easy it is to fix some problems while introducing others.

Q: Did this proposal eventually pass?
A: This particular Berry proposal did not reach the November 2016 ballot. The Arkansas Medical Marijuana Amendment that voters approved that year (Amendment 98) was a separate, distinct measure.

Q: What is the relationship between this opinion and Op. 2016-078?
A: They are companion rejections in the same multi-round certification sequence. Op. 2016-078 listed seven ambiguities in an earlier draft; Op. 2016-089 listed nine ambiguities in a further-revised draft. The legal framework is the same in both.

Citations and references

Statutes:

• Ark. Code Ann. § 7-9-107 (Supp. 2015), AG certification of ballot titles
• Ark. Code Ann. § 7-9-107(b), substitution authority
• Ark. Code Ann. § 7-9-107(c), rejection authority
• Ark. Code Ann. § 7-5-309, five-minute voting-booth limit

Cases:

• Kurrus v. Priest, 342 Ark. 434, 29 S.W.3d 669 (2000) (Ark. Sup. Ct.)
• Donovan v. Priest, 326 Ark. 353, 931 S.W.2d 119 (1996) (Ark. Sup. Ct.)
• Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992) (Ark. Sup. Ct.)
• Arkansas Women's Political Caucus v. Riviere, 283 Ark. 463, 677 S.W.2d 848 (1984) (Ark. Sup. Ct.)
• Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950) (Ark. Sup. Ct.)
• Chaney v. Bryant, 259 Ark. 294, 532 S.W.2d 741 (1976) (Ark. Sup. Ct.)
• Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958) (Ark. Sup. Ct.)
• May v. Daniels, 359 Ark. 100, 194 S.W.3d 771 (2004) (Ark. Sup. Ct.)
• Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980) (Ark. Sup. Ct.)
• Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (1994) (Ark. Sup. Ct.)
• Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (1996) (Ark. Sup. Ct.)
• Christian Civic Action Committee v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (1994) (Ark. Sup. Ct.)
• Becker v. McCuen, 303 Ark. 482, 798 S.W.2d 71 (1990) (Ark. Sup. Ct.)
• Roberts v. Priest, 341 Ark. 813, 20 S.W.3d 376 (2000) (Ark. Sup. Ct.)

Related AG opinions:

• Op. Att'y Gen. 2016-078 (first rejection of revised Berry cannabis amendment)

Source

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

Original opinion text

Opinion No. 2016-089
August 22, 2016

Mary L. Berry, Sponsor
Post Office Box 511
Summit, AR 72677

Dear Ms. Berry:

I am writing in response to your request for certification, pursuant to Ark. Code Ann. § 7-9-107 (Supp. 2015), of the popular name and ballot title for a proposed initiated measure.

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 proposal.

The purpose of my review and certification is to ensure that the popular name and ballot title honestly, intelligibly, and fairly set forth the purpose of the proposed amendment or act.

REQUEST

You have requested certification, pursuant to Ark. Code Ann. § 7-9-107, of the following popular name and ballot title for a proposed constitutional amendment:

Popular Name
The Arkansas Cannabis Amendment

Ballot Title
An amendment to the Arkansas Constitution concerning the cannabis plant, providing that the cultivation, production, distribution, sale, possession, and use of the cannabis plant and products produced therefrom may not be prohibited under state law, but shall be regulated under state law; recognizing that such activities remain unlawful under federal law; providing for the release from incarceration, probation, or parole of all persons whose current and only conviction(s) in which they are serving were of state laws pertaining to the cultivation, production, distribution, sale, and possession of marijuana or possession of marijuana paraphernalia, and the expungement of records relating to such conviction(s); dividing cannabis into industrial hemp (containing 0.3% or less THC) and marijuana (containing more than 0.3% THC); regulating the cultivation, production, distribution and the sale of industrial hemp and products produced therefrom; providing that anyone 18 years of age or older may obtain an industrial hemp license permitting the person to cultivate industrial hemp; authorizing both medical and recreational use of marijuana; providing that anyone 21 years of age or older may obtain a marijuana license permitting the person to cultivate, produce, distribute, and sell marijuana and products produced therefrom; providing that a licensed person may cultivate up to 36 cannabis plants in a location not subject to public view without optical aid; providing that sales of recreational marijuana will be subject to existing sales taxes and an additional 5% excise tax; providing that the state shall not impose any tax on the retail sale of medical marijuana to patients; permitting medical use of marijuana by a person of any age whose physician has recommended such use in writing; providing that the manufacture, possession, purchase, sale, and distribution of marijuana paraphernalia is lawful under state law; and providing that the amendment (a) is not intended to require employers to permit activities relating to marijuana in the workplace, (b) is not intended to permit driving under the influence of marijuana, (c) is not intended to permit the transfer of recreational marijuana to anyone under 21 years of age, (d) nor permit anyone under 21 years of age to cultivate, produce, sell, possess, or use recreational marijuana.

RESPONSE

The popular name is primarily a useful legislative device. It need not contain detailed information or include exceptions that might be required of a ballot title, but it must not be misleading or give partisan coloring to the merit of the proposal. The popular name is to be considered together with the ballot title in determining the ballot title's sufficiency.

The ballot title must include an impartial summary of the proposed amendment or act that will give the voter a fair understanding of the issues presented. According to the Court, if information omitted from the ballot title is an "essential fact which would give the voter serious ground for reflection, it must be disclosed." At the same time, however, a ballot title must be brief and concise; otherwise voters could run afoul of Ark. Code Ann. § 7-5-309's five-minute limit in voting booths when other voters are waiting in line. The ballot title is not required to be perfect, nor is it reasonable to expect the title to cover or anticipate every possible legal argument the proposed measure might evoke. The title, however, must be "free of any misleading tendency whether by amplification, omission, or fallacy, and it must not be tinged with partisan coloring." The ballot title must be honest and impartial, and it must convey an intelligible idea of the scope and significance of a proposed change in the law.

Furthermore, the Court has confirmed that a proposed measure cannot be approved if the text of the proposal itself contributes to confusion and disconnect between the language in the popular name and the ballot title and the language in the proposed measure. The Court concluded that "internal inconsistencies would inevitably lead to confusion in drafting a popular name and ballot title and to confusion in the ballot title itself." Where the effects of a proposed measure on current law are unclear or ambiguous, it is impossible for me to perform my statutory duty to the satisfaction of the Arkansas Supreme Court without (1) clarification or removal of the ambiguities in the proposal itself, and (2) conformance of the popular name and ballot title to the newly worded proposal.

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 the measure itself. And thus I cannot determine precisely what changes to the ballot title are necessary to fully and correctly summarize your proposal. 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 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 proposal.

1. Sections 4(a) and 5(a) refer to revocation of industrial hemp licenses and marijuana licenses. Section 10(a) charges the Arkansas Game and Fish Commission ("AGFC") with "adopt[ing] penalties and procedures for revocation and suspension of such licenses for violations." Section 10 also charges other state agencies with regulatory roles. It is unclear and ambiguous whether such other agencies, or the General Assembly by legislation, may also adopt or enact rules under which licenses would be revoked.

2. Section 10 provides that "the State shall appoint" various agencies to undertake various tasks with respect to marijuana and hemp. The proposal is unclear and ambiguous with respect to how and by whom such appointments are to be effected.

3. Section 3(b) uses the phrase "close proximity where industrial hemp is being grown," a phrase of unclear meaning.

4. Section 3(e) defines "marijuana license" as a card that permits one to "cultivate, produce, and sell" marijuana. Section 5(a) refers to "a marijuana license that shall be issued and required by the state to authorize any person . . . to cultivate, produce, distribute, and sell marijuana." The provisions create ambiguity with respect to whether a license is required to distribute marijuana. Ambiguities similar to this one are common where a drafter defines terms and uses them with modifiers.

5. The proposal contains sections 4(d) and 4(f), but no section 4(e).

6. Section 4(d) refers to "products that contain industrial hemp." Because the proposal defines the term "products produced" with respect to industrial hemp, the use of another formulation implies a different meaning. It is unclear and ambiguous whether the phrase refers to "products produced."

7. Section 3(l) refers to a "certificate number." As the proposal contains no other reference to a certificate, the meaning of the phrase cannot be determined.

8. Section 3(j) defines "products produced" and refers to "marijuana products" and "industrial hemp products," apparently as subsets of "products produced." It is uncertain and ambiguous whether "marijuana products" and "industrial hemp products" mean the same things as "marijuana products produced" and "industrial hemp products produced."

9. The proposal contains several references to "Global Positioning System location" and the like. It appears likely that these references are to latitude and longitude, which exist independently of GPS and any other technology. I cannot, however, be certain of that interpretation and accordingly cannot determine the references' meaning.

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 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 proposed act along with a proposed popular name and ballot title at your convenience.

Sincerely,

LESLIE RUTLEDGE
Attorney General

Enclosure

[The full proposed measure text accompanied the rejection. It is preserved in the source PDF on the Arkansas AG website.]